Terms and Conditions

1. STRUCTURE OF THE AGREEMENT

The agreement is comprised of:
- the provisions of this Appendix 1 (the “General Terms and Conditions” or “GTCs”);
- the document labelled “Order Form” to which these GTCs are appended (the “Order Form”); and
- the provisions set out in Appendix 2 (GENERAL DISCLAIMER) and Appendix 3 (THIRD PARTY MATERIALS) (inclusive),

(the “Agreement”).

2. USER LICENCES

In this clause 2 (USER LICENCES) and where used elsewhere in this Agreement:
- “Authorised Users” means those employees and/or officers of the Customer and its subsidiary undertakings (as defined by section 1162 Companies Act 2006) who are authorised by the Customer to access and use the relevant Services in accordance with this Agreement;
- “Content” means any: (i) text, images, video, audio or other multimedia content; (ii) information or material, in each case, subsisting on or accessible from or on the Platform (excluding the Rehabilitation Modules and the Training Modules);
- “Health Coaching Materials” means any documentation related to, or prepared as a result of and/or in connection with, the provision by the Supplier of the Health Coaching Services (including diet plans, exercise programmes, and fitness and wellbeing documentation);
- “Licence Period” means, in respect of each User Licence the period of twelve (12) months from: (i) the Effective Date (in respect of the User Licences purchased in the Order Form); or (ii) the date on which the additional User Licence is purchased (in respect of additional User Licences purchased after the Effective Date;
- “Licensed Materials” means, as relevant to an Order Form: (i) Content; (ii) Training Modules; (iii) Rehabilitation Modules; and (iv) Health Coaching Materials;
- “Platform” means the software and/or mobile applications and the platform known as the Boutros Bear Platform;
- “Plug-in Platform” means the Customer’s own and directly licensed or sub-licensed instance of a third party-operated platform that interoperates with the Platform;
- “Portal” means the following URL https://boutrosbear.com and the associated pages and/or the mobile application (once launched);
- “Rehabilitation Modules” means online twelve (12) week video courses and other related materials (including exercise-related, diet-related, and mental well-being related materials) and/or documents made available for use and/or completion by Authorised Users in connection with their rehabilitation and/or recovery following disease and/or medical condition.
- “Training Modules” means online training videos and other related materials and/or documents made available for use and/or completion by the Customer’s nominated Authorised Users in connection with various topics including: (i) anti-discrimination; and (ii) managing the emotions, stress, and mental health of staff affected by disease and/or medical conditions); and
- “User Licence” means the individual user subscriptions (access credentials) to the Rehabilitation Modules and/or Training Modules purchased by the Customer pursuant to the terms of this Agreement for use by Authorised Users and described in the Order Form.
The Supplier hereby grants to the Customer a non-exclusive and non-transferable right to permit the Authorised Users:
- to access the Platform and Content through the Portal during the Term;
- who have been individually allocated a User Licence to:
  - view the relevant Training Modules and/or Rehabilitation Modules, in each case, during the relevant Licence Period; and
  - use the Health Coaching Materials in perpetuity,

solely for use in the Customer’s internal business operations and otherwise solely to the extent permitted by this Agreement.

The Customer acknowledges and agrees that each User Licence will automatically expire at the end of the relevant Licence Period and, consequently, the Rehabilitation Modules and/or Training Modules must be commenced and completed during the relevant Licence Period. To obtain the full benefit of the Rehabilitation Module, the Rehabilitation Module must be commenced at least twelve (12) weeks before the expiry of the relevant Licence Period.
The Customer shall not:
- authorise more Authorised Users to access the Rehabilitation Modules than the number of User Licences that the Customer has purchased in the Order Form;
- permit any User Licence to be: (i) used by more than one individual Authorised User; or (ii) transferred to another Authorised User; or
- permit anyone to access the Platform who is not an Authorised User.
The Customer shall procure that each Authorised User shall keep secure and confidential their password for accessing the Platform.
The Customer shall not (and shall ensure that Authorised Users do not) access, store, distribute or transmit any software, code, file or programme which may prevent, impair or otherwise adversely affect the operation of the Platform (including without limitation worms, Trojan horses, viruses and other similar things or devices) or submit any material to the Platform that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or offensive (including without limitation 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) is otherwise illegal or causes damage or injury to any person or property, and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s (and all Authorised Users’) access to the Platform if any breach of this clause occurs.
The Customer shall not:
- have any right to copy, share, adapt, reverse engineer, de-compile, disassemble, modify, adapt or make error corrections to the Platform (except to the extent de-compilation is expressly permitted by section 50B of the Copyright, Designs and Patents Act 1988 and where the Supplier: (a) is not prepared to carry out de-compilation in return for a reasonable fee; or (b) has failed to provide information reasonably necessary to achieve inter-operation between platforms without de-compilation) or Licensed Materials;
- or attempt to circumvent, disable, or otherwise interfere with any security related features of the Platform and/or Licensed Materials (including features that enforce limitations of use or prevent copying);
- remove any copyright or other Intellectual Property Rights notices from the Platform and/or Licensed Materials;
- access the Platform or any Licensed Materials in order to build a product or service which competes with the Platform or the Licensed Materials;
- use the Platform or Licensed Materials to provide services to third parties; or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Platform or Licensed Materials available to any third party except those comprising the Authorised Users.
The Customer shall:
- to the extent within its control, use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and/or the Licensed Materials; and
- in the event that the Customer discovers or is made aware of any such unauthorised access or use, immediately give notice to the Supplier of such access or use.

