The i-Benchmark System, Care Quality Commission (CQC) Compliance Software

Terms and Conditions

By accessing or using the services, you are indicating that you have read, understand and agree to be bound by these terms. If you do not agree to this agreement, then you have no right to access or use the services.

1. APPLICATION OF CONDITIONS

1.1 These conditions shall:

    (a) for the duration of any Trial Period apply to any use of the Services made available to the Customer;

    (b) apply to and be incorporated in the Contract; and

    (c) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

1.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract (including the Conditions) shall be binding on I-BENCHMARK unless in writing and signed by a duly authorised representative of I-BENCHMARK.
        

2. FREE TRIAL

2.1 I-BENCHMARK may choose (at its sole discretion) to grant the Customer a personal, non-transferable licence for limited use of the Services during the Trial Period solely for the purposes of evaluation of the Services by the Customer for use in the Customer’s business.

2.2 The Customer acknowledges and agrees that access to the Services will, or may, be limited (at the Supplier’s sole discretion) and/or may automatically “time out” (that is to say, cease to operate) at the end of the Trial Period if the Customer has not at that time accepted an Order Confirmation and made payment of the applicable Fees in full and cleared funds.

2.3 A Trial Licence does not allow or authorise a Customer to print, copy, adapt, or revise any I-BENCHMARK Documentation. The Trial Licence and Trial Period are to allow a Customer to view the I-BENCHMARK Documentation online only.

2.4 During the Trial Period the Trial Licence may be terminated:

    (a) immediately by I-BENCHMARK giving notice if the Customer is in breach of any applicable provision of these conditions;

    (b) by the Customer at any time during the Trial Period on written notice; or

    (c) upon acceptance by the Customer of an Order Confirmation in accordance with clause 3.

2.5 Upon termination not followed by the grant of a Licence under these conditions, the Customer shall completely delete all electronic copies of all or any part of the Software and/or I-BENCHMARK Documentation in their possession or control.

2.6 Save for death and personal injury caused by I-BENCHMARK’ negligence, I-BENCHMARK shall have no liability of any kind in any circumstances whatever to the Customer in respect of the use of Services, Software or I-BENCHMARK Documentation during a Trial Period. In particular, I-BENCHMARK shall have no liability in any circumstances whatever for any data loss or corruption caused during a Trial Period and the Customer agrees that it has sole responsibility for protecting its data during evaluation of the Services.

2.7 No representations, conditions, warranties or other terms of any kind are given in respect of the Services, Software or I-BENCHMARK Documentation accessed during a Trial Period, and all statutory warranties and conditions are excluded to the fullest extent possible.

        

3. ORDER CONFIRMATION

            3.1 The I-BENCHMARK Order Confirmation constitutes an offer by I-BENCHMARK to supply the Services specified therein subject to these conditions and payment made whether in whole or part together with the grant of access to the Services by I-BENCHMARK and acceptance of which by the Customer shall establish a contract for the supply and purchase of those Services on these conditions.

3.2 The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in correspondence between it and I-BENCHMARK shall not govern the Contract or use of the Services.
        

4. LICENCE

4.1 Subject to:

    (a) the Customer purchasing additional Licences in accordance with clause 5.1;

    (b) I-BENCHMARK receiving payment in accordance with clause 10.1; and

    (c) the restrictions set out in this clause 4 and the other clauses of these conditions,

I-BENCHMARK hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and I-BENCHMARK Documentation during the Licence Term solely for the Customer’s internal business operations.

4.2 The Customer may use the Services to do the following:

    (a) search, view, copy, revise, customise, print out and use I-BENCHMARK Documentation solely for its own business purposes; and

    (b) make available to employees, staff and duly authorised agents copies of I-BENCHMARK Documentation (whether modified, adapted or revised) on a reasonable, non-systematic basis that is not commercially prejudicial to I-BENCHMARK, subject to crediting third parties where such material (if any) is attributed to them for the Customer’s business purposes only; and

    (c) for the purpose of undertaking its ordinary and usual business of the same nature of services which the CQS Documentation provided are in respect of.

