Important – read carefully:
This software licence (“Licence”) is a legal agreement between the end user general practice (“General Practice”) and Nichesys Limited, a company registered in England and Wales with company number 07471237, trading as Niche Health, whose registered office at Beasley Farm, Upper Gambolds Lanes, Stoke Prior, Bromsgrove, B60 3EW (“Niche Health”).
By downloading, installing or otherwise using the Product, the General Practice agrees to be bound by the terms of this Licence. If the General Practice does not agree to the terms of this Licence, click the “do not accept” button and do not use the Product. Niche Health will assume that any individual that accepts these terms on behalf of the General Practice, has the requisite authority to do so.
The General Practice is advised to read the terms of this Licence with care.
1 Definitions and interpretation
1.1 In this Licence the following words and expressions shall have the meanings set out below:
“Additional Module” means an additional Product module made available to the General Practice, including the iGPR Patient Online Toolkit and iGPR Create Report modules but excluding the Core Module;
“Add-on Fees” means the fees payable in respect of an Additional Module, as specified on Niche Health’s website at https://www.igpr.co.uk/ or as otherwise notified to the General Practice by Niche Health;
“Atalasoft Software” means the software proprietary to Atalasoft Inc., a Massachusetts corporation;
“API” means the application programming interface enabling interaction between the Product and the Third Party Software;
“Authorised Users” means the healthcare practitioners and other staff employed or otherwise engaged by the General Practice who are authorised by the General Practice to access and use the Product and the User Documentation;
“Confidential Information” means information that is expressly designated as, or ought reasonably to be considered, confidential including but not limited to (i) the Product and User Documentation (which is Niche Health’s Confidential Information); (ii) the patient Personal Data (which is the General Practice’s Confidential Information); (iii) any information obtained by either party about the other during an audit carried out in accordance with the terms of this Licence;
“Contract Year” means a period of 12 months commencing on the Effective Date or any anniversary of such date (as applicable);
“Core Module” means the iGPR Electronic Insurance Reporting module in the Product;
“Data Controller” and “Data Processor” have the meaning specified in the Data Protection Legislation;
“Data Protection Legislation” means the Data Protection Act 1998, or, from the date it comes into force in the UK, the General Data Protection Regulation (EU) 2016/679 (as applicable) and any other laws relating to the protection of personal data and the privacy of individuals (all as amended, updated or re-enacted from time to time);
“Data Subject” has the meaning specified in the Data Protection Legislation;
“Effective Date” means the date on which the General Practice accepts the terms of this Licence;
“EMIS Software” means the EMIS healthcare IT system and associated software (including API interface) which is proprietary to Egton Medical Information Systems Limited a company incorporated in England with company number 2117205 having its registered office address at Rawdon House, Green Lane, Yeadon, Leeds, LS19 7BY;
“INPS Software” means the INPS Vision 3 Clinical System and associated software (including API interface) which is proprietary to In Practice Systems Limited, a company registered in England with company number 1788577 and having its registered office at The Bread Factory, 1a Broughton Street, London SW8 3QJ;
“Open Source Software” means the following open source software: Tesseract; Pechkin; WKHTMLTOPDF; NHS Digital TRUD CDAX XSL; C# ECG Toolkit and iTEXTSharp 1.4, further details of which are made available at https://nichehealth.co.uk/igpr/opensource.html or license.txt in the install directory;
“Microtest Software” means the software proprietary to Microtest Health, a software company registered with company number 02162053 and registered office address at 18 Normandy Way, Bodmin, Cornwall, PL31 1EX;
“Personal Data” means the personal data (within the meaning of the Data Protection Legislation) processed under the terms of this Licence;
“Processing” has the meaning specified in the Data Protection Legislation;
“Product” means Niche Health’s proprietary iGPR (Intelligent General Practice Reporting) software application (including the Core Module and any Additional Modules or features within the software that can be activated) and any bug fixes, workarounds, patches, minor modifications or Upgrades supplied to the General Practice under this Licence, but excluding the Open Source Software and Third Party Software;
“SLA” means the service level agreement relating to the Product, as provided by Niche Health on request by the General Practice;