3. SERVICES

The Supplier shall, during the Term, provide the Services to the Customer on and subject to the terms of this Agreement.
In the event the Customer requires the Supplier to perform any additional services not set out in the Agreement (including any bespoke enhancements and/or modifications to the Platform and/or Licensed Materials) (the “Additional Services”) then the fees payable in consideration of any such Additional Services shall be agreed in writing between the parties prior to their commencement and the parties shall use their reasonable endeavours to agree a written statement of work for such Additional Services.
The Supplier has sole discretion and control over, and may modify at any time (with or without notice to the Customer), the functionality, performance, configuration, appearance and content of the Platform and/or the Licensed Materials provided that, in each case such modifications do not result in a material reduction to the warranted quality of the Platform and/or Licensed Materials.

4. CUSTOMER PERSONAL DATA

In this clause 4 and where used elsewhere in the Agreement:
- “Customer Data” means all data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s or an Authorised User’s behalf under and/or in connection with the Services;
- “Customer Personal Data” means all personal data controlled by the Customer and which is processed by the Supplier in order to provide the Services and personal data, controlled, and processed shall each have their respective meanings given in the GDPR;
- “Data Protection Legislation” means as applicable the Data Protection Act 2018, the UK retained General Data Protection Regulation (2016/679) (“GDPR”), and the Privacy and Electronic Communications (EC Directive) Regulations 2000 and any applicable replacement legislation governing the use and security of personal data;
- “Privacy Policy” means the Supplier’s privacy policy accessible through the Portal;
- “Restricted Data” means so-called special category data that is inputted to the Services by an Authorised User (including through various third party licensed forms including GAD7, PHQ9, PFS-12, and IPAQ) in connection with the Health Coaching Service and processed by the Supplier in accordance with, and as described in, the Privacy Policy; and
- “Data Controller”, “Data Processor”, “Process”, and “Control” all have their respective meanings given in the GDPR.
The parties acknowledge and agree that:
- the Customer is the Data Controller in respect of the Customer Personal Data; and
- except as described in paragraph 3 below, the Supplier shall Process such Customer Personal Data as an independent Data Controller in accordance with this Agreement.
The Supplier shall Process the Customer Personal Data on the Customer’s behalf when performing the data processor activities described below (the “Data Processor Activities”):
- Subject matter, nature of Processing and Processing operations: The Supplier shall be a Processor where, as part of the Services, it is Processing Customer Personal Data for the following purposes on the Customer’s behalf:
  - support and maintenance with respect to Customer Personal Data hosted on the Platform;
  - hosting management with respect to Customer Personal Data on the Platform;
  - such other purposes where the Supplier processes Customer Personal Data on behalf of the Customer as its data processor; and
  - as described in the Privacy Policy.
- Duration: The duration of the Services.
- Data categories: Authorised Users.
- Types of Personal Data: As described in the Privacy Policy.
The Customer shall:
- comply with the Data Protection Legislation; and
- ensure that all instructions it gives to the Supplier in respect of the Customer Personal Data are and shall be lawful and in compliance with the Data Protection Legislation.
The Supplier shall (in respect of the Data Processor Activities):
- only Process Customer Personal Data in accordance with the Customer’s documented instructions, including with regard to transfers, unless required to do otherwise by applicable laws. In which event, the Supplier shall inform the Customer of the legal requirement before processing the Customer Personal Data otherwise than in accordance with the Customer’s written instructions, unless legally prohibited from doing so. The Customer instructs the Supplier to process the Customer Personal Data to the extent and in such manner as is reasonably necessary for the performance of the Supplier’s obligations under this Agreement or as required by Data Protection Legislation;
- ensure that its representatives are subject to appropriate obligations of confidentiality;
