Terms & Conditions
1.1 The definitions and rules of interpretation in this clause apply in these conditions.
|“Authorised Users”||those employees, agents and independent contractors of the Customer who are engaged by and authorised by the Customer to use the Services and QCS Documentation or otherwise any person with the prior written consent of QCS for use in the Customer’s business.|
|“Business Day”||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.|
|“Change of Control”||shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.|
|“conditions”||these terms and conditions.|
|“Confidential Information”||information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.5.|
|“Contract”||the Order Confirmation and the Customer’s acceptance of it pursuant to clause 4.1.|
|“CQC”||Care Quality Commission.|
|“Customer”||the firm, persons or business who purchase Services from QCS.|
|“Customer Data”||the data inputted by the Customer, Authorised Users, or QCS on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.|
|“Effective Date”||the date on which QCS grants access to the Services pursuant to a Trial Licence and if applicable any subsequent Licence.|
|“Full Payment Plan”||a Contract under which the Customer shall pay the Licence Fees by payment of the full Licence Fee upon entering into the Contract.|
|“Initial Licence Term”||the initial term of the Contract and duration of a Licence as set out in the relevant Order Confirmation issued by QCS and accepted by the Customer pursuant to clause 4.|
|“Licence”||a licence purchased by the Customer pursuant to the conditions which entitle Authorised Users to access and use the Services and QCS Documentation at a specific Registered Location in accordance with these conditions.|
|“Licence Fees”||the licence fees payable by the Customer to QCS for each Licence.|
|“Licence Term”||has the meaning given in clause 17 (being the Trial Period, Initial Licence Term together with any subsequent Renewal Periods).|
|“Normal Business Hours”||9.00 am to 5.00 pm local UK time, each Business Day.|
|“Order Confirmation”||the order for Services as set out in the website link which is emailed to the Customer and which the Customer shall click on “Accept” in order to enter into the Contract and accept these conditions.|
|“Premium Compliance Plan”||a Contract under which the Customer shall pay the Licence Fees by 12 monthly instalments.|
|“QCS”||Quality Compliance System Ltd a private limited company with the company number: 06234100 whose registered office is at Regus House, Highbridge Industrial Estate, Oxford Rd, Uxbridge, UB8 1HR.|
|“QCS Documentation”||those documents, policies, manuals, forms, toolkits and materials made available to the Customer by QCS online via the Website and certain documents in electronic and hard copy format.|
|“Registration”||registration with the CQC or such other regulatory body and “Registered” shall be construed accordingly.|
|“Registered Location”||the location in which, or from which, regulated activities are provided or managed by the Customer (and is stated on the Order Confirmation or as agreed between the Customer and QCS).|
|“Renewal Period”||the period described in clause 17.|
|“Services”||the subscription services provided under these conditions by QCS to the Customer via the Website, as more particularly described by the information made available via the Website and including use and access to the Software and QCS Documentation.|
|“Software”||the online software applications provided under these conditions by QCS via the Website as part of the Services.|
|“Trial Licence”||a licence granted by QCS pursuant to clause 3.|
|“Trial Period”||24 hours.|
|any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.|
|“Website”||www.qcs.co.uk or such other website address as may be notified to the Customer from time to time.|
1.2 Clause headings shall not affect the interpretation of the conditions.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Customer’s acceptance of an order confirmation pursuant to clause 4.1 and shall include all subordinate legislation made as at that date under that statute or statutory provision.
1.8 A reference to writing or written includes e-mail but not faxes.
1.9 References to clauses are to the clauses of these conditions.
- APPLICATION OF CONDITIONS
2.1 These conditions shall:
(a) for the duration of any Trial Period apply to any use of the Services made available to the Customer;
(b) apply to and be incorporated in the Contract; and
(c) 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 (including the Conditions) shall be binding on QCS unless in writing and signed by a duly authorised representative of QCS.
3.1 QCS may choose (at its sole discretion) to grant the Customer a personal, non-transferable, non-exclusive licence (a “Trial Licence”) for limited use of the Services during the Trial Period solely for the purposes of evaluation of the Services by the Customer for use in the Customer’s business.
3.2 The Customer acknowledges and agrees that access to the Services will, or may, be limited (at the Supplier’s sole discretion) and/or may automatically “time out” (that is to say, cease to operate) at the end of the Trial Period if the Customer has not at that time accepted an Order Confirmation and made payment of the applicable Fees in full and cleared funds.
3.3 A Trial Licence does not allow or authorise a Customer to print, copy, adapt, or revise any QCS Documentation. The Trial Licence and Trial Period are to allow a Customer to view the QCS Documentation online only.
