inVita intelligence Limited
Terms And Conditions Of Trading

1. Interpretation

1.1. The definitions and rules of interpretation in this clause apply in these terms and conditions (the Terms):

Approved Equipment: Equipment supplied by inVita intelligence or a third party which is approved for use by inVita intelligence and is identified on the Estimate(s).

Branch Sites: the branch sites of the Location(s) agreed in writing between the parties.

Confidential Information: any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which would or would be likely to prejudice the commercial interests of any person, trade secrets, Intellectual Property Rights, know-how of either party and all personal data and sensitive data within the meaning of Data Protection Legislation.

Contract: these Terms, the relevant Estimate(s), the relevant Invoice(s) and the relevant EULA(s).

Controller: has the meaning given to it in the UK GDPR.

Customer: the legal entity identified on the Estimate(s) in the “Bill To” section who purchases Products from inVita intelligence on behalf of the Location(s).

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);and the guidance and codes of practice issued by the Information Commissioner.

Delivery Location: the address as set out in the Estimate in the “Ship To” section.

Documentation: the electronic and physical document made available by inVita intelligence to the Customer, the Location(s) and Patients from time to time which includes guidelines, help sites and user instructions.

Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

Estimate(s): the estimate or orders issued by inVita intelligence to the Location, or the third party acquiring the services on the Location’s behalf, setting out the details of the Contract.

Equipment: the device and/or component used for self-care that is approved by inVita intelligence and is identified on the Estimate(s).

Equipment Fee(s): the fee or fees payable by the Customer to inVita intelligence in connection with the sale or hire of the Equipment as set out on the Estimate(s).

EULA(s): inVita intelligence’s standard end user licence agreement governing the use of the Software which is accessible at https://www.invitaintelligence.com/legal.

FOIA: the Freedom of Information Act 2000 and any subordinate legislation made under that Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation.

Hire Period: the period of hire for the items of Equipment as set out in paragraph 2 of Schedule 2.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Information: has the meaning given under section 84 of FOIA.

Initial Estimate: the first Estimate issued by inVita intelligence to the Customer and forming part of the Contract.

inVita intelligence: inVita intelligence Limited.

inVita intelligence Group: means inVita intelligence, any subsidiary or any holding company from time to time of inVita intelligence, and any subsidiary from time to time of a holding company of that company. Each company in the inVita intelligence Group is a member of the inVita intelligence Group and the term “inVita intelligence Group Company” shall be construed accordingly.

Invoice(s): the invoice(s) issued by inVita intelligence to the Customer.

Licence Fee(s): the licence fee or fees payable for the use of the Software, the Documentation and/or Services as set out on the Estimate(s).

Location(s): the relevant legal entity, including their Branch Sites, agreed in writing between the parties that will be using the Software and Services and is acting as the Controller.

Patient(s): an individual or individuals accessing care/medical services from a relevant Location.

Patient Contract Terms: the contractual terms between the Patient and inVita intelligence to include terms applicable to the use of the Equipment, training and the application of the Patient Software.

Patient Data: the clinical information relating to Patients (including, but not limited to, Personal Data) collected by the Location, or the Patient, in the course of treating Patients which is inputted by the Users, Patients or inVita intelligence on the Location’s behalf, onto the Software for the purpose of using the Software.

Patient Records: the number of patient records which can be uploaded onto the Software as set out in the Estimate(s).

Patient Software: the specialist software developed by inVita intelligence to be used by Patients in connection with the Software, Services, training and Documentation.

Personal Data: has the meaning given to it in the UK GDPR.

Processor: has the meaning given to it in the UK GDPR.

Products: the items of Equipment, Services or Software stated in the Estimate(s).

Requests for Information: a request for information or an apparent request under the FOIA.

Risk Period: the Hire Period and any further term during which the items of Equipment are in the possession, custody or control of the Customer.

Services: the Services identified on the Estimate(s) and/or any other services.

Software: Patient Software and/or any other software (including software applications) owned by or licensed to inVita intelligence and identified on the Estimate.

Special Terms: the special terms which prevail over these Terms as set out in the Estimate(s).

Start Date: the start date set out on the Estimate which commences on the “Purchase Valid From” date.

Term: the term set out on the Estimate which commences on the “Purchase Valid From” date and ends on the “Purchase Valid Until” date.

