Portal User Agreement (EU)

 

1. Parties

CEMPLICITY LIMITED, a registered Irish Limited Company (Company Registration Number 598107) and whose registered office is at SK House, Sinnottstown Business Park, Roughmead, Drinagh, Co. Wexford, Y35 AKX5, Ireland (“Cemplicity”).

Portal User means a person acting either independently or on behalf or as an agent of a healthcare provider who has been provided with a username and password to access the Cemplicity Tools by Cemplicity (“You”, “Portal User”).

 

2. Background

A. Cemplicity is a Software-as-a-Service company that works with hospitals, clinics, government departments or agencies and other leaders in the health sector to capture, measure and report on healthcare feedback.

B. Cemplicity owns the Cemplicity Tools, which in the context of this agreement means the modified Cemplicity digital platform to process and display results from the Employee Wellbeing Survey.

C. This Agreement between You and Cemplicity (the “Agreement”) governs the collection, use and reporting of information under the Cemplicity Tools.

 

3. Terms of use

3.1 Services: Cemplicity shall provide, free-of-charge to the Portal User, a license to access the aggregated and anonymised data collected from its Employee Wellbeing Survey through the Cemplicity Tools.

3.2 Nature of License: The License Cemplicity grants to the Portal User is subject to the terms and conditions set out in this Agreement. It is a non-exclusive, non-transferable, revocable licence to access and use the Cemplicity Tools. The Portal User acknowledges that Cemplicity is the exclusive owner of the Cemplicity Tools. This license will automatically terminate on termination of the Services being provided by Cemplicity to the Portal User.

3.3 The Portal User will not, except as expressly permitted in this Agreement, provide access to, sell, transfer, licence, sub-licence, loan, lease, or disclose the Cemplicity Tools to any third person. For clarity, this includes (without limitation) using Cemplicity Tools to conduct research or solicit feedback on behalf of or for the benefit of any third party.

3.4 Term: Cemplicity will maintain the Cemplicity Tools until at least the 30th June 2020 but may elect at its sole discretion to extend the term for any period of time.

 

4. Portal User Acknowledgements

4.1 No Warranty to the accuracy of the information: The Portal User acknowledges and accepts that Cemplicity has not and will in no way makes warranties as to the quality or accuracy of the information made available through the Cemplicity Tools. Cemplicity will process and display the information collected from survey responses, but will not moderate, sense-check or in any other way establish the veracity of the information collected.

4.2 No warranty as to industry samples: The Portal User acknowledges and accepts:

(a) Cemplicity has not made and will not make any warranties as to the size or appropriateness of the collected survey responses.

(b) Cemplicity is collecting information from a variety of healthcare providers from across both the country and the industry. These providers are operating unique healthcare facilities which may be an inappropriate comparison for the Portal User.

(c) To absolutely hold harmless Cemplicity from any form of loss whether direct or indirect they have suffered from making decisions based off the information presented in the Cemplicity Tools

4.3 Exclusion of Liability: in no event will Cemplicity be liable (whether in contract, tort including negligence, or otherwise) for:

(a) Loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss or corruption of data or wasted management or staff time; or

(b) Loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,

arising directly or indirectly out of this Agreement.

4.4 No Reliance: The Portal User acknowledges that in executing the agreement it is not relying on, or has not relied on any representation or statement made by Cemplicity, other than the statements contained in this agreement

4.5 Separate Agreement: If the Portal User is a pre-existing client of Cemplicity, they acknowledge and accept that this agreement is wholly separate from their client contract and none of the terms or expectations contained within their head agreement or associated services schedules apply to this agreement.

4.6 Service Levels: Cemplicity will make commercially reasonable efforts to maintain and provide an acceptable quality of services. For the avoidance of doubt, Cemplicity does not make any guarantees about minimum levels of service.

4.7 Hosting: Host all data captured by the Cemplicity Tools on servers located in Ireland.

 

5. Use of Data

5.1 Anonymous Aggregated Data Defined: means data obtained via the Cemplicity Tools and the associated Surveys that is:

(a) Anonymised and not identifiable to any person or entity; and

(b) presented in a way which does not reveal the identity of any person or entity.

5.2 No personal information will be shared with a third party unless expressly provided for in this Agreement or as required by law.

5.3 The Portal User acknowledges, consents and agrees that Cemplicity may and has aggregated and anonymised the data collected from survey responses.

5.4 Cemplicity may use Aggregate Anonymous Data during and after the term of this Agreement for the following purposes:

(a) To display in the Cemplicity Tools for the purposes of this Agreement.

(b) To analyse, improve, support and operate the services provided under this Agreement or by Cemplicity in general.

(c) For generating and publishing industry analysis, industry benchmarks, recommendations or similar reports.

5.5 Cemplicity shall have exclusive ownership of any Aggregate Anonymous Data and derived analysis, reports and publications.

 

6. Intellectual Property Rights

6.1 Cemplicity Intellectual Property: The Portal User acknowledges that all Intellectual Property Rights in the Cemplicity Tools, are and will remain the sole property of Cemplicity or its licensors, and the Portal User will not during or at any time after the termination of this Agreement in any way question or dispute the ownership by Cemplicity or its licensors of the Cemplicity Tools or the data collected through them. The Portal User will not during or at any time after the termination of this agreement attempt or permit an attempt by a third party to reverse engineer the Cemplicity Tools in whole or in part.