3.4 During the Trial Period the Trial Licence may be terminated:
(a) immediately by QCS giving notice if the Customer is in breach of any applicable provision of these conditions;
(b) by the Customer at any time during the Trial Period on written notice; or
(c) upon acceptance by the Customer of an Order Confirmation in accordance with clause 4.
3.5 Upon termination not followed by the grant of a Licence under these conditions, the Customer shall completely delete all electronic copies of all or any part of the Software and/or QCS Documentation in their possession or control.
3.6 Save for death and personal injury caused by QCS’ negligence, QCS shall have no liability of any kind in any circumstances whatever to the Customer in respect of the use of Services, Software or QCS Documentation during a Trial Period. In particular, QCS shall have no liability in any circumstances whatever for any data loss or corruption caused during a Trial Period and the Customer agrees that it has sole responsibility for protecting its data during evaluation of the Services.
3.7 No representations, conditions, warranties or other terms of any kind are given in respect of the Services, Software or QCS Documentation accessed during a Trial Period, and all statutory warranties and conditions are excluded to the fullest extent possible.
- ORDER CONFIRMATION
4.1 The QCS Order Confirmation constitutes an offer by QCS to supply the Services specified therein subject to these conditions and payment made whether in whole or part together with the grant of access to the Services by QCS and acceptance of which by the Customer shall establish a contract for the supply and purchase of those Services on these conditions.
4.2 The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in correspondence between it and QCS shall not govern the Contract or use of the Services.
5.1 Subject to:
(a) the Customer purchasing additional Licences in accordance with clause 7.1;
(b) QCS receiving payment in accordance with clause 11.1; and
(c) the restrictions set out in this clause 5 and the other clauses of these conditions,
QCS hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and QCS Documentation during the Licence Term solely for the Customer’s internal business operations.
5.2 The Customer may use the Services to do the following:
(a) search, view, copy, revise, customise, print out and use QCS Documentation solely for its own business purposes; and
(b) make available to employees, staff and duly authorised agents copies of QCS Documentation (whether modified, adapted or revised) on a reasonable, non-systematic basis that is not commercially prejudicial to QCS, subject to crediting third parties where such material (if any) is attributed to them for the Customer’s business purposes only; and
(c) for the purpose of undertaking its ordinary and usual business of the same nature of services which the CQS Documentation provided are in respect of.
5.3 In relation to all Licences and any Trial Licence, the Customer undertakes that:
(a) it shall only use the Services and QCS Documentation in accordance with these conditions, including but not limited to the provisions of clause 5.2 and shall not permit, assist, illicit or allow any third party to otherwise do so;
(b) it shall hold a Licence for each Registered Location which it operates or at which the Services or QCS Documentation are accessed or in any way utilised;
(c) it will not allow Authorised Users at more than one Registered Location to access the Services or otherwise utilise QCS Documentation;
(d) the maximum number of Authorised Users that it authorises to access and use the Services and QCS Documentation shall not exceed such number reasonably required for its business;
(e) each Authorised User shall keep a secure password for his use of the Services and QCS Documentation, that such password is frequently changed and that each Authorised User shall keep his password confidential;
(f) if any password has been provided to any individual who is not an Authorised User, then without prejudice to QCS’ other rights, the Customer shall promptly disable such passwords and QCS shall not issue any new passwords to any such individual;
(g) if the Customer has underpaid Licence Fees to QCS, whether as a result of breaching any of the undertakings in this clause 5.3 or otherwise, then without prejudice to QCS’ other rights, the Customer shall pay to QCS an amount equal to such underpayment as calculated by QCS in accordance with applicable Licence Fees effective at the relevant date within 10 Business Days or written notice from QCS.
5.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and QCS reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
5.5 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under these conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and QCS Documentation in order to build a product or service which competes with the Services and/or QCS Documentation; or
(c) use the Services and/or QCS Documentation to provide similar products or services to third parties; or
(d) subject to clause 25.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or QCS Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or QCS Documentation, other than as provided under this clause 5.
5.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or QCS Documentation and, in the event of any such unauthorised access or use, promptly notify QCS.
5.7 The rights provided under this clause 5 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
6.1 QCS shall, during the Licence Term, provide the Services to the Customer on and subject to the terms of these conditions.
6.2 QCS shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that QCS has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
6.3 QCS will, as part of the Services and at no additional cost to the Customer, provide the Customer with QCS’ standard customer support services during Normal Business Hours.
- ADDITIONAL LICENCES
7.1 Each Licence, granted pursuant to clause 5, permits the Customer access and/or use of the Services at and for a single Registered Location only.
