Terms of Service
1.1 Sláinte Healthcare Limited is a supplier of package software and services and is skilled in the implementation of computer software, systems integration, and project management.
2. Definitions and Interpretation
2.1 Definitions. In this agreement, the following expressions have the following meanings: “Software” means the computer system known as Claimsure unless otherwise stated as Formsure Software.
2.2.1 Unless the context otherwise requires, reference to a recital, article, paragraph, provision, clause or schedule of or to this Agreement.
2.2.2 The headings in this Agreement are inserted for convenience only and do not affect its construction.
2.2.3 The expressions “include”, “includes”, “including”, “in particular” and similar expressions shall be constructed without limitation.
3. Services to be provided
3.1 Sláinte Healthcare Limited has agreed to supply certain services in relation to the software provided and supported to the Customer as defined by the Professional Service Agreement issued to the customer for the purposes of managing the Private Health Insurance process and related Clinical Documentation at the Customer business locations.
3.2 The Customer may at any time and from time to time request the Supplier to make changes to the Services and/or the Professional Service Agreement and the Supplier may from time to time propose changes to the Customer for approval by it at its sole discretion. The provisions of Schedule 1 shall regulate the procedure for the proposal and acceptance of change under this Agreement.
4.1 The Software and all copies of them are the property of the Supplier and title thereto shall remain with the Supplier. All Intellectual Property Rights, title or interest in the Software will at all times remain with the Supplier.
4.2 The Supplier warrants that it has the right to licence the software, which it is licensing to the Customer.
5. Continuation of License Rights
5.1.1 For the avoidance of doubt, termination by either party of only the Professional Services Agreement outlined in this Agreement will not terminate the Customer’s License rights to the Software.
6.1 Subject to this warranty, the Customer acknowledges and agrees that it is solely responsible for ensuring that the Services to be supplied under the Agreement satisfies the Customer’s needs and requirements in every respect and accepts that the solutions proposed as part of such Services provided by the Supplier does not meet any undefined user requirements but meets the user requirements as notified to the Supplier during the request for the Professional Service Agreement.
6.2 In the event of a breach of this warranty, the Supplier shall remedy such breach by the provision of services pursuant to the Support Services or at the Suppliers option either to reschedule the Services or to refund the amount paid to the Supplier for the Services.
6.3 The foregoing states the entire liability of the Supplier, whether in contract, tort or howsoever for defects and errors, in the Services which are notified to the Supplier after Acceptance.
6.4 The Supplier warrants that any Software Services provided under the Agreement will be of a professional quality conforming to generally accepted Irish Information technology and Healthcare industry standards and carried out in a timely manner.
6.5 On breach of this Software Services warranty, the Supplier shall have no liability or obligation under the warranty other than to carry out at its own expense further work to remedy such breach. The Supplier will have no liability or obligation under the Software Services warranty in respect of incorrect instructions or information from the Customer or the Customer’s failure to provide information or documentation or where there has been unauthorised modification or alteration of the Software or any part of it.
6.6 The Supplier will have no liability under this Software Services warranty unless it has received written notice of the breach of the warranty within one hundred and twenty (120) days after delivery of the relevant item of the Software Services.
6.7 Except as expressly provided in the Agreement no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability, suitability or fitness for purpose of the Software Services, provided under this Agreement, is given or assured by the Supplier and all such warranties, conditions, undertakings or terms are hereby excluded to the fullest extent permitted by law.
6.8 In the event that the Customer notifies the Supplier that a breach of any express warranty has occurred but it transpires that there has been no breach of warranty, the Customer will pay to the Supplier a fee in respect of time expended by the Supplier in accordance with the Supplier’s fee rates for the time being in force and in addition all reasonable expenses.
6.9 The Customer shall notify the Supplier of breach of any express warranty within one hundred and twenty (120) days of such breach.
6.10 Where the Agreement incorporates any assumptions or makes provision for any matter to be the responsibility of the Customer, the Customer shall be deemed to warrant that such assumptions are true and that the Customer has complied with any matter stated to be its responsibility, and such assumptions or provisions shall not accordingly constitute in any way conditions of the Agreement.
6.11 It is hereby acknowledged by the Customer that the remedies expressed in these terms and conditions set out the whole extent of the Supplier’s liability and obligations in respect of any breach of any warranty.
6.12 The Customer acknowledges that it has no claim against the Supplier of whatsoever nature arising out of or in connection with this Agreement.
7. Liability for Loss
7.1 In the event of any breach by the Supplier of the warranties the Supplier shall have no liability other than to provide the services in respect of remedying the warranties.
