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Quality Medical Solutions limited (QMS)
Standard Terms and Conditions of Business
Whereas:
A. Quality Medical Solutions Limited hereafter
referred to as ‘QMS’ are providers of software products and software
solutions, and services including but not limited to Installation
Support, Product and Solution Maintenance, Incident Management and Help
Desk, Consultancy, Training, and Business Support.
B. Organisations providing consideration for any
product, solution or service from QMS, and are hereafter referred to as
the ‘Client’, do so under the Standard Terms and Conditions of Business
contained herein, and agree to abide by their obligations herein.
C. QMS agree to abide by their obligations contained
herein.
D. Identification of: the Services to be delivered to
the Client; the Products and Software provided for use by the Client;
installation and delivery dates; Payment schedule; and any other
transaction specific clauses are contained within an agreement ( The
‘Agreement’) between the parties to which these Standard Terms and
Conditions of Business (STCB) are appended and applied.
E. QMS and the Client are each referred to as a
‘Party’, and together ‘Parties’.
Precedence:
In the event that any individual clause in an Agreement, associated
Licences and Sub-Licences and the STCB conflict, the order of
precedence shall be Agreement, Licence, Sub Licence, then the STCB.
1
Software Products and Software Solutions.
1.1 QMS supply software products ‘
Product(s)’, which are to be installed on the Client’s system(s).
1.2 QMS only permit use of the Product(s) in
accordance with appropriate and duly signed Licence and Sub Licence
arrangements.
1.3 From time to time QMS develop tailored and
bespoke software solutions ‘the Software’ which are installed on Client
provided information technology.
2
Services
2.1 QMS provide a variety of
services for Clients which may include but are not limited to Training,
Service Support, Installation, Maintenance and Updates and Consultancy,
hereafter referred to as ‘the Services’.
2.2 QMS does not warrant the validity of any
consultancy, or advice howsoever delivered by QMS representatives and
should not be relied upon without independent verification.
3
Warranty
3.1 Software and Services. QMS
Warrants that for a period of 30 days from installation of any QMS
sourced software, the software will operate substantially in accordance
with the documentation provided as part of the Agreement and in
accordance with Licences granted thereto.
4
Payment Terms
4.1 Payment shall be by electronic transfer.
4.2 Invoices shall be raised by QMS in accordance
with the terms and the charges, contained within the Agreement and
shall be paid no later than 30 days after the invoice date.
4.3 QMS reserve the right to charge interest on any
outstanding sum owing after the 30 day period has elapsed. Interest
shall be calculated daily at 5% above the Libor rate, prevailing on the
31st day after the invoice date, on the outstanding sum for each day
the sum remains outstanding.
4.4 QMS reserve the right to revoke licences,
de-install or otherwise render inoperative any products or solutions,
and delay any other delivery or service without risk of penalty until
such time as the outstanding balance has been settled.
5
Confidential Information
5.1 Any information gained, as a
result of working together, about the other, by persons working for the
Client or QMS, whether as an employee, agent or as a contractor, of a
confidential nature and/or commercially sensitive information will be
held as Confidential and not be disclosed to any other person or body,
except for purposes required to satisfy the Agreement and as required
by law.
5.2 Any information gained, as a result of working
together, that may be construed as personal data, whether of employees
or the general public, will be treated as Confidential and only
disclosed to the Client, or at their direction to a third party, if the
Client or 3rd Party has a right to that information and the information
is being used for a defined and specific purpose as determined by the
Data Protection Act. QMS will not retain such data unless specifically
required to do so under the Agreement and only then for a duration
explicitly defined in the Agreement.
5.3 The Client agrees that during the term of the
Agreement and upon expiry or termination of the Agreement it shall not
itself nor through any subsidiary or agent or otherwise, sell, license,
sub-license, or otherwise deal with any of the Software, Product or
Services (in whole or in part) except to the extent permitted by law,
or develop any software or have any software developed through use of
any confidential information supplied to it by QMS, or in any other way
obtained by the Client pursuant to the Agreement.
5.4 The Parties understand that from time to time the
Software, Product and certain Services will enable access to
confidential data including but not restricted to patient information
and the Parties confirm that all reasonable precautions will be
exercised to ensure that each Party complies with its obligations under
the Data Protection Act and all its subsequent amendments in respect of
such confidential data.
6
Intellectual Property
6.1 Copyright of any and all
materials developed by consultants delivering Services on behalf of QMS
including computer source code and intellectual property rights,
supplied to the client will remain copyright of QMS.
6.2 The Client acknowledges that any and all of the
copyright, database right, trade marks and other intellectual property
rights subsisting in or used in the Software, Product or Service,
including all documentation and manuals relating thereto are and shall
remain the property of QMS.
6.3 The Client shall not during or after the expiry
or termination of the Agreement, without the prior written consent of
QMS, use or adopt any name, or trade name, that includes or is similar
to or may be mistaken for the whole or any part of any trade mark, or
trade name used by QMS.
