Terms of Service
Dated: 22nd August 2023
BY USING THE SEMBLE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT USE THE SERVICES.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY CONTAIN LEGAL OBLIGATIONS AND IMPORTANT TERMS WHICH WE WILL RELY UPON.
1. DEFINITIONS AND INTERPRETATION
Unless otherwise defined in these Terms (the “Agreement”), the following words and expressions have the following meanings:
1.1 “Additional Services” means any additional services that Semble shall supply as agreed between the Parties in writing from time to time.
1.2 “Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
1.3 “Applicable Data Protection Laws” means:
- To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.
- To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which Semble is subject, which relates to the protection of Personal Data.
1.4 “Applicable Laws” shall mean:
- To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
- To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Semble is subject.
1.6 “Client” shall mean you, the person or business to whom Semble will provide the Service and any Additional Services, in accordance with these Terms.
1.7 "Client Data” means the data, including Personal Data, inputted by the Client and Users or Semble on the Client’s behalf for the purpose of using the Service or facilitating the Client’s or Users’ use of the Service and any data generated by, or derived from the Client’s or Users’ use of the Service, whether hosted or stored within the Service or elsewhere.
1.8 “Documentation” means the documents as provided to you by Semble as located in the help centre on the Website and as may be updated from time to time which sets out a description of the Services and user instructions.
1.9 “EU GDPR” means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
1.10 “Fees” means the fees payable for the Service and any User Subscription, Payment Services or Additional Services (as may be agreed between the Parties) in accordance with clauses 7 and 8.
1.11 “Initial Term” shall mean 1 month beginning on the Commencement Date.
1.12 “Intellectual Property Rights” means all patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and rights in domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
1.13 “Model Contract Clauses” means the model contractual clauses annexed to European Commission Decision C(2021) 915.
1.14 “Parties” means the Client and Semble and Party means either one of them.
1.15 “Renewal Period” shall mean an additional 1-month period.
1.16 “Semble” means Semble Technology Limited (company registration number 09891593) with a registered office at Huckletree Shoreditch, 18 Finsbury Square, London, EC2A 1AH.
1.17 “Service” or “Services” means the use of the online clinical system hosted by Semble via the Website, the User Subscription (as applicable) and any Additional Services and Semble Pay services (as applicable) that Semble supplies to the Client.
1.18 “Software” means any software contained in the Website or otherwise used by Semble in providing the Service.
1.19 “Term” means the period commencing on the Commencement Date and the Initial Term and any Renewal Period, ending on the date of termination of these Terms in accordance with its terms.
1.20 “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.21 “User” means any employee, agent, patient or independent contractor of the Client (e.g. billing, administrative personnel) who is authorised by the Client that accesses the Service and Documentation in accordance with these Terms.
1.22 “User Subscription” means a subscription service purchased by the Client enabling the Users to access and use the Service and Documentation in accordance with these Terms.
1.23 “Website” means Semble’s website from time to time, currently hosted at www.semble.io
1.24 Clause, Schedule and paragraph headings shall not affect the interpretation of these Terms.
1.25 The Client doing or not doing something shall include an obligation on the Client to ensure the Users do or do not carry out the relevant activity;
1.26 A provision of law is a reference to that provision as amended, extended or re-enacted from time to time;
1.27 A time of day is a reference to London time;
1.28 A working day is any day which is not a Saturday, a Sunday, a bank holiday or a public holiday in London; and
1.29 A person includes firms, companies, government entities, trusts and partnerships.
2. DURATION AND RENEWAL
2.1 These Terms shall commence on the Commencement Date for the Initial Term and shall automatically extend for a Renewal Period unless terminated earlier in accordance with these Terms.
2.2 Either Party may give written notice to the other Party, not later than 30 days before the end of the Initial Term or the relevant Renewal Period (if any), to terminate these Terms at the end of the then-current Initial Term or Renewal Period.
3. GRANT OF RIGHTS TO USE THE SERVICE
3.1 These Services and the Software are intended for business, commercial use only and not for personal use.
3.2 In consideration of the Fees, and subject to the Client purchasing the User Subscription, Semble grants the Client and its Users a non-exclusive, non-transferable licence to access and use the Service and Documentation during the Term subject to these Terms.
3.3 Semble may agree to provide Additional Services. Any such Additional Services and the Fees for such Additional Services shall be agreed between the Parties in writing from time to time and may be subject to further conditions.
3.4 Semble shall provide access to the Service and Documentation to the Client following the Commencement Date.
3.5 Nothing in these Terms shall prevent Semble from entering into similar agreements with third parties or developing, licensing or selling similar products or services.
3.6 If Semble shall provide the Client with any data which derives from third parties in part or in full, Semble shall not be held responsible for the accuracy of such data.
