Charisyde

Subscribed Services Terms & Conditions

1. DEFINITIONS AND INTERPRETATION
   1. The definitions and rules of interpretation in this clause apply in this Agreement.
      

      “Affiliate”	means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010;
      “Agreement”	has the meaning given to it in clause 1.3.1.
      “Authorised Affiliates”	means, in respect of the relevant Subscribed Service, the Affiliates of the Customer (if any) identified in the Order Form as Authorised Affiliates in respect of that Subscribed Service;
      “Authorised Users“	means: (a) where the Customer is an individual dentist, the Authorised User is the Customer him/herself only; (b) in other cases, for example where the Customer is a dental practice, those employees, agents and independent contractors of the Customer (such as individual dentists engaged by the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.4.
      “Business Day“	means a day other than a Saturday, Sunday or public holiday in England when banks in London, England are open for business.
      “Chairsyde”	meansChairsyde Video Consulting Limited (company number 12628115), a company registered in England and Wales and our registered office is at 1 Beauchamp Court, 10 Victors Way, Barnet, Hertfordshire, United Kingdom, EN5 5TZ
      “Chairsyde’s Confidential Information”	means all information (whether in oral, written or electronic form) relating to Chairsyde’s business including information relating to Chairsyde’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, products and customers. All information relating to any technical or operational specifications or data relating to each Subscribed Service shall be part of Chairsyde’s Confidential Information.
      “Customer”	means the Customer as stated in the relevant Order Form.
      “Customer Data“	means the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services. Customer Data includes personal data as well as non-personal data.
      “Customer Personal Data”	has the meaning given to it in the Data Protection Schedule.
      “Customer Systems”	means all software and systems used by or on behalf of the Customer, the Customer’s Affiliates, any of its or their direct or indirect sub-contractors, or any Authorised User in connection with the provision or receipt of any of the Services or that the Services otherwise, link to, inter-operate or interface with or utilise (in each case whether directly or indirectly).
      “Data ProtectionLosses”	means all liabilities, including all costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and to the extent permitted by applicable law: administrative fines, penalties, sanctions, liabilities or other remedies imposed by a supervisory authority; compensation which is ordered by a supervisory authority to be paid to a data subject; and the reasonable costs of compliance with investigations by a supervisory authority.
      “Data Protection Schedule”	means the Data Protection Schedule to these Subscribed Services Terms & Conditions as set out in Schedule 1.
      “Documentation“	means the document made available to the Customer by the Supplier which sets out a description of the Services and the user instructions for the Services.
      “EULA”	means the terms and conditions applicable to an Authorised User’s use of the Services which must be accepted by the Authorised User before he/she is permitted to access the Services.
      “Initial Subscription Term”	means the initial subscription term as set out in the Order Form;
      “Mandatory Policies“	means the Supplier’s business policies and codes as amended by notification to the Supplier from time to time.
      “Materials”	means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of Chairsyde in connection with the Services, but excluding all Customer Data.
      “Normal Business Hours“	means[8.00 am to 6.00 pm] local UK time, each Business Day.
      “Non-Supplier Materials”	means Materials provided, controlled or owned by or on behalf of a third party the use of which is subject to a separate agreement or licence between the Customer and the relevant third party (including such Non-Supplier Materials which may be linked to, interact with or used by the Services) and all other Materials expressly identified as Non-Supplier Materials in this Agreement or otherwise by the Supplier.
      “Order Acceptance”	means the date when Chairsyde confirms in writing its acceptance of the relevant Order Form or the day from which the Customer commences use of the Subscribed Services, whichever is earlier.
      “Order Form”	means the electric or physical document (including its schedules, annexes and appendices (if any)) ordering the Subscribed Services entered into by or on behalf of the Customer and Chairsyde, incorporating these Subscribed Services Terms & Conditions (and as varied by the parties by agreement in writing from time to time).
      “Renewal Period“	means the renewal periods as set out in the Order Form.
      “Service“ or “Subscribed Service”	means the subscription service(s) provided by the Supplier to the Customer under this Agreement as described in the Order Form.
      “Service Period“	means the period beginning on Order Acceptance and ending with the date when this Agreement terminates or expires;
      “Software“	means the online software applications provided by the Supplier as part of the Services.
      “Subscribed Territory“	means, in respect of the relevant Subscribed Service, the territories identified in the Order Form except to the extent it is illegal (including as a result of any embargo) under the laws of the relevant jurisdiction (as binding on any person) for the Subscribed Service to be provided to or received within such territories from time to time; in the absence of specific identification in the Order Form, the Subscribed Territory is Great Britain;
      “Subscription Fees“	means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Order Form and all further subscription fees payable under this Agreement in relation to any extensions and renewals.
      “Subscription Term“	has the meaning given in clause 16.1.
      “Supplier”	means Chairsyde.
      “Supplier Provided Materials”	means all of the Materials provided or made available by or on behalf of Chairsyde, but excluding all Customer Data and all Non-Supplier Materials;
      “Support Services Policy“	means the Supplier’s policy for providing support in relation to the Services as made available online or such other website address as may be notified to the Customer from time to time.
      “User Subscriptions“	means the subscription purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
      “Virus“	means 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.