Training: the training services to be provided by inVita intelligence to the Users.

Users: the Location’s employees, agents and independent contractors who are authorised by the Location to use the Software.

VAT: value added tax chargeable under UK law for the time being and any similar additional tax.

1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

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

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

1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.6. A reference to writing or written includes faxes and e-mail.

1.7. References to clauses and Schedules are to the clauses and Schedules of this Contract and references to paragraphs are to paragraphs of the relevant Schedule.

2. Application of terms

2.1. These Terms shall:

(a) apply to and be incorporated in the Contract; and

(b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on inVita intelligence unless in writing and signed by a duly authorised representative of inVita intelligence.

2.3. Any quotation is valid for a period of 30 days only and inVita intelligence may withdraw it at any time by notice to the Customer. The quotation will be set out on the Estimate(s).

2.4. The Customer’s signing and returning of the Estimate, or email to confirming its agreement to the Estimate, constitutes an offer by the Customer. The offer shall only be deemed to be accepted when inVita intelligence issues an email acceptance or Invoice (whichever is earlier), at which point the Contract shall come into existence.

3. Scope of Contract

3.1. The Contract governs the relationship between the Customer and inVita intelligence in respect of the provision of, as applicable:

(a) Software supplied by inVita intelligence to the Location(s) and/or the Customer;

(b) Services provided to Patients, Customers and Location(s);

(d) Equipment.

3.2. The Customer appoints inVita intelligence:

(a) to provide the Software to the Location(s);

(b) (where applicable) to provide the Services and Training; and

(d) subject to the Customer agreeing to abide by these Terms.

4. EULA

4.1. In consideration of the Customer agreeing to abide by these Terms, inVita intelligence hereby agrees to grant to the Location(s) and/or the Customer (if it requests a licence on the Estimate(s)) a non-exclusive, non-transferable right to use the Software in accordance with the terms of the relevant EULA or the third party software owner’s standard end user licence agreement.

4.2. The Customer is responsible for ensuring that the Users comply with the terms of the EULA and/or the third party software owner’s standard end user licence agreement when using the Software.

5. Services

5.1. The following provisions shall apply to Services offered to Patients:

(a) the application/extent of Services shall be as set out in the Estimate(s);

(b) the Customer shall procure that, subject to a Patient indicating an interest in proceeding with the Services and complying with the Patient Contract Terms, the Patient’s clinician carries out the required competency tests as defined in the Documentation;

(c) subject as provided in clause 6 below, inVita intelligence shall supply to the Customer the Equipment (to the relevant Delivery Location) in consideration of the payment by the Customer to inVita intelligence of the Equipment Fees; and

(d) the Customer shall pay to inVita intelligence the Equipment Fees and additional support and Training costs, if any, as set out in the Estimate(s) in accordance with clause 12.

5.2. The provisions of sub-clauses 5.1(c) and 5.1(d) shall not apply in the case of any Location or Patient that already owns or leases an Approved Equipment.

6. Supply of Equipment

6.1. The Equipment may either be (as confirmed on the Estimate(s)):

(a) sold to the Customer by inVita intelligence, in which case the terms set out in Schedule 1 shall apply;

(b) hired by the Customer from inVita intelligence, in which case the terms set out Schedule 2 shall apply; or

(c) already owned, or leased, by the Customer, Location or Patient, provided always that the Equipment is an Approved Equipment.

6.2. The following terms shall apply to any Equipment which is sold or hired to the Customer by inVita intelligence:

(a) following receipt of an order for Equipment set out on the Estimate, inVita intelligence shall deliver the Equipment to the Delivery Location; and

(b) delivery of the Equipment shall be completed on delivery at the Delivery Location.

6.3. In the event of any product recall of any Equipment, the Customer agrees that it shall cooperate with inVita intelligence to enable it (and its third party suppliers) to fulfil its vigilance duties, in entirety, with respect to Article 83 of the European Regulation on In-Vitro Diagnostic Medical Devices 2017/746/EU and Annex III(5) of IVDD 98/79/EC as referenced by Part IV – Section 40(1)(a) of the UK MDR 2002 SI 618.