4. ACCESS TO THE SERVICE
4.1 In order to access the Service, the Client must become a registered user and provide accurate and complete information on registration. Client must provide an email address for Semble to contact Client e.g. for Service announcements, notices under these terms and receipt of Client Data on termination.
4.2 Client must ensure if it is set up as a business or partnership, that the account is set up in the company name. If Client is a sole trader, the account must be set up in the name of the individual clinician only.
4.3 Client must keep Semble updated if there are any changes to its details including email addresses.
4.4 A director of the Client business or the Client clinician must at all times be an administrator on the Client account. The same individual must log into the Client account with their details.
4.5 Use of the Service shall be restricted to use for the purpose of processing the Client’s Data for the normal business purposes of the Client (which shall not include allowing the use of the Service by, or for the benefit of, any person other than the Client and a User).
4.6 Whilst Semble will exercise standard confidentiality measures, it is the Client’s sole responsibility and liability to keep secure passwords, usernames, account details and any other login details (“Access Information”) and not disclose them to third parties.
4.7 The Client is also solely responsible and liable for any activity that occurs under its Access Information. The Client must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and shall notify Semble immediately in the event of any unauthorised access or use, or any suspected unauthorised access or use. Accordingly, Semble accepts no responsibility for misuse of the Client’s account in any manner due to the Client’s disclosure of Access Information to third parties. In the event of Access Information being lost, stolen or otherwise disclosed, a Client may reset the password by following the instructions provided on the Website.
5. USERNAMES AND LOGINS
5.1 In consideration for a User Subscription, Semble hereby grants to the Client a non-exclusive, non-transferable right (without the right to grant sub-licences) to permit Users to use the Service during the Term solely for the Client’s internal business operations. Semble reserves the right to monitor usage of the Service for the purposes of ensuring compliance with these Terms.
5.2 The Client’s subscription package will be based on the number of User Subscriptions at the rates as notified to the Client by Semble prior to the Commencement Date. If the Client wishes to add additional Users, any increase is at Semble’s discretion, and subject to an increase in Fees as described in clause 7.
5.3 In relation to Users (with the exception of medical patients who may not be required to register to access the Service), the Client undertakes that:
5.3.1 It will not allow or suffer any User Subscription to be used by more than one individual person unless it has been reassigned in its entirety to another individual, in which case the prior authorised User shall no longer have any right to access or use the Service and/or Documentation;
5.3.2 Each User shall keep a secure password for their use of the Service and Documentation;
5.3.3 It shall keep an updated list of Users and on request by Semble, provide a copy of the list to Semble within 3 working days;
5.3.4 It shall permit Semble or Semble's designated auditor to audit the Client’s use of the Service in order to establish the name and password of each User and the Client’s data processing facilities to audit compliance with these Terms. Each such audit may be conducted no more than once per quarter, at Semble’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;
5.3.5 If any audit referred to in clause 5.3.4 reveals that any password has been provided to any individual who is not an authorised User, then without prejudice to Semble’s other rights, the Client shall promptly disable such passwords and Semble shall not issue any new passwords to any such individual; and
5.3.6 If any audit referred to in clause 5.3.5 reveals that the Client has underpaid Fees to Semble or such underpayment is otherwise detected, then without prejudice to Semble’s other rights, the Client shall pay to Semble an amount equal to such underpayment as well as the cost of Semble’s audit of the Client within 10 working days of the date of the relevant audit.
5.3.7 Client will be liable to Semble for all claims, losses, costs and damages arising from misuse of the Services and/or Software by its Users.
6. CLIENT OBLIGATIONS
6.1 The Client shall:
6.1.1 Grant all necessary access to such information as may be required by Semble;
6.1.2 Provide all necessary cooperation to Semble in order to provide the Service, including but not limited to providing information on data, security access information and configuration services;
6.1.3 Without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms;
6.1.4 Carry out all other Client responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the Parties, Semble may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.5 Ensure that the Users use the Service and the Documentation in accordance with these Terms and shall be responsible for any User's breach of these Terms;
6.1.6 Obtain and shall maintain all necessary licences, consents, and permissions necessary for Semble, its contractors and agents to perform their obligations under these Terms, including without limitation the Service;
6.1.7 Ensure that its network and systems comply with the relevant specifications provided by Semble from time to time;
6.1.8 Be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Semble’s data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet; and
6.1.9 indemnify Semble against any claims, losses, damages, costs and reasonable expenses (including reasonable legal expenses) arising from the Client and its Users use of the Services and/or any breach of these Terms.
