FUNDAMENTAL SURGERY CUSTOMER AGREEMENT

PLEASE READ CAREFULLY BEFORE ORDERING ANY SOFTWARE

 

IMPORTANT NOTICES:

Any and all use of the Licensed Software (as defined below) is subject to the terms and conditions of this customer agreement (“Agreement”).

By ticking the box next to “I accept” or any similar statement indicating your agreement to the terms of this Agreement, you accept, and agree to be legally bound by, all terms of this Agreement.  Where you are acting on behalf of your employer or another third party, you and your employer or that third party each represent and warrant that you have full authority to bind your employer or that third party to this Agreement.  Please note that the terms and conditions of this Agreement include exclusions and limits on liability at clauses 6.3, 6.4 and 13.      

If the terms and conditions of this Agreement are not agreed, you, your employer or and / or the third party you are acting on behalf of will not be able to use the Licensed Software.

This Agreement applies in respect of the Licensed Software only and does not permit the use of any other Software (as defined below) of the Supplier.

Certain system requirements apply in respect of the Licensed Software.  These are set out on at https://www.fundamentalsurgery.com/hardware.  These system requirements must be met before the Licensed Software is downloaded or installed.

Please save and / or print a copy of this Agreement for future reference.

TERMS AND CONDITIONS:

1.          INTERPRETATION

1.1         The following words and expressions shall have the following meanings:

Admin User” means any individual that the Customer permits from time to time to use the Licensed Software as an “administrator”;

Affiliate” means any corporation, company or other entity which Controls, is Controlled by, or is under common Control with a party and, for these purposes, “Control” and “Controlled” each mean ownership or control, direct or indirect, of more than fifty percent (50%) of:

(a)      the voting shares or securities (representing the right to vote for the election of directors or managing authority), or

(b)      the ownership interests representing the right to make decisions for such corporation, company or other entity (as the case may be) in any partnership, joint venture or unincorporated association having no shares or securities.

However, any such corporation, company or other entity shall be deemed to be an Affiliate of a party only for so long as such ownership or Control exists;

Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

CDPA” has the meaning given in clause 3.5(c);

Cloud Hosting Provider” has the meaning given in clause 5.2;

Confidential Information” means the terms and existence of this Agreement and all information disclosed by one party to the other or otherwise received by the other in the entering into or performance of this Agreement, which is expressly marked as confidential or which concerns the technology, know-how, methodology of supply, business, developments or finances of that party or of the Affiliates, suppliers, customers or clients of that party (and in the case of  the Supplier, is deemed to include the Licence Key, the Licensed Materials and all source code in the Licensed Software);

Customer” means the customer as entered on the order page and recorded in the Order Confirmation, unless and except to the extent that the Supplier agrees otherwise in writing;

Customer Computing System” means the Customer’s proprietary or licensed (otherwise than by the Supplier under this Agreement) computing environment (consisting of hardware, Software, and/or telecommunications networks or equipment) used by the Customer in connection with this Agreement;

Customer Data” means:

(a)      the data inputted by, or on behalf of, the Customer or Users, for the purpose of using the Licensed Software or facilitating the Customer’s or a User’s use of the Licensed Software; and

(b)      the Customer Personal Data;

“Customer IP” has the meaning given in clause 10.2;

Customer Personal Data” has the meaning given in clause 5.4.

Data Services” has the meaning given in clause 5.2;

Documentation” means all documentation provided or made available (directly or indirectly) by the Supplier to the Customer relating to the Licensed Software from time to time, including on the pages of the Supplier’s website;

Effective Date” means the date of the Order Confirmation;

End User” means any individual that the Customer permits from time to time to use the Licensed Software who is not an Admin User;

Force Majeure” means circumstances beyond a party’s reasonable control (including strikes, lock-outs or other industrial disputes, acts of God, war, riot, civil commotion, malicious damage, breakdown of plant or machinery, fire, flood, or storm);

Indemnified Claim” has the meaning given in clause 11.7;

Initial Subscription Term” means a period of twelve (12) months from:

(a)      the Effective Date; or

(b)      where clause 14.2 applies, the end of the Trial Period.

Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in Software, database rights and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;

Law” means:

(a)      any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time;

(b)      the common law;

(c)      any binding court order, judgement or decree;

(d)      any applicable industry code, policy or standard, in each case to the extent enforceable by law; and

(e)      all applicable statutory and all other binding rules, guidance, and instruments;

Licence” has the meaning given in clause 3.1;

Licence Key” means the licence download key in respect of the Licensed Software provided by the Supplier to the Customer;

Licensed Software” means:

(a)      the Fundamental Surgery software that enables simulation of medical procedures in a virtual reality environment for training purposes, in executable form, as  selected on the order page and recorded in the Order Confirmation; and

(b)      any updates to or updated version of such Software, whether incorporating “patches” and corrections of errors, enhancements, new content or otherwise, provided or made available to the Customer by the Supplier from time to time;

Licensed Materials” means the Licensed Software and the Documentation;

Order Confirmation” means the email order confirmation issued by the Supplier in respect of an order placed by or on behalf of the Customer;

Purpose” means use of the Licensed Materials:

(a)      by the Customer to provide internal training to End Users by enabling them to participate in Simulations and monitor such training;

(b)      by Admin Users to monitor and report on the Simulations undertaken by End Users; and

(c)      by End Users for the purposes of undertaking their own personal training by participating in Simulations, only and in accordance with the Documentation;

New Sub-processor Start Date” has the meaning given in clause 5.7;

Non-Supplier IP” means any Supplier IP that is not owned by the Supplier or its Affliates from time to time;

Purchased Seats” means the number of seats selected on the order page and recorded in the Order Confirmation;

Renewal Date” means the first day of each Renewal Period;

Renewal Period” has the meaning given in clause 14.1;

“Service Level Agreement” means any service level commitments provided by the Supplier in respect of the Support Services as set out at https://www.fundamentalsurgery.com/support  from time to time;

Simulation” has the meaning given in clause 6.3;

Software” means any computer program, including source code, object code, user interfaces, application programming interfaces, scripts, and/or firmware (including all updates, patches, modifications and/or enhancements to the same);

Sub-processor” has the meaning given in clause 5.6;

Support Services” means any support services provided by the Supplier in respect of the Licensed Software as set out at https://www.fundamentalsurgery.com/support from time to time;

Subscription Fee(s)” means the subscription fees payable by the Customer for a licence of the Licensed Software as described in this Agreement;

Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Period;

Supplier” means FVRVS Limited (trading as Fundamental Surgery), a company incorporated and registered in England and Wales with company number 07370553 whose registered office is at 55 Baker Street, London, England, W1U 7EU, whose VAT number is 998437055;

Supplier IP” has the meaning given in clause 10.1;

Territory” means the territory selected on the order page as recorded in the Order Confirmation;

Terms of Use” means the terms of use applicable to a User’s use of the Licensed Software;

Trial” means a trial of the Licensed Software as selected by the Customer on the order page and recorded in the Order Confirmation;

Trial Period” has the meaning given in clause 14.2;

Update” has the meaning given in clause 7.1; and

User” means each End User and Admin User, and “Users” shall be construed accordingly.