7.2 The Supplier shall accept liability to the Customer for claims in respect of damage to Property of the Customer resulting from a tortuous act or omission (including negligence) of the Supplier or its employees, agents or sub-contractors provided that the aggregate amount of the Supplier’s liability for all such claims shall not exceed all monies then received by the Supplier from the Customer pursuant to this Agreement.
7.3 In the event that the Supplier fails to comply with its obligations of whatsoever nature arising under this Agreement, the Supplier’s liability (whether in contract, tort or otherwise) for all Customer claims in respect of such failure shall not in aggregate exceed all monies then received by the Supplier from the Customer pursuant to this Agreement.
7.4 In no event shall the Supplier be liable to the Customer for any incidental, special, indirect or consequential loss or damage of whatsoever nature, howsoever caused, including but not limited to loss of earnings, loss of and/or damage to goodwill, loss or spoiling of data or loss of contracts, revenues or anticipated savings whether occurring in contract, tort, negligence or otherwise.
7.5 For the avoidance of doubt the Supplier will not be liable for any loss arising out of
7.5.1 any failure by the Customer to keep full and up-to-date security copies of its data and the computer programs it uses;
7.5.2 Or any failure by the Customer to maintain a computer virus protection system in accordance with best computing practice.
7.6 Each of the party’s liability to the other for death or injury resulting from its own or that of its employees, agents or subcontractors’ negligence, shall not be limited. Each of the Supplier and Customer shall indemnify the other in respect of personal injury or death arising out of its negligence, and nothing in this Agreement shall operate to exclude or restrict such liability.
7.7 The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
8. Intellectual Property Infringement Indemnity
8.1 The Supplier provides no intellectual property infringement indemnity for any Third-Party Software or Services provided as part of this Agreement and the Customer should address any such issues directly with the appropriate licensor.
8.2 The Supplier may at any time it is concerned about the possibility of an infringement of a patent or copyright or when notified of such an infringement by the Customer at its option and expense: replace or modify the Software or Services so that infringement or alleged infringement will not exist; or remove the Software involved and refund a portion of the licence fees depreciated by an equal amount over the lifetime of the Software as determined by the Supplier; or obtain for the Customer the right to continue using the Software.
8.3 The Supplier disclaims all other liability for copyright, patent or other infringement including any incidental loss or consequential damages.
8.4 The Supplier will have no liability to the Customer to the extent that an infringement or claim is based upon: the combination of any of the Software with equipment devices or software not supplied or approved in writing by the Supplier; or modification or alteration of any of the Software either by the Supplier in accordance with the Customer’s specific instructions or by parties other than the Supplier; or the use of any of the Software other than in accordance with the instructions or Specifications provided by the Supplier.
8.5 The Customer will indemnify and hold harmless the Supplier from:
8.5.1 any loss, cost or expense suffered or incurred in connection with any claim brought against the Supplier which alleges that the modification or alteration of any Software in accordance with the Customer’s specific instructions or the combination of any Software with any equipment, device or software not supplied by the Supplier or the use of any of the Software in a manner for which it was not intended, constitutes such an
infringement because of the modification, alteration or combination of use; and
8.5.2 Any act or omission of the Customer whereby the intellectual property rights of the Supplier are affected, infringed, or otherwise put in jeopardy in any manner whatsoever.
9.1 The Supplier will use all reasonable endeavours to deliver items and provide services to the Customer in accordance with any dates agreed between the Supplier and the Customer.
10. Time of Performance
10.1 Unless otherwise expressly stated, all items and services will be provided during the Supplier’s normal working hours of 8.00am to 8.00pm from Monday to Friday, and 8am to midday on Saturdays excluding Public Holidays.
11. Insurance and Ownership
11.1 Risk and the responsibility for insuring all items provided under this Agreement shall pass to the Customer on delivery to the Customer’s premises. Ownership of any item supplied under this Agreement shall pass to the Customer upon full payment for the item supplied.
12.1 The Customer shall pay to the Supplier the fees agreed and will make payments to the Supplier in accordance with the Payment Schedule.
12.2 In addition to the agreed fees, the Customer agrees to pay to the Supplier the cost of all reasonable expenses including travel accommodation and subsistence expenses properly incurred by the Supplier Staff relating to the Software Services.
12.3 All sums or fees referred to in this Agreement are denoted in the euro currency.
12.4 Unless expressly quoted as including VAT, all prices are exclusive of value added tax or any other government taxes or duties which, if applicable, shall be paid by the Licensee.
13.1 The Professional Service Agreement may be terminated by the Supplier immediately on giving written notice to the Customer if the Customer fails to pay any sum properly due under the terms of this Agreement and the sum remains unpaid for thirt (30) days after written notice from the Supplier that the sum has not been paid.