- taking into account the nature of the Services, provide reasonable assistance to the Customer, insofar as this is possible and at the Customer’s cost, for the fulfilment of the Customer’s obligations under the Data Protection Legislation in respect of data security; data breach notification; data protection impact assessments; prior consultation with supervisory authorities; and the fulfilment of data subject’s rights; and
- promptly following the Customer’s written request, return, delete, or put beyond use the Customer Personal Data and delete or put beyond use any existing copies of such Customer Personal Data in its possession unless required to retain such Customer Personal Data under applicable laws.
The Customer consents to the Supplier engaging subcontractors to Process the Customer Personal Data on the Supplier’s behalf (the “Sub-processors”) and a list of such Sub-processors (the “Sub-processor List”) is set out in the Privacy Policy.
The Supplier shall ensure that Sub-processors are subject to contractual obligations which are, where possible, equivalent to those imposed on the Supplier under this Agreement. The Supplier shall be responsible for the performance of its Sub-processors.
The Supplier will notify (which notice may be by e-mail or through the Platform) the Customer prior to adding a new Sub-processor to the Sub-processor List (a “New Sub-processor”).
If the Customer objects to the Supplier’s use of a New Sub-processor on reasonable grounds that the New Sub-processor is unlikely to be able to comply with the terms of this clause 4 or the Agreement then the Customer shall notify the Supplier promptly in writing within ten (10) days from receipt of the Supplier’s notice. The Customer’s failure to object in writing within such time period shall constitute approval to use the New Sub-processor.
The Customer acknowledges and agrees that the inability of the Supplier to use a particular New Sub-processor may result in a delay or suspension in the performance of the Services, inability to perform the Services or increased Fees.
The Supplier shall notify the Customer in writing of any change to Services or Fees that would result from the Supplier’s inability to use a New Sub-processor to which the Customer has objected. The Customer may either execute a written amendment to the Agreement implementing such change or terminate the Agreement provided that such termination by the Customer shall be treated as a termination for convenience and for breach of the Agreement.
The Customer acknowledges and agrees that Customer Personal Data may be processed outside the European Economic Area or the country where the Customer is located in order to carry out the Services and the Supplier’s other obligations under this Agreement. The Supplier shall implement a data transfer solution to ensure any such transfers are compliant with the Data Protection Legislation.
The Supplier shall use technical and organisational measures to protect Customer Personal Data stored by the Supplier (to the extent such storage is within the Supplier’s own infrastructure) against unauthorised and unlawful processing and against accidental loss, destruction, disclosure, damage or alteration.
Upon written request, the Supplier shall make available to the Customer such information as is reasonably necessary to demonstrate the Supplier’s compliance with its obligations under this clause.
The Customer or the Customer’s representatives (bound by appropriate obligations of confidentiality) shall have the right to audit and inspect the Supplier’s premises (excluding the premises of third parties) to ascertain compliance with this clause 4, provided such an audit is carried out:
- during the Supplier’s normal business hours and upon not less than seven (7) Business Days’ notice;
- not more than once in each Contract Year (as defined in the Order Form);
- in a manner that causes minimal disruption to the Supplier’s business and excludes from its scope any internal pricing information, information relating to other customers of the Supplier or the Supplier’s own internal reports; and
- at the Customer’s own cost.
In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier.
The parties acknowledge and agree that any Restricted Data made available to the Supplier by an Authorised User:
- is considered sensitive and private to that Authorised User;
- will be Processed only in accordance with the Privacy Policy; and
- notwithstanding any provisions to the contrary in this clause 4 (or elsewhere in the Agreement), will not be shared with the Customer without the express consent of that Authorised User.