“Software Fault” means a demonstrable fault, error or other problem with the Product which is capable of replication by Niche Health;
“Term” has the meaning specified in clause 8.1;
“Third Party Software” means the EMIS Software, the INPS Software or the TPP Software (as applicable, depending on the clinical system software used by the General Practice), the Microtest Software and the Atalasoft Software;
“TPP Software” means the TPP clinical IT system and associated software (including API interface) which is proprietary to the Phoenix Partnership (Leeds) Ltd, registered in England with company number 4077829 and having its registered office address at 129 Low Lane, Horsforth, Leeds, England, LS18 5PX;
“Upgrade” means all new versions/releases of or other revisions or amendments to the Product made available to the General Practice by Niche Health;
“User Documentation” means any instruction manuals and other information associated with the Product supplied by Niche Health to the General Practice, whether in electronic form or otherwise; and
“Warranty Period” means the period of 90 days commencing on the first installation of the Product;
2.1 Niche Health grants to the General Practice a non-exclusive licence for the Term to permit the Authorised Users to access and use the Product and to possess and refer to the User Documentation in accordance with this Licence.
2.2 The General Practice shall use all reasonable endeavours to prevent any unauthorised use of the Product and User Documentation and shall notify Niche Health promptly after becoming aware of any such unauthorised use.
2.3 The General Practice shall (and shall procure that the Authorised Users shall):
2.3.1 only use the Product for the General Practice’s internal clinical use in accordance with the User Documentation, and not make the Product and/or the User Documentation available for use by any third party without the prior written consent of Niche Health;
2.3.2 not copy the Product or User Documentation, except as part of the normal use of the Product and User Documentation or where it is necessary for back-up or operational security purposes;
2.3.3 not reproduce, modify, adapt, merge, translate, disassemble, decompile, recompile or reverse engineer the Product or create derivative works from all or any part of the Product or permit the Product or incorporate the Product into any other software programmes, except (in each case) to the extent necessary to use the Product in accordance with the User Documentation or as permitted by any applicable law which is incapable of exclusion by agreement between the parties;
2.3.4 not use the Product to create any software that is substantially similar in its expression to the Product; and
2.3.5 not use the Product in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the terms of this Licence.
2.4 The General Practice acknowledges that the Product incorporates or requires the use of the Third Party Software (excluding the Microtest Software) and agrees to comply with:
2.4.1 all user terms relating to the Atalasoft Software which apply to Niche Health’s “Customers” (including, without limitation, clause 4), as set out in the Atalasoft Software terms made available by Niche Health at https://nichehealth.co.uk/igpr/opensource.html or license.txt in the install; and
2.4.2 if the General Practice is a user of the EMIS Software, the end user licence terms set out in the Schedule.
2.5 The General Practice acknowledges that the Product may incorporate or require the use of the Microtest Software and, where Niche Health notifies the General Practice of such, the General Practice agrees to comply with any user terms relating to the Microtest Software that are made available by Niche Health at https://nichehealth.co.uk/igpr/opensource.html or license.txt in the install.
2.6 The General Practice acknowledges that the Product incorporates, or requires the use of, components of Open Source Software and agrees to comply with the licence terms made available at https://nichehealth.co.uk/igpr/opensource.html or license.txt in the install directory.
3 Payment for Additional Modules
3.1 The General Practice may, at any time, request the activation of one or more Additional Modules, subject to payment of the relevant Add-on Fees in accordance with this clause 3.
3.2 On activation of any Additional Module pursuant to clause 3.1, Niche Health shall issue an invoice for the relevant Add-on Fees and the General Practice shall pay such fees within 30 days of the invoice date.
3.3 If the General Practice fails to pay any sum properly due and payable (other than any sum disputed in good faith) by the due date for payment, Niche Health may charge interest on the amount of any such late payment at the rate of 5% per annum above the official bank rate set from time to time by the Bank of England. Such interest will accrue from the date on which payment was due to the date on which payment is actually made.
