Living With Clinician End User Licence Agreement

This End User Licence Agreement (this “Agreement”) is made between Living With Ltd of 10 Queen Street Place, London, United Kingdom, EC4R 1AG, company registration number 10818605 (“Living With”, “we”, “us”) and yourself, the person that clicks to accept the terms outlined in this Agreement (“You”, “Your”, “Yourself”).

For the purpose of this Agreement, Living With is the licensor and You are the licensee.  Living With has agreed to license You access to the App for the Permitted Purpose on the terms of this Agreement.

We do not sell the Software or Documentation to You and we remain the owners of the Software and Documentation at all times.

PLEASE READ THIS AGREEMENT CAREFULLY AS UPON YOUR ACCEPTANCE A CONTRACT WILL BE FORMED BETWEEN LIVING WITH AND YOU.

1. DEFINITIONS AND INTERPRETATION

1.1           The following definitions and rules of interpretation in this clause apply in this Agreement:

Aggregated Data: means data created for analysis, statistical or research purposes by us, that is the combination of Anonymised Patient Data and Anonymised Customer Data;

Anonymised Customer Data: means any data that you enter through your ongoing use of the Services, that has been anonymised to the standard outlined in the ICO’s ‘Anonymisation: Managing Data Protection Risk – Code of Practice’ or such other standard of anonymisation for publication purposes;

Anonymised Patient Data: means any data entered by either yourself about a patient or that a patient enters through the App(s), that has been anonymised to the standard outlined in the ICO’s ‘Anonymisation: Managing Data Protection Risk – Code of Practice’ or such other standard of anonymisation for publication purposes;

App(s): the Living With mobile application(s) for which a Customer has purchased a licence from us;

Customer: a person that has purchased the Services from us and is responsible for making payment to us under a separate written contract (which may or may not also be you);

Documentation: the documents made available to you by us online via the Website or such other web address notified by us to you from time to time which sets out a description of the Services and our user instructions for the Services;

EULA: our patient end user license agreement available online here

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect preserve the confidentiality of, confidential information (including know-how), and all other intellectual property rights;

Medical Device Laws: the Medical Devices Directive 93/42/EC and the UK Medical Devices Regulations 2002 whilst still in force and the Medical Devices Regulation 2017/745 (“MDR”) or equivalent UK law or regulation when in force;

Permitted Purpose: to access the Software, the Services and the Documentation in your day to day job role, to perform administration tasks in relation to a patient’s use of the App(s), including inviting patients to use the App(s) and to communicate and assist them in relation to the management of a patient’s medical condition;

Services: the services provided by us, to you through the Software and as outlined in the Documentation;

Software: the software application that the Customer has purchased a licence from us for (as further outlined on the Website), including all content including text, information, data, software, executable code, images, audio, or video material in any medium or form provided to you; and

• Website: our website at livingwith.health or such other website notified to you from time to time.

2. GRANT OF LICENCE & RESTRICTIONS

2.1 In consideration of the Customer paying all fees to us as and when they fall due, we hereby grant to you a non-transferable, non-exclusive, revocable, worldwide licence to use the Software and the Documentation on any compatible device that you own or control.

2.2 The licence granted to you is strictly limited to, and you shall use the Software and the Documentation solely for, the Permitted Purpose. You may not rent, lease, lend, sell, redistribute, sublicense or commercially exploit the Software or the Documentation or make the Software or the Documentation available to any third party.

2.3 Except as expressly permitted by this Agreement, you may not attempt to or actually copy, modify, duplicate, decompile, reverse engineer, disassemble, derive the source code of, or create derivative works of the Software, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Software).

2.4 You may not access all or any part of the Services, the Software or the Documentation in order to build any product or service which competes with our Services, Software or Documentation.

2.5 You shall not rent, lease, loan, sell, or distribute the Software or the Documentation, in any manner or attempt to do so, and you shall not exploit the Software or the Documentation in any unauthorised way whatsoever.

2.6 You agree not to use the Software and the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Software and or the Services.

2.7 You shall not use the Software and the Services in any way that facilitates illegal activity, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability, or in any other manner that we may reasonably deem to be inappropriate.

2.8 Your use of the Services, the Software or the Documentation constitutes acceptance of the terms of the Agreement which may be amended from time to time by us. We reserve the right to change or modify this Agreement or any other policies related to use of the Software, the Services or the Documentation at any time. Continued use of the Software, the Services or the Documentation following notification of these changes or modifications to you will constitute acceptance of such changes or modifications.

3. LIVING WITH’S OBLIGATIONS AND RIGHTS

3.1 We will use commercially reasonable endeavours to make the Services and the Software available 24 hours a day, seven days a week, except for:

• 3.1.1 planned maintenance carried out during the maintenance window of 6.00am to 8.00am GMT on Saturdays and Sundays; and
• 3.1.2 unscheduled maintenance performed outside of normal business hours (9.00am to 5.00pm, Monday to Friday), provided we use reasonable endeavours to provide you notice of such maintenance where possible.