4.3 In relation to all Licences and any Trial Licence, the Customer undertakes that:

    (a) it shall only use the Services and I-BENCHMARK Documentation in accordance with these conditions, including but not limited to the provisions of clause 4.2 and shall not permit, assist, illicit or allow any third party to otherwise do so;

    (b) it shall hold a Licence for each Registered Location which it operates or at which the Services or I-BENCHMARK Documentation are accessed or in any way utilised;

    (c) it will not allow Authorised Users at more than one Registered Location to access the Services or otherwise utilise I-BENCHMARK Documentation;

    (d) the maximum number of Authorised Users that it authorises to access and use the Services and I-BENCHMARK Documentation shall not exceed such number reasonably required for its business;

    (e) each Authorised User shall keep a secure password for his use of the Services and I-BENCHMARK Documentation, that such password is frequently changed and that each Authorised User shall keep his password confidential;

    (f) if any password has been provided to any individual who is not an Authorised User, then without prejudice to I-BENCHMARK’ other rights, the Customer shall promptly disable such passwords and I-BENCHMARK shall not issue any new passwords to any such individual;

    (g) if the Customer has underpaid Licence Fees to I-BENCHMARK, whether as a result of breaching any of the undertakings in this clause 4.3 or otherwise, then without prejudice to I-BENCHMARK’ other rights, the Customer shall pay to I-BENCHMARK an amount equal to such underpayment as calculated by I-BENCHMARK in accordance with applicable Licence Fees effective at the relevant date within 10 Business Days or written notice from I-BENCHMARK.

4.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

    (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

    (b) facilitates illegal activity;

    (c) depicts sexually explicit images;

    (d) promotes unlawful violence;

    (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

    (f) in a manner that is otherwise illegal or causes damage or injury to any person or property;

and I-BENCHMARK reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

4.5 The Customer shall not:

    (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

    (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or

    (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

    (b) access all or any part of the Services and I-BENCHMARK Documentation in order to build a product or service which competes with the Services and/or I-BENCHMARK Documentation; or

    (c) use the Services and/or I-BENCHMARK Documentation to provide similar products or services to third parties; or

    (d) subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or I-BENCHMARK Documentation available to any third party except the Authorised Users, or

    (e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or I-BENCHMARK Documentation, other than as provided under this clause 4.

4.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or I-BENCHMARK Documentation and, in the event of any such unauthorised access or use, promptly notify I-BENCHMARK.

4.7 The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

4.8 I-BENCHMARK expressly reserves the right, at its sole discretion and without consultation, to refuse to grant a Licence to anyone who is not a previous Customer or anyone who has been a Customer previously, at any time.

        

5. ADDITIONAL LICENCES

5.1 Each Licence, granted pursuant to clause 4, permits the Customer access and/or use of the Services at and for a single Registered Location only.

5.2 Subject to clause 5.3 and clause 5.4, the Customer may, from time to time during the Licence Term, purchase additional Licences for Registered Locations in excess of the number set out in Order Confirmations issued to the Customer and I-BENCHMARK shall grant access to the Services and I-BENCHMARK Documentation for such additional Registered Locations in accordance with these conditions.

5.3 If the Customer wishes to purchase additional Licences, the Customer shall notify I-BENCHMARK in writing. I-BENCHMARK shall evaluate such request for additional Licences and respond to the Customer with approval or rejection of the request.

5.4 If I-BENCHMARK approves the Customer’s request to purchase additional Licences, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant Licence Fees for such additional Licences according to I-BENCHMARK’ most recent price lists in place at such time and, if such additional Licences are purchased by the Customer part way through the Initial Licence Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Licence Term or then current Renewal Period (as applicable).

5.5 Notwithstanding any other rights or remedies available to I-BENCHMARK pursuant to these conditions or otherwise, in the event of a Customer allowing access to the Services at a location without purchasing an additional licence for that additional location pursuant to clause 5.2, I-BENCHMARK may charge the Customer the full list price for each location that has accessed the Services, notwithstanding any discount that has previously been granted to the Customer.