4 Installation and data centre services
4.1 Niche Health shall install the Product at the General Practice as a local executable which connects to Niche Health’s data centre services. The General Practice acknowledges that Niche Health is not responsible for any non-availability or interruption to the General Practice’s access to the data centre caused by any general internet connectivity issues or anything else outside of Niche Health’s reasonable control, including but not limited to any errors or unavailability caused by the General Practice or its Authorised Users or Niche Health’s data centre service provider.
5.1 Niche Health shall provide support for the Product in accordance with this clause 5 and its SLA.
5.2 Niche Health shall, during the support hours of 9am – 5.30pm, via email, telephone or remote access (as appropriate):
5.2.1 respond to support requests raised with Niche Health in respect of Software Faults and other user issues;
5.2.2 provide advice and assistance on the correction of Software Faults; and
5.2.3 provide workarounds, patches or other maintenance updates as necessary.
5.3 Niche Health may provide Upgrades from time to time.
5.4 Niche Health shall have no obligation to provide support in respect of any fault that results from or is connected with:
5.4.1 improper use of the Product or the General Practice’s failure to implement solutions to, recommendations in respect of, Software Faults previously advised by Niche Health; or
5.4.2 use by the General Practice of any unsupported version of the Product, being a version other than the most recent version of the Product provided to the General Practice or the version prior to the most recent version of the Product provided to the General Practice.
6 Product performance warranty
6.1 Subject to the reminder of this clause 6, Niche Health warrants that the Product will during the Warranty Period under normal use conform in all material respects with the functionality outlined in the User Documentation.
6.2 If the General Practice notifies Niche Health in writing of any material failure of the Product to conform with the User Documentation in accordance with clause 6.1 during the Warranty Period, the General Practice may require Niche Health to correct any demonstrable failure at its own cost and expense within a reasonable time (which shall be the General Practice’s sole remedy with respect to any breach of the warranty given in clause 6.1).
6.3 Niche Health does not give any warranty in respect of:
6.3.1 use of the Product with any software, hardware, networks or other IT infrastructure or operating system environment that does not meet the requirements set out in the User Documentation;
6.3.2 those elements of the Product that are not subject to the Add-on Fees;
6.3.3 operation of any part of the Product being uninterrupted or error free;
6.3.4 the time taken to deliver data through the Product; or
6.3.5 any interfaces between the Product and software that is not owned by Niche Health, including, but not limited to the Third Party APIs.
6.4 The Product is intended to aid and supplement (and does not provide a substitute for) the expertise and judgment of physicians and other healthcare professionals. The Product is provided on the basis that the healthcare practitioner responsible for each patient’s care shall exercise his or her professional judgement when making the content of any patient medical record available through the Product. Niche Health is not responsible for the content or accuracy of any data made available through the Product.
7 Intellectual Property Rights
7.1 The General Practice acknowledges that Niche Health owns, or is licensed to use, all copyright and other intellectual property rights of whatever nature in and relating to the Product and the User Documentation.
7.2 Niche Health warrants that the use and licence of the Product and the User Documentation in accordance with this Licence will not infringe the copyright of any third party.
7.3 If there is a claim that the use by the General Practice of the Product or the User Documentation in accordance with the provisions of this Licence infringes the copyright of a third party, Niche Health shall use reasonable endeavours to:
7.3.1 procure the right for the General Practice to continue using the Product and/or the User Documentation in accordance with the terms of this Licence;
7.3.2 make such alterations, modifications or adjustments to the Product and/or the User Documentation so that they become non infringing; or
7.3.3 replace the Product and/or the User Documentation with non-infringing software and/or documentation.
7.4 If Niche Health is unable to resolve the claim by taking one of the actions under clause 7.3, Niche Health shall have the right to terminate this Licence. If the General Practice has paid for the use of any Additional Modules, Niche Health shall repay to the General Practice, on a pro rata basis, any Add-on Fees already paid by the General Practice in relation to any period following such termination.