3.2 We may require you to cease any or all use of the Services, the Software and the Documentation if we reasonably believe that your use of such infringes the Intellectual Property Rights of any third party or breaches any applicable law or regulation. In this instance, we may, at our option either:

• 3.2.1 provide you with alternative content so as to avoid the infringement;
• 3.2.2 suspend your access to the Services temporarily until a solution to the infringement is identified; or
• 3.2.3 terminate this Agreement immediately on written notice.

3.3 We shall, as part of the Services that we deliver to you, provide you with support services, purchased on your behalf by the Customer. The support services will be available between 9.00am to 5.00pm GMT, Monday to Friday and more information about the support services is available on our Website.

4. YOUR OBLIGATIONS AND RIGHTS=

4.1 You shall comply with all applicable laws and regulations in performing your obligations and your rights under this Agreement. You acknowledge that nothing in this Agreement affects your obligation to comply with your employer’s policies and any contract of employment or engagement. You should assure yourself that your use of the Services, Software and Documentation will comply with the same. In the event you identify that such compliance is inconsistent with this Agreement after entering into it, you should inform Living With and cease your use of the Services, Software and Documentation.

4.2 The Services and the Software are designed for use and are operated by Living With in the United Kingdom. Notwithstanding clause 9.2, we make no warranties or representations that use of the Software and our Services is lawful or available for use in any jurisdictions outside of the United Kingdom. If you access the Software and therefore our Services outside of the United Kingdom, then you are responsible for ensuring that you comply with the local laws and regulations in your country.

4.3 You shall not infringe any Intellectual Property Rights in existence at any time in respect of the Services, Software or Documentation.

4.4 You undertake to keep a secure password for your access to the Services and Software, that you shall change your password at least once every three months and keep your password confidential at all times.

4.5 You shall use your best endeavors to prevent any unauthorised access to, or use of, the Services, Software and/or Documentation and in the event of any such unauthorised access or use, shall notify us immediately.

4.6 If you become aware of any misuse of the Software, or any security breach in connection with this Agreement that could compromise the security or integrity of the Software or otherwise adversely affect us, you agree to promptly notify us and fully co-operate with us to remedy the issue as soon as reasonably practicable. We may suspend your access to the Software until the misuse or security breach is remedied.

4.7 You agree to carry out all your responsibilities outlined in this Agreement in a timely and efficient manner.

4.8 You agree to use the Services, the Software and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any misuse in breach of this Agreement.

4.9 In so far as you may be considered to be a distributor and hence an economic operator as defined in the MDR, you agree and acknowledge that with effect from the coming into force of the MDR, you understand and shall comply with your obligations under Article 14 thereof including but not limited to acting with due care to ensure compliance with the MDR, acting in accordance with our instructions, informing us of any non-conformity with the MDR, and immediately informing us of any complaints or suspected incidents relating to the Software or the Documentation.

5. INVITING PATIENTS

5.1 Access to the Software and the Services shall allow you to invite a patient to access the App(s).

5.2 We act only as the intermediary between you and a patient that you invite to use the App and that you can contact through your use of the Software. To the extent allowed by law, we therefore accept no liability for any act or omission of a patient that you contact through our Services.

5.3 The maximum number of patients invited to an App at any time shall not at any time exceed the number of licences purchased by the Customer from us from time to time, unless specially agreed to between the Customer and us.

5.4 Before a patient first accesses an App, they must first accept the terms of our EULA and Privacy Policy, which will govern their ongoing use of that App. If a patient does not accept the terms of the EULA and Privacy Policy, then they will not be able to access that App and you will not be able to communicate with them through the Services.

6. DIGITAL RIGHTS MANAGEMENT (“DRM”)

6.1 You shall respect and not circumvent any DRM and ensure that the Software is used within the scope of the rights granted to the you.

6.2 You shall not copy, transfer or communicate the Software to any other member of the public or in any way exploit the Software other than as expressly permitted by this Agreement.

6.3 You shall not remove, bypass, circumvent, neutralise, or modify any of the DRM and technological protection measures used for the Software.

7. INTELLECTUAL PROPERTY AND DATA USE

7.1 All Intellectual Property Rights in the Software, the Documentation and the Services throughout the world belong to us (or our licensors). You have no Intellectual Property Rights in, or to, the Software, the Documentation or the Services other than the right to use them in accordance with this Agreement.

7.2 You acknowledge that in using the Software and the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. You agree that you are using the Software and Services at your own risk and that we shall not have any liability to you for any content that may be found to be offensive, indecent, or objectionable.

8. THIRD PARTY LINKS AND MATERIALS

8.1 The Software and the Services may contain links to other independent websites which are not provided by us. Such independent sites are not under our control.

8.2 You (and, you acknowledge, the Customer) will need to make your/his/her own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.

8.3 You acknowledge that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of any third-party materials or websites.

8.4 We do not warrant, endorse, assume and will have no liability or responsibility to you or any other person for any such services, third-party materials or websites, r for any other materials, products, or services of third parties. Third-party materials and links to other websites are provided solely as a convenience to you.