1.2         In this Agreement:

(a)      the words “including” and “includes” shall shall not limit the generality of the preceding words and shall be construed as if they were immediately followed by the words “without limitation”;

(b)      the headings are for convenience only and shall not affect the interpretation of this Agreement;

(c)      any obligation on a party not to do an act or thing includes an obligation not to allow, suffer and/or permit that act or thing to be done; and

(d)      any reference to “persons” includes individuals, firms, partnerships, companies, corporations, associations, organisations,trusts, statutory bodies or foundations (whether or not having separate legal personality).

2.          YOUR ORDER

2.1         The Customer should follow the onscreen prompts to place an order and may only submit an order using the method set out on the Supplier’s website.  Each order is an offer by the Customer to purchase a licence to use the Licensed Software.

2.2         The order process allows the Customer to check and amend any errors before submitting its order to the Supplier.  The Customer shall check its order carefully before submitting it and is responsible for ensuring that its order is complete and accurate.

2.3         After the Customer has placed its order, the Supplier may acknowledge receipt of the Customer’s order by email, but this does not mean that the Customer’s order is accepted.

2.4         An order placed by the Customer shall only be deemed accepted by the Supplier once the Supplier has issued an Order Confirmation in respect of that order.  The point at which the Order Confirmation is issued is the point at which this Agreement will come into effect.

2.5         The Supplier shall not be obliged to accept any order placed by the Customer.  The Supplier may (in its sole discretion) reject an order for any reason including: any credit reference obtained, or the outcome of any “know your customer” checks completed, in respect of the Customer not being to the Supplier’s satisfaction; the Supplier identifying an error in the price or description of the Licensed Software on its website; or the Supplier being unable to meet a delivery deadline.  The Supplier shall notify the Customer in writing if the Customer’s order is rejected. If the Customer has elected to pay any Subscription Fees by payment card, the Supplier shall not take payment of any sums until it has issued an Order Confirmation in respect of the Customer’s order.

3.          LICENCE

3.1         Subject to the terms of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-sub-licensable, non-transferable right to use, and to permit Users to use, the Licensed Materials within the Territory solely for the Purpose and in accordance with the terms of this Agreement during: (i) the Trial Period, if applicable; or (ii) subject to the payment of the Subcription Fees, the Subscription Term (the “Licence”).

3.2         The Customer shall not at any time:

(a)      install or use the Licensed Software, or permit the Licensed Software to be installed or used, on a total number of computers that is more than the total number of Purchased Seats or on computers that are not owned or leased by the Customer;

(b)      permit more than one (1) End User to use the Licensed Software installed on a computer at any one time; or

(c)      without Supplier’s prior written consent, permit any person that is not a User to use or access the Licensed Software in any form.

3.3         The Parties acknowledge and agree that the Licensed Materials are being licensed to the Customer and not sold to the Customer.

3.4         The Customer acknowledges that it has no right to have access to the Licensed Software in source code form.

3.5         To the fullest extent permitted by Law and except as expressly provided in this Agreement or as permitted pursuant to the Supplier’s express written consent, the Customer shall not:

(a)      incorporate into any other product, copy, publish, display, adapt, modify, sub-license, rent, lease, loan, sell, assign, convey, translate or transfer the Licensed Materials (in whole or in part), or any adaptation, modification or copy thereof;

(b)      convert the Licensed Software to any programming language or format;

(c)      decompile, reverse engineer, disassemble or create derivative works of the Licensed Software (in whole or in part) or any adaptation, modification, copy or merged portion thereof and, if it is necessary to decompile (as defined in section 50(B) of the Copyright, Designs and Patents Act 1988 (as amended, updated or replaced from time to time), the “CDPA”) for the permitted objective (as defined in the CDPA), the Customer first requests the Supplier (at the Customer’s cost) to provide the information necessary to achieve such permitted objective before undertaking any such decompilation and the Supplier fails to provide such information within a reasonable time of the Customer’s request;

(d)      use the Licensed Materials to develop or otherwise in connection with any product that is substantially similar to or competitive with the Licensed Software or use the Licensed Materials in a promotional context (including at trade shows or for demonstration purposes);

(e)      provide or otherwise make the Licensed Materials available (in whole or in part) to any third party (including any third party that would reasonably be considered to be a competitor of the Supplier), except with the Supplier’s express written consent or as permitted under this Agreement; or

(f)       remove the Supplier’s trade mark, copyright notice or any other proprietary notice from the Licensed Materials.

3.6         The Customer may make one copy of the Licensed Software (or any part of it) in machine readable form for normal back up purposes only.  The Customer shall ensure that such copy is not installed or otherwise used on any computer at any time when the original copy of the Licensed Software supplied to the Customer is installed or otherwise used on any other computer.  Such copy and the media on which it is stored will be the Supplier’s property and the Customer shall ensure that such copy bears the Supplier’s trade mark, copyright notice and/or proprietary notice as they appear on the original copy of the Licensed Software supplied to the Customer.

3.7         The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable, non-sub-licensable (except to the Supplier’s Affiliates, consultants, agents and/or sub-contractors) licence to use, copy and/or modify the Customer Data:

(a)      during the Subscription Term for the purpose of facilitating the Customer’s or a User’s use of the Licensed Materials and/or the Supplier’s compliance with its obligations under this Agreement; and

(b)      as otherwise permitted pursuant to this Agreement.