13.2 If at any time during the currency of this Agreement the Customer wishes to terminate this Agreement or any part of it other than pursuant to the termination provisions, the Customer agrees to pay the Supplier by way of liquidated damages a sum equal to and not exceeding a sum equal to the fees as set out in the Professional Service Agreement which would have been chargeable by the Supplier if the Agreement had taken its full and normal course. Such sum to be a debt due to the Supplier with payment due as under the terms above.
14. Effect of Termination
14.1 On expiry or termination of this agreement, all services provided to the Customer by the Supplier shall cease.
14.2 Any termination of this Agreement will be without prejudice to the accrued rights and liabilitiesof either party. The termination will not affect the coming into force or the continuance in force of any term, which is expressly or by implication intended to come into or continue in force after termination of this Agreement.
15. Customer Co-operation
15.1 The Customer will provide the Supplier with all information and documentation, which may reasonably be requested by the Supplier in order to allow the Supplier to fulfil its obligations hereunder.
15.2 The Customer undertakes to provide the Supplier, at no cost to the Supplier, access during normal working hours to facilities and computer time, as the Supplier may reasonably consider necessary for performance of its obligations hereunder.
15.3 The Customer will ensure that the users and administrators of the Software are properly trained and that they undertake the operation of such software to normally accepted standards and in accordance with any reasonable advice given by the Supplier.
15.4 If the Customer fails to provide access or facilities or information to the Supplier as previously agreed between the parties and this causes the Supplier to repeat the provision of any of the Software Services, the Supplier reserves the right to charge the Customer for the additional time and expenses incurred.
16. Confidential Information
16.1 Subject to each party’s obligations under law, including (if applicable) the provisions of the Freedom of Information Act and the Data Protection Act (Ref Schedule 2 for the Suppliers Data Protection Policy), each party agrees to treat as confidential all information obtained from the other pursuant to this Agreement and shall not disclose the whole or any part of the information to a third party without the prior written permission of the other party. The terms of this clause shall not apply to the following information:
i. Information which was in the public domain at the time of disclosure;
ii. Information which, though originally confidential information, subsequently falls into the public domain through no fault of either party receiving the confidential information, as of the date of its so falling;
iii. Information independently conceived, perfected or developed by employees or agents of either party or is now or is hereafter in either party’s or any such employees’ or agents’ lawful possession as shown by their written records where such party, employee or agent can show it had no access to confidential information received under this Agreement;
iv. Information disclosed pursuant to a duty to disclose imposed by law or the requirements of a regulatory body but only to the extent so required; or
v. Information disclosed with the other party’s prior written approval.
16.2 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement for whatever reason.
17. Force Majeure
17.1 Notwithstanding anything else contained in the Agreement neither party will be liable for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, including without limitation, any delay caused by any act or omission of the other party and the delaying party shall be entitled to a reasonable extension of time for the performance of such obligations.
18.1 The parties hereby agree that the limitations and exclusions incorporated in this Agreement are reasonable in all the circumstances of the Customer’s business relationship with the Supplier but if any term is later found to be unenforceable or invalid in any circumstances the other terms of this Agreement and the remainder of the provision in question shall remain in full force and effect.
19.1 The failure of either party to insist on any occasion upon the performance of any provision of the Agreement will not thereby act as a waiver of that breach or any later breach of the same or any other provision.
20.1 All notices requests or notifications required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice in accordance with the provisions of this Clause. Any such notice may be delivered by hand or by first class pre-paid delivery letter or by facsimile transmission and shall be deemed to have been served by hand when delivered and if by letter 48 hours after posting and proof of posting shall be sufficient evidence of delivery and if by facsimile transmission at the time of transmission if sent in the recipient’s business hours or at opening of business on the immediately following business day if sent out of such business hours.
21. Relationship of the parties
21.1 Nothing in this Agreement shall constitute or be deemed to constitute either party as being the agent or joint venture partner of the other party.
22. Prevailing Nature
22.1 In the event of any conflict or inconsistency between these terms and conditions an dany of the Schedules, Addenda or other documents forming part of this Agreement, the provisions of these terms and conditions shall prevail.
23.1 Each of the Supplier and the Customer undertakes to the other that during and for a period of eighteen (18) months after the termination of this Agreement neither it nor any company which is associated with it or a member of any group of companies of which it is a member will solicit, entice away or employ any person who is or has at any time during the previous six months been employed directly or as an agent or contractor by the other party.
24. Escalation and dispute procedure
24.1 Both parties to this Agreement shall seek to resolve any dispute between them arising out of or relating to this Agreement amicably.
24.2 All disputes between the parties arising out of or relating to this Agreement shall be referred in the first instance by either party to the party’s respective representatives for resolution.