   2. In this Agreement, unless otherwise states:
      1. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement
      2. 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.
      3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established
      4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular
      5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders
      6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement
      7. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision
      8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision
      9. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement
   3. In this Agreement:
      1. Each Order Form entered into by the Customer shall form a separate agreement, incorporating these Subscribed Services Terms & Conditions for the respective Subscribed Services and the Policies (“Agreement”)
      2. in the event of any conflict in respect of the provisions of this Agreement and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):
         1. the Order Form
         2. these Subscribed Services Terms & Conditions; and
         3. the Documentation; and
      3. subject to the order of priority between documents in clause 1.3.2, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them
   4. Any obligation of Chairsyde under this Agreement to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws within the Subscribed Territory as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on Chairsyde (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors)
2. USER SUBSCRIPTIONS
   1. Upon Order Acceptance and subject to terms of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
   2. In relation to the Authorised Users, the Customer undertakes that:
      1. he maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
      2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
      3. each Authorised User shall keep a secure password for their use of the Services and Documentation and that each Authorised User shall keep their password confidential;
      4. it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
      5. it shall permit the Supplier or the Supplier’s designated auditor to audit the use of Services in order to establish compliance by the Customer and the Authorised Users with this Agreement. Each such audit will be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
      6. if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual;
      7. if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the standard prices of Chairsyde within 10 Business Days of the date of the relevant audit; and
      8. if any of the audits referred to in clause 2.2.5 reveal any non-compliance by the Customer or any Authorised Users, the Customer shall promptly remedy such non-compliance and Chairsyde may suspend provision of the Services until it is reasonably satisfied that all non-compliance has been remedied.
   3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. is otherwise illegal or causes damage or injury to any person or property;
      and the Supplier 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.
   4. The Customer shall not:
      1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
         1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
         2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
      3. use the Services and/or Documentation to provide services to third parties other than in the normal course of providing dental services directly to its own dental patients; or
      4. subject to clause 17.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
      5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
      6. introduce or permit the introduction of, any Virus into the Supplier’s network and information systems.
   5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
   6. The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless otherwise expressly agreed in writing by the Supplier as an Authorised Affiliate.
3. Additional user subscriptions
   1. Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
   2. SIf the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request). Where the Supplier approves the request, the Supplier will activate the additional User Subscriptions and the Customer shall, within 7 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions.
4. Services
   1. The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
   2. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
      1. planned maintenance performed outside Normal Business Hours; and
      2. unscheduled maintenance, provided that the Supplier has used reasonable endeavours to give the Customer notice in advance.
   3. The Supplier will[, as part of the Services and at no additional cost to the Customer OR and in consideration of additional support fees] provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
5. CUSTOMER DATA and Data protection
   1. Customer Data shall at all times remain the property of the Customer or its licensors.
   2. Except to the extent Chairsyde has direct obligations under data protection laws, the Customer acknowledges that Chairsyde has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Service) complies with all applicable laws and Intellectual Property Rights.
   3. Except as otherwise expressly agreed in this Agreement, Chairsyde shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Service Period. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s and Authorised Affiliates’ businesses. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its, its Authorised Affiliates and its Authorised User’s needs) and extracts it from each Subscribed Service prior to the termination or expiry of this Agreement or the cessation or suspension of any of the Services.
   4. Chairsyde routinely undertakes regular backups of the Subscribed Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make Chairsyde responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, Chairsyde shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
   5. Unless otherwise set out in the Order Form, the these Subscribed Service Terms & Conditions or subsequently agreed by the parties in writing, the Customer hereby instructs that Chairsyde shall within [60] days of the earlier of the end of the provision of the Services (or any part) relating to the processing of the Customer Data securely dispose of such Customer Data processed in relation to the Services (or any part) which have ended (and all existing copies of it) except to the extent that any Applicable Law (as defined in the Data Protection Schedule) requires Chairsyde to store such Customer Data. Chairsyde shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Customer Data undertaken in accordance with this Agreement.
   6. The Data Protection Schedule shall apply to this Agreement.
6. Third party providers