4.          SERVICES

4.1         The Supplier shall, during the Subscription Term, provide the Support Services to the Customer on, and subject to, the terms of this Agreement and the terms of the Service Level Agreement.

4.2         In the event the Customer requires the Supplier to perform any services other than the Support Services, such additional services shall, unless otherwise agreed in writing between the parties, be provided pursuant to a separate written agreement.

5.          CUSTOMER DATA

5.1         The Customer shall own all right, title and interest in and to the Customer Data.

5.2         The Supplier shall record, store and back-up the Customer Data as set out at the data services pages of the Supplier’s website from time to time (including any services set out at https://www.fundamentalsurgery.com/data-policy) and make the Customer Data available to the Customer via the Licensed Software (or as the Supplier may otherwise, in its sole discretion, determine) from time to time (the “Data Services”).  The Customer acknowledges and agrees that data storage, retention and back ups may be undertaken by third party service providers engaged by the Supplier (including Amazon Web Services, Inc) (each a “Cloud Hosting Provider).

5.3         In the event of any loss or corruption of, or damage to, Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable endeavours to restore the lost, corrupt or damaged Customer Data from the latest back-up of such Customer Data maintained by, or on behalf of, the Supplier.

5.4         In respect of personal data processed by the Supplier on the Customer’s behalf when performing its obligations under this Agreement (“Customer Personal Data”), the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in such case:

(a)      the subject matter and duration of the processing, nature and purpose of the processing, types of Customer Personal Data and categories of data subjects are set out in Appendix A;

(b)      the Supplier shall only process such Customer Personal Data in accordance with the Customer’s documented instructions (including with regard to transfers) which are exclusively set out in this Agreement or  as permitted pursuant to this Agreement, unless required to do otherwise by applicable Law (in which event, the Supplier shall inform the Customer of the legal requirement before processing the Customer Personal Data other than in accordance with the Customer’s instructions, unless that same Law prohibits the Supplier from doing so on important grounds of public interest);

(c)      the Supplier shall ensure that its personnel are subject to appropriate obligations of confidentiality; and

(d)      the Supplier shall, taking into account the nature of the Support Services and the Data Services and at the Customer’s cost, provide reasonable assistance to the Customer, insofar as this is possible, for the fulfilment of the Customer’s obligations as a data controller 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.

5.5         In accordance with clause 14.7(b), upon termination of this Agreement the Customer shall have ten (10) days to request the return of the Customer Data, after which period the Supplier may destroy (to the extent reasonably practicable) all Customer Personal Data in its possession unless required to retain such Customer Personal Data under applicable Law.

5.6         The Customer hereby consents to the Supplier engaging subcontractors (including any Cloud Hosting Provider) to process the Customer Personal Data on its behalf (“Sub-processors”). The Supplier shall ensure Sub-processors are subject to contractual obligations which are the same as, or similar to, those imposed on the Supplier under this Agreement. The Supplier shall be responsible for the performance of its Sub-processors.

5.7         If the Supplier intends for a new Sub-processor to process Customer Personal Data, the Supplier shall notify the Customer of the identity of the new Sub-processor and date on which the new Sub-processor is intended to start to process Customer Personal Data (the “New Sub-processor Start Date”) at least thirty (30) days before the New Sub-processor Start Date.  If the Customer objects to the new Sub-processor processing Customer Personal Data, the Supplier may terminate this Agreement:

(a)      if the Customer objects before the Sub-processor has started processing Customer Personal Data, with effect from the New Sub-processor Start Date; or

(b)      if the Customer objects after the Sub-processor has started processing Customer Personal Data, immediately upon written notice.

5.8         The Supplier shall use technical and organisational measures to protect Customer Personal Data stored by or on behalf of the Supplier against unauthorised and unlawful processing and against accidental loss, destruction, disclosure, damage or alteration. The Customer agrees that it is solely responsible for determining whether such technical and organisational measures are appropriate, taking into account the nature, scope, context and purposes of the processing.

5.9         Upon written request, the Supplier shall:

(a)      provide the Customer with all security certification(s) and audit reports relevant to the Supplier’s processing of Customer Personal Data (“Audit Records”); and

(b)      make available all other information within Supplier’s control, to allow the Customer to audit the Supplier and to demonstrate the Supplier’s compliance with its obligations under clauses 5.4 to 5.9 (inclusive).

If and to the extent necessary to satisfy an audit obligation to which the Customer is subject under applicable Law and the Customer cannot rely on the Audit Records, the Supplier agrees to permit an audit to be conducted only of those facilities, records and systems relevant and material to the processing of Customer Personal Data provided such an audit is carried out:

          (i)       by the Customer, by a competent supervisory authority pursuant to applicable Law or by an independent third party auditor subject to appropriate confidentiality obligations;

          (ii)      during the Supplier’s normal business hours;

          (iii)      in a manner that causes minimal disruption to the Supplier’s business; and

          (iv)     is at the Customer’s own cost.

5.10       In respect of the Data Services provided by any Cloud Hosting Provider, the Customer acknowledges and agrees that the audit obligations listed in clause 5.9 shall not apply and that the Supplier shall instead have the obligation to cooperate in good faith with Customer (at Customer’s reasonable cost) and its regulators and auditors to the extent they raise queries in relation to the data storage, retention and back up aspects of the Data Services.

5.11       Notwithstanding the generality of clause 5.10, upon reasonable written request from the Customer (provided always that the Customer shall limit such requests to a maximum number of two (2) request per annum), the Supplier agrees in particular to request of a Cloud Hosting Provider providing Data Services in respect of Customer Data such certifications and reports as may be of assistance to the Customer in meeting its regulatory obligations. In addition, where such Cloud Hosting Provider is subject to an external audit and the Customer requests the Supplier contact the Cloud Hosting Provider for confirmation of the same, the Supplier shall request from the Cloud Hosting Provider a copy of the external audit report (if any) and confirmation that the Cloud Hosting Provider’s standards, practices and procedures comply with good industry practice.

5.12       The Customer acknowledges and agrees that Customer Personal Data may be transferred or stored outside the UK or EEA or the country where the Customer is located in the performance of the Supplier’s obligations under this Agreement and Appendix A.