6.2 The Client shall not, except as may be allowed by any applicable law or regulation which is incapable of exclusion by Terms between the Parties and except to the extent expressly permitted under these Terms:
6.2.1 Attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
6.2.2 Attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
6.2.3 Access all or any part of the Service and Documentation in order to build a product or service which competes with the Service and/or the Documentation;
6.2.4 Use the Service and/or Documentation to provide services to third parties;
6.2.5 Use any test accounts for ‘real life’ use or anything other than testing the Service.
6.2.6 Except as permitted by law, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except the Users;
6.2.7 Attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation, other than as provided under these Terms; and
6.2.8 Introduce or permit the introduction, transmission or distribution of, any malware or virus into Semble’s Website, Software or network and information systems or otherwise in its use of the Services do so in any way which is offensive, illegal or causes damage to or injury to any person or property.
7. FEES AND PAYMENT
7.1 The Client shall pay to Semble the Fees for the Service as communicated to the Client by Semble prior to the Commencement Date. Fees are due on the invoice date. The Fees relating to the User Subscription shall be paid monthly in advance, as instructed by Semble.
7.2 Unless otherwise agreed in writing with Semble, all Fees shall be paid to Semble’s account as notified to the Client by Semble.
7.3 If Semble has not received payment within 30 days of the due date, and without prejudice to any other rights and remedies of Semble:
7.3.1 Semble may, without liability to the Client, disable the Client's password, account and access to all or part of the Service and Semble shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
7.3.2 Interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 In the event the Client has not paid 3 consecutive invoices and/or the Client is 3 months late in making a payment of Fees, Semble shall have the right without prejudice to any accrued rights and liabilities to terminate these Terms immediately on notice to the Client. On termination in this case, Client shall have 30 days to migrate its Client Data before it is deleted by Semble.
7.5 All amounts and Fees stated or referred to in these Terms:
7.5.1 Shall be payable in Pounds Sterling;
7.5.2 Are non-cancellable and non-refundable;
7.5.3 Are exclusive of value added tax, which if applicable shall be added to Semble's invoice(s) at the appropriate rate.
7.6 Semble, acting in its sole discretion, reserves the right to increase the Fees payable by the Client for the Service, upon giving 30 days’ written notice to the Client. This increase shall take effect from the commencement of the next Renewal Term following expiry of such notice. If the Client is not prepared to accept the increase, the Client may give notice to terminate the Agreement at the end of the Initial Term or the then-current Renewal Term (as applicable) by providing at least 15 days’ written notice to Semble, such notice to expire no later than the end of the Initial Term or the then-current Renewal Term (as applicable). The right for the Client to terminate the Agreement upon an increase in Fees does not apply to any increase in Semble Pay fees (where the Client can choose to switch off Semble Pay), or any fees paid for SMS services. The Fees will not increase during the notice period.
7.7 If the Client wishes to increase the number of User Subscriptions:
7.7.1 Any changes to the number of User Subscriptions and to the Fees will be applied to the Client’s account immediately.
7.7.2 A Client paying on an annual basis will be presented with an invoice for an annual subscription at the new rate promptly following the upgrade request. The Fees payable will be abated pro rata in proportion to the amount of time remaining on the previous annual subscription and subscription fees already paid in advance. The changes to the number of User Subscriptions will be applied to the Client’s account promptly following payment of the relevant invoice in connection with the upgrade.
7.8 Semble does not provide refunds should the Client wish to reduce the number of User Subscriptions they have purchased. Such downgrades will take effect at the next Renewal Period.
8. PAYMENT SERVICES THROUGH SEMBLE
8.1 The Website integrates with third-party payment processor, Stripe, to permit certain payment processing functionalities as part of our Services. We refer to these payment services and functionalities as integrated with Stripe as “Semble Pay.” Whether the Client receives payment services through Semble Pay, or directly with Stripe, for the purposes of the Agreement these functions are referred to as “Payment Services.” Payment Services are provided by Stripe and the Client’s use of Payment Services will be subject to Stripe’s separate Stripe Connected Account Agreement, available here. The Stripe Connected Account Agreement and Stripe’s Terms of Service shall be referred to collectively as the “Stripe Services Agreement.”
8.2 If the Client receives Payment Services through the Website, then in addition to being subject to these Terms, the Client also accepts and agrees to be bound by the Stripe Services Agreement. As a condition to the Client’s receipt of Payment Services and enabling this Service, the Client agrees to provide Semble with complete and accurate information about its business and the Client expressly authorises Semble to share this information with Stripe, including, as applicable, any transaction-related information, for the Client’s receipt and use of Payment Services.