   1. The Customer acknowledges that the Services may enable or assist it to access products and services from third parties and that the Customer does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party or their products and services, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website or with third parties is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s terms and conditions and privacy policy prior to using the relevant third-party products or services. The Supplier does not endorse or approve any third-party website, products or services nor any third party the content, product or services made available via the Services.
7. Supplier’s obligations
   1. The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care
   2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier 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 7.1.
   3. The Supplier:
      1. does not warrant that:
         1. the Customer’s use of the Services will be uninterrupted or error-free; or
         2. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.
      2. 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 Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
   4. This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
   5. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
   6. The Supplier shall follow its archiving procedures for Customer Data as set out in its back-up policy available upon request or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier 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 in accordance with the archiving procedure described in its back-up policy. The Supplier 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 the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
8. Customer’s obligations
   1. The Customer shall:
      1. provide the Supplier with:
         1. all necessary co-operation in relation to this Agreement; and
         2. all necessary access to such information as may be required by the Supplier;
         in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
      2. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
      3. carry out all other Customer responsibilities set out in this Agreement 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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
      4. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and the EULA and shall be responsible for any Authorised User’s breach of this Agreement;
      5. obtain and shall maintain all necessary licences, consents, and permissions necessary for the access and use by the Customer, any Authorised Affiliates and Authorised Users of the Services;
      6. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
      7. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing 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.
   2. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9. Charges and payment
   1. The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9 and the Order Form and any support fees in accordance with clause 4.3.
   2. The Customer shall pay the Supplier’s invoices within 7 days of the Supplier’s invoice.
   3. If the Supplier has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
      1. the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
      2. 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 Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
   4. All amounts and fees stated or referred to in this Agreement:
      1. shall be payable in pounds sterling;
      2. are, subject to clause 14.3.2, non-cancellable and non-refundable;
      3. are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
   5. If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space if any is specified in the Documentation, the Supplier may charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees.
   6. The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, the support fees payable pursuant to clause 4.3 and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 90 days’ prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
10. INTELLECTUAL PROPERTY rights
    1. All Intellectual Property Rights in and to the Services (including in all Documentation and all Supplier Provided Materials) belong to and shall remain vested in Supplier or the relevant third party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in the Documentation, Supplier Provided Materials or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Supplier or such third party as Supplier may elect. The Customer shall execute all such documents and do such things as Supplier may consider necessary to give effect to this clause 10.1.
    2. SThe Supplier has no obligation to deliver any copies of any software to the Customer in connection with this Agreement or the Services.
    3. The Customer and Authorised Users may be able to store or transmit Customer Data using one or more Subscribed Service and the Subscribed Services may interact with Customer Systems. The Customer hereby grants a royalty-free, non-transferable, non-exclusive worldwide licence for Supplier (and each of its direct and indirect sub-contractors) to use, copy and other otherwise utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform Supplier’s rights, remedies and obligations under this Agreement.
    4. To the extent Non-Supplier Materials are made available to, or used by or on behalf of the Customer, any Authorised Affiliate or any Authorised User in connection with the use or provision of any Subscribed Service, such use of Non-Supplier Materials (including all licence terms) shall be exclusively governed by applicable third party terms notified or made available by Supplier or the third party and not by this Agreement. Supplier grants no Intellectual Property Rights or other rights in connection with any Non-Supplier Materials.
    5. The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Supplier under this Agreement.
    6. Except for the rights expressly granted in this Agreement, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
    7. This clause 10 shall survive the termination or expiry of this Agreement.
11. Confidentiality
    1. Chairsyde shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with this Agreement, disclose or copy the Customer Data other than as necessary for the performance of the Services or its express rights and obligations under this Agreement.
    2. Chairsyde shall implement technical and organisational security measures in accordance with the Data Protection Schedule.
    3. Chairsyde undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement or as otherwise reasonably necessary for the provision or receipt of the Services.
    4. The provisions of this clause 11 shall not apply to information that:
       1. is or comes into the public domain through no fault of Chairsyde, its officers, employees, agents or contractors;
       2. is lawfully received by Chairsyde from a third party free of any obligation of confidence at the time of its disclosure;
       3. is independently developed by Chairsyde (or any of its Affiliates or any person acting on its or their behalf), without access to or use of
       4. is required by law, by court or governmental or regulatory order to be disclosed
12. SUPPLIER’S CONFIDENTIAL INFORMATION