5.13       Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Supplier may, during and after the Subscription Term, use, share with the Customer and third parties (such as surgical instrument manufacturers, pharmaceutical manufacturers and healthcare providers and organisations) and otherwise process:

(a)      anonymised and/or aggregated data collected and/or processed by the Supplier in connection with the provision and/or use of the Licensed Software for research, insight and product development purposes; and

(b)      Customer Personal Data for marketing purposes provided that the Supplier obtains any necessary consents from the relevant individual(s) and for research and product development purposes.

The parties agree that, to the extent that data is used, shared with third parties or otherwise processed by the Supplier and its Affiliates for these purposes, such processing shall not be on behalf of the Customer and such data shall not be regarded as Customer Personal Data for the purposes of this Agreement.

6.          SUPPLIER’S OBLIGATIONS AND WARRANTIES

6.1         The Supplier shall provide the Licence Key and details of how to download the Licensed Software to the Customer in, or by email following issue of, the Order Confirmation.  The Supplier reserves the right not to activate the Licence Key until it has received payment in full of the Subscription Fees.  The Customer shall not be entitled to a refund of any Subscription Fees in respect of any period during which the Licence Key is not active and the Subscription Fees have not been paid in full.

6.2         The Supplier shall perform the Data Services and Support Services with reasonable skill and care.

6.3         The Customer acknowledges that the Licensed Software provides End Users with access to simulated operating environments (each a “Simulation”) for training purposes, and that these simulations are an approximation to reality, only.  Accordingly;

(a)      the Supplier does not warrant that any Simulation is, or that the experience of an End User using the Licensed Software or participating in any Simulation shall be, an accurate representation of reality, or that, having used the Licensed Software or participated in any Simulation, an End User is able to successfully perform any operation; and

(b)      the Supplier does not accept any responsibility for, and shall have no liability in respect of, any act or omission of an End User following their use of the Licensed Software and/or their participation in any Simulation.

6.4         In addition, the Customer acknowledges and accepts that participants in Simulations can experience adverse effects and/or physical injury and/or cause damage to property whilst participating in a Simulation.  Except to the extent that the Supplier cannot exclude or limit its liability for the same under applicable Law, the Supplier accepts no responsibility for, and shall have no liability in respect of, any illness or injury suffered by any User as a result of using the Licensed Software or participating in any Simulation or any physical damage caused by a User participating in a Simulation.

6.5         The Supplier shall have no liability under this Agreement to the extent any such liability is caused by:

(a)      use of the Licensed Materials otherwise than in accordance with this Agreement, the Supplier’s instructions and/or the Documentation; or

(b)      by any modification or alteration of the Licensed Materials by any party other than the Supplier or the Supplier’s duly authorised contractors or agents.

6.6         The Supplier does not warrant that:

(a)      the Customer’s use of the Licensed Software will be uninterrupted or error-free; or

(b)      the Licensed Software and/or the experience provided by, or experience or data obtained through the use of, the Licensed Software will meet the Customer’s requirements.

6.7         The Supplier 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.  The Customer acknowledges that use of the Licensed Software, and the Support Services, may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.8         The Supplier assumes no responsibility for, and shall have no liability in connection with, providing, obtaining or installing any Software, hardware, operating systems or other components of the Customer Computing System, to the extent the same is required for the Customer to run, use or obtain the benefit of the Licensed Software.

6.9         To the fullest extent permitted by Law and except as expressly provided in this Agreement, the Licensed Materials are provided to the Customer “as-is” and there are no warranties, express or implied, made by the Supplier (including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement, or arising by course of dealing or performance or by custom or usage in the trade), all of which are hereby expressly disclaimed.

7.          UPDATES AND NEW VERSIONS

7.1         The Supplier may from time to time (but shall not be obliged to) provide or make available to the Customer updates to or new versions of the Licensed Materials (including any update of the Licensed Software incorporating “patches” and corrections of errors, enhancements and / or new content) that the Supplier may develop (each an “Update”).  An Update may be applied by the Supplier automatically or the Customer may be given an option to decline the Update.  Certain Updates may be mandatory (such as Updates to improve security) and, if the Customer is given the option to decline such an Update, the Customer will not be able to continue using the relevant Licensed Materials if the Customer declines the Update.  If the Customer declines any Update (whether mandatory or otherwise), the Supplier shall not be responsible for, or liable pursuant to this Agreement in respect of, any issue (including in respect of performance, non-performance or functionality of the Licensed Software) to the extent that such issue or liability would not have arisen had the Customer not declined the Update.

7.2         The Supplier shall not be responsible for obsolescence or incompatibility of the Licensed Materials that may result from changes in the Customer’s requirements, Customer Computing System or otherwise.

8.          CUSTOMER’S OBLIGATIONS AND WARRANTIES

8.1         The Customer shall:

(a)      comply with, and ensure that all Users comply with, all applicable Laws with respect to its activities under this Agreement;

(b)      ensure that, to the extent the Customer or any User shares or makes available any personal data to the Supplier, the Customer or the User, as applicable, is lawfully entitled to do so;

(c)      procure that each User:

(i)       agrees to the Terms of Use prior to accessing the Licensed Software; and

(ii)       complies with the terms of this Agreement (as if they were the Customer) and the Terms of Use;

(d)      be solely responsible for ensuring that Users are fit to use the Licensed Software and participate in Simulations, conducting any necessary health and safety and/or other risk assessments in connection with the same and, except to the extent the Supplier cannot exclude or limit its liability for the same under applicable Law, any illness or injury suffered by a User as a result of using the Licensed Software and/or participating in a Simulation or any physical damage caused by a User participating in a Simulation;

(e)      keep the Licence Key secure and apply to the Licence Key such level of care and security it would apply to its Confidential Information;

(f)       not provide or otherwise make available the Licence Key in any form to any person other than to persons employed or engaged by the Customer, without the Supplier’s prior written consent;

(g)      not remove or alter any trade marks, copyright notices or similar proprietary devices, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Licenced Software or any copy of the Licensed Software;

(h)      keep all copies of the Licensed Software (or any part of it) secure and maintain accurate and up to date records of the number and locations of all copies of the Licensed Software (or any part of it);

(i)       only use the License Key to activate the Licensed Software (or any copy of it) for use pursuant to, and in accordance with, this Agreement;