6.2 Infringement: If the Portal User learns of any third-party claim, infringement or threatened infringement relating to the Cemplicity Tools, it will promptly advise Cemplicity, giving Cemplicity full detail of such circumstances, and will make no comment or admission to any such third party. Cemplicity will have full control over all proceedings and negotiations relating to any such claim, infringement or threatened infringement, and the Portal User will, at the request and cost of Cemplicity, co-operate fully with Cemplicity (including by providing documentation and making the relevant people available) in any action, claim or proceedings brought or threatened in respect of the Cemplicity Tools.

6.3 Know-How: The Portal User acknowledges and agrees that Cemplicity had, prior to this Agreement, and will gain and develop as part of this Agreement, general ideas, concepts, techniques and know-how (together referred to as “Know-How”). Nothing in this Agreement shall in any way restrict Cemplicity from using such Know-How during or after the termination of this Agreement.

 

7. Termination

7.1 Cemplicity’s the right to terminate: Cemplicity, at its sole discretion, may, with no notice, immediately terminate this agreement and remove access to the Cemplicity Tools from all users for any reason.

7.2 Consequences of termination: On termination of this Agreement in accordance with clause 7.1, the Portal User will no longer use or access the Cemplicity Tools.

7.3 Accrued rights and survival: Termination of this Agreement will be without prejudice to the rights and remedies of the parties that have accrued prior to termination.

 

8. Data Protection

8.1 For the purposes of this clause the Data Protection Laws means all applicable prevailing privacy and data protection laws including all subordinate legislation, directions of any competent privacy regulator, common law and other relevant court decisions and all relevant privacy and/or data protection codes of practice in each case as may be amended or replaced from time to time, which shall include the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) for so long as such legislation is in force and has not been superseded.

8.2 The Portal User acknowledges that for the purposes of activities covered by this Agreement Cemplicity is the Data Controller.

8.3 Cemplicity shall, process Personal Data provided by the user’s staff under/in accordance with the Data Protection Laws. The Portal User shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Portal User acquired the Personal Data.

(a) Such Personal Data is accurate and up-to-date at the time that it is provided to Cemplicity.

(b) It will provide a link within this Privacy Statement to the Cemplicity Privacy Statement – Patient Surveys.

8.4 Cemplicity will treat as confidential and act in compliance with Data Protection Laws for any Personal Data

8.5 Cemplicity shall take appropriate technical and organisational measures to protect the confidentiality, integrity, availability and resilience of the Cemplicity Tools and Cemplicity systems when processing Personal Data.

8.6 The Portal User acknowledges that Cemplicity employees will remotely access data hosted in the EEA from New Zealand and the United Kingdom in order to provide the Services but that data shall not be transferred outside the EEA for processing.

8.7 The Portal User undertakes that Cemplicity may remotely access and or process Personal Data in New Zealand so long as the European Commission implementing its decision of 19 December 2012 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data by New Zealand (2013/65/EU) is valid and is not superseded or amended by another decision of the European Commission or another legal or regulatory body in European Union or in Ireland authorised to do so.

8.8 Subject to Clause 7, upon termination or expiration of the Services, Cemplicity shall remove all Personal Data that has been provided that has not already been removed through the normal data management practices. Cemplicity shall cease to retain any documents containing Personal Data as soon as it is reasonable to assume that (a) the purpose for which that Personal Data was collected is no longer being served by retention of the Personal Data; and (b) retention is no longer necessary for legal or business purposes.

 

9. General

9.1 Cemplicity reserves the right:

(a) To exploit the Cemplicity Tools by such means as it may think fit including, without limitation, by the appointment of distributors; and

(b) To modify, enhance, replace, or make additions to the Cemplicity Tools in any way whatsoever as Cemplicity may at its absolute discretion determine as long as these changes do not impact on the Cemplicity delivery of services outlined in Schedules to this agreement.

9.2 Assignment: The Portal User may not sell, assign, transfer, novate, sub-licence, sub-contract, charge, pledge or otherwise encumber this Agreement or any of its rights or obligations under this Agreement, without first obtaining the written consent of Cemplicity

9.3 Invalid Clauses: If any provision of this Agreement is held to be invalid, unenforceable, or illegal for any reason, this Agreement will be deemed to be amended by the addition or deletion of wording as appropriate to remove the invalid, unenforceable or illegal provision or part, but otherwise retain the provision and the other provisions of this Agreement to the maximum extent permissible under applicable law.

9.4 No partnership: Nothing contained in this Agreement shall, until such time as otherwise agreed by the parties in writing, be construed so as to cause the parties to be or become a partner of the other, or to create any trust, fiduciary obligation or joint venture relationship between the parties.

9.5 Entire agreement: This Agreement contains the whole of the contract and understanding between the parties relating to the matters covered by it and supersedes all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing. This Agreement applies to the exclusion of any other terms that the Portal User seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

9.6 Governing law: Irish law governs the validity, construction and performance of this Agreement. This Agreement is subject to the exclusive jurisdiction of the Irish courts to which the parties hereby submit.

 

10. Agreement

10.1 By using the Cemplicity Tools You and the organisation You are associated with agree to be bound by the terms of this agreement.