7. Customer obligations

7.1. The Customer shall:

(a) ensure that the Software is only used for the purposes outlined in the EULA(s) or the third party software owner’s standard end user licence agreement (if applicable):

(b) at all times co-operate with inVita intelligence and provide information as may be reasonably required by inVita intelligence;

(d) ensure that each of the Location(s) appoints a representative and shall inform inVita intelligence of the identity such representative;

(e) in the event that the Customer is a separate legal entity and processes Patient Data on behalf of the Location(s):

(i) enter into a written contract with each of the Location(s) (the Controller of the Patient Data) setting out the nature and purposes for which the Customer (acting as a Processor) is permitted to use the Patient Data, the duration for which the Customer is permitted to use the Patient Data, the security measures which must be put in place by the Customer and the procedures which must be followed if there is a security breach;

(ii) act only on documented instructions from the Location(s), including instructions to return or destroy the copies of the Patient Data held by the Customer at the end of the term of their contractual relationship;

(iii) at all times comply with its obligations under the Data Protection Legislation;

(iv) ensure that it has in place appropriate technical, contractual and organisational measures to ensure the security of the Patient Data and provide the Location(s) with all information necessary to demonstrate compliance with its obligations under the Data Protection Legislation;

(v) ensure it has appropriate measures in place to assist the Location(s) in complying with Patient rights under the Data Protection Legislation;

(vi) maintain good information governance standards and practices (such as the NHS Data Security Protection Toolkit);

(vii) not disclose the Patient Data to any third party without obtaining the prior written consent of the Location(s);

(viii) not sub-contract the processing of the Patient Data without obtaining the prior written consent of the Location(s). Such sub-contract must be on the same terms and impose the same data protection obligations on the sub-processor as those set out in the written contract between the Customer and Location(s); and

(ix) not transfer the Patient Data outside the UK.

7.2. If inVita intelligence’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to inVita intelligence on demand all reasonable costs, charges or losses sustained or incurred by it, subject to inVita intelligence confirming such costs, charges and losses to the Customer in writing.

7.3. The Customer shall not, without the prior written consent of inVita intelligence, at any time from the date of the Contract to the expiry of 12 months after termination of the Contract, solicit or entice away from inVita intelligence or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of inVita intelligence.

7.4. The Customer shall be liable for all acts and omissions of the Location(s) and shall indemnify inVita intelligence against all costs, expenses, claims, loss or damage incurred or suffered by inVita intelligence, or for which inVita intelligence may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill) arising out of any act or omission of the Location(s).

8. Data Protection

8.1. inVita intelligence and the Customer shall duly observe and comply with all applicable obligations under the Data Protection Legislation which arise in connection with the Contract. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

8.2. inVita intelligence may use Personal Data relating to the Customer’s employees, agents and independent contractors in accordance with its privacy policy as displayed on its website from time to time. For the purposes of this clause 8.2, inVita intelligence is the Controller of such Personal Data.

8.3. The parties acknowledge that for the purposes of the Data Protection Legislation, the Location(s) (who may also be the Customer) is the Controller and inVita intelligence is the Processor of the Patient Data and other related Personal Data provided by the Location(s) to inVita intelligence for processing in accordance with clauses 8.5 and 8.6. Schedule 3 sets out the scope, nature and purpose of processing by inVita intelligence, the duration of the processing and the types of Personal Data and categories of Data Subject (as defined in the Data Protection Legislation).

8.4. Without prejudice to the generality of clause 8.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to inVita intelligence for the duration and purposes of the Contract.

8.5. Notwithstanding the general obligation in clause 8.1, where inVita intelligence is processing Personal Data as a Processor for the Location(s), inVita intelligence shall:

(a) only process that Personal Data on the written instructions of the Customer which are set out in Schedule 1 unless inVita intelligence is required by Domestic Law to otherwise process that Personal Data. Where inVita intelligence is relying on Domestic Law as the basis for processing Personal Data, inVita intelligence shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless those Domestic Law prohibit inVita intelligence from so notifying the Customer;

(b) ensure that it has in place appropriate technical, contractual and organisational measures to protect against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

(d) assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with the Information Commissioner or regulators;

(e) notify the Customer without undue delay on becoming aware of a breach of Personal Data;

(f) maintain complete and accurate written records and information of its Personal Data processing activities to demonstrate compliance with this clause 8 and clause 10; and

(g) not transfer any Personal Data outside the UK unless the Customer’s prior written consent is obtained and appropriate safeguards have been put in place. The Customer agrees that Personal Data relating to the Customer’s employees, agents or independent contractors may be transferred outside the UK provided that appropriate safeguards in relation to the transfer are in place and inVita intelligence ensures that an adequate level of protection is provided to all Personal Data transferred.