5. SUPPLIER’S OBLIGATIONS

- The Supplier shall perform the Services:
  - in compliance with this Agreement;
  - promptly using reasonable skill and care; and
  - substantially in accordance with the Service descriptions set out in the Agreement (except in trivial and/or immaterial respects that do not adversely affect its functionality or use).
- The Supplier shall have no liability for Losses incurred under and/or in connection with this Agreement to the extent any such liability is caused by:
  - use of the Platform or Licensed Materials contrary to the Supplier’s instructions or modification or alteration of the Platform or Licensed Materials by any person other than the Supplier or the Supplier’s duly authorised subcontractors or agents;
  - any act or omission of the Customer or an Authorised User in breach of the Agreement; or
  - the unavailability of Third Party Materials or any incorrect or inaccurate Third Party Materials.
- Subject to clauses 1 and 12.1, the Services are offered subject to the disclaimer in Appendix 1 (GENERAL DISCLAIMER) (the “Disclaimer”) and the Supplier specifically does not warrant, represent or undertake that the:
  - Customer’s use of the Services will be uninterrupted or error-free; or
  - information obtained by the Customer through the Platform or the Services will meet the Customer’s requirements.
- Subject to clauses 1 and 12.1:
  - whilst the Supplier aims to ensure that the Licensed Materials are up to date and accurate please note that the Licensed Materials may be out of date at any given time and that the Supplier is under no obligation to update it;
  - the Supplier does not guarantee the accuracy of any Licensed Materials and any reliance placed on the Licensed Materials is at the Customer’s and the Authorised User’s risk.
- During the term of this Agreement, the Supplier shall maintain in force, with a reputable insurance company, insurance to cover potential consequential losses that may arise as a result of an act or omission of an employee or third party consultant facilitating the provision of Health Coaching Services.
- The Supplier shall have no liability 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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- The Customer is responsible for all acts and omissions of Authorised Users as if such acts or omissions were its own.
- An obligation of the Customer contained in this Agreement (unless the context reasonably requires otherwise) includes an obligation on the Customer to ensure that an Authorised User does not act, or omit to act, in breach of that obligation.

6. CUSTOMER’S OBLIGATIONS

The Customer shall:
- ensure that all Authorised Users are directed to, and have read and understood, the Privacy Policy and Disclaimer before granting access to the Platform and/or Licensed Materials;
- comply with all applicable laws, regulations and binding codes of practice with respect to its activities under and in connection with this Agreement;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for it to:
  - use the Plug-in Platforms;
  - provide and/or make available the Customer Materials (including the Customer Personal Data) under this Agreement; and
  - connect its computing environment to the Platform.
- use the latest end-point security and versions of anti-virus definitions and software available from an industry accepted anti-virus software provider in respect of its computer systems, technology and network infrastructure;
- ensure that its network and systems comply with the relevant specifications necessary to access the Platform provided by the Supplier from time to time; and
- unless otherwise agreed in writing, be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s 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.
The Customer shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business.

7. FEES AND PAYMENT

The Customer shall pay the Fees (as that term is defined in the Order Form) comprising the Subscription Fee, Additional Licence Fee(s) (if any), and Additional Services Fees (if any)) to the Supplier in accordance with the terms of this Agreement.
Unless stated otherwise in the Order Form and subject to clause 3, the Supplier shall invoice the Customer for the Fees in advance of the Services and the Customer shall pay each invoice on or before the expiry of thirty (30) days from the date of an invoice (the “Due Date”).
Notwithstanding clause 2 and, with respect to the first Contract Year, the Supplier is not required to give access to the Licensed Materials unless and until the Subscription Fees payable in respect of the first Contract Year have been received by the Supplier in full and in cleared funds.
If the Supplier has not received payment in full of the Fees by the Due Date, then without prejudice to any other rights and remedies of the Supplier:
- the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Platform and/or Licensed Materials and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
- 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, commencing on the Due Date and continuing until fully paid, whether before or after judgment.
All amounts and Fees stated or referred to in this Agreement are exclusive of all taxes, including any value added tax.
If the Customer is required by applicable law to make any deduction or withholding from any payment to the Supplier then the sum due in respect of such payment shall be increased so that, after the making of such deduction or withholding, the Supplier receives a net sum equal to the sum it would have received had no such deduction or withholding been made.
Value added tax shall be added to the Supplier’s invoice(s) at the appropriate rate (if applicable).
Subject to clause 9, the Supplier shall be entitled to be reimbursed for any expenses (such as travel or subsistence expenses) incurred in the performance of the Services which have been authorised in advance in writing (which may be by e-mail) by the Customer.
The Customer shall reimburse the Supplier for all expenses agreed pursuant to clause 8 provided that the reimbursement is on a ‘pass through’ basis with no additional mark up and the Supplier submits to the Customer appropriate receipts or proof of payment for such expenses.
The Supplier shall be entitled to increase the Fees applicable to the following Contract Year at any time prior to the expiry of the current Contract Year by written notice to the Customer provided that such notice is given at least thirty (30) days before the expiry of the relevant Contract Year in order to allow the Customer to exercise its rights under clause 2 (TERM AND TERMINATION).