        

6. SERVICES

6.1 I-BENCHMARK shall, during the Licence Term, provide the Services to the Customer on and subject to the terms of these conditions.

6.2 I-BENCHMARK shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

    (a) planned maintenance carried out during a scheduled maintenance window and

    (b) unscheduled maintenance performed outside Normal Business Hours, provided that I-BENCHMARK has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.

6.3 I-BENCHMARK will as part of the Services and at no additional cost to the Customer provide the Customer with I-BENCHMARK’ standard customer support services during Normal Business Hours.

        

7. CUSTOMER DATA

7.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

7.2 I-BENCHMARK shall follow its archiving procedures for Customer Data as follows (and such procedure may be amended by I-BENCHMARK at its sole discretion from time to time):

    (a) File System:

        – Multiple copies of file system at geographically distributed locations; and

        – Copies created instantly as soon as files created; and

    (b) Database System:

        – Full back up taken every 4 hours; and

        – Backups replicated across multiple geographic locations.

In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for I-BENCHMARK to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by I-BENCHMARK in accordance with the archiving procedure described herein. I-BENCHMARK shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by I-BENCHMARK to perform services related to Customer Data maintenance and back-up).

7.3 I-BENCHMARK shall, in providing the Services, comply with its Privacy and Cookie Policy relating to the privacy and security of the Customer Data available via the Website as such document may be amended from time to time by I-BENCHMARK in its sole discretion.

7.4 If I-BENCHMARK processes any personal data on the Customer’s behalf when performing its obligations under these conditions, the parties record their intention that the Customer shall be the data controller and I-BENCHMARK shall be a data processor and in any such case:

    (a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and I-BENCHMARK’ other obligations under these conditions;

    (b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to I-BENCHMARK so that I-BENCHMARK may lawfully use, process and transfer the personal data in accordance with these conditions on the Customer’s behalf;

    (c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and

    (d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

    

8. SUPPLIER’S OBLIGATIONS

            8.1 I-BENCHMARK undertakes that the Services will be performed with reasonable skill and care.

8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to I-BENCHMARK’ instructions, or modification or alteration of the Services by any party other than I-BENCHMARK or I-BENCHMARK’ duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, I-BENCHMARK will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, I-BENCHMARK:

    (a) does not warrant that:

        (i) the Customer’s use of the Services will be uninterrupted or error-free; or

        (ii) that the Services, I-BENCHMARK Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

    (b) 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 Customer acknowledges that the Services and I-BENCHMARK Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.3 These conditions shall not prevent I-BENCHMARK from entering into similar agreements with third parties, or from independently developing, using, selling or licensing I-BENCHMARK Documentation, products and/or services which are similar to those provided under these conditions.

8.4 I-BENCHMARK warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these conditions.



        

9. CUSTOMER’S OBLIGATIONS

9.1 The Customer shall:

    (a) provide I-BENCHMARK with:

        (i) all necessary co-operation in relation to the Contract and compliance with these conditions; and

        (ii) all necessary access to such information as may be required by I-BENCHMARK,

        in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

    (b) comply with all applicable laws and regulations with respect to its activities under the Contract and these conditions;

    (c) carry out all other Customer responsibilities set out in these conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, I-BENCHMARK may adjust any agreed timetable or delivery schedule as reasonably necessary;

    (d) ensure that the Authorised Users use the Services and I-BENCHMARK Documentation in accordance with these conditions and shall be responsible for any Authorised User’s breach of these conditions;

    (e) ensure that any Authorised User who ceases to be engaged by and authorised by the Customer to use the Services and I-BENCHMARK Documentation, shall immediately cease to access the Services, including but not limited to, upon any Authorised User who is employed by the Customer ceasing to be employed by them;

    (f) obtain and shall maintain all necessary licences, consents, and permissions necessary for I-BENCHMARK, its contractors and agents to perform their obligations under these conditions, including without limitation the Services;

    (g) ensure that its network and systems comply with the relevant specifications provided by I-BENCHMARK from time to time; and

    (h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to I-BENCHMARK’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

        

10. CHARGES AND PAYMENT

10.1 The Customer shall pay the Licence Fees to I-BENCHMARK for the Licence as set out in the applicable Order Confirmation together with any addition Licences in accordance with clause 5.