8 Term and termination
8.1 This Licence shall commence on the Effective Date and shall continue unless and until terminated in accordance with this clause 8 (“Term”).
8.2 Either party may terminate this Licence by giving written notice of termination to the other party at least 60 days before the end of any Contract Year, in which case this Licence shall terminate upon the expiry of that Contract Year.
8.3 Either party may terminate this Licence with immediate effect (or following such notice period as it sees fit) without prejudice to any of its rights or remedies, by giving written notice to the other party if the other party:
8.3.1 commits a material or persistent breach of the terms of this Licence which is either incapable of remedy or which the other party fails to remedy within thirty (30) days of a notice in writing from the first party specifying the breach and requiring such breach to be remedied; or
8.3.2 is unable to pay its debts; or becomes insolvent; or is subject to an order or a resolution for its liquidation, administration, winding up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; or enters into or proposes any composition or arrangement with its creditors generally; or ceases or threatens to cease business; or is subject to any analogous event or proceeding in any jurisdiction.
8.4 If the General Practice terminates this Licence pursuant to clause 8.3 and it has paid Add-on Fees to Niche Health in respect of any Additional Module, Niche Health shall repay to the General Practice, on a pro rata basis, any Add-on Fees already paid by the General Practice in relation to any period following such termination.
8.5 Any termination of this Licence shall be without prejudice to any other rights or remedies either party may be entitled to under this Licence or at law.
8.6 Upon termination of this Licence:
8.6.1 all licences granted under this Licence shall immediately terminate;
8.6.2 any provision of this Licence which is expressly or by implication intended to survive expiry or termination of this Licence shall survive and continue in full force and effect; and
8.6.3 within fourteen days of such termination (by either party for whatever reason) the General Practice shall, at Niche Health’s option, either return to Niche Health or destroy all copies of the Product and the User Documentation in the General Practice’s possession.
9.1 Nothing in this Licence shall exclude or restrict Niche Health’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1, in no circumstances shall Niche Health be liable to the General Practice whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, for any indirect, special or consequential loss or for any loss of profit, loss of business, loss or corruption of data, pure economic loss or any other similar loss, however arising.
9.3 If the General Practice uses the Product without requesting the activation of any Additional Module pursuant to clause 3.1, Niche Health shall, subject to clause 9.1, have no liability to the General Practice except as set out in clauses 6 and 7.
9.4 Where the General Practice requests the activation of one or more Additional Modules under the terms of this Licence, Niche Health’s total liability to the General Practice under or in connection with this Licence shall, subject to clauses 9.1 and 9.2, be limited, in each Contract Year, to the Add-on Fees paid or payable by the General Practice in that Contract Year (or, after expiry or termination of this Licence, the Add-on Fees paid or payable by the General Practice in the final Contract Year).
9.5 Except as expressly set out in this Licence, all conditions, warranties, terms and undertakings, express or implied, whether by statute, common law, trade practice, custom, course of dealing or otherwise (including without limitation about quality, performance or fitness or suitability for purpose) in respect of the Product and the User Documentation, are excluded to the fullest extent permissible by law.
10.1 Except where any use or disclosure is expressly permitted in this Licence or by the owning party in writing, each party shall treat the Confidential Information of the other party as confidential and shall not:
10.1.1 disclose that Confidential Information to any third party (or cause unauthorised disclosure through any failure to exercise due care and diligence); or
10.1.2 use that Confidential Information other than for the purpose of exercising its rights and performing its obligations under this Licence.
10.2 The parties agree that the Confidential Information may be disclosed:
10.2.1 to any employees, officers, representatives or advisers of that party who need to know the information provided they are subject to equivalent obligations of confidentiality; and
10.2.2 to the extent that such disclosure is required by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.3 The parties acknowledge that the Confidential Information will cease to be subject to the provisions of clause 10.1 to the extent that it is or becomes publicly known other than through any act or omission of the receiving party or was in the other party’s lawful possession before the disclosure or is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
11 Data Protection
11.1 The General Practice and Niche Health agree that, with respect to the Personal Data, the General Practice is a Data Controller and Niche Health is a Data Processor acting on behalf of the General Practice.