8.3 Semble Pay Fees are as set out here or as described in the Client’s Agreement / Order Form. All other charges related to a Client’s Semble Pay account (including, without limitation, fees for chargebacks, collection fees, convenience fees, or charges incidental to the collection of delinquent accounts) will be charged at cost. During the Term of the Agreement, if Stripe increases its payment processing fees on transactions run at your business location (which would normally be the result of increased fees charged by the major card brand networks), Semble shall have the right to pass along these fee increases to the Client and adjust Fees for Payment Services accordingly. In this instance, Semble will use reasonable efforts to notify Client in writing (email will be sufficient) at least 14 days in advance of such fee increases taking effect.
8.4 By entering into an Agreement, the Client authorise and expressly permits Semble to collect any Fees (including Fees related to Payment Services) or other amounts owed to Semble under the Agreement directly from the funds payable to the Client as the result of its receipt of Payment Services. If the amount of funds payable to the Client after payment settlement is insufficient to cover Semble’s Fees or other amounts owed to Semble under the Agreement, then the Client authorises Semble to make a charge or debit from the Client’s bank account or credit card associated with the account, authorises Semble to send instructions to the financial institution that issued the Client’s card to take payment from your bank account in accordance with these Terms and/or set off the Fees from any monies Semble owe the Client or, deduct Fees from another business location where the Client receives Payment Services through the Platform. This authorisation will remain in full force and effect irrespective of expiry or termination of the Agreement and shall remain in place until all Fees are settled.
8.5 All merchants or sub-merchants receiving Payment Services must submit to risk underwriting prior to receiving Payment Services. As a condition of the Client’s receipt of Payment Services, the Client consents to and agrees to cooperate with Semble or Stripe’s standard underwriting process as applicable, including, without limitation, providing Semble with documentation or information that Semble reasonably requests. Semble may, as circumstances dictate, require an owner or principal associated with the Client to sign a personal guarantee for receipt of Payment Services. The Client consents to receiving communications from Semble, or our authorised agent for Payment Services, relating to any matter related to its Payment Services account, including, without limitation, emails or calls seeking to collect on a delinquent account.
8.6 As a condition of the Client’s receipt of Payment Services, the Client consents and agrees the following:
8.6.1 To provide to Semble, upon request, any reasonably requested information or documentation related to the provision of Payment Services;
8.6.2 Semble reserves the right to investigate any claims of non-delivery made by your Users and the Client agrees to promptly provide such information as required to assist;
8.6.3 Client acknowledges and agrees that Semble, at its sole discretion, has the right to maintain a minimum account balance on the Client’s Semble Pay account; and
8.6.4 Client consents that Users accounts can be suspended and/or switched to manual pay out at the sole discretion of Semble.
8.7 Client must pay, or ensure that Semble is able to collect, Fees and other amounts owed by Client under this Agreement when due. Semble may deduct, recoup or setoff Fees and other amounts the Client owes under this Agreement, or under any other agreements it has with Semble, from Client’s Semble Pay balance, or invoice Client for those amounts. If Client fails to pay invoiced amounts when due, if Client’s Semble Pay account balance is negative or does not contain funds sufficient to pay amounts that Client owes under this Agreement, or under any other agreement with Semble, or if Semble is unable to collect amounts due from the Client’s Semble Pay balance, then Semble may, to the extent legally permitted, deduct, recoup or setoff those amounts from: (a) if established and applicable, each minimum account balance; (b) funds payable by Semble to Client or Client’s Affiliate; (c) if established, each Affiliate’s minimum account balance; (d) each Client bank account; and (e) the Stripe account balance of each Stripe account that Semble determines, acting reasonably, is associated with Client or Client’s Affiliate. If the currency of the amount being deducted is different from the currency of the amount Client owes, Semble may deduct, recoup or setoff an amount equal to the amount owed (using Stripe’s currency conversion rate) together with any fees Semble incurs in making the conversion.
9. SEMBLE PAY TERMINALS
9.1 By ordering and/or using a Semble Pay Terminal (the “Terminal”), you are indicating your acceptance of the terms set out in this clause.
9.2 You confirm that you will only use your Terminal for the use of your business registered with Semble Technology Limited and using the Semble Pay product.
9.3 The following terms are incorporated (as applicable):
- Stripe Terminal Reseller Terms.
- Stripe Terminal Purchase Terms.
- Stripe Services Agreement – United Kingdom.
9.4 You may not resell or distribute the Terminal.
9.5 The Terminal may only be used in the country to which it was shipped and/or the country in which the Client signed up for Semble Pay Services. You may use a Terminal purchased in Switzerland or the European Economic Area (EEA) in another country in the EEA or Switzerland, provided that Terminals are supported in that country.
9.6 You must promptly notify Semble if you become aware of a breach of this clause and, upon request, cooperate fully with Semble to address and resolve any breach or potential breach.
9.7 Should you cease to be a client of Semble, or should Semble cease providing you with Semble Pay Services for any reason, it will be your responsibility to reset any Terminal in your possession without undue delay.