    1. The Customer shall maintain the confidentiality of Chairsyde’s Confidential Information and shall not without the prior written consent of Chairsyde, disclose, copy or modify Chairsyde’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under this Agreement.
    2. The Customer undertakes to:
       1. disclose Chairsyde’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement;
       2. procure that such persons are made aware of and agree in writing to observe the obligations in this clause 12; and
       3. be responsible for the acts and omissions of those third parties referred to in this clause 12.2 as if they were the Customer’s own acts or omissions.
    3. The Customer shall give notice to Chairsyde of any unauthorised use, disclosure, theft or loss of Chairsyde’s Confidential Information immediately upon becoming aware of the same.
    4. The provisions of this clause 12 shall not apply to information which:
       1. is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
       2. is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
       3. is independently developed by the Customer, without access to or use of such information; or
       4. is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies Chairsyde at the earliest opportunity before making any disclosure.
    5. This clause 12 shall survive the termination or expiry of this Agreement for a period of [5] years.
13. Indemnity
    1. The Customer shall indemnify, keep indemnified and hold harmless Chairsyde (on Chairsyde’s own behalf and on behalf of each of Chairsyde’s Affiliates) from and against any losses, claims, damages, liability, Data Protection Losses, costs (including legal and other professional fees) and expenses incurred by it (or any of its Affiliates) as a result of the Customer’s breach of this Agreement.
    2. This clause 13 shall survive termination or expiry of this Agreement.
14. Limitation of liability
    1. Except as expressly and specifically provided in this Agreement:
       1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
       2. 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 this Agreement; and
       3. the Services and the Documentation are provided to the Customer on an “as is” basis.
    2. Nothing in this Agreement excludes the liability of the Supplier:
       1. for death or personal injury caused by the Supplier’s negligence; or
       2. for fraud or fraudulent misrepresentation.
    3. Subject to clause 14.1 and clause 14.2:
       1. the Supplier 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 this Agreement; and
       2. the Supplier’s total aggregate liability in contract (including in respect of the indemnity arising under or in connection with this Agreement), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall not exceed the greater of:
          1. an amount equal to the Subscription Fees for the relevant Subscribed Service paid to Chairsyde by the Customer in the 12-month period immediately preceding the first incident giving rise to any claim under this Agreement; or
          2. an amount equal to 6 times the Subscription Fees paid to Chairsyde for the relevant Subscribed Service for the first month of the Service Period.
    4. This clause 14 shall survive the termination or expiry of this Agreement.
15. SUSPENSION
    1. Chairsyde may suspend access to the Services to all or some of the Authorised Users if:
       1. Chairsyde suspects that there has been any misuse of the Services or breach of this Agreement; or
       2. the Customer fails to pay any sums due to Chairsyde by the due date for payment.
    2. Where the reason for the suspension is suspected misuse of the Services or breach of this Agreement, without prejudice to its rights under clause 16, Chairsyde will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
    3. In relation to suspensions under clause 15.1.2, access to the Services will be restored after Chairsyde receives payment in full including any applicable interest and cleared funds but Chairsyde shall have no liability in relation to any technical or issues occurring upon restoration arising from the suspension of the Services.
    4. Fees shall remain payable during any period of suspension notwithstanding that the Customer, Authorised Affiliates or some or all of the Authorised Users may not have access to the Services.
16. Term and termination
    1. This Agreement shall, unless otherwise terminated as provided in this clause 16, commence on Order Acceptance, and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of Renewal Periods as set out in the Order Form or otherwise agreed in writing by the parties, unless:
       1. either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
       2. otherwise terminated in accordance with the provisions of this Agreement;
       and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
    2. Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
       1. the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
       2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
       3. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
    3. Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if:
       1. the Customer fails to pay any amount due under the Agreement on the due date for payment; or
       2. there is a change of control of the Customer.
    4. On termination or expiry of this Agreement for any reason:
       1. all licences and rights granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
       2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;.
       3. subject to compliance with the Data Protection Schedule in relation to Customer Personal Data, the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier 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). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
       4. 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; and
       5. Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
17. General
    1. Force Majeure.Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
    2. Variation.No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    3. Waiver.A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
    4. Rights and remedies.Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
    5. Severance.If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under clause 17.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
    6. Entire Agreement.The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    7. Assignment and other dealings.
       1. The Customer shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Any unauthorised assignment shall be deemed void and enforceable.
       2. The Supplier 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 this Agreement.
    8. No partnership or agency.Nothing in this Agreement 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).
    9. Third party rights.This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
    10. Governing law.This 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 interpreted in accordance with the law of England and Wales.
    11. Jurisdiction.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 or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