7.2 Subject to clause 7.3 and clause 7.4, the Customer may, from time to time during the Licence Term, purchase additional Licences for Registered Locations in excess of the number set out in Order Confirmations issued to the Customer and QCS shall grant access to the Services and QCS Documentation for such additional Registered Locations in accordance with these conditions.
7.3 If the Customer wishes to purchase additional Licences, the Customer shall notify QCS in writing. QCS shall evaluate such request for additional Licences and respond to the Customer with approval or rejection of the request.
7.4 If QCS approves the Customer’s request to purchase additional Licences, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant Licence Fees for such additional Licences according to QCS’ most recent price lists in place at such time and, if such additional Licences are purchased by the Customer part way through the Initial Licence Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Licence Term or then current Renewal Period (as applicable).
7.5 Notwithstanding any other rights or remedies available to QCS pursuant to these conditions or otherwise, in the event of a Customer allowing access to the Services at a location without purchasing an additional licence for that additional location pursuant to clause 7.2, QCS may charge the Customer the full list price for each location that has accessed the Services, notwithstanding any discount that has previously been granted to the Customer.
- CUSTOMER DATA
8.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
8.2 QCS shall follow its archiving procedures for Customer Data as follows (and such procedure may be amended by QCS at its sole discretion from time to time):
(a) File System:
– multiple copies of file system at geographically distributed locations; and
– copies created instantly as soon as files created; and
(b) Database System:
– full back up taken every 4 hours; and
– backups replicated across multiple geographic locations.
In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for QCS to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by QCS in accordance with the archiving procedure described herein. QCS shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by QCS to perform services related to Customer Data maintenance and back-up).
8.4 If QCS processes any personal data on the Customer’s behalf when performing its obligations under these conditions, the parties record their intention that the Customer shall be the data controller and QCS shall be a data processor and in any such case:
(a) QCS will only store the personal data inside the UK or the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and QCS’ other obligations under these conditions;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to QCS so that QCS may lawfully use, process and transfer the personal data in accordance with these conditions on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
- SUPPLIER’S OBLIGATIONS
9.1 QCS undertakes that the Services will be performed with reasonable skill and care.
9.2 The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to QCS’ instructions, or modification or alteration of the Services by any party other than QCS or QCS’ duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, QCS will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 9.1. Notwithstanding the foregoing, QCS:
(a) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free; or
(ii) that the Services, QCS Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and QCS Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.3 These conditions shall not prevent QCS from entering into similar agreements with third parties, or from independently developing, using, selling or licensing QCS Documentation, products and/or services which are similar to those provided under these conditions.
9.4 QCS warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these conditions.
- CUSTOMER’S OBLIGATIONS
10.1 The Customer shall:
(a) provide QCS with:
(i) all necessary co-operation in relation to the Contract and compliance with these conditions; and
(ii) all necessary access to such information as may be required by QCS,
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under the Contract and these conditions;
(c) carry out all other Customer responsibilities set out in these conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, QCS may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and QCS Documentation in accordance with these conditions and shall be responsible for any Authorised User’s breach of these conditions;
(e) ensure that any Authorised User who ceases to be engaged by and authorised by the Customer to use the Services and QCS Documentation, shall immediately cease to access the Services, including but not limited to, upon any Authorised User who is employed by the Customer ceasing to be employed by them;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for QCS, its contractors and agents to perform their obligations under these conditions, including without limitation the Services;
(g) ensure that its network and systems comply with the relevant specifications provided by QCS from time to time; and
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to QCS’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
- CHARGES AND PAYMENT
11.1 The Customer shall pay the Licence Fees to QCS for the Licence as set out in the applicable Order Confirmation together with any addition Licences in accordance with clause 7.
11.2 The Customer shall on the Effective Date provide to QCS valid, up-to-date and complete credit or debit card details or approved Order Confirmation information acceptable to QCS and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit or debit card details to QCS, the Customer hereby authorises QCS to bill such credit or debit card:
(i) the full amount of the Licence Fees on the Effective Date for the Licence Fees payable in respect of the Initial Licence Term in respect of a Full Payment Plan;
(ii) by monthly instalments if the Contract is in respect of an Premium Compliance Plan; and
(iii) subject to clause 17, on each anniversary of the Effective Date for the Licence Fees payable in respect of each subsequent Renewal Period on a Full Payment Plan, or by monthly instalments following the anniversary of the Effective Date for the Licence Fees payable in respect of each subsequent Renewal Period on a Premium Compliance Plan; or
(b) the Customer shall transfer to QCS by bacs or chaps transfer or by cheque, in respect of a Full Payment Plan:
(i) prior to the Effective Date (so that QCS are in receipt of cleared funds on the Effective Date) the Licence Fees payable in respect of the Initial Licence Term; and
(ii) subject to clause 17, at least 30 days prior to each anniversary of the Effective Date for the Licence Fees payable in respect of the next Renewal Period.