(j)       obtain and maintain all necessary licences, consents, and permissions necessary for it to provide and/or make available the Customer Data under this Agreement;

(k)      be solely responsible for procuring and maintaining all network connections and telecommunications links from the Customer Computing System to the internet necessary to run, use and obtain the benefit of the Licensed Software, and the Customer shall be responsible for 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;

(l)       be solely responsible for determining the fitness of the Licensed Software for the Customer’s purposes and requirements, and for procuring and maintaining any Software, hardware, operating systems and other components of the Customer Computer System required in order to run, use and obtain the benefit of the Licensed Software, whether or not the Supplier makes any recommendation in respect of the same;

(m)     in respect of any defect or issue reported by the Customer to the Supplier pursuant to the Support Services, the Customer shall provide to the Supplier all requisite contextual information to enable the Supplier to be able to re-create the defect or issue and propose a solution;

(n)      use all reasonable endeavours to prevent any use of the Licensed Software other than by the Customer and Users to the extent permitted pursuant to this Agreement; and

(o)      assume responsibility for the supervision, management and control of its and Users’ use of the Licensed Materials and be liable for the acts and/or omissions of its Users as if they were its own.

8.2         The Customer warrants and represents to the Supplier that the rights in the Customer Data are valid and subsisting and that the exercise by the Supplier (or its Affiliates) of its rights in respect of the Customer Data will not infringe the rights (including Intellectual Property Rights) of any third party.

8.3         The Customer warrants and represents that the Supplier’s processing of any Customer Personal Data on the Customer’s behalf in accordance with the terms of this Agreement will not breach applicable data protection and privacy Laws.

9.          FEES, PAYMENT AND TAXES

9.1         The Customer shall pay the Subscription Fees to the Supplier in accordance with the terms of this Agreement.

9.2         The Subscription Fees for the Initial Subscription Term shall be the price set out on the order page and recorded in the Order Confirmation.

9.3         The Subscription Fees for any Renewal Period shall be notified to the Customer no later than sixty (60) days before the Renewal Date or, if no fees are so notified to the Customer, an amount equal to the Subscription Fees for the Initial Subscription Term or Renewal Period immediately preceding that Renewal Period (as the case may be).  If the Customer does not agree to the Subscription Fees for any Renewal Period, either may terminate this Agreement in accordance with clause 14.1.

9.4         If the Customer has signed up for a Trial, the Customer shall not be liable to pay any Subscription Fees during the Trial Period.

9.5         Subject to clause 9.4, all amounts payable by the Customer pursuant to this Agreement shall be payable:

(a)      where the Customer elects to pay by payment card, on or in advance of the Effective Date (or the date following the end of the Trial Period, if applicable) or Renewal Date (as the case may be) and the Customer agrees that the Supplier may use such payment card to take payment of the relevant amounts at any time after it has issued the Order Confirmation or, if later, the payment card details are provided; or

(b)      where the Customer elects to receive an invoice, within thirty (30) days after the date of the Supplier’s invoice (which the Supplier may submit at any time after it has issued the Order Confirmation, or any time after the end of the Trial Period, if applicable) or, in the case of Subscription Fees for a Renewal Period, the day falling thirty (30) days before the Renewal Date.

9.6         If the Supplier has not received, or has not been able to take, payment in accordance with this Agreement, then without prejudice to any other rights and remedies of the Supplier, the Supplier may (at its sole discretion):

(a)      terminate the Agreement on written notice to the Customer; and/or

(b)      without liability to the Customer, suspend the Customer’s and any Users’ use of the Licensed Software (and the Supplier shall be under no obligation to provide access to the Licensed Materials or any or all of the Support Services while any amounts remain unpaid),

and interest shall accrue on a daily basis on such unpaid amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date for payment and continuing until fully paid, whether before or after judgment.

9.7         Unless the Supplier agrees otherwise all Subscription Fees are exclusive of all applicable taxes, including any value added tax and/or withholding taxes, which shall be added to any amounts payable at the appropriate rate.

9.8         Should a withholding tax be levied by virtue of a double tax treaty or of source country’s Law:

(a)      the parties will coordinate, if necessary in advance of any payment, in order to benefit from any tax provision referring to withholding tax exemption or to the reduction of the withholding tax rate. The Supplier will provide the Customer with its tax residence certificate in order to obtain the tax exemption or the reduced tax rate. Should a special national form be requested to benefit from the reduced tax rate or exemption, the Customer shall provide Supplier with this;

(b)      the Customer shall be responsible for paying the withholding tax and obtaining from its tax authorities an official receipt evidencing the payment of such tax;

(c)      the Customer shall make an additional payment to Supplier so that the Supplier receives the full amount of the Subscription Fee as if the tax had not been levied, and

(d)      the withholding tax shall be borne by Customer.

9.9         The Customer agrees to indemnify and hold harmless the Supplier from and against all claims and liability arising from the Customer’s failure to report or pay taxes for which it is responsible.

9.10       The Customer shall not be entitled to set off any Subscription Fee(s) or another amounts payable to the Supplier pursuant to this Agreement against any amounts payable by Supplier to Customer pursuant to this Agreement.

10.         PROPRIETARY RIGHTS

10.1       The Customer acknowledges and agrees that the Supplier and/or its licensors own all rights (including Intellectual Property Rights), title and interest in, relating to or arising in connection with the Licensed Materials together with any and/or all adaptations, add-ons, modifications, updates and/or enhancements to the Licensed Materials from time to time (the “Supplier IP”).

10.2       The Supplier acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Data together with any and/or all adaptations, add-ons, modifications, updates, and/or enhancements to the Customer Materials from time to time (the “Customer IP”).

10.3       Except as expressly stated in this Agreement, this Agreement does not grant the Customer or the Supplier any rights, title or interest in or to any rights (including Intellectual Property Rights) or any licences in respect of the Supplier IP or the Customer IP respectively.

10.4       The Customer acknowledges and agrees that the Licensed Materials are a commercially valuable, proprietary asset of the Supplier, the design and development of which reflect the effort of skilled developers and the investment of considerable time and money by the Supplier, its Licensors and/or their Affiliates.