24.3 If any dispute cannot be resolved by the parties referred to in within a period of fourteen (14) days following referral then the dispute shall be referred to the senior executives of the parties for resolution.
25. Governing Law
25.1 The construction, validity and performance of the Agreement will be governed by Irish Law and subject to the exclusive jurisdiction of the courts in Ireland.
Schedule 1: Change control procedures
1. Customer Changes
1.1 If the Customer at any time and from time to time wishes to make a change to the Services (the “Customer Changed Services”), the Customer shall serve a notice of change (the “Customer Notice of Change”) on the Supplier. The Customer Notice of Change shall set out an explanation of the required change to the Services (the “Customer Change”) in sufficient detail to enable the Supplier to calculate and provide the estimated required adjustments (if any are permissible under this Agreement) to the Charges as a Result of the Customer Change (the “Customer Change Charges”).
1.2 The Supplier shall, within five Business Days of receipt of a Customer Notice of Change(or such other time as the Parties may agree in writing), respond in writing to the Customer with the following information:
(a) details of the Customer Change Charges;
(b) a detailed plan setting out the manner in which the Supplier proposes to implement the Customer Change with as little interruption as possible to the Services together with a timetable for implementing the Customer Change; and
(c) Details of any factors which the Supplier reasonably considers the Customer should take into account with respect to the Customer Change.
1.3 Within 15 Business Days of receipt by the Customer of the information from the Supplier as set out in Section 1.2 of Schedule 1, the Customer may, at its sole discretion, elect by notice to the Supplier either:
(a) to accept the Supplier’s proposals in which case this Agreement shall be amended accordingly and references to the “Services” shall be construed so as to include the “Customer Changed Services” and references to the “Charges” shall be construed so as to include the Customer Change Charges;
or (b) to withdraw the proposed Customer Change; or
(c) To amend the Customer Notice of Change.
1.4 In the event that the Customer elects to amend the Customer Notice of Change, the Customer and the Supplier Manager shall meet with a view to discussing and finalising the amended Customer Change and shall agree a timetable within which the Supplier shall respond with amended information to that provided pursuant to Section 1.2 of Schedule 1. Upon receipt of such amended information, the procedure set out in this Section 1.4 of Schedule 1 shall be repeated until such time as the Customer decides to exercise its rights under Section 1.3(a) or 1.3(b) of Schedule 1.
1.5 If the Customer decides to implement the Customer Change, the Supplier shall, within 10 Business Days (or such other period as the Parties may agree in writing) of the date of the Customer’s acceptance of its proposals for the Customer Change, implement the Customer Change in accordance with the Supplier’s plan and timetable under Section 1.2(b) of Schedule 1 (as may have been modified pursuant to Section 1.3(c)).
2. Supplier Change
2.1 If the Supplier at any time and from time to time wishes to make a change to the Services (the “Supplier Changed Services”), the Supplier shall serve a notice of change (the “Supplier Notice of Change”) on the Supplier. The Supplier Notice of Change shall set out:
(a) an explanation of the proposed change to the Services (the “Supplier Change”) in sufficient detail to enable the Customer to evaluate it in full;
(b) the Supplier’s reasons for proposing the Supplier Change;
(c) whether a change in the Charges (the “Supplier Change Charges”) is proposed by reason of the Supplier Change (to the extent that any such change in the Charges is permissible under this Agreement) and, if so, details of same;
(d) a detailed plan setting out the manner in which the Supplier proposes to implement the Supplier Change with as little interruption as possible to the Services together with a timetable for implementing the Supplier Change; and
(e) Details of any factors which the Supplier reasonably considers the Customer should take into account with respect to the Supplier Change.
2.2 The Customer shall evaluate the Supplier Change in good faith. As soon as practicable following receipt of the Supplier Notice of Change, the Customer may, at its sole discretion, elect by notice to the Supplier either:
(a) to accept the Supplier Change in which case this Agreement shall be amended accordingly and references to the “Services” shall be construed to as to include the “Supplier Changed Services” and references to the “Charges” shall be construed so as to include the Supplier Change Charges; or
(b) reject the Supplier Change (stating the reasons for such rejection); or
(c) Request a meeting with the Supplier Manager with a view to discussing and, if appropriate, agreeing upon the Supplier Change and/or any amendments thereto.
2.3 If the Customer agrees that the Supplier Change should be implemented, the Supplier shall, within 10 Business Days (or such other period as the Parties may agree in writing) of the date of the Customer’s acceptance of its proposals for the Supplier Change, implement the Supplier Change in accordance with the Supplier’s plan and timetable under Section 2.1(d) of Schedule 1 (as may have been modified pursuant to Section 2.2(c)).