10.1 The Client acknowledges and agrees that the Service may occasionally be unavailable during periods of planned or unscheduled maintenance or in order to put in place any changes, modifications or upgrades to the Service, and that such unavailability will not count towards the availability calculation in this clause.
10.2 The Client further agrees that to the extent that access to the Service will not be affected or restricted, Semble may at any time perform such maintenance or put in place any changes, modifications or upgrades to the Service. In the event that it is anticipated that access to the Service may be affected or restricted, Semble will use reasonable endeavours to provide reasonable notice to the Client and will further use reasonable endeavours to perform such maintenance or put in place any changes, modifications or upgrades to the Service outside of normal business hours, in each case where possible.
10.3 The Client further acknowledges and agrees that the Service may occasionally be unavailable in the event that a third-party infrastructure provider suffers an interruption in its own service. In such event, Semble will use reasonable endeavours to work with such third party in order to minimise such interruption. For the avoidance of doubt, Semble shall not be responsible for any disruption to the Service in such event. Semble does not warrant that the Service will be error-free or free from any virus or vulnerability.
11. TECHNICAL SUPPORT AND TRAINING
11.1 In the event of any technical problems with the Service and/or Website, the Client shall use all reasonable endeavours to investigate and diagnose the issue before contacting Semble.
11.2 After making such investigations, to the extent that the Client still requires technical assistance, the Client shall email Semble’s client support team at firstname.lastname@example.org. Semble shall provide such support during Semble’s normal working business days and hours.
11.3 For the avoidance of doubt, technical support provided in accordance with this clause shall not include the diagnosis and/or rectification of any fault or malfunction in the Website or Service arising out of or in connection with or following:
11.3.1 The failure by the Client to implement recommendations in respect of or solutions to faults previously advised by Semble;
11.3.2 Any breach by the Client of any of its obligations under these Terms or any other contract with Semble relating to the Website and/or Service;
11.3.3 Use by the Client of the Service for a purpose for which it was not designed or not in accordance with these Terms; or
11.3.4 Any issues caused by hardware, Software or any other system other than the Website.
12.1 Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate the use of the Service without liability to the other immediately on giving notice to the other if:
12.1.1 The Client fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
12.1.2 The other Party commits a material breach of any of these Terms and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach;
12.1.3 The other Party repeatedly breaches any of these Terms 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 these Terms;
12.1.4 The other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, 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;
12.1.5 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party;
12.1.6 An application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other Party; or
12.1.7 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 this clause.
12.2 Without prejudice to Semble’s rights under these Terms and otherwise should any of the circumstances and/or events specified above arise or occur, Semble may in its absolute discretion suspend the provision of the Service and/or access to the Website by the Client and its Users on not less than 48 hours’ notice. All other provisions of this Contract shall remain in full force and effect.
12.3 On termination of the access to the Service for any reason:
12.3.1 The Client shall immediately pay to Semble all of Semble's outstanding unpaid invoices and interest and, in respect of the Service supplied but for which no invoice has been submitted and all payments that would have become due during the remainder of the Term (assuming that notice had been served in accordance with this clause 10 whether or not this is the case), Semble may submit an invoice, which shall be payable immediately on receipt;
12.3.2 Semble shall provide by email to the Client (to the address registered as the email address for service by the Client) a copy of its Client Data and will delete all copies of any such data held by Semble (unless Semble is obliged to retain copies as a matter of law) within 30 days after termination of the Client’s use of the Service;
12.3.3 The Client and any Users shall immediately stop using the Service and any licence granted by Semble shall be automatically revoked;
12.3.4 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; and
12.3.5 Any clause in these terms which is reasonably intended to survive termination shall remain in force.
12.4 Reinstatement of the provision of Service and/or access to the Website in the event of suspension or cancellation of the same shall be at the discretion of Semble and shall render the Client liable to pay such relevant reinstatement charges as are specified by Semble from time to time.
13. LIABILITY FOR COMMUNICATIONS FAILURES
13.1 The Client acknowledges and agrees that the Service and Documentation are provided “as is” and, to the extent permitted by law, Semble expressly disclaims all warranties or representations of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or bailment of the Client’s data on the servers of Semble. Semble makes no warranty or representation that the Client’s use of the Service will be uninterrupted or error-free or regarding the results that may be obtained from the use of the Service, the security of the Service, or that the Service will meet the Client’s requirements. Further, Semble is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges and agrees that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
13.2 Semble expressly excludes any and all liability whatsoever arising from or in connection with any SMS message or email sent via or through the Service which is delayed, not sent or corrupted save for any such liability arising directly from a negligent act or omission of Semble.
