1. Interpretation

1.1 The definitions and rules of interpretation in this condition apply in the following terms and conditions (Conditions).

Contract: the Customer’s acceptance of a proposal or quotation for the supply of Services by the Supplier or the Customer making a purchase on our site before or without the Supplier providing a proposal or a quotation and in any event the Supplier’s acceptance of it under condition 2.2.

Customer: the person, statutory body, organisation, firm or company who obtains any Services from the Supplier.

Document: includes, without limitation, in addition to any document in writing including fax and email, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Services: the software services and or consultancy services and or provision of reports to be provided by the Supplier under the Contract as chosen by the Customer from a quotation or proposal supplied by or on behalf of the Supplier or the list of products and services.

Supplier: Gooroo Limited, company number 05048590 whose registered office address is at Belmont House, Shrewsbury Business Park, Shrewsbury, Shropshire SY2 6LG.

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

1.2 Headings in these conditions shall not affect their interpretation.

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

1.4 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.5 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. Application of conditions

2.1 These Conditions shall:

• 1. apply to and be incorporated into the Contract; and
• 2. apply to the exclusion of any other terms and or conditions that the Customer seeks to impose or incorporate or that are contained or referred to in any Document, or which are implied by trade, custom, practice or course of dealing.

2.2 The Customer’s acceptance of a proposal or quotation to supply any Services given by or on behalf of the Supplier or any indication of willingness of the Supplier to supply Services , or where the Customer makes a purchase of Services from our site before the Supplier has given it a proposal or quotation, all constitute an offer by the Customer to purchase the Services specified and in accordance with the Terms including these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:

• 1. by a written acknowledgement issued and executed by the Supplier; or
• 2. (if earlier) by the Supplier starting to provide or giving access to the Services,

when a contract for the supply and purchase of the Services strictly on the Terms will be established.

2.3 Any proposal or quotation to supply Services is given or any negotiation to supply Services is entered into by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2.

3. Commencement and duration

The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer’s offer in accordance with condition 2.2 or from the date agreed between the parties and shall be subject to termination pursuant to condition 11.

4. Supplier’s obligations

4.1 The Supplier shall use reasonable endeavours to provide the Services in accordance in all material respects with the description in the list of products and services on our site.

4.2 The Supplier shall use reasonable endeavours to meet any performance or response times or dates agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which the Supplier considers are enhancements to any part of the Services or which do not materially impair the nature or quality of the Services.

5. Customer’s obligations

5.1 The Customer shall:

• 1. co-operate with the Supplier in all matters relating to the Services;
• 2. provide to the Supplier, in a timely manner, any information as the Supplier may reasonably require relating to the Services and ensure that it is accurate in all material respects; and
• 3. obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of any information supplied by the Customer to the Supplier in relation to the Services, in all cases before the date on which the Services are to start;
• 4. be responsible for ensuring that all data supplied, required or needed to be input into the software services products in relation to any of the Services by or on behalf of the Customer shall be true, accurate and complete;
• 5. be responsible for verifying the integrity of all data which it or its employees or anyone acting on its behalf inputs into any of the software service products in relation to the Services and establishing that such data complies with Condition 5.1.4 above;
• 6. satisfy itself that where software services form part of the Services, the results of the software services are reasonable before acting on or relying on such results.

5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed or any results from or provided by any of the Services are detrimentally affected by any act or omission of the Customer, its agents, subcontractors, consultants or employees, or by failure of the Customer to perform any obligation set out in clause 5.1 (notwithstanding that such act or omission may arise from a force majeure event as defined in Condition 12.1) (Customer Default):

• (a) the Supplier shall not be liable for any costs, charges, liabilities or losses sustained or incurred by the Customer arising directly or indirectly, including any loss of revenue arising from the Customer’s failure to meet or exceed performance targets or having to treat additional patients from any Customer Default; and
• (b) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

5.3 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 24 months after the last date of supply of the Services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.

6. Charges and payment

6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in any quotation or proposal or from time to time at the list of prices, which shall be on a time and expenses basis in respect of consultancy services and a fixed price basis in the case of software services or report generation. Condition 6.2 shall apply to any part of the Services which the Supplier provides on a fixed price basis. Condition 6.3 shall apply to any part of the Services which the Supplier provides on a time and expenses basis. The remainder of this Condition 6 shall apply in either case.

6.2 Where any of the Services are provided on a fixed price basis, the total price (exclusive of VAT which shall be charged in addition) for those Services shall be the relevant amount as set out in any quotation or proposal or from time to time, at the list of prices. The total price of those Services shall be paid to the Supplier without deduction or set-off and the Supplier shall invoice the Customer for the charges that are payable (together with VAT where appropriate).

6.3 Where any of the Services are provided on a time and expenses basis:

• a) the charges payable for those Services shall be calculated in accordance with the Supplier’s standard hourly fee rates, as set out in any quotation or proposal or from time to time at the list of prices. and as amended from time to time;
• b) all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
• c) the Supplier shall ensure that every individual whom it engages on those Services completes time sheets recording time spent on those Services, and the Supplier shall use such time sheets to calculate the charges referred to in Condition 6.3(a); and
• d) the Supplier shall invoice the Customer in arrears for its charges for time and expenses for the provision of those Services, calculated as provided in this Condition 6.3.

6.4 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of the date of the invoice to a bank account nominated in writing by the Supplier.

6.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:

• 1. charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
• 2. suspend all Services until payment has been made in full.