6.4 QMS will indemnify and hold harmless the Client
against all losses, costs, expenses, damages and demands arising out of
any claim that the Software, Product or Services infringe the
intellectual property rights of any third party and QMS will defend at
its own cost any such claim.
7
Liability and Indemnity
7.1 Nothing in the Agreement shall
mean that either Party excludes or limits its liability for fraud or
death or personal injury caused by its negligence
7.2 Nothing in the Agreement, STCB, supplied
Software, Product or Documentation explicitly or implicitly shall be
construed to imply any merchantability, suitability or fitness for any
particular purpose. QMS shall not be held liable to the Client or any
other persons for any loss or damage, whether direct or consequential,
arising directly or indirectly in connection with the Software, Product
or Services.
7.3 The Client agrees to indemnify QMS against all
consequences and possible actions that may arise from use of QMS’
Software, Product or delivery of the Services including, but not
limited to, patient information confidentiality.
7.4 Neither Party shall be liable to the other party
for any direct or indirect loss of profits or for any indirect or
consequential loss whatsoever.
7.5 Neither Party’s liability arising out of or in
connection with the Agreement, howsoever arising, shall exceed in
aggregate £50,000 (fifty thousand pounds).
8 Status
and Tax Liability
8.1 The Parties declare that it is
their intention that any consultant providing services to the Client on
behalf of QMS will be either employed by QMS or sub-contracted to QMS
and QMS shall be responsible for all and any appropriate tax
liabilities, including VAT and National Insurance Contributions, in
respect of the charges.
9
Assignment and Variation
9.1 Neither Party shall assign or
subcontract its duties or rights under the Agreement without prior
written consent of the other.
9.2 No variation shall be made to the terms of the
Agreement unless such variation is in writing and signed by the
authorised representative of the Parties.
10
Termination
10.1 This Agreement may be
terminated forthwith by either Party by notice in writing from the
Party not at fault if any of the following events occur:
10.1.1 If the other Party shall be in default under
the Agreement and shall fail to remedy such default (if capable of
remedy) within 30 days from receipt in writing from the first Party
specifying the default;
10.1.2 If the other Party becomes, in the reasonable
opinion of the first Party, unable to continue to trade and shall fail
to provide evidence to refute such claims within 30 days from receipt
in writing of the first Party specifying such reasons for termination;
10.1.3 If either Party is by virtue of a Force
Majeure Event prevented from performing its obligations under the
Agreement for a period of three (3) consecutive months.
10.2 The expiry of the Agreement shall be without
prejudice to the rights of the Parti8es accrued up to the date of such
expiry or termination
10.3 Upon Expiry or Termination of the Agreement for
whatever reason, the Client shall return to QMS, all Software, Product,
documentation and data supplied by QMS under the Agreement, together
with any and all copies made during the continuance of the Agreement.
10.4 The Agreement will expire at the end of the
Term. The client may continue to use the Software and or Product for up
to 30 consecutive calendar days after the end of the Term, however no
other services will be provided under the Agreement during this period.
For the avoidance of doubt the Term concludes after completion of all
the services identified in the Agreement and expiry of the last Product
or Software User Licence.
11
Relationship to Client
11.1 It is agreed and understood
that the Client is not an agent or representative of QMS and has no
power to bind in the name of QMS or to create any liability against
QMS.
11.2 It is agreed and understood that QMS is not an
agent or representative of the Client and has no power to bind in the
name of the Client or to create any liability against the Client.
12
Waiver.
12.1 Failure or neglect of either
Party to enforce at any time the provisions of the Agreement (and STCB)
shall not be construed nor shall be deemed as a waiver of the Party’s
rights, nor in any way affect the validity of the whole or any part of
the Agreement, nor prejudice either Party’s rights to pursue subsequent
action.
13
Notices.
13.1 Any notice required or
permitted under the terms of the Agreement or required by statute, law
or regulation shall be: in writing and delivered in person; or by
registered mail; or sent by facsimile; or sent by email (where proof of
which will be the recipients acknowledgement of receipt); to the
appropriate authorised representative, and signatory to the Agreement
or their senior.
14 The
Agreement
14.1 The Agreement supersedes any
arrangements, understandings, promises or agreements, involving similar
Services, Software or Product, made or existing between the Parties
prior to the Agreement and constitutes the entire understanding between
the Parties.
15
Severability
15.1 In the event that any part of
the terms, conditions or provisions of the Agreement shall be
determined by any competent authority to be invalid, unlawful or
unenforceable, the extent to which such judgement applies shall be
severed from the remaining terms, conditions or provisions which shall
continue to be valid and enforceable to the fullest extent permitted
under law.
16
Survival
16.1 Notwithstanding any
termination or expiration of the Agreement, sub clauses 5.1, 5.2, 5.3
and clauses 6, 7, 8 and 17 shall survive such termination or expiration.
17 Law
17.1 The Agreement and STCB shall
be governed by English Law.
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