10.5       The Customer further agrees:

(a)      to refrain from any action which would diminish the Supplier IP or which would call them into question; and

(b)      if the Customer becomes aware of any infringement or suspected infringement of the Supplier IP by any third party, the Customer shall notify the Supplier without delay. If the Supplier requests, the Customer shall consult with the Supplier on an appropriate course of action but neither party shall be obliged to take any action in respect of any such infringement or suspected infringement.

11.         INDEMNITIES

11.1       Subject to clause 11.6, the Supplier hereby indemnifies and holds harmless the Customer from and against all liabilities, costs, expenses (including reasonable legal fees), losses and damages (in each case, to the extent awarded by a court of competent jurisdiction or otherwise agreed by the Supplier in settlement of a claim) arising from, or incurred in connection with, any claim from a third party that the Customer’s use of the Licensed Materials  infringes the rights of a third party (a “Third Party IPR Claim”) except to the extent that a Third Party IPR Claim arises:

(a)      from the Licensed Materials being modified or being combined or used with Software or materials not approved by the Indemnifying Party;

(b)      from any use of the Licensed Materials otherwise than in accordance with this Agreement, the Supplier’s instructions and/or the Documentation;

(c)      as a consequence of any breach of this Agreement by the Customer or a User and/or any negligence or misconduct by the Customer or a User; or

(d)      from or as a consequence of the use of any Non-Supplier IP.

11.2       The Customer shall promptly inform the Supplier in writing of any Third Party IPR Claim brought against the Customer and the Supplier shall have exclusive conduct of any proceedings and negotiations arising from the Third Party IPR Claim in respect of which it is giving the indemnity under clause 11.1.

11.3       The Customer shall co-operate with all reasonable requests of the Supplier in the conduct of the proceedings and negotiations in connection with the Third Party IPR Claim.

11.4       The Customer shall not make any admission of liability, agreement or compromise in respect of a Third Party IPR Claim without the Supplier’s prior written consent (such consent not to be unreasonably withheld or delayed).

11.5       The Customer shall take all reasonable and timely action necessary to mitigate all loss, damage, costs and expenses incurred by the Supplier and its Affiliates as a result of any Third Party IPR Claim including such reasonable actions as the Supplier may request to avoid, dispute, resist, appeal, compromise or defend any Third Party IPR Claim.

11.6       If the Customer does not comply with any or all of the provisions set out in clauses 11.2 to 11.5 (inclusive), the indemnity given by the Supplier in clause 11.1 shall not apply.

11.7       In the event of a Third Party IPR Claim, or in the Supplier’s reasonable opinion a Third Party IPR Claim is likely to be made, the Supplier may (but shall not be obliged to):

(a)      negotiate terms for continued use by the Customer of the claimed infringing Licensed Materials (or part of them);

(b)      amend the Licensed Materials (or part of them) to make them non-infringing;

(c)      amend the Licensed Materials (or part of them) to make them non-infringing; and / or

(d)      terminate this Agreement with immediate effect and refund any of the Subscription Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Licensed Software to the date of termination).

11.8       This clause 11 shall be the Customer’s sole and exclusive remedy with respect to any Third Party IPR Claim and shall be the Supplier’s entire and sole liability in respect of the same.

11.9       The Customer hereby indemnifies and holds harmless the Supplier and its Affiliates (together, the “Indemnified Party”) from and against all liabilities, costs, expenses (including reasonable legal fees), losses and damages arising from or incurred in connection with:

(a)      any claim from a third party that the Supplier’s use of the Customer Data on behalf of the Customer infringes the rights of a third party;

(b)      except to the extent the Supplier cannot exclude or limit its liability for the same under applicable Law, any illness or injury suffered by a User as a result of using the Licensed Software and/or participating in a Simulation and any physical damage caused by User participating in a Simulation; and

(c)      any act or omission of an End User following their use of the Licensed Software and/or their participation in any Simulation,

(each an “Indemnified Claim”).

11.10     The Customer shall co-operate with all reasonable requests of the Supplier in respect of the conduct of the proceedings and negotiations in connection with the Indemnified Claim.

12.         CONFIDENTIALITY and publicity

12.1       A party receiving Confidential Information (the “Recipient”) of the other party (the “Disclosing Party”) shall:

(a)      use the Confidential Information of the Disclosing Party only as permitted under this Agreement and will use all reasonable means (including by complying with the remainder of this clause 12) to prevent the disclosure of such Confidential Information to any third party, without the Disclosing party’s prior consent;

(b)      take measures that are no less protective than those measures it uses to protect the confidentiality of its own comparable Confidential Information; and

(c)      procure that its (and its Affiliates’) employees, agents, subcontractors and other representatives comply with the requirements of confidentiality contained in this Agreement.

12.2       Subject to clause 12.3, the restrictions contained in clause 12.1  shall not apply to any Confidential Information which:

(a)      comes into the public domain otherwise than through a breach of this Agreement or breach of any other confidentiality obligation;

(b)      is required by a court of competent jurisdiction or by a governmental or regulatory authority to be disclosed or where there is a legal right, duty or requirement to disclose;

(c)      is known to the Recipient prior to its disclosure by the Disclosing Party;

(d)      is independently developed by the Recipient without any reliance on Confidential Information of the Disclosing Party; or

(e)      is lawfully acquired from a third party who owes no duty of confidentiality in respect of the Confidential Information.

12.3       Notwithstanding clause 12.2, the parties agree that:

(a)      the Licensed Materials are treated by the Supplier as confidential and contain substantial trade secrets and/or other Confidential Information of Supplier, which the Supplier has entrusted to the Customer in confidence to use only as expressly authorised in this Agreement. Such trade secrets and/or other Confidential Information include all algorithms, know-how, methods, techniques, designs, architecture, technology and processes revealed by the Licensed Materials and are deemed to be included in the term Licensed Materials when used in this Agreement;

(b)      the Customer may not, at any time, disclose or disseminate the Licensed Materials to any person or entity that does not need to obtain access thereto in connection with the proper exercise of the Customer’s rights under this Agreement; and

(c)      under no circumstances may the Customer disclose or disseminate the Licensed Materials to any third party without the Supplier’s express consent.

12.4       The Customer will cause its personnel, Users and all other persons and entities the Customer affords access to the Licensed Materials to protect the Licensed Materials against improper use, dissemination or disclosure and to otherwise comply with Customer’s obligations under this Agreement and the Customer is responsible for a breach of any such obligations by any such personnel, User or other person or entity as if such breach were its own.