6.6 Time for payment shall be of the essence of the Contract.

6.7 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This Condition 6.7 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

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

7. Intellectual property rights

As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in all and any of the Services shall be owned or licensed (as the case may be) by the Supplier. The Customer acknowledges that other than the licence granted to it in accordance with this Condition 7 it shall receive no proprietary rights, title or interest nor be entitled to any such rights in any of the Intellectual Property Rights in any of the Services. The Supplier licenses such of the Intellectual Property Rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent only as is strictly necessary to enable the Customer to make reasonable use of those Services being purchased by the Customer pursuant to the Contract. This licence shall automatically terminate on termination of the Contract howsoever arising. The Customer shall have no right to assign, share, sell, transfer or otherwise deal with in any way, the licence granted to it by the Supplier under this Condition 7.

8. Confidentiality and the Supplier’s property

8.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed in connection with the Services or otherwise to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products or any of the Services which the Customer may obtain.

8.2 The Customer may disclose such information to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract and as may be required by law, court order or any governmental or regulatory authority.

8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors or any other party (Representatives) to whom it discloses such information comply with this Condition 8 as if each were the Customer. The Customer shall be fully responsible for any breach of the confidentiality provisions in this clause 8 by any of its Representatives.

8.4 The Customer shall not use any such information for any commercial gain or purpose other than to perform its obligations under the Contract.

8.5 All materials (including software and computer programs) data and information supplied by the Supplier to the Customer or its Representatives shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, and shall not be used, copied, reverse engineered, decompiled or recreated in any form whatsoever and whether in a form which is identical or similar to the original other than strictly in accordance with the Supplier’s explicit written instructions or authorisation.

9. Limitation of liability – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

9.1 This Condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:

• 1. any breach of the Contract;
• 2. any reliance by the Customer on the Services or any part of the Services;
• 3. any use made by the Customer of the Services or any part of them; and
• 4. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract, including those implied by Sections 3 to 5 of the Supply of Goods and Services Act 1982.

9.3 Nothing in these Conditions limits or excludes the liability of the Supplier:

• 1. for death or personal injury caused by its negligence; or
• 2. for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
• 3. any breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

9.4 Subject to Condition 5.2 (a) and Condition 9.3 (the latter shall take precedence)

• (a). the Supplier shall under no circumstances whatever be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profits or for loss of any other revenue or payment which the Customer would have received for meeting or exceeding any performance targets, or for any costs or expenses or losses the Customer sustains by having to treat additional patients or any indirect or consequential loss (including loss of profits or other revenue or payments) arising under or in connection with the Contract; and:
• (b). in respect of all other losses arising under or in connection with the performance or contemplated performance of the Contract:
  • 1. the total liability of the Supplier for any single default or series of connected defaults resulting in direct loss of or damage to tangible property shall be limited to £5,000,000; and
  • 2. except as governed by paragraph 9.4 (a) immediately above the Supplier’s total liability in respect of all other losses arising under or in connection with the Contract whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise shall be limited to the extent from time to time of the Supplier’s professional indemnity insurance or the Supplier’s products liability insurance (whichever shall be relevant) and where such insurance indemnity does not apply the Supplier’s liability shall in no circumstances exceed the price paid for the Services plus 25%.

9.5 This clause 9 shall survive termination of the Contract.

10. Data protection

The Customer acknowledges and agrees that personal data will be processed by and on behalf of the Supplier in connection with the Services.

11. Termination

11.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:

• 1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
• 2. the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
• 3. the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
• 4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
• 5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
• 6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
• 7. the other party (being an individual) is the subject of a bankruptcy petition or order;
• 8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
• 9. a qualifying floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; or
• 10. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
• 11. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
• 12. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
• 13. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 11.1.4 to Condition 11.1.12 inclusive.

11.2 The Contract shall terminate on the expiry of the term stated in any proposal or quotation for Services given by the Supplier or if different or if no proposal or quotation has been provided it shall terminate on the expiry of the term chosen by the Customer when it inputs onto our site a purchase order number and gains access to the Services.

11.3 On termination of the Contract for any reason:

• 1. the 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 may submit an invoice, which shall be payable immediately on receipt;
• 2. the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry and;
• 3. clauses which expressly or by implication survive termination shall continue in full force and effect.

11.4 On termination of the Contract (however arising), the following Conditions shall survive and continue in full force and effect:

• 1. Condition 5.2 (a) (No liability if there is a Customer Default)
• 2. Condition 7 (Intellectual Property Rights);
• 3. Condition 8 (Confidentiality);
• 4. Condition 9 (Limitation of Liability);
• 5. Condition 11 (Termination); and
• 6. Condition 21 (Governing Law and Jurisdiction).

12. Force majeure

12.1 Subject always to Condition 12.2 neither party shall have any liability to the other under the Contract if it is prevented from, fails to or is delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the party relying on this clause or any other party), failure of a utility service or transport network or communication system, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

12.2 Nothing in Condition 12.1. shall excuse the Customer from its obligations to pay all sums due under or in connection with the Contract in accordance with these Conditions.

13. Variation

13.1 The Supplier may, from time to time change the Services, provided that such changes do not materially impair the nature or quality of the Services and, where practicable, it will give the Customer notice of any change.

13.2 Subject to Condition 13.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

14. Waiver

14.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

15. Severance

15.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.

15.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

16. Entire agreement

16.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.

16.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract.

16.3 Nothing in this Condition shall limit or exclude any liability for fraud.

17. Assignment

17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

17.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

17.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.

18. No partnership or agency

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

19. Rights of third parties

A person who is not a party to the Contract shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties Act) 1999 or otherwise.

20. Notices

20.1 Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party, or as otherwise specified by the relevant party by notice in writing to the other party.

20.2 Any notice shall be deemed to have been duly received if delivered personally when left or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

20.3 This Condition 20 shall not apply to the service of any in any proceedings or other documents in any legal action.

20.4 A notice required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.

21. Governing law and jurisdiction

21.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.