8. INTELLECTUAL PROPERTY RIGHTS

In this clause 8 (INTELLECTUAL PROPERTY RIGHTS) and where used elsewhere in the Agreement:
- “Intellectual Property Rights” means:
  - patents, any extensions of the exclusivity granted in connection with patents, petty patents, utility models, registered designs, plant variety rights, applications for any of the foregoing (including, but not limited to, continuations, continuations-in-part and divisional applications), the right to apply for and be granted any of the foregoing, rights in inventions;
  - copyrights, design rights, semiconductor topography rights, moral rights, publication rights, database rights;
  - trade marks and service marks, applications for any of the foregoing, the right to apply for any of the foregoing, rights in trade names, business names, brand names, get-up, logos, domain names and URLs;
  - rights in know-how, trade secrets and confidential information, data exclusivity rights; and
  - all other forms of intellectual property right having equivalent or similar effect to any of the foregoing which may exist anywhere in the world; and
- “Customer Materials” means the Customer Data together with all other materials provided and/or made available to the Supplier by the Customer under this Agreement.
The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights (existing presently or created in the future) in:
- the Portal and the Platform;
- the Licensed Materials;
- all materials provided and/or made available as part of the Services (excluding the Customer Materials); and
- any/all adaptations, add-ons, modifications, updates, and/or enhancements to the Platform, Licensed Materials and such materials (including as an Additional Service),

(together, the “Supplier IPR”).

The Supplier may freely incorporate feedback and/or suggested improvements to the Supplier IPR given by the Customer or an Authorised User.
Except as expressly stated in this Agreement the Customer shall have no right or interest in the Supplier IPR.
The Customer and/or its licensors own all Intellectual Property Rights in and to all of the Customer Materials and shall have sole responsibility for the legality, non-infringement, reliability, integrity, accuracy and quality of the Customer Materials.
The Customer grants to the Supplier (and its sub-contractors) a non-exclusive, non-transferrable right to use the Customer Materials and Customer Personal Data strictly to the extent necessary for the Supplier (or the Supplier’s sub-contractor as the case may be) to provide the Services.
If through the provision of the Service, use of the Platform or Licensed Materials, or otherwise, the Customer (or an Authorised User) comes to own Intellectual Property Rights in the Supplier IPR by operation of appliable law and despite the provisions of clause 2 then the Customer shall (or shall ensure that the Authorised User in question shall) at the Supplier’s request take all steps necessary to assign such Intellectual Property Rights to the Supplier and, to the extent permitted by applicable law, waive all moral rights (and analogous rights) worldwide in connection with such Intellectual Property Rights.

9. INDEMNITIES

In this clause 9 (INDEMNITIES) and where used elsewhere in this Agreement, “Third Party Materials” means the components of the Platform and/or Licensed Materials to which third party licence terms apply and which are listed in Appendix 3 (THIRD PARTY MATERIALS).
The Customer shall indemnify and hold harmless the Supplier, its affiliates, its and their officers, directors and employees against any Losses arising out of or in connection with any allegation or claim that the:
- Customer Materials infringe any Intellectual Property Rights belonging to a third party; and/or
- Customer’s use of the Third Party Materials is in breach of terms applicable to such Third Party Materials.
The Supplier shall ensure that the:
- Customer is given prompt notice of any allegation or claim to which the indemnity in clause 2 applies;
- Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim; and
- Customer is given sole authority to defend or settle the claim.
Subject to clauses 5, 9.6, and 9.8 the Supplier shall indemnify and hold harmless the Customer against any claim made against it by a third party to the extent that such claim alleges that the Platform or the Licensed Materials (excluding any Third Party Materials) infringes any Intellectual Property Rights in the United Kingdom belonging to that third party (the “IPR Indemnity”), provided that:
- the Supplier is given prompt notice of any such claim (and in any event is given notice within five (5) Business Days of the Customer becoming aware of, or being notified of, the claim);
- the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim; and
- the Supplier is given sole authority to defend or settle the claim.
In the defence or settlement of any claim under clause 4, the Supplier may procure the right for the Customer to continue using the Platform and/or the Licensed Materials, replace or modify the Platform and/or Licensed Materials so that they become non-infringing or, if such remedies are not reasonably available, terminate or suspend this Agreement (and the Services) on notice to the Customer without any additional liability to the Customer.
In no event shall the Supplier, its employees, agents or sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- a modification of the Platform or Licensed Materials by anyone other than the Supplier or its representatives;
- the Customer’s use of the Platform or Licensed Materials in a manner contrary to the instructions given to the Customer by the Supplier;
- an infringing Third Party Material; or
- an infringing Customer Material.
The Customer shall have no rights and remedies in respect of infringement of any third party Intellectual Property Rights except as expressly set out in clause 4.
The IPR Indemnity shall apply to Losses to the extent that such Losses are:
- awarded against the Customer by a court or other body having competent jurisdiction or agreed to be paid (with the consent of the Supplier) to the third-party claimant in settlement of an IPR Claim; and
- reasonably and properly incurred legal fees and disbursements, fees levied by any court of competent jurisdiction, arbitrator or mediator, and/or fees and disbursements charged by expert witnesses.