8.6. The Customer consents (or where the Customer is a separate legal entity to the Locations(s), the Customer shall obtain the consent of the Location(s)) to inVita intelligence appointing third party data repository providers (which includes any member of the inVita intelligence Group), third party mobile application providers, third party delivery providers, third party suppliers of equipment, third party services providers (who may provide telephone support services and technical support services), third party software providers and third party hosting providers as a third party processor of Personal Data under the Contract. inVita intelligence confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement substantially on that third party's standard terms of business. As between the Customer and inVita intelligence, inVita intelligence shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 8.6.

9. Anonymised data

The Customer agrees that inVita intelligence may create anonymised data from the Patient Data inputted into the Software by the Location(s).

10. Personal and Patient Data

inVita intelligence may only use the Patient Data for the Term. At the end of the Term, and at the written direction of the Customer, inVita intelligence shall return (to the Customer or the Location(s)) or destroy copies of any Patient Data (unless a longer retention period is required by Domestic Law). The Customer acknowledges and agrees that it may be required to store copies of the Patient Data after the end of the Term for the purpose of complying with Domestic Law relating to clinical data and preventing clinical risks.

11. Freedom of Information

11.1. inVita intelligence acknowledges that the Customer may be subject to the requirements of the FOIA and shall assist and co-operate with the Customer (at the Customer’s expense) to enable the Customer to comply with these information disclosure requirements.

11.2. inVita intelligence shall:

(a) transfer any Request for Information to the Customer as soon as reasonably practicable after receiving a Request for Information;

(b) provide the Customer with a copy of all Information in its possession or power in the form that the Customer requires (at the Customer’s cost) as soon as reasonably practicable after the Customer requests that Information; and

(c) provide all necessary assistance as reasonably requested by the Customer (at the Customer’s cost) to enable the Customer to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA.

11.3. In no event shall inVita intelligence respond directly to a Request for Information.

12. Price and payment

12.1. The Licence Fees and the Equipment Fees shall be as stated on the Estimate(s). The Licence Fees and Equipment Fees are payable by the Customer on the payment dates set out on the Invoice(s). The Customer shall pay the Licence Fees and the Equipment Fees to inVita intelligence in accordance with this clause 12.

12.2. The Equipment Fees exclude the costs and charges relating to packaging, insurance and transport of the Equipment.

12.3. All amounts, Licence Fees and Equipment Fees stated or referred to in the Contract:

(a) shall be payable in pounds sterling; and

(b) are non-cancellable and non-refundable.

12.4. inVita intelligence may Invoice the Customer for the Licence Fees and the Equipment Fees at any time after the Customer signs and returns the Estimate. The Customer shall pay each Invoice in full, and in cleared funds within 30 days of receipt. Time for payment of the Licence Fees and the Equipment Fees shall be of the essence of the Contract.

12.5. If inVita intelligence has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of inVita intelligence:

(a) inVita intelligence may, contact the Location(s) and request that the Location(s) pay the outstanding Licence Fee and/or Equipment Fee. In the event that the Location(s) pays outstanding Licence Fee and/or Equipment Fee, the Contract will continue in full force and effect, as if it had been entered into between inVita intelligence and the Location(s), to the exclusion of the Customer. In complying with this clause 12.5(a), inVita intelligence does not waive any breach of these Terms or default under these Terms by the Customer;

(b) in the event of non-payment of the Licence Fees, inVita intelligence may, without liability to the Customer, disable the Location’(s) and/or Customer’s access to all or part of the Software and suspend the provision of any Services on providing reasonable prior written notice to the Customer and inVita intelligence shall be under no obligation to provide any or all of the Software or the Services while the outstanding Licence Fees remain unpaid;

(c) in the event that the Location does not pay the outstanding Licence Fee or Equipment Fee in accordance with clause 12.5(a) above interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

12.6. All amounts and fees stated or referred to in these Terms are exclusive of value added tax, which shall be added to the Invoice(s) at the appropriate rate.