10.2 The Customer shall on the Effective Date provide to I-BENCHMARK valid, up-to-date and complete credit or debit card details or approved Order Confirmation information acceptable to I-BENCHMARK and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

    (a) its credit or debit card details to I-BENCHMARK, the Customer hereby authorises I-BENCHMARK to bill such credit or debit card:

        (i) the full amount of the Licence Fees on the Effective Date for the Licence Fees payable in respect of the Initial Licence Term in respect of a Full Payment Plan;

        (ii) by monthly instalments if the Contract is in respect of an Premium Compliance Plan; and

        (iii) on each anniversary of the Effective Date for the Licence Fees payable in respect of each subsequent Renewal Period on a Full Payment Plan, or by monthly instalments following the anniversary of the Effective Date for the Licence Fees payable in respect of each subsequent Renewal Period on a Premium Compliance Plan; or

    (b) the Customer shall transfer to I-BENCHMARK by bacs or chaps transfer or by cheque, in respect of a Full Payment Plan:

        (i) prior to the Effective Date (so that I-BENCHMARK are in receipt of cleared funds on the Effective Date) the Licence Fees payable in respect of the Initial Licence Term; and

        (ii) at least 30 days prior to each anniversary of the Effective Date for the Licence Fees payable in respect of the next Renewal Period.



10.3 If I-BENCHMARK has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of I-BENCHMARK:

    (a) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% 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.

    (b) I-BENCHMARK will charge an administration fee of £40.00 + VAT to the Customer, for each failure by the Customer to make payment on a due date by reason of the Customer failing to inform I-BENCHMARK of the correct payment details and/or failing to re-instate a valid payment method.

    (c)   I-BENCHMARK will charge an administration fee of £40.00 +VAT to the customer for any cancellation of a direct debit within contract without an alternative payment method having first been agreed.

10.4 All amounts and fees stated or referred to in these conditions:

    (a) shall be payable in pounds sterling;

    (b) are, subject to clause 10.4(b), non-cancellable and non-refundable;

    (c) are exclusive of value added tax, which shall be added at the appropriate rate.

10.5 I-BENCHMARK shall be entitled to increase the Licence Fees at the start of each Renewal Period upon 60 days’ prior notice to the Customer. If such increase is not acceptable to the Customer, the Customer may terminate these conditions in accordance with terms of clause 16.1(a).

10.6 Without prejudice to any other rights or remedies available to it, if the Customer has not paid any Licence Fees when due;

    (a) I-BENCHMARK reserves the right at its sole discretion to suspend the Services and restrict or remove the Customer’s use of and/or access to the Services; and

    (b) in respect of a Premium Compliance Plan, the full balance of the Licence Fees for the remainder of the Licence Term shall become immediately due and payable.

        

11. PROPRIETARY RIGHTS

11.1 The Customer acknowledges and agrees that I-BENCHMARK and/or its licensors own all intellectual property rights in the Services and I-BENCHMARK Documentation. Except as expressly stated herein, these conditions do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or I-BENCHMARK Documentation.

11.2 I-BENCHMARK confirms that it has all the rights in relation to the Services and I-BENCHMARK Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these conditions.

        

12. CONFIDENTIALITY

12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these conditions. A party’s Confidential Information shall not be deemed to include information that:

    (a) is or becomes publicly known other than through any act or omission of the receiving party;

    (b) was in the other party’s lawful possession before the disclosure;

    (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

    (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

    (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

12.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these conditions.

12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these conditions.

12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

12.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute I-BENCHMARK’ Confidential Information.

12.6 I-BENCHMARK acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 This clause 12 shall survive termination of these conditions, however arising.

