License Agreement
Digital Tool(s) Promotion Agreement
This agreement is dated
And made between
(1) Health and Social Care Information Centre whose head office is at 1 Trevelyan Square, Boar Lane, Leeds, LS1 6AE (“NHS Digital”)
and
(2) [Digital Tool(s) Provider details] (“You”).Background
| (A) | The UK Secretary of State for Health has overall responsibility for the NHS and delivery and improvement of health and social care. NHS Digital is an executive non-departmental public body for the Department of health and works alongside the UK Secretary of State in a worldwide range of activities to support the delivery and improvement of health and social care. |
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| (B) | The NHS wishes to promote a range of mobile applications to patients through a section of the publically available NHS website managed by NHS Digital (the “Digital Tools Library”) in connection with the NHS aim of improving the delivery and availability of healthcare in the United Kingdom. |
| (C) | You have developed a mobile application which you wish to be promoted through the Digital Tools Library as part of the NHS scheme referred to above. |
| (D) | This Agreement therefore sets out the terms and conditions on which NHS Digital agrees to include your Digital Tool(s) on the Digital Tools Library and your obligations in return. |
1 Definitions and Interpretation
1.1 In this Agreement the following terms shall have the following meanings unless expressly specified to the contrary or where the context otherwise requires:
| Agreement | means the body of this agreement below, the Standards, and all terms, rules and policies that NHS Digital makes available in respect of Digital Tools featured on the Digital Tools Library from time to time; |
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| App Store | means a third party online app store from which the Digital Tool(s) may be made available by You for download; |
| Approval Body | means the relevant NHS body or executive agency of the Department of Heath as applicable responsible for assessing whether Digital Tool(s) meet the Standards from time to time, which may include without limitation NICE, NHS England, NHS Digital and Public Health England; |
| Content | means the content used on or provided with your Digital Tool(s) including but not limited to: adverts, services, technology, data and other digital materials, and all information set out in your Digital Tool(s) (if applicable); |
| Data Protection Law | means the Data Protection Act 1998 and all other applicable laws and regulations from time to time in force relating to data protection, privacy and the processing of personal data, including the GDPR on and from 25 May 2018, the date upon which the GDPR applies (as set out in Article 99 (Entry into force and application) of the GDPR); |
| Digital Tool(s) | means mobile software applications and other digital products that You submit to NHS Digital for promoting on the Digital Tool(s) Portal in accordance with this Agreement; |
| GDPR | means the European General Data Protection Regulation, namely 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, and repealing Directive 95/46/EC; |
| Helpdesk | means patientdigitalservices@nhs.net |
| Intellectual Property Rights | includes but is not limited to patents, trademarks, service marks, design rights (whether registered or otherwise), applications for any of the foregoing, copyright, software, database rights, trade or business names and other similar rights, or other right in the nature of intellectual property or obligations whether registerable or not in any country (including but not limited to the United Kingdom); |
| Law(s) | means statute, case law, rules, regulations, orders and other applicable codes of practice and requirements of governmental agencies including Data Protection Law; |
| Medical Tools Directive | means [Medicines & Healthcare products Regulatory Agency or successor bodies from time to time]; |
| Nominated Gate Keeper | means [insert contact] |
| Portal | means the website located at app.beta.nhs.uk (or such other replacement URL nominated by NHS Digital from time to time) which will provide access to the “Digital Tools Library” where information about the Digital Tool(s) will (at NHS Digital’s discretion) be featured with an appropriate link to the relevant App Store; |
| Response Times | means the time periods within which You will undertake and use reasonable care and attention with regard to: (i) fixing any errors notified to You by an Approved Body (being no more than seven (7) days); and (ii) responding to any queries raised to You by and Approved Body (being within 24 hours); (iii) such other period as necessary to ensure compliance with the requirements of any other Laws, which may apply; and Standards means the required standards and criteria (clinical, technical or otherwise) which the Digital Tool(s) is required to meet before it will be featured on the Digital Tools Library as notified to you from time to time by NHS Digital (or the relevant Approval Body). |
1.2 Clause and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.2 Assurance
2.1 The Nominated Gate Keeper will advise You which Approval Body You are required to engage with in order for the Digital Tool(s) to be assessed in order to thereafter be available on the Digital Tools Library.
2.2 You will then engage with the relevant Approval Body and you shall submit the Digital Tool(s) to the Assessment Process to be undertaken.
2.3 You acknowledge and agree that:2.3.1 The Assessment Process will be carried out by the relevant Approval Body;
2.3.2 neither NHS Digital nor the relevant Approval Body gives any assurances as to the time taken to complete the Assessment Process; and
2.3.3 the Digital Tool(s) will not be published on the Digital Tools Library until successful completion of the Assessment Process has occurred and been notified to You in accordance with this Agreement.2.4 You shall cooperate with the relevant Approval Body at all times during the Assessment Process and You shall provide all relevant assistance, documents and information as may be requested in accordance with the Assessment Process, at no cost to NHS Digital or the relevant Approval Body.
2.5 Once the Assessment Process has been completed, the Nominated Gate Keeper will notify NHS Digital whether your Digital Tool(s):2.5.1 complies with the Standards and is therefore approved; or
2.5.2 is non-compliant with the Standards and that remedial work is therefore required by You in order for the Digital Tool(s) to complete the Assessment Process, and NHS Digital will then within 5 working days then make the Digital Tool(s) available in the Digital Tools Library.2.6 You acknowledge and agree that You will be solely responsible at Your cost for submitting the Digital Tool(s) to the relevant App Store and for ensuring that the Digital Tool(s) meets any requirements of the relevant App Store (in addition to the requirements specified in this Agreement).
2.7 If the Nominated Gate Keeper notifies You that that your Digital Tool(s) has failed Assessment Process pursuant to Clause 2.4, You shall at no cost to the Relevant Approval Body either:2.7.1 rectify the relevant areas where the Digital Tool(s) has/have failed to comply with the Standards and resubmit the Digital Tool(s) for repeat Assessment Process under this Clause 2; or
2.7.2 withdraw the Digital Tool(s) from the procedure (whereupon this Agreement shall be terminated in respect of that/those Digital Tool(s)).2.8 You shall, at no cost to a NHS Approved Body, ensure that your Digital Tool(s) continue to comply with the most up to date version of the Standards and the requirements of the relevant App Store(s) from time to time. You shall provide evidence of such compliance to the Nominated Gate Keeper on request.
2.9 No NHS Approved Body shall be responsible or liable for any costs, expenses and/or losses incurred by You in the event that the Digital Tool(s) fail to meet the Standards.3 Licence to Digital Tool(s)
3.1 You grant NHS Digital a non-exclusive, perpetual (subject to Clause 6), sub-licensable, royaltyfree licence to display and otherwise feature the Digital Tool(s) (and all materials provided by you for display in connection with the Digital Tool(s) on the Portal and/or Digital Tools Library and to link to the Digital Tool(s) at the relevant App Store from those locations. To the extent the consent of any App Store owner is required for NHS Digital to link to your Digital Tool(s), you shall be responsible for procuring that consent at no cost to NHS Digital.
4 Your obligations
4.1 You and your Digital Tool(s) must comply with all applicable Laws at all times.
4.2 You shall ensure that the Digital Tool(s) (including any updates, changes or new versions of the Digital Tool(s)):4.2.1 complies with the legal and technical requirements set out in the current version of the Standards at all times; and
4.2.2 clearly states its current version number and which version of the Standards it complies with.
4.3 For the purposes of this Clause 4, the terms “process”, “personal data”, “data controller” and