Data Protection Schedule

1. data protection
   1. For the purposes of this paragraph 1, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
   2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This paragraph 1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
   3. The parties have determined that, for the purposes of Applicable Data Protection Laws:
      1. the Supplier shall act as controller in respect of the personal data and processing activities set out as follows;
         

         Personal Data	Processing Activities / Purpose
         Contact details of Customer contact such as: names, addresses, email addresses, telephone numbers	Contract administration
         Tracking data regarding animations shown to patients by the relevant Authorised User (e.g. dentist.	For Chairsyde’s analytics and research purpose to: assess level of use of its different animations improve its products and performance

      2. the Supplier shall process Customer Personal Data as a processor on behalf of the Customer in respect of the processing activities as set out in this paragraph 1.3.2:.
         

         Particulars of Processing	Details
         Subject-matter and duration of the processing	As set out in this Agreement
         Nature and purpose of the processing,	The Client Personal Data is processed for the purposes of providing the Services as set out in the Agreement.
         Type of personal data	name, address, contact details, age, date of birth, sex and physical description of Authorised Users (such as dentists) and patients personal details issued as an identifier by a public authority, including NHS numbers, national insurance numbers patient health data such as dental and medical treatment record Education and training details, including information which relates to the education and any professional training of the data subject, including academic records, qualifications, skills, training records, professional expertise, student and pupil records
         Categories of data subjects	Each category of data subject (delete as appropriate) below includes current, past and prospective Data Subjects. Where any of the following is itself a business or organisation, it includes their staff: Authorised Users including dentists and other staff; customers, clients/patients (including their staff) relatives, guardians and associates of the patients; complainants, correspondents and enquirers

   4. Should the determination in paragraph 1.3 change, then each party shall work together in good faith to make any changes which are necessary to this paragraph 1 or the related schedules.
   5. By entering into this Agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives and agents, customers, patients in respect of) all actions taken by the Supplier in connection with the processing of Supplier Personal Data, provided these are in compliance with the then-current version of the Supplier’s privacy policy (Privacy Policy).In the event of any inconsistency or conflict between the terms of the Privacy Policy and this Agreement, the Privacy Policy will take precedence.
   6. Without prejudice to the generality of paragraph 1.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Customer Personal Data to the Supplier and/or lawful collection of the same by the Supplier for the duration and purposes of this Agreement.
   7. In relation to the Customer Personal Data, paragraph 1.3.2 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
   8. Without prejudice to the generality of paragraph 1.2 the Supplier shall, in relation to Customer Personal Data:
      1. process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes of performing the Services in accordance with this Agreement, unless the Supplier is required by Applicable Data Protection Laws to otherwise process that Customer Personal Data. Where the Supplier is relying on Applicable Laws as the basis for processing Customer Processor Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit the Provider from so notifying the Customer on important grounds of public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;
      2. implement the technical and organisational measures set out in Schedule 2 to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
      3. ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
      4. assist the Customer insofar as this is reasonable (taking into account the nature of the processing and the information available to the Supplier), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      5. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
      6. at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this paragraph 1.8.6 Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
      7. maintain records to demonstrate its compliance with this paragraph 1.
   9. The Customer hereby provides its prior, general authorisation for the Supplier to:
      1. appoint processors to process the Customer Personal Data, provided that the Supplier:
         1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this paragraph 1;
         2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
         3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
      2. transfer Customer Personal Data outside of the UK for the purpose of providing the Services under the Agreement, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).