12.8 No party shall make, or permit any person to make, any public announcement concerning these conditions without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

        

13. INDEMNITY

13.1 The Customer shall defend, indemnify and hold harmless I-BENCHMARK against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or I-BENCHMARK Documentation, provided that:

    (a) the Customer is given prompt notice of any such claim;

    (b) I-BENCHMARK provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

    (c) the Customer is given sole authority to defend or settle the claim.

13.2 I-BENCHMARK shall defend the Customer, its officers, directors and employees against any claim that the Services or I-BENCHMARK Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

    (a) I-BENCHMARK is given prompt notice of any such claim;

    (b) the Customer provides reasonable co-operation to I-BENCHMARK in the defence and settlement of such claim, at I-BENCHMARK’ expense; and

    (c) I-BENCHMARK is given sole authority to defend or settle the claim.

13.3 In the defence or settlement of any claim, I-BENCHMARK may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these conditions on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

13.4 In no event shall I-BENCHMARK, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

    (a) a modification of the Software by anyone other than I-BENCHMARK; or

    (b) the Customer’s use of the Services or I-BENCHMARK Documentation in a manner contrary to the instructions given to the Customer by I-BENCHMARK; or

    (c) the Customer’s use of the Services or I-BENCHMARK Documentation after notice of the alleged or actual infringement from I-BENCHMARK or any appropriate authority.

13.5 The foregoing and clause 13.4(b) states the Customer’s sole and exclusive rights and remedies, and I-BENCHMARK’ (including I-BENCHMARK’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

        

14. LIMITATION OF LIABILITY

14.1 This clause 14 and clause 15 set out the entire financial liability of I-BENCHMARK (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

    (a) arising under or in connection with these conditions;

    (b) in respect of any use made by the Customer of the Services and I-BENCHMARK Documentation or any part of them; and

    (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these conditions.

14.2 Except as expressly and specifically provided in these conditions:

    (a) the Customer assumes sole responsibility for results obtained from the use of the Services and I-BENCHMARK Documentation by the Customer, and for conclusions drawn from such use;

    (b) I-BENCHMARK shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to I-BENCHMARK by the Customer in connection with the Services, or any actions taken by I-BENCHMARK at the Customer’s direction;

    (c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these conditions; and

    (d) the Services and I-BENCHMARK Documentation are provided to the Customer on an “as is” basis.

14.3 Nothing in these conditions excludes the liability of I-BENCHMARK:

    (a) for death or personal injury caused by I-BENCHMARK’ negligence; or

    (b) for fraud or fraudulent misrepresentation.

14.4 Subject to clause 14.2 and clause 14.3:

    (a) I-BENCHMARK shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these conditions; and

    (b) I-BENCHMARK’ total aggregate liability in contract (including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these conditions shall be limited to the total Licence Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

        

15. DISCLAIMER

15.1 Subject to clause 15.2, it is ‘I-BENCHMARK’ policy to:

    (a) conduct its business at all times in a professional manner, to best practice standards and will use its endeavours to maintain I-BENCHMARK Documentation up to date and to develop our Services to meet the needs of its clients, including the Customer; and

    (b) be an online provider of practical know-how and resources for compliance with standards set out by the Care Quality Commission or such similar public body tasked with regulating, inspecting and reviewing all health and adult social care services in England.

15.2 The Customer expressly acknowledges and accepts:

    (a) that it is solely responsible for the appropriate use and adaptation of I-BENCHMARK Documentation, whether in whole or in part, whether for its own business use, provision of compliant services or otherwise;

    (b) that the Customer assumes sole responsibility for the Customer Data and any loss or corruption of the Customer Data;

    (c) in the provision of the Services to the Customer, I-BENCHMARK is not providing any formal advice, whether legal, professional or consultancy, and the Customer is not to rely on the Services in order to comply with any laws, regulations, guidance or instructions issued by any governmental body or agency;

    (d) I-BENCHMARK Documentation is not intended to constitute a definitive or complete statement of the law on any subject, nor is any part of it intended to constitute legal advice for any specific situation;