11.2 The General Practice shall comply at all times with the Data Protection Legislation and shall notify Niche Health promptly in the event of any breach by the General Practice of its obligations under the Data Protection Legislation.
11.3 The General Practice undertakes to provide all necessary notices to and obtain all necessary consents from Data Subjects to enable the use of the Personal Data of those Data Subjects in accordance with the Data Protection Legislation.
11.4 To the extent that Niche Health is a Data Processor acting on the General Practice’s behalf, it shall:
11.4.1 Process the Personal Data only in accordance with the General Practice’s written instructions;
11.4.2 implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to protect the Personal Data against a breach of security caused by unauthorised or unlawful processing and against accidental or unlawful destruction, loss, damage, alteration or unauthorised disclosure of or access to the Personal Data;
11.4.3 ensure that any employees or other persons authorised by Niche Health to process the Personal Data are subject to appropriate obligations of confidentiality;
11.4.4 not transfer the Personal Data outside of the European Economic Area without the prior written consent of the General Practice;
11.4.5 notify the General Practice, as soon as reasonably practicable, about any request or complaint received from a Data Subject (without responding to that request, unless authorised by the General Practice to do so) and assist the General Practice by technical and organisational measures, insofar as possible, for the fulfilment of its obligations in respect of such requests and complaints;
11.4.6 on request by the General Practice and taking into account the nature of the Processing and the information available to Niche Health, use reasonable endeavours to assist the General Practice in ensuring compliance with its obligations under Articles 32 to 36 of the General Data Protection Regulation (EU) 2016/679 (where applicable) in respect to the Personal Data;
11.4.7 subject to clause 11.5, not engage any third party to carry out Niche Health’s Processing obligations under this Licence without obtaining the General Practice’s prior written consent, and where such consent is given, procuring by way of a written contract that such third party will, at all times during the engagement, be subject to data processing obligations equivalent to those set out in this clause 11.4;
11.4.8 on request by the General Practice, make available the information necessary to demonstrate Niche Health’s compliance with this clause 11.4 and on reasonable advance notice in writing otherwise permit, and contribute to, audits carried out by the General Practice (or its authorised representative) with respect to the Personal Data, provided that the General Practice shall (or shall ensure its authorised representatives shall):
(i) provide at least 30 working days’ advance notice of its intention to carry out an audit;
(ii) use reasonable endeavours to ensure that the conduct of any such audit does not unreasonably disrupt Niche Health’s normal business operations; and
(iii) comply with Niche Health’s IT and security policies whilst carrying out any such audit; and
11.4.9 on termination or expiry of this Licence, destroy or return to the General Practice all Personal Data and delete all existing copies of such data (except to the extent that Niche Health is required to keep or store such Personal Data by law).
11.5 The General Practice hereby consent to the use by Niche Health of the following category of sub-processor: IT service providers.
11.6 The General Practice acknowledge that clause 11.4 shall not apply to the extent that Niche Health is required by law to Process the Personal Data other than in accordance with the General Practice’s instructions and, in such case, Niche Health shall inform the General Practice of the relevant legal requirement prior to Processing (unless the law prohibits the provision of such information on important grounds of public interest).
11.7 The General Practice shall reimburse any reasonable costs incurred by Niche Health in the performance of its obligations under clauses 11.4.5, 11.4.6 and 11.4.8.
11.8 For the purposes of clause 11.4:
11.8.1 the type of Personal Data are:
(i) the details of a patient’s medical record, including surname, forename, NHS number, date of birth, address and the coded information, free text and attachments forming part of a patient’s medical record; and
(ii) names and contact details of Authorised Users;
11.8.2 the categories of Data Subjects are:
(i) the patients registered with and/or treated by the General Practice; and
(ii) the Authorised Users;
11.8.3 the nature/purpose of the Processing is to enable Niche Health to make available the Product and associated services (which form the subject matter of the Processing); and
11.8.4 the duration of the Processing shall be the term of this Licence.