11.3 If QCS has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of QCS:
(a) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% 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.
(b) QCS will charge an administration fee of £40.00 + VAT to the Customer, for each failure by the Customer to make payment on a due date by reason of the Customer failing to inform QCS of the correct payment details and/or failing to re-instate a valid payment method.
(c) QCS will charge an administration fee of £40+vat to the customer for any cancellation of a direct debit within contract without an alternative payment method having first been agreed.
11.4 All amounts and fees stated or referred to in these conditions:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 15.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added at the appropriate rate.
11.5 QCS shall be entitled to increase the Licence Fees at the start of each Renewal Period upon 60 days’ prior notice to the Customer. If such increase is not acceptable to the Customer, the Customer may terminate these conditions in accordance with terms of clause 17.1(a).
11.6 Without prejudice to any other rights or remedies available to it, if the Customer has not paid any Licence Fees when due;
(a) QCS reserves the right at its sole discretion to suspend the Services and restrict or remove the Customer’s use of and/or access to the Services; and
(b) in respect of a Premium Compliance Plan, the full balance of the Licence Fees for the remainder of the Licence Term shall become immediately due and payable.
- PROPRIETARY RIGHTS
12.1 The Customer acknowledges and agrees that QCS and/or its licensors own all intellectual property rights in the Services and QCS Documentation. Except as expressly stated herein, these conditions do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or QCS Documentation.
12.2 QCS confirms that it has all the rights in relation to the Services and QCS Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these conditions.
13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these conditions. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
13.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these conditions.
13.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these conditions.
13.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
13.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute QCS’ Confidential Information.
13.6 QCS acknowledges that the Customer Data is the Confidential Information of the Customer.
13.7 This clause 13 shall survive termination of these conditions, however arising.
13.8 No party shall make, or permit any person to make, any public announcement concerning these conditions without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
14.1 The Customer shall defend, indemnify and hold harmless QCS against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or QCS Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) QCS provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
14.2 QCS shall defend the Customer, its officers, directors and employees against any claim that the Services or QCS Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) QCS is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to QCS in the defence and settlement of such claim, at QCS’ expense; and
(c) QCS is given sole authority to defend or settle the claim.
14.3 In the defence or settlement of any claim, QCS may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these conditions on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
14.4 In no event shall QCS, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Software by anyone other than QCS; or
(b) the Customer’s use of the Services or QCS Documentation in a manner contrary to the instructions given to the Customer by QCS; or
(c) the Customer’s use of the Services or QCS Documentation after notice of the alleged or actual infringement from QCS or any appropriate authority.
14.5 The foregoing and clause 15.4(b) states the Customer’s sole and exclusive rights and remedies, and QCS’ (including QCS’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- LIMITATION OF LIABILITY
15.1 This clause 15 and clause 16 set out the entire financial liability of QCS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with these conditions;
(b) in respect of any use made by the Customer of the Services and QCS Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these conditions.
15.2 Except as expressly and specifically provided in these conditions:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and QCS Documentation by the Customer, and for conclusions drawn from such use;
(b) QCS shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to QCS by the Customer in connection with the Services, or any actions taken by QCS at the Customer’s direction;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these conditions; and
(d) the Services and QCS Documentation are provided to the Customer on an “as is” basis.
15.3 Nothing in these conditions excludes the liability of QCS:
(a) for death or personal injury caused by QCS’ negligence; or
(b) for fraud or fraudulent misrepresentation.
15.4 Subject to clause 15.2 and clause 15.3:
(a) QCS shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these conditions; and
(b) QCS’ total aggregate liability in contract (including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these conditions shall be limited to the total Licence Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
16.1 Subject to clause 16.2, it is QCS’ policy to:
(a) conduct its business at all times in a professional manner, to best practice standards and will use its endeavours to maintain QCS Documentation up to date and to develop our Services to meet the needs of its clients, including the Customer; and
(b) be an online provider of practical know-how and resources for compliance with standards set out by the Care Quality Commission or such similar public body tasked with regulating, inspecting and reviewing all health and adult social care services in England, Scotland and Wales.