12.7. All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

12.8. All sums payable to inVita intelligence under the Contract shall become due immediately on termination, despite any other provision of the Contract. This clause 12.8 is without prejudice to any right to claim for interest under the law, or any right under the Contract.

13. Additional patient records

The Customer may from time to time purchase additional Patient Records in excess of the number set out on the Estimate. Following receipt of a written order from the Customer, inVita intelligence shall allow the Location(s) to use the Software to upload additional Patient Records in accordance with the terms of the relevant EULA.

14. Limitation of liability

14.1. The Customer agrees that the Location(s) and/or Customer (if relevant) will assume sole responsibility for results obtained from the use of the Software by the Location(s) and/or Customer or the use of any Equipment by a Patient, and for conclusions drawn from such use. inVita intelligence shall have no liability for any damage caused by errors or omissions in any information provided by the Location(s) or the Patient, or any actions taken by inVita intelligence at the Location(s)’ direction.

14.2. If any Equipment should prove to be not fit for its intended purpose within 12 months of the date of the relevant Invoice (or with their expiry date if earlier or later) when stored and used correctly, inVita intelligence will either replace or, at its sole option, refund the purchase price but shall have no liability to the Customer for any other consequential loss, damage or expense.

14.3. inVita intelligence shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of income, loss of profits or contracts, loss of business, business interruption, loss of money or anticipated savings, loss of or depletion of opportunity, goodwill, reputation and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract.

14.4. Other than the losses set out in clause 14.3 (for which inVita intelligence is not liable), inVita intelligence's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total fees paid by the Customer to inVita intelligence during the 12 months immediately preceding the date on which the claim arose.

14.5. Nothing in these Terms excludes inVita intelligence’s liability for:

(a) death or personal injury caused by negligence;

(b) for fraud or fraudulent misrepresentation;

(c) where the Equipment have been sold to the Customer, breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

(d) any other matter in respect of which it would be unlawful for inVita intelligence to exclude or restrict liability.

14.6. These Terms sets out the full extent of inVita intelligence’s liabilities in respect of the Software, the Documentation, the Services and the Training. Except as expressly stated in these Terms, there are no conditions, warranties, representations or other terms, express or implied, that are binding on inVita intelligence. Any condition, warranty, representation or other terms implied into, or incorporated in, the Contract whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

14.7. The Customer agrees to indemnify and hold inVita intelligence harmless from and against any claims, costs, expenses, and damages arising out of the abnormal or improper use, misuse or neglect of the Equipment or any breach of these Terms or default on the part of the Customer.

15. Proprietary Rights

15.1. The Customer acknowledges that inVita intelligence and/or its licensors own all Intellectual Property Rights in the Software, the Documentation, the Services and the Training (including the training materials). Except as expressly stated herein, this Contract does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, the Documentation, the Services or the Training.

16. Confidentiality

16.1. Subject to clause 16.2, the parties shall keep confidential the Confidential Information of the other party and shall use all reasonable endeavours to prevent their representatives from making any disclosure to any person of the Confidential Information.

16.2. Clause 16.1 shall not apply to any disclosure of information:

(a) required by any applicable law, provided that clause 11 shall apply to any disclosures required under the FOIA;

(b) that is reasonably required by persons engaged by a party in the performance of that party's obligations under the Contract;

(c) where a party can demonstrate that such information is already generally available and in the public domain otherwise than as a result of a breach of clause 16.1;

(d) which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party, and the disclosing party is not under any obligation of confidence in respect of that information;

(e) by a party when the other party has given its prior written consent to disclosure.

16.3. This condition 16 shall survive termination of the Contract, however arising.

17. Term and Termination

17.1. The Contract shall commence on the Start Date and shall, unless otherwise terminated as provided in this clause 17, continue until the expiry of the Term when it terminates automatically without notice.

17.2. The Customer acknowledges that inVita intelligence, without liability to the Customer, may terminate a EULA or a third party software owner’s standard end user licence agreement with one or more of the Locations or the Customer in accordance with the terms of the relevant EULA or the third party software owner’s standard end user licence agreement. Termination of a EULA or the third party software owner’s standard end user licence agreement shall not affect any other EULA or third party software owner’s standard end user licence agreement granted to other Locations or the Customer pursuant to this Contract.