12.1 Upon reasonable prior written notice, the General Practice shall grant Niche Health access during normal business hours to its premises, staff and systems to the extent necessary for Niche Health to verify that the General Practice and its Authorised Users are accessing and using the Product in accordance with this Licence.
13.1 Any notice to be given under this Licence shall be in writing and shall be delivered by hand, sent by first class post to the address of the other party set out in this Licence (or such other address as may have been notified). Any such notice or other document shall be deemed to have been served: if delivered by hand, at the time of delivery; and if sent by post, upon the expiration of 48 hours after posting.
13.2 Any request, instruction, information or other document issued in accordance with this Licence may (except where this Licence specifies a requirement for notice or notification) be sent by email to the other party at any email address as may be notified from time to time.
13.3 The General Practice shall not have the right to assign, transfer, sub-contract, charge or deal in any other manner with any of its rights and/or obligations under this Licence, or any right arising under it, without the prior written consent of Niche Health. Niche Health may assign or transfer this Licence without requiring the consent of the General Practice.
13.4 This Licence contains the entire understanding between the parties with respect to the subject matter of this Licence and supersedes and replaces all prior agreements, negotiations and discussions between the parties relating to it.
13.5 Neither party shall be liable for any delay in or for failure to perform its obligations under this Licence, other than an obligation to make any payment due to the other party, if that delay or failure is caused by circumstances beyond the control of that party including, without limitation, fires, strikes, insurrection, riots, embargoes, or regulations of any civil or military authority.
13.6 The failure or delay of either party to exercise or enforce any right under this Licence shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time or times thereafter.
13.7 No variation of this Licence shall be valid unless it is in writing and signed by an authorised representative of both parties.
13.8 Nothing in this Licence is intended to, or shall operate to, create a legal partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
13.9 No person who is not a party to this Licence shall have any rights under the Contracts (Rights of Third Parties) Act 1999.
13.10 If any provision of this Licence shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Licence and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Licence which will remain in full force and effect.
13.11 This Licence and any dispute or claim (including any non-contractual dispute or claim) arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
Schedule: EMIS Software terms
1 EMIS Software
1.1 If the General Practice is a user of the EMIS Software, it shall comply with the end user licence terms set out in this Schedule.
2 EMIS Software user terms
2.1 The General Practice acknowledges that the EMIS Software is NOT free or shareware.
2.2 The General Practice shall:
2.2.1 not copy the EMIS Software (other than for normal operation and in accordance with the licence granted to the General Practice) nor (subject to applicable law rights) disassemble, decompile or reverse engineer the EMIS Software;
2.2.2 not translate, modify, lease, rent, loan, redistribute, sub-lease, sub-license or create derivative works from the EMIS Software;
2.2.3 maintain accurate and up-to-date records of the number and location of all copies of the EMIS Software;
2.2.4 supervise and control Use of the EMIS Software in accordance with the terms in this Schedule;
2.2.5 reproduce and include the copyright notice as it appears in or on the EMIS Software on all copies; and
2.2.6 not use the EMIS Software for any immoral, illegal or for any other purpose which may be determined threatening, abusive or harmful.
2.3 The General Practice acknowledges that:
2.3.1 the EMIS software is provided on an “as is” basis without any warranty of any kind either express or implied including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement except to the extent that by statute liability may not lawfully be excluded in an agreement of this nature;
2.3.2 all copyright, trade marks and other intellectual property rights subsisting in or used in connection with the EMlS Software (including but not limited to all images, animations, audio and other identifiable material relating to the software) are and remain the sole property of the EMIS (or its third party licensors as appropriate); and
2.3.3 the EMIS Software is intended to aid and supplement, not provide a substitute for, the expertise and judgment of physicians, pharmacists or other healthcare professionals. All information is provided on the basis that the healthcare practitioners responsible for patient care will retain full and sole responsibility for deciding any treatment to prescribe or dispense for all patients and, in particular whether the use of information provided by the relevant system is sate, appropriate, or effective for any particular patient or in any particular circumstances.