12.5       Notwithstanding any other provision of this Agreement, the Supplier may, during and after the Subscription Term, disclose the Customer as a customer of the Supplier and engage in marketing, advertising and promotion that discloses the existence of this Agreement and the relationship between the Customer and the Supplier and the Customer agrees that the Supplier may use the name, brand, logo and other trade marks of the Customer in connection with the same (including in marketing, advertising and promotional materials).

13.         LIMITATION OF LIABILITY

13.1       Nothing in this Agreement excludes or limits:

(a)       the liability of either party for:

(i)       death or personal injury caused by negligence;

(ii)       fraud or fraudulent misrepresentation; or

(iii)      any other liability which cannot be limited or excluded under applicable Law;

(b)      the Customer’s liability to pay the Subscription Fees or other amounts payable to the Supplier pursuant to this Agreement; or

(c)      the Customer’s liability for, or in connection with, its wilful default of this Agreement.

13.2       Subject to clause 13.1, the Supplier shall not be liable whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, or otherwise for:

(a)      any loss of profits or anticipated savings;

(b)      loss of business;

(c)      depletion of goodwill;

(d)      wasted expenditure;

(e)      loss or corruption of, or damage to data, except for the cost of the Supplier using reasonable endeavours to restore lost, corrupt or damaged Customer Data from the latest back-up of such Customer Data maintained by, or on behalf of, the Supplier pursuant to clause 5.3; or

(f)       any special, indirect or consequential loss,

in each case however arising under or in connection with this Agreement even if that loss or damage was reasonably foreseeable or the Supplier was aware of the possibility of that loss or damage arising.

13.3       Subject to clauses 13.1 and 13.2, the Supplier’s total aggregate liability (including its Affiliates when taken together) in contract, tort (including negligence), breach of statutory duty, misrepresentation, or otherwise, arising out of or in connection with this Agreement shall not exceed:

(a)      in respect of liability pursuant to the indemnity given at clause 11.1, one hundred and fifty thousand pounds sterling (£150,000); and

(b)      in respect of any other liability, a sum equal to the Subscription Fees paid under this Agreement for the Initial Subscription Term or Renewal Period (as the case may be) in which the event giving rise to the claim arose (less any amounts paid by the Supplier in satisfaction of any service credits from time to time).

14.         TERM AND TERMINATION

14.1       This Agreement shall commence on the Effective Date.  Unless terminated earlier in accordance with its terms, this Agreement shall continue for the Trial Period (if applicable) and thereafter the Initial Subcription Term. Thereafter, this Agreement shall be automatically renewed for successive periods of twelve (12) months commencing on each anniversary of the Effective Date (each a “Renewal Period”), unless either party provides to the other party written notice terminate this Agreement  at least thirty (30) days before the end of the Initial Subscription Term or the then current Renewal Period (as the case may be), in which case this Agreement shall terminate upon the expiry of the Initial Subscription Term or the then current Renewal Period (as the case may be).

14.2       If the Customer has signed up for a Trial, the Trial shall commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, shall continue for the period selected by the Customer on the order page and recorded in the Order Confirmation (“Trial Period”).

14.3       Either party may terminate this Agreement at any time during the Trial Period with immediate effect by giving written notice to the other party.

14.4       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:

(a)      the other party commits a material breach of any provision of this Agreement and in each case the breach is not capable of remedy;

(b)      the other party commits a material breach or a series of breaches which together constitute a material breach, of any provision of this Agreement, which, in each case, is capable of remedy and fails to remedy such breach within thirty (30) days after receipt of a written notice specifying the breach or series of breaches and requiring it or them to be remedied;

(c)      the other party passes a resolution for a voluntary winding up or a winding up order is made (except for the purpose of a bona fide amalgamation or reconstruction previously approved in writing by the non-defaulting party);

(d)      a receiver, administrative receiver, administrator or manager is appointed or an encumbrancer takes possession of the undertaking or assets (or any part thereof) of the other party;

(e)      a notice of intention to appoint an administrator is lodged at court by the other party, its directors or a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);

(f)       the other party is unable to pay its debts (within the meaning of section 123 Insolvency Act 1986) or ceases or threatens to cease to carry on business or enters into an arrangement or composition with or assignment for the benefit of, its creditors or if, in the reasonable opinion of the other party, any of such events appear likely;

(g)      the other party has the benefit of a moratorium on legal proceedings or enforcement proceedings being taken against it whether statutory or otherwise without the consent of the non-defaulting party; or

(h)      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 clauses 14.2(c) to 14.2(g) (inclusive).

14.5       In the event of termination of the Agreement by the Supplier pursuant to clauses  5.7, 9.6(a) or 14.2, or suspension of the Customer’s and any Users’ use of the Licensed Software pursuant to clause 9.6(b), the Customer will not be entitled to a refund or credit in resepct of any Subscription Fees relating to the period after termination.

14.6       In the event that the Supplier is entitled to terminate this Agreement pursuant to clauses 5.7, 9.6(a) or 14.2, or the Customer or any User fails to comply with clause 3 or 8, the Supplier may suspend the Customer’s and any Users’ use of the Licensed Software for such period as the Supplier (acting reasonably) deems appropriate (and the Supplier shall be under no obligation to provide access to the Licensed Materials or any or all of the Support Services during such period and the Customer shall not be entitled to a refund or credit in respect of any Subscription Fees relating to such period).

14.7       On termination of this Agreement for any reason:

(a)      except for the licences granted pursuant to clauses 3.7(b) and 12.5, all licences granted under this Agreement shall immediately terminate and the Customer must cease using the Licensed Materials; and

(b)      the Supplier may destroy (to the extent reasonably practicable) or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the return to the Customer of such Customer Data.

14.8       Upon expiry or termination of this Agreement, howsoever caused, each party’s further rights and obligations shall cease immediately on expiry or termination but expiry or termination shall not affect:

(a)       a party’s accrued rights and obligations at the date of expiry or termination; or

(b)      the provisions of clauses: 1 (Interpretation); 5.13 (Customer Data); 6.3 and 6.4 (Supplier’s Obligations and Warranties); 8.2 (IPR Warranty); 10 (Proprietary rights); 11 (Indemnities); 12 (Confidentiality and Publicity); 13 (Limitation of Liability); 14 (Term and Termination); and 15 (Miscellaneous).