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

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

(b) the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

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

(e) 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;

(f) 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; or

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

17.4. Upon termination of this agreement, however caused the Customer shall pay to inVita intelligence on demand:

(a) all Equipment Fees and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 12.5(c); and

(b) any costs and expenses incurred by inVita intelligence in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).

17.5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

17.6. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.

18. Precedence of Documents

18.1. In the event of, and only to the extent of, any conflict or inconsistency between the terms of the Contract, such conflict or inconsistency shall be resolved according to the following order of priority:

(a) the Estimate(s);

(b) these Terms; and

(c) the terms of the EULA(s) or the third party software owner’s standard end user licence agreement. In the event that inVita intelligence grants a licence to use more than one piece of Software, the order of priority shall reflect the order in which the Software is listed on the Estimate.

19. Force majeure

inVita intelligence shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of inVita intelligence or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Licensee is notified of such an event and its expected duration.

20. Variation

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

21. Waiver

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

22. Severance

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

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

23. Entire Contract

23.1. The Contract constitutes the entire Contract between the parties and supersedes and extinguishes all previous Contracts, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

23.2. Each party acknowledges that in entering into this Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

24. Assignment

24.1. The Customer shall not, without the prior written consent of inVita intelligence, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

24.2. inVita intelligence may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

25. Third party rights

No one other than a party to this Contract, their successors and permitted assignees and any member of the inVita intelligence Group, shall have any right to enforce any of its terms.

26. Notices

26.1. Any notice required to be given under this Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its postal address set out on the Estimate(s), or such other address as may have been notified by that party for such purposes.

26.2. A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

27. Governing law and Jurisdiction

27.1. 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 the law of England and Wales.

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

SCHEDULE 1

Equipment Sale Terms

1. Equipment Sales

If confirmed on the Estimate(s), inVita intelligence shall sell the Equipment to the Customer subject to the terms of this Schedule 1. For the avoidance of doubt, the number and type of items of Equipment to be supplied by inVita intelligence shall be as set out on the Estimate(s).

2. Title and risk

2.1 The risk of damage to or loss of the Equipment shall pass to the Customer on completion of delivery at the Delivery Location.

2.2 The title to the Equipment shall pass to the Customer only on payment in full (in cash or cleared funds) of the Device Fees.

2.3 Until title to the Equipment has passed to the Customer, the Customer shall:

(a) not remove, deface or obscure any identifying mark on or relating to the Equipment;

(b) maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price from the date of delivery; and

(c) notify inVita intelligence immediately if it becomes subject to any of the events listed in clauses 17.3(c), 17.3(d), 17.3(e), 17.3(f) or 17.3(g).

2.4 inVita intelligence may recover Equipment in which title has not passed to the Customer. The Customer irrevocably licenses inVita intelligence, its officers, employees and agents, to enter any premises of the Customer, in order to satisfy itself that the Customer is complying with the obligations in paragraph 2.3 of this Schedule 1 and to recover any Equipment in which property has not passed to the Customer.

3. Manufacturer's warranties

3.1 To the extent that the benefit of any warranties made by the manufacturer the Equipment can be assigned to the Customer, inVita intelligence shall, if requested by the Customer and at cost of the Customer, assign them to the Customer.

3.2 Until such assignment, inVita intelligence shall co-operate with the Customer in any reasonable arrangements to provide the Customer with the benefit of such warranties at the cost of and for the benefit of the Customer.

SCHEDULE 2

Equipment Hire Terms

1. Equipment hire

If confirmed on the Estimate(s), inVita intelligence shall hire the Equipment to the Customer subject to the terms of this Schedule 2. For the avoidance of doubt, the number and type of items of Equipment shall be as set out on the Estimate(s).

2. Hire Period

The Hire Period starts on the Start Date and shall continue for the term set out at clause 1.1.

3. Hire Payments

The Customer agrees pay the Equipment Fee for each item of Equipment to inVita intelligence in accordance with clause 12. For the avoidance of doubt, the Equipment Fees shall be payable by the Customer on the payment dates set out on the relevant Invoice(s).