10. CONFIDENTIALITY

In this clause 10 (CONFIDENTIALITY) and where used elsewhere in this Agreement, “Confidential Information” means any and all information that is proprietary and/or confidential in nature and is either clearly labelled as such or would, by its nature, be considered by a reasonable business person to be confidential.
A party’s Confidential Information shall not include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party.
Each party shall hold the other’s Confidential Information in confidence and, subject to clause 4, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than in connection with the performance or receipt of the Services (as the case may be).
Either party may disclose the other party’s Confidential Information if and to the extent required by applicable law or by any regulatory body or securities exchange, provided that the disclosing party shall as soon as reasonably practicable and to the extent permitted by applicable law notify the other party in writing of the circumstances of such disclosure and the Confidential Information to which such disclosure applies.
Each party shall take 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 this Agreement.
No party shall make, or permit any third party to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
The Customer acknowledges that the Supplier:
- collects the metrics (including the date, time and number of logins) relating to the Platform and Customer Data submitted to the Platform (including by Authorised Users) for the following reasons:
  - to plan and implement improvements to the Platform and/or the Licensed Materials;
  - prepare accurate invoices;
  - evaluate adoption rates and the success of new features and releases of the Platform and/or the Licensed Materials; and
  - evaluate current performance of the Platform;
- may anonymise and aggregate Customer Data (“Aggregated Data”) for use by the Supplier for the purposes of:
  - analysing market trends;
  - creating and publishing press releases and white papers;
  - preparing case studies; and
  - collaborating with third parties (including drug and pharmaceutical companies) by selling or licensing Aggregated Data to the same in order to improve the efficacy of current and future drugs and treatments (including in clinical trials, the creation of data sets for use by artificial intelligence and other deep learning technologies);

and, in each case, the Customer hereby gives its consent to the same.

Aggregated Data will not be attributable to any particular Customer or Authorised User and the Supplier shall ensure that the aggregation does not reveal data about a Customer or Authorised that would have a negative commercial impact on the Customer or identify the Authorised User without their consent.

11. TERM AND TERMINATION

The Agreement takes effect on the Effective Date and shall continue unless and until terminated in accordance with this clause 11 (the “Term”).
Without prejudice to clause 3, each party shall have the right to terminate the Agreement for convenience at any time before the end of the relevant Contract Year provided that:
- such notice to terminate is given by the terminating party to the other party at least thirty (30) days before the end of the relevant Contract Year; and
- such termination shall take effect:
  - where no Additional User Licences have been purchased during the Term, at the end of the relevant Contract Year; or
  - where an Additional User Licence(s) have been purchased during the Term, on the date that the Licence Period for the last Additional User Licence(s) expires,

as the case may be.

Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party commits a Material breach (or a series of persistent breaches which together amount to a Material breach) of any term of this Agreement that:
- is irremediable; or
- if such breach is remediable, is not so remedied within thirty (30) calendar days from written notice requiring remedy of the Material breach.
Without limiting the Supplier’s rights to terminate under clause 2, the Supplier may terminate this Agreement if the Customer (or an Authorised User) commits any breach (Material or otherwise) of any one or more of the following clauses: 2 (USER LICENCES); 6.1(a) (CUSTOMER’S OBLIGATIONS); or 10 (CONFIDENTIALITY).
On termination or expiry of this Agreement for any reason:
- all rights and licences granted under this Agreement shall immediately terminate and the Customer must cease using the Platform and the Licensed Materials;
- each party shall return, and make no further use of, any equipment, property, and other items (and all copies of them) belonging to the other party; and
- the Supplier may destroy or otherwise dispose of any of the Customer Materials and Customer Personal Data in its possession unless the Supplier receives, no later than ten (10) calendar days from the effective date of the termination or expiry of this Agreement, a written request for the delivery to the Customer of such Customer Materials or Customer Personal Data.
Termination or expiry of this Agreement (howsoever occurring) shall be without prejudice to any rights or liabilities which may have accrued up to the date of such termination or expiry and it shall not affect the coming into force or the continuance in force of any of its provisions which are expressly or by implication intended to come into or continue in force on or after such termination or expiry