14. LIMITATION OF LIABILITY
14.1 Save in respect of fraud, fraudulent misrepresentation, death or personal injury caused by Semble’s negligence, and to the maximum extent permitted by law, in no event shall Semble be liable for any indirect, special, incidental, or consequential damages, loss of use, loss of profits, revenue, interest or business or loss or corruption of data, wasted expenditure, whether in an action in contract, tort (including but not limited to negligence and breach of statutory duty), equity or otherwise in connection with the Service, the Website or any other service provided by Semble.
14.2 If the Client suffers loss or damage as a result of Semble’s negligence or failure to comply with these Terms, any claim by the Client against Semble arising from Semble’s negligence or failure or in connection with these Terms will be limited in respect of any one incident, or series of connected incidents, to the maximum Fees payable by the Client during the first 6 months or of the Term (or the maximum fees paid up to the point of liability arising if the Term is less than 6 months).
14.3 The Parties acknowledge and agree that the limitations contained in this clause are reasonable in the light of all the circumstances.
14.4 Nothing in these Terms shall exclude or limit liability for fraud, fraudulent misrepresentation or death or personal injury caused by negligence. Nothing in these Terms shall exclude any other liability which may not be excluded by law.
14.5 All other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
14.6 Semble shall not be liable to the Client, its employees, Users, sub-contractors or agents to the extent any alleged infringement is based on:
- a modification to the Services or Documentation by anyone other than Semble;
- Client’s or User’s use of the Services or Documentation in a manner contrary to the instructions given by Semble to the Client; and
- Client’s or User’s use of the Services and Documentation after notice of alleged or actual infringement from Semble or any appropriate authority.
14.7 The Client assumes sole responsibility for the results obtained from the use of the Services and the Documentation and for conclusions drawn from such use.
14.8 Semble shall use all reasonable endeavours to meet the agreed timetable for migrations of data into and out of Semble’s systems, but does not accept any liability in this regard.
14.9 It shall be the Client’s sole and exclusive responsibility to prepare the terms and conditions associated with the sale and provision of its products and services to Users. Semble will not be liable for any claims or potential claims related to or arising from the Client’s contracts, agreements and terms with Users. The Client agrees to defend, indemnify and hold Semble and its Affiliates harmless from any damages, losses, costs, expenses, damages and liabilities resulting from any actions or omissions or non-action arising out of the business relationship between the Client and its Users, including any liability resulting from or arising out of the Client’s obligations, contracts or other legal documents for its products or services.
14.10 The limitations set out in this clause will apply regardless of the form of action, whether under statute, in contract or tort including negligence, breach of statutory duty or any other form of action.
14.11 For the purposes of this clause, 'Semble' includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999.
15. INTELLECTUAL PROPERTY
15.1 The Client acknowledges and agrees that Semble owns all rights, copyright, title and interest in and to the Service, the Website and Documentation, including without limitation all Intellectual Property Rights, and such rights are protected by English and international intellectual property laws. The Client expressly acknowledges and agrees, on behalf of itself and its Users, that it will not copy, reproduce, alter, modify, or create derivative works from the Service and Documentation. The Client will have no rights other than the rights in or to the Software, Service, Website, Documentation or Intellectual Property Rights relating to the same except to use the Service in accordance with these Terms.
15.2 The Client shall notify Semble immediately if the Client becomes aware of any claim or action of third-party infringement of Semble’s Intellectual Property Rights and/or that possession or use of the Service infringes Intellectual Property Rights of a third party (an “Intellectual Property Infringement”). The Client shall use all reasonable endeavours to assist Semble in defending and/or taking any such necessary action in respect of an Intellectual Property Infringement (including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents) and shall act in accordance with the reasonable instructions of Semble. The Client shall not make any admission of liability, agreement or compromise in relation to any claim or potential claim of Intellectual Property Infringement without the prior written consent of Semble.
15.3 If any claim (including threatened claim) of Intellectual Property Infringement is made, or in Semble’s reasonable opinion is likely to be made, against the Client, Semble may at its sole option and expense:
- procure for the Client the right to continue to use the Service (or any part thereof) in accordance with these Terms;
- modify the Service so that it ceases to be infringing;
- replace the Service with non-infringing software; or
- terminate the Terms immediately by notice in writing to the Client and refund a proportionate Fee paid by the Client as at the date of termination.
15.4 This clause shall not apply to claims which attributable to possession or use of the Service (or any part thereof) by the Client other than in accordance with these Terms.
16.1 Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, patients, clients or suppliers, strategies, ideas, business plans of the other Party or of any member of the group of companies to which the other Party belongs, except as permitted by clause 16.2.