4. Title, risk and insurance

4.1 The Equipment shall at all times remain the property of inVita intelligence, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment).

4.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on completion of delivery at the Delivery Location. The Equipment shall remain at the sole risk of the Customer during the Risk Period until such time as the Equipment is redelivered to inVita intelligence. During the Hire Period and the Risk Period the Customer shall, at its own expense, obtain and maintain the following insurances:

(a) insurance of each item of Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as inVita intelligence may from time to time nominate in writing;

(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as inVita intelligence may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and

(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as inVita intelligence may from time to time consider reasonably necessary and advise to the Customer.

4.3 The Customer shall give immediate written notice to inVita intelligence in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer's, the Location’s or the Patient’s possession or use of the Equipment.

4.4 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to inVita intelligence and proof of premium payment to inVita intelligence to confirm the insurance arrangements.

5. Manufacturer's warranties

5.1 The Customer acknowledges and agrees that the Equipment is not manufactured or produced by inVita intelligence. inVita intelligence shall endeavour to ensure that the Customer shall be entitled to such warranty or other benefit as inVita intelligence has received from the manufacturer of the Equipment.

5.2 The Customer shall notify inVita intelligence of any defect in the Equipment in writing within 15 Business Days of the defect occurring and shall permit inVita intelligence, or its authorised agent, to examine the alleged defect.

6. The Customer’s hire responsibilities

6.1 The Customer shall during the term of this agreement:

(a) ensure that the Equipment is used only for the purposes for which it is designed, and operated in a proper manner by fully trained Patients in accordance with any operating instructions;

(b) maintain at its own expense the Equipment in good and substantial repair in order to keep it in good operating condition;

(c) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of inVita intelligence;

(d) maintain records of the Locations and Patients using the Equipment and make copies of such records readily available to inVita intelligence, together with such additional information as inVita intelligence may reasonably require;

(e) deliver up the Equipment at the end of the Hire Period or on earlier termination of this agreement at such address as inVita intelligence requires; and

(f) not do or permit to be done anything which could invalidate the insurances referred to in paragraph 4 of this Schedule 2.

SCHEDULE 3

Processing, Personal Data and Data Subjects

1. Processing by inVita intelligence and members of the inVita intelligence Group

1.1 Nature and Purpose of processing

inVita intelligence, and any member of the inVita intelligence Group, may process Personal Data:

to provide the Products and Services to the Customer, the Location(s) or the Patients (as the case maybe);
support, maintenance and patient safety (including the investigation of faults);
to improve the performance or features of the Software;
to provide feedback to the Location(s) and/or Patient and improve the performance of the service that the Location(s) provide. Such feedback may also be disclosed to the Customer, provided that a suitable data sharing agreement has been entered into between the Location(s) and Customer;
to improve or develop any items of Equipment, Services or Software;
to improve the understanding, treatment, outcomes and choice for Patients and healthcare professionals; and
to comply with any relevant statutory or regulatory requirement imposed on inVita intelligence from time to time.

inVita intelligence may create anonymised data from the Patient Data inputted into the Software by the Location(s) provided that ISB1523 Anonymisation Standards for Publishing Health Care Data is observed.

1.2 Subject matter and duration of the processing

The subject matter and duration of the processing are set out in the Contract. For the avoidance of doubt, at the end of the Term, and at the written direction of the Customer, inVita intelligence shall return (to the Customer or the Location(s)) or destroy copies of any Patient Data (unless a longer retention period is required by Domestic Law). The Customer acknowledges and agrees that it may be required to store copies of the Patient Data after the end of the Term for the purpose of complying with Domestic Law relating to clinical data and preventing clinical risks.

2. Types of personal data

Personal data including name and contact information (email address, telephone number and postal address);
Financial details; and
data concerning health including healthcare conditions affecting Patients and any prescribed medical and dosage requirements.

3. Categories of data subject

the Customer’s and Location’s employees, agents and independent contractors;
Patient(s);
Parent or Guardian of a Patient;
a person with authority to make decisions on a Patient’s behalf (e.g with Power of Attorney);
a Patient’s carer; and
a Patient’s next of kin.

inVita intelligence LimitedTerms And Conditions Of Trading

inVita intelligence Limited
Terms And Conditions Of Trading