12. LIMITATION OF LIABILITY

- Nothing in this Agreement shall limit or exclude either party’s liability to the other to a greater extent than is permitted under applicable law for Losses resulting from:
  - death or personal injury caused by negligence;
  - fraud or fraudulent misrepresentation, or
  - any matter in respect of which Losses may not be limited or excluded under applicable laws.
- Except as expressly provided otherwise in clause 3, nothing in this Agreement shall limit or exclude the Customer’s liability:
  - to pay the Fees;
  - under the indemnity given in clause 2; or
  - for Losses resulting from a breach of clause 10 (CONFIDENTIALITY).
- Subject to clause 1 and clause 12.2 (except under sub-clause 12.2(b)), neither party shall be liable to the other (or any third party claiming under or through the other) under any and all causes of action (whether such causes of action arise in contract (including under any indemnity or warranty), in tort (including negligence or for breach of statutory duty) or otherwise) for Losses that comprise:
  - loss of profit or revenue (except for the Fees);
  - loss of anticipated savings;
  - loss of contract or business opportunity;
  - depletion of goodwill;
  - loss or corruption of data or information except as described in clause 16; or
  - any special, indirect or consequential loss,

in each case, whether arising directly or indirectly under or in connection with this Agreement and whether or not reasonably foreseeable, reasonably contemplatable, actually foreseen or actually contemplated by a party at the Effective Date.

Subject to clauses 1, 12.2 and 12.3, each party’s total aggregate liability to the other (and to any third party claiming under or through the other (including Authorised Users)) in each Contract Year and in respect of all Causes of Action arising in that Contract Year (as determined at the date when the liability giving rise to the Causes of Action arose) shall not exceed the total Fees paid by the Customer to the Supplier in respect of the Contract Year in question.
The parties agree that the provisions of this clause 12 (LIMITATION OF LIABILITY) are considered by them to be reasonable in all the circumstances, having taken into account section 11 and the guidelines in schedule 2 of the Unfair Contract Terms Act 1977 and the nature of the Services and the Fees.

13. EXCLUSION OF IMPLIED WARRANTIES

- Subject to clause 1 and except to the extent expressly set out in this Agreement, the Supplier does not give any warranties, representations or other commitments to the Customer (including as to the functionality, performance, availability, transmission speeds, content, latency and/or accuracy of the Platform and/or of any Service) and all other warranties, conditions, representations, and terms (whether written or oral, express or implied by statute, common law, custom, trade usage, course of dealing or otherwise, including as to satisfactory quality, fitness for a particular purpose or use, accuracy, adequacy, completeness or timeliness) are hereby excluded to the fullest extent permitted by applicable law.

14. THIRD PARTY MATERIALS

- The third party licence terms that apply to the Customer’s and its Authorised Users’ use of the Third Party Materials are described in Appendix 3 (THIRD PARTY MATERIALS) and the Customer shall comply with the restrictions contained in such third party licence terms.

15. FORCE MAJEURE

- Other than in respect of the Customer’s obligation to pay the Fees or agreed expenses, neither party shall have any liability to the other under this Agreement if it is prevented from or delayed in performing its obligations, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, 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 or storm.

16. GENERAL

- - Survival: The rights and obligations under provisions of this Agreement which expressly or by their nature survive termination shall remain in full force and effect (including any restrictions applicable to Licensed Materials that are permitted to be used by Authorised Users in perpetuity).
  - Conflicts: If and to the extent there is any conflict, inconsistency or ambiguity between any provision of this Agreement then such conflict, inconsistency or ambiguity shall be resolved in accordance with the following order of precedence (with the document higher in the list prevailing over a document lower in the list):
    - the Order Form;
    - the GTCs; and
    - the remaining Appendices.
  - Subcontracting: The Supplier may sub-contract the performance of its obligations (or any part thereof) to any third party service-provider provided that the Supplier shall remain responsible for all acts and omissions of such third party service-providers that result in a breach of the Agreement.
  - Variations: No variation of this Agreement shall be effective unless it is in writing and signed by the parties.
  - No Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by applicable 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.
  - Severability: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. 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: This Agreement, 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. Each of the parties acknowledges and agrees that in entering into this Agreement 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 this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
  - Assignment: Except in respect of invoice financing or the recovery of a debt owed, neither party shall assign any of its rights under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
  - Third Party Rights: This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999.
  - Notices:
    - Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be delivered by: (a) hand or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (b) except with respect to the service of legal proceedings, e-mail to the addresses referred to in sub-clause (b) (below).
    - Any notice or communication shall be deemed to have been received:
      - if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
      - if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
      - if sent by e-mail to: (i) accounts@boutrosbear.com; or (ii) rex@boutrosbear.com, from an authorised representative of sufficient authority to give the notice, upon the generation of a receipt notice by the recipient’s server or, if such notice is not generated, upon delivery to the recipient’s server.
    - Governing Law and jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. 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 Agreement (including non-contractual disputes or claims).