16.2 Each Party may disclose the other Party's confidential information:
16.2.1 To its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with these Terms. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party's confidential information comply with this clause;
16.2.2 As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
16.2.3 As may be necessary for the purposes of securing investment or during due diligence processes.
16.3 No Party shall use any other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.
17. CLIENT DATA
17.1 Notwithstanding any particular requirements regarding the Data Protection Legislation, Semble owns no right in or to Client Data which the Client or User or any other third party on behalf of any of the above (i) transfers to Semble or otherwise makes available to Semble through the Services, or (ii) which is generated by the Client’s or User’s use of the Services.
17.2 Semble may use the Client Data only for the purpose of providing the Services to the Client and its Users, and/or monitoring the Client’s or any User’s compliance with this Agreement and/or use of the Service. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent Semble from generating and using aggregated and anonymised Client Data for the purposes or providing, measuring, improving and marketing the Services (such generated data shall not be Confidential Information for the purposes of this Agreement, provided that such data is not identifiable for the purposes of the Data Protection Legislation or capable of being identified as originating from the Client or the data subject).
17.3 Following termination of the Agreement, Semble shall, in accordance with the Client’s instructions, either delete the Client Data or transfer all such Client Data to the Client, where instructed, and then delete all existing copies of such Client Data, except where it has been aggregated and anonymised in accordance with clause 16.2 and as otherwise required by any Applicable Law. If such instructions are not received within 30 calendar days of request, Semble may delete the Client Data at its discretion.
17.4 In the event of loss or damage to Client Data, Client’s sole and exclusive remedy against Semble shall be for Semble to use reasonable commercial endeavours to restore the lost Client Data from the latest back-up of such data held by Semble. Semble shall not be responsible for any loss, destruction, alteration, or disclosure of Client Data caused by any third party.
18. PRIVACY AND DATA PROTECTION
18.1 The Parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause is in addition to, and does not relieve, remove or replace, a Party's obligations under the Data Protection Legislation.
18.2 The Parties acknowledge that, for the purposes of the Data Protection Legislation, the Client is the controller of Personal Data and Semble is the processor of personal data (“control”, “controller”, “process”, “processor”, “Sub-Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Special Category Personal Data” and derived and inflected word forms have the meanings as defined in UK GDPR).
18.3 Semble processes Personal Data of the Client and Client’s customers (being medical patients) and such Personal Data includes the Data Subjects’ contact details, financial data, medical records; and therefore Special Category Personal Data. This processing is carried out to enable the Client to use the Services (principally being a patient healthcare and practice management platform).
18.4 Without prejudice to the generality of clause 17.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Semble for the duration and purposes of these Terms and the provision of the Services by Semble. Further, Semble shall, in relation to any Personal Data processed in connection with the performance by Semble of the Services:
18.4.1 process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purpose set out in clause 18.5.3, unless Semble is required by Applicable Laws to otherwise process that Client Personal Data. Where Semble is relying on Applicable Laws as the basis for processing Client Processor Data, Semble shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Semble from so notifying the Client on important grounds of public interest. Semble shall inform the Client if, in the opinion of Semble, the instructions of the Client infringe Applicable Data Protection Legislation.
18.4.2 Ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
18.4.3 Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
18.4.4 Assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
18.4.5 Notify the Client without undue delay on becoming aware of a Personal Data Breach;
18.4.6 At the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Services unless required by Applicable Laws to store the Personal Data; and
18.4.7 Maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits (in order to establish compliance with this clause only) by the Client or the Client’s designated auditor. In carrying out any audit in accordance with this clause, the Client shall use reasonable endeavours to avoid (and to ensure that any designated auditor of the Client shall avoid) causing any damage or disruption to Semble during the audit.
18.5 The Client approves:
18.5.1 Semble transferring Personal Data outside of the UK;
18.5.2 Semble appointing processors to process the Client Personal Data, including but not limited to for the purposes of data storage, hosting and customer service support. Semble confirms that it has entered, or (as the case may be) will enter, into written agreements with each processor incorporating terms which are similar to those set out in this clause 17. As between the Client and Semble, Semble shall remain fully liable for all acts or omissions of any processor appointed by it pursuant to this clause 17.5 and shall inform the Client of any intended changes concerning the addition or replacement of processors, thereby giving the Client 14 calendar days to object to such changes (provided the objection is due to an actual or likely breach of Applicable Data Protection Law).The Client shall indemnify Semble for any losses, damages, costs (including legal fees) and expenses suffered by Semble in accommodating the objection; and
18.5.3 The transfer of Client Personal Data outside of the United Kingdom, as required for the purpose of providing the Service of a healthcare management system (“Purpose”), provided that Semble shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Semble, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
18.6 If an adequate protection measure for the international transfer of Personal Data is required under the Data Protection Legislation as contemplated by clause 18.5.3 (and has not otherwise been agreed by the Parties), the Model Contract Clauses shall be incorporated into these Terms as if they had been set out in full. The template elements of the Model Contract Clauses are set out in the Schedule.