16.2 The Customer expressly acknowledges and accepts:
(a) that it is solely responsible for the appropriate use and adaptation of QCS Documentation, whether in whole or in part, whether for its own business use, provision of compliant services or otherwise;
(b) that the Customer assumes sole responsibility for the Customer Data and any loss or corruption of the Customer Data;
(c) in the provision of the Services to the Customer, QCS is not providing any formal advice, whether legal, professional or consultancy, and the Customer is not to rely on the Services in order to comply with any laws, regulations, guidance or instructions issued by any governmental body or agency;
(d) QCS Documentation is not intended to constitute a definitive or complete statement of the law on any subject, nor is any part of it intended to constitute legal advice for any specific situation;
(e) QCS does not undertake any obligation to consider whether the information provided to or by it for the purpose of QCS Documentation (including answering any enquiry via the Services) is either sufficient or appropriate for any particular actual circumstances;
(f) that the use of QCS Documentation by the Customer does not guarantee that the Customer will be compliant with Care Quality Commission standards set out by the Care Quality Commission or any other standards set by a regulatory body;
(g) the Customer is solely responsible for the appropriate use and adaptation of the QCS Documentation for its own use and the provisions of advice and the Services to it’s clients;
(h) QCS Documentation includes archived information and resources, which may be incorrect or out of date;
(i) responses to questions or enquiries made via the Services may be prepared entirely from our existing QCS Documentation;
(j) QCS does not accept any responsibility for action taken as a result of information (including QCS Documentation) provided or produced by it and specific advice should be taken when dealing with specific situations;
(k) QCS Documentation is general and educational in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of individual situations and do not represent or advice in any form;
(l) QCS give no warranty or assurance that the Services and the means of delivering them are compatible with the Customer’s software or computer configuration; and
(m) QCS may change part or all of any Service at its sole discretion.
- TERM AND TERMINATION
17.1 These conditions shall, subject to clause 3 and unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Licence Term and, thereafter, these conditions shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Licence Term or any Renewal Period, in which case these conditions shall terminate upon the expiry of the applicable Initial Licence Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of these conditions;
and any Trial Period, the Initial Licence Term together with any subsequent Renewal Periods shall together constitute the “Licence Term”.
17.2 Without affecting any other right or remedy available to it, either party may terminate these conditions with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under these conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of these conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of these conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these conditions;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.2(d) to clause 17.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
17.3 On termination of these conditions for any reason:
(a) all licences granted under these conditions shall immediately terminate;
(b) QCS may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and QCS shall be under no obligation to provide any or all of the Services; and
(c) QCS may (at its sole discretion) destroy or otherwise dispose of any of the Customer Data in its possession unless QCS receives, no later than ten days after the effective date of the termination of these conditions, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
17.4 On receipt of a notice pursuant to clause 17.3(b):
(a) QCS shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination); and
(b) the Customer shall pay all reasonable expenses incurred by QCS in returning or disposing of Customer Data.
- FORCE MAJEURE
QCS shall have no liability to the Customer under these conditions if it is prevented from or delayed in performing its obligations under these conditions, 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 QCS 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 Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of these conditions, order confirmations, or details specified on the Website, the provisions in the main body of these conditions shall prevail.
20.1 Subject to clause 20.2 and clause 20.3, no variation of these conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.2 QCS may make minor amendments to these conditions from time to time and will notify the Customer of those changes.
20.3 The Customer will be asked to accept these conditions in respect of each Renewal Period including any amendment or variation made by QCS to these conditions. If the Customer does not wish to accept these conditions and wishes to terminate the Licence, it may do so in accordance with the provisions of clause 17.1(a).
No failure or delay by a party to exercise any right or remedy provided under these conditions 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.
- RIGHTS AND REMEDIES
Except as expressly provided in these conditions, the rights and remedies provided under these conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
23.1 If any provision (or part of a provision) of these conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
23.2 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.
- ENTIRE AGREEMENT
24.1 These conditions, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
24.2 Each of the parties acknowledges and agrees that in entering into these conditions it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these conditions or not) relating to the subject matter of these conditions, other than as expressly set out in these conditions.
25.1 The Customer shall not, without the prior written consent of QCS, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these conditions.
25.2 QCS 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 these conditions.
- NO PARTNERSHIP OR AGENCY
Nothing in these conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- THIRD PARTY RIGHTS
These conditions does not confer any rights on any person or party (other than the parties to these conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
28.1 Any notice required to be given under these conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these conditions, or such other address as may have been notified by that party for such purposes.
28.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery).
28.3 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.
- GOVERNING LAW
These conditions 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.
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 these conditions or its subject matter or formation (including non-contractual disputes or claims).
- Right to refuse
QCS expressly reserves the right, at its sole discretion and without consultation, to refuse to grant a Licence to anyone who is not a previous Customer or anyone who has been a Customer previously, at any time.