17. INTERPRETATION

- In this Agreement:
  - the headings are for convenience only and shall not affect the interpretation of the Agreement;
  - any reference to a clause is a reference to a clause of the General Terms and Conditions and a reference to a paragraph is a reference to the relevant paragraph in an Appendix;
  - any obligation in this Agreement on a party not to do something, includes an obligation not to agree, allow, permit or acquiesce to that thing being done;
  - any reference in this Agreement to any enactment or statutory provision or subordinate legislation will be construed as a reference to it as from time to time replaced, amended, consolidated or re-enacted (with or without modification) and includes all orders, rules or regulations made under such enactment;
  - references to a party shall be construed as the Customer or the Supplier and parties shall be construed as the Customer and the Supplier taken together;
  - any list, word, or phrase following the words including, include, in particular, for example, or any such similar expression shall be construed as having the phrase without limitation following them;
  - the rule known as eiusdem generis shall not apply and accordingly, words introduced by the word other shall not be given a restrictive meaning by reason of the fact that such words are preceded by words indicating a particular class of acts, matters or things; and
  - a reference to the performance of an obligation from a given date shall include that date;
  - “Business Day” means a day other than a Saturday, Sunday or public holiday in England;
  - “Losses” means all losses, liabilities, damages, costs, charges, and reasonably incurred expenses (including management time, legal fees, other professional advisers’ fees, and costs and disbursements of investigation, litigation, settlement, judgment, interest, fines, penalties and remedial actions) howsoever arising in connection with a party’s breach of the Agreement; and
  - “Material” in the context of classifying the seriousness of a breach means that such breach is: (i) more than trivial but need not be repudiatory; and (ii) if not remedied (or if not capable of remedy), may or is likely to have, a serious impact on the benefit which the innocent party would otherwise derive from performance of the Agreement in accordance with its terms.

GENERAL DISCLAIMER

GENERAL DISCLAIMER
- The Licensed Materials are not intended to amount to advice or to a medical diagnosis or treatment on which the Customer or an Authorised User should rely.
- Authorised Users must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the Licensed Materials.
- If an Authorised User is experiencing any medical condition or has any questions about any medical matter, then the Authorised User should seek immediate medical attention from a doctor or other professional healthcare provider.
- Without limiting the scope of the disclaimer in clause 4, the Supplier makes the following disclaimers in respect of the Licensed Materials:

Nutrition. The Licensed Materials on nutrition provided on the Platform should only be used as a general guideline. Each individual’s dietary needs and restrictions are unique to the individual. Authorised Users are ultimately responsible for all decisions pertaining to their nutritional needs and the Portal is not intended to replace any dietary advice from a qualified professional. If an Authorised User has or suspects that they may have allergies or medical issues which may be affected by certain foods, then they should contact their health care provider promptly.

Mind. The Licensed Materials on mental health provided on Platform is for general information only. The Content is not intended to be a substitute for medical advice, diagnosis, or treatment. Authorised Users must always seek the advice of your mental health provider with any questions that they may have regarding their condition. Authorised Users should never disregard professional advice or delay in seeking it because of something they may have read on the Platform. If an Authorised User is in a crisis or thinks that they may have an emergency, they should call their doctor or local emergency number immediately. If an Authorised User is having suicidal thoughts, they should call a local crisis hotline in their area to talk to a trained counsellor.

Exercise. The Licensed Materials on exercise provided on Platform is for general information only. Authorised Users should consult an exercise professional before starting any exercise programme to determine if it is right for their needs. Authorised Users should not start any exercise or exercise programme if their doctor advises against it. Authorised Users should understand that when participating in any exercise or exercise programme, there is the possibility of physical injury, heart attack, stroke or even death. If an Authorised User experiences faintness, dizziness, pain or shortness of breath at any time while exercising then they should stop immediately.

Where the Platform or Licensed Materials link to other websites and/or resources provided by third parties, these links are provided for your information only. The inclusion of any links neither necessarily implies a recommendation by the Supplier nor an endorsement of the views expressed within them. Authorised Users must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content provided by third parties. The Supplier has no control over third party websites and/or resources and we do not guarantee the accuracy, relevance, timeliness or completeness of the content and availability of those websites and/or resources. If an Authorised User access any of the third party websites and/or resources, then they do so entirely at their own risk and the Supplier accepts no liability for any loss or damage that they may suffer as a result.