18.7 If Semble shall provide Client with any GP Data, this is data which is publicly available and derives from third parties, Semble shall not be held responsible for the accuracy of such data and makes no warranties in respect of consent from data subjects for processing of such data.
19. FORCE MAJEURE
19.1 "Force Majeure Event" means any circumstance not within a Party's reasonable control including, without limitation:
19.1.1 Acts of God, flood, drought, earthquake or other natural disaster;
19.1.2 Epidemic or pandemic;
19.1.3 Terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
19.1.4 Nuclear, chemical or biological contamination or sonic boom;
19.1.5 Any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
19.1.6 Collapse of buildings, fire, explosion or accident;
19.1.7 Any labour or trade dispute, strikes, industrial action or lockouts;
19.1.8 Non-performance by suppliers or subcontractors; and
19.1.9 Interruption or failure of utility, communications or network service.
19.2 Provided it has complied with clause 19.4, if a Party is prevented, hindered or delayed in or from performing any of its obligations under these Terms by a Force Majeure Event ("Affected Party"), the Affected Party shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
19.3 The corresponding obligations of the other Party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.4 The Affected Party shall:
19.4.1 As soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Terms; and
19.4.2 Use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
19.5 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 6 weeks, the Party not affected by the Force Majeure Event may terminate these Terms by giving 4 weeks’ written notice to the Affected Party.
During these Terms and for a period of one year afterwards Semble shall maintain in force insurance policies with reputable insurance companies, against all risks that would normally be insured against by a prudent business in connection with the risks associated with these Terms, and produce to the Client on request full particulars of that insurance and the receipt for the then current premium.
21.1 The Client shall not assign, encumber or otherwise transfer its rights or any benefit of the Service in whole or in part to any other person. A person who is not a Party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of these Terms.
21.2 Any notice given under these Terms by either Party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Semble must be sent to hello@Semble.co.uk or to any other email address notified by email to the Client by Semble. Notices to the Client will be sent to the email address which the Client provided when setting up its access to the Service.
21.3 Failure or neglect by Semble to enforce at any time any of the provisions of these Terms shall not be construed nor shall be deemed to be a waiver of its rights nor in any way affect the validity of the whole or any part of these Terms nor prejudice Semble’s rights to take subsequent action. Further, a waiver by Semble of a particular default(s) of these Terms shall not constitute a waiver of any subsequent default(s) of these Terms.
21.4 In the event that any of these Terms shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such Terms shall to that extent be severed from the remaining Terms which shall continue to be valid to the fullest extent permitted by law and shall not affect the validity or enforceability of the remaining provisions.
21.5 Semble may modify these Terms at any time provided that Semble shall provide the Client with a reasonable period of time for the Client to notify Semble that it does not agree to the modified Terms and wishes to cease using the Services.
21.6 Nothing in these Terms are intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
21.7 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
21.8 These Terms or other documents otherwise referred to herein contain the whole agreement between the Parties relating to the subject matter hereof and supersede all previous and contemporaneous agreements, arrangements and understandings between them, whether written or oral, relating to that subject matter.
21.9 These Terms and any dispute or claim arising from or in connection with them shall be governed by and construed in accordance with the laws of England and Wales. The Parties irrevocably agree that the courts of the England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
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Model Contract Clauses: main body particulars
Exporter contact details: Those of the Client as set out in these Terms.
Importer contact details: Those of Semble as set out in these Terms.
Governing Law (cl. 9 & 11): England and Wales
Appendix 1 of the Model Contract Clauses:
Data Exporter: The Client
Data Importer: Semble
Data Subjects: As set out in clause 17.3
Categories of data: As set out in clause 17.3
Special categories of data: Yes: medical records
Processing operations: the Service, principally the provision of a patient healthcare management platform.
Appendix 2 of the Model Contract Clauses:
Physical Access Control
Restriction of access to buildings, data centres and server rooms as necessary, adequate locks on all doors, monitoring of unauthorised access, and written procedures for employees, contractors and visitors covering confidentiality and security of information.
Restricting access to systems depending on the sensitivity/criticality of such systems, use of password protection where such functionality is available, maintaining records of the access granted to which individuals, ensuring prompt deployment of updates, bug-fixes and security patches for all systems, appropriate security over wireless networks (802.11x) and remote access tools (including two factor authentication).
Selection of sub-processors based on technical expertise, trustworthiness and compliance with legislation, ensuring prompt instruction of sub-processors, ensuring prompt notification of the processor or controller in the event of a data security breach and, capability of sub-processors to correct and/or erase data upon instruction.
The illustrative indemnity set out in the Model Contract Clauses is deemed deleted.
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These Terms of Service were last updated on 22nd August 2023.