8.5 We make no warranties as to the availability of any third-party materials or websites at any time or that such content is suitable or complies with your local laws or regulations.

9. WARRANTIES

9.1 Each party warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.

9.2 We warrant that the Software and the Documentation, when supplied or provided to you, are in compliance with the Medical Device Laws.

9.3 We warrant that we will perform the Services substantially in accordance with the Documentation and using reasonable care and skill.

9.4 We warrant that we have and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.

9.5 We warrant that as far as we are aware, the Software, the Services and the Documentation do not infringe any third party’s Intellectual Property Rights.

9.6 Notwithstanding clause 9.2, we do not warrant against any interference of your enjoyment of the Software, that the functions contained in, or Services performed or provided by, the Software will meet your requirements.

9.7 Notwithstanding clause 9.2, we make no warranties that your use of the Software or the Services will be uninterrupted or error-free, or that defects in the Software or Services will be corrected.

9.8 We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorised access to, or alteration of, any communication.

9.9 We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the internet or on any of the Services or combination thereof, including any injury or damage to users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Services.

9.10 Notwithstanding clause 9.2, you expressly acknowledge and agree that your use of the Software, the Services and the Documentation is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.

10. YOUR PRIVACY AND AGGREGATED DATA

10.1 This Agreement is made in consideration of your covenants and promises in respect of your use of the Services and in consideration of you receiving the benefit of the Software and the Services from us.

10.2 Under data protection legislation, we are required to provide you with certain information about who we are, how we process personal data, for what purposes, and your rights and how to exercise them. This information is provided in our Privacy Policy.

10.3 In accordance with the terms of the contract in place between us and the Customer, you acknowledge that we will create Aggregated Data through your use of the Services. For the avoidance of doubt, all Intellectual Property Rights in the Aggregated Data shall at all time be owned by us or our permitted assignees (such as the third party responsible for payment to Living With for your access to the App).

10.4 You agree that we may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software. We may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to our customers.

11. TERMINATION

11.1 We may terminate this Agreement immediately and stop your access to the Services, Software and Documentation if:

• 11.1.1 our main agreement with the Customer (in relation to your access to the Services) is terminated by either party, for any reason; or
• 11.1.2 you commit a material breach of your obligations under this Agreement which are incapable of remedy, or if capable of remedy, are not remedied within five days of us giving written notice requiring the breach to be remedied; or
• 11.1.3 you challenge or dispute our ownership of, or rights in, the Services, the Software or the Documentation, or the validity of those rights; or
• 11.1.4 your use the Services, the Software or the Documentation in a manner in breach of this Agreement or in a way that causes legal liability to us, or in a way that disrupts others’ use of the Services.

11.2 On any expiration or termination of this Agreement you must stop all activities authorised by this Agreement, including your use of the Software, the Documentation and the Services.

12. LIABILITY

12.1 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.

12.2 Save where expressly provided, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.

12.3 The Customer is solely responsible for making payment to us under the contract in place between us and the Customer. If you are not the Customer you will therefore not be responsible for making any payment to us for your access to the Services.

12.4 The contract in place between us and the Customer, outlines our liability to the Customer in connection with the Services, including for breaches under this Agreement. As a result of this, and to the maximum extent permitted by law, we shall not be liable to you in any way whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any liability, loss, cost, charges or other damages you incur through your use of the Software, Services and Documentation.

12.5 We are not responsible for events outside of our control. If our provision of the Services or support for the Software or the Services is delayed by an event outside our control, then we will contact you as soon as possible to let you know and we will aim to take reasonable steps to minimise the effect of the delay. Provided we do this, we will not be liable for delays caused by the event but if there is a risk of substantial delay you may contact us to end this Agreement.

13. THIRD PARTY RIGHTS

13.1 A person who is not a party to this Agreement shall not have any rights under or in connection with it save as imposed under data protection legislation.

14. WAIVER

14.1 No failure of delay by either of us to exercise a right or remedy provided under this Agreement 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.

15. ASSIGNMENT AND SUB-CONTRACTING

15.1 You may only transfer your rights or your obligations under this Agreement to another person if we agree in writing.

15.2 We may transfer our rights and obligations under this Agreement to a third party. We will always tell you in writing if this happens and will ensure that the transfer will not affect your rights under this Agreement.

16. NOTICES

16.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post/recorded deliver or via email to:

• 16.1.1 Living With Ltd (postal) – the address at the start of this Agreement;
• 16.1.2 Living With Ltd (email) – info@livingwith.health; and
• 16.1.3 You – the email address that you name in the Software.

17. SEVERANCE

17.1 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent territory to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable and 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.

18. NO RIGHTS FOR THIRD PARTIES

18.1 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

19. ENTIRE AGREEMENT

19.1 This Agreement, and any documents referred to in it, constitutes the whole agreement between the parties and supersedes and previous arrangement, understanding or Agreement between us relating to the subject matter they cover.

20. GOVERNING LAW AND JURISDICTION

20.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts to settle any claim or matter arising in relation to this agreement or its subject matter or formation (including non-contractual disputes or claims).