15.         MISCELLANEOUS

15.1       Contacting the Supplier: The Customer may contact the Supplier by calling its customer service team on +1 617 500 5327 or writing to its customer service team at [email protected] or The Cursitor Building, 38 Chancery Lane, London, Greater London, WC2A 1E.

15.2       Language: This Agreement is made only in the English language.

15.3       Force Majeure:

(a)      Subject to clause 15.3(b), a party shall have no liability to the other in any way whatsoever under this Agreement for any breach of this Agreement or for any delay in performing its obligations under this Agreement to the extent that such default or delay results from Force Majeure.

(b)      The party relying on the Force Majeure event shall promptly notify the other party in writing of the reasons for the breach or delay (and the likely duration of any delay) and:

          (i)       the performance of the affected party’s obligations shall be suspended during the period that the Force Majeure circumstances subsist; and

          (ii)      the affected party shall be granted an extension of time equal to the period of the delay.

15.4       Audit: The Customer shall permit the Supplier, on reasonable advance notice. to inspect and have access to any premises (and to the Customer’s Computing System) at or on which the Licensed Materials are being kept or used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Customer is complying with the terms of this Agreement.

15.5       Waiver and Variations: No failure or delay by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights or remedies of that party nor shall any waiver of its rights or remedies operate as a waiver of any subsequent or other breach and (except as otherwise provided in this Agreement) no right or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right or remedy available to that party by Law and each such right or remedy shall be cumulative (unless expressly stated otherwise in this Agreement).

15.6       Severability: Any provision of this Agreement which is declared unlawful, void or unenforceable by any competent authority or court shall to that extent be deemed to be severed and the other provisions of this Agreement shall continue unaffected.

15.7       Entire Agreement: This Agreement constitutes the entire and only agreement and understanding between the Parties relating to its subject matter and supersedes any previous agreement, statement, representation, warranty or understanding (whether in either case oral or written) relating to the subject matter of this Agreement.  Each party acknowledges that in entering into this Agreement it has not relied on or been induced to enter into this Agreement by any statement, representation, warranty or understanding of any person (whether a party to this Agreement or not) which is not set out in this Agreement.  Each party agrees that the only rights and remedies available to it arising out or in connection with such a statement, representation, warranty or understanding shall be for breach of contract.  Nothing in this clause 15.7 shall operate to limit or exclude any liability for fraud or fraudulent misrepresentation.

15.8       Variation. Any variation of this Agreement only has effect if it is in writing and signed by both parties.

15.9       Assignment: The Customer shall not assign, transfer, sub-licence, charge or deal with in any other manner all or part of the Licensed Materials or this Agreement except as specified in this Agreement or otherwise without the prior written consent of the Supplier. The Supplier may assign all or any part of this Agreement to any Affiliate or to a purchaser of the whole or substantially the whole of its business upon written notice to the Customer.

15.10     Third Party Rights: This Agreement does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999.

15.11     Notices:

(a)      Any notice or other communication given under this Agreement shall be in writing and shall be served by sending it by:

(i)       electronic mail to, in the case of the Supplier, [email protected] surgery.com and, in the case of the Customer, any email address supplied by the Customer (or any of its representatives) to the Supplier; or

(ii)       in the case of the Supplier only, first class post (or by airmail if overseas) to the Customer’s registered office address from time to time.

(b)      Unless there is evidence of earlier delivery, where any notice or other communication is given in compliance with clause 15.11(a), it shall be deemed given:

(i)       if sent by email, at the time of transmission; and

(ii)       if sent by first class post, two (2) Business Days after the date of posting or if sent by airmail, five (5) Business Days after the date of posting.

(c)      The parties each agree that any notice sent by a party in the English language that is actually received by the other party shall be deemed to have been properly given and received irrespective of whether or not the requirements of clause 15.11(a) have been complied with.

15.12     Further Assurances: The Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required by the Supplier for the purpose of giving full effect to this Agreement.

15.13     Dispute Resolution: If a dispute arises between the parties, it is the intent of both parties that they shall first seek to resolve it by senior level negotiations. If such negotiations do not resolve the dispute and if both parties agree, the dispute may then be referred to mediation. This clause 15.13 shall not prevent either party from seeking interlocutory or interim relief from the courts, where appropriate.

15.14     Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with English Laws. Subject to clause 15.13, the English courts shall have exclusive jurisdiction to hear or decide any dispute or claims arising out of or in connection with this Agreement and for those purposes the parties irrevocably submit to the jurisdiction of the English courts.

15.15     Limitation Period: The Customer shall commence any claim(s) arising out of, under, or in connection with, this Agreement and its subject matter within one (1) year from the date when the Customer knew, or ought reasonably to have known, of the facts and/or matters giving rise to the claim(s).

APPENDIX A

1.          CUSTOMER PERSONAL DATA

1.1.        Duration of the processing: The duration of the Subscription Term.

1.2.        Purpose of the processing: To enable the Supplier to comply with its obligations pursuant to this Agreement.

1.3.        Nature of the processing: The Supplier will be processing certain Customer Personal Data in order to:

(a)      validate that the Customer has a current valid licence to use the Licensed Software and that the Licensed Software is not already in use, which may include processing of login credentials and contact details of Users;

(b)      to provide the Customer with details in respect of Users’ use of the Licensed Software and participation in Simulations; and

(c)      store and make available the same to the Customer.

1.4.        Type of Customer Personal Data: The personal data provided by the Customer or Users in connection with the access to and use of the Licensed Software, the personal data collected by the Supplier in respect of Users’ access to and use of the Licensed Software and the personal data otherwise processed by the Supplier on the Customer’s behalf under this Agreement, including:

(a)      Users’ names, department, specialist area of surgery, location (country and state/region), level/role, e-mail addresses, phone numbers, and account username and password; and

(b)      data in respect of Users’ participation in Simulations, such as Simulations accessed, started and completed, Simulation scores (by procedure, occasion or stage), the number of times a Simulation is started and whether it is completed, and average time spent in a specific Simulation or group of Simulations (whether completed or aborted).

1.5.        Categories of data subjects: The data subjects will include: (i) the Customer’s employees and other staff; and (ii) the Users.