    (e) I-BENCHMARK does not undertake any obligation to consider whether the information provided to or by it for the purpose of I-BENCHMARK Documentation (including answering any enquiry via the Services) is either sufficient or appropriate for any particular actual circumstances;

    (f) that the use of I-BENCHMARK Documentation by the Customer does not guarantee that the Customer will be compliant with Care Quality Commission standards set out by the Care Quality Commission or any other standards set by a regulatory body;

    (g) the Customer is solely responsible for the appropriate use and adaptation of the I-BENCHMARK Documentation for its own use and the provisions of advice and the Services to its clients;

    (h) I-BENCHMARK Documentation includes archived information and resources, which may be incorrect or out of date;

    (i) responses to questions or enquiries made via the Services may be prepared entirely from our existing I-BENCHMARK Documentation;

    (j) I-BENCHMARK does not accept any responsibility for action taken as a result of information (including I-BENCHMARK Documentation) provided or produced by it and specific advice should be taken when dealing with specific situations;

    (k) I-BENCHMARK Documentation is general and educational in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of individual situations and do not represent or advice in any form;

    (l) I-BENCHMARK give no warranty or assurance that the Services and the means of delivering them are compatible with the Customer’s software or computer configuration; and

    (m) I-BENCHMARK may change part or all of any Service at its sole discretion.

        

16. TERMS AND TERMINATION

16.1 These conditions shall, subject to clause 3 and unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Licence Term and, thereafter, these conditions shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

    (a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Licence Term or any Renewal Period, in which case these conditions shall terminate upon the expiry of the applicable Initial Licence Term or Renewal Period; or

    (b) otherwise terminated in accordance with the provisions of these conditions;

        and any Trial Period, the Initial Licence Term together with any subsequent Renewal Periods shall together constitute the “Licence Term”.

16.2 Without affecting any other right or remedy available to it, either party may terminate these conditions with immediate effect by giving written notice to the other party if:

    (a) the other party fails to pay any amount due under these conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

    (b) the other party commits a material breach of any other term of these conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

    (c) the other party repeatedly breaches any of the terms of these conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these conditions;

    (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;

    (e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

    (f) 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

    (g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

    (h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

    (i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

    (j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

    (k) 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 clause 16.2(d) to clause 16.2(j) (inclusive);

    (l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.3 On termination of these conditions for any reason:

    (a) all licences granted under these conditions shall immediately terminate;

    (b) I-BENCHMARK may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and I-BENCHMARK shall be under no obligation to provide any or all of the Services; and

    (c) I-BENCHMARK may (at its sole discretion) destroy or otherwise dispose of any of the Customer Data in its possession unless I-BENCHMARK receives, no later than ten days after the effective date of the termination of these conditions, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data; and

    (d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

16.4 On receipt of a notice pursuant to clause 16.3(b):

    (a) I-BENCHMARK shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination); and

    (b) the Customer shall pay all reasonable expenses incurred by I-BENCHMARK in returning or disposing of Customer Data.

17. FORCE MAJEURE

I-BENCHMARK shall have no liability to the Customer under these conditions if it is prevented from or delayed in performing its obligations under these conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of I-BENCHMARK or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

18. VARIATION

18.1 Subject to clause 18.2 and clause 18.3, no variation of these conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18.2 I-BENCHMARK may make minor amendments to these conditions from time to time and will notify the Customer of those changes.

18.3 The Customer will be asked to accept these conditions in respect of each Renewal Period including any amendment or variation made by I-BENCHMARK to these conditions. If the Customer does not wish to accept these conditions and wishes to terminate the Licence, it may do so in accordance with the provisions of clause 16.1(a).

19. ASSIGNMENT

19.1 The Customer shall not, without the prior written consent of I-BENCHMARK, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these conditions.

19.2 I-BENCHMARK may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these conditions.

20. NO PARTNERSHIP OR AGENCY

Nothing in these conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

If you have any questions about this agreement, please contact i-Benchmark via our Contact Form or email support@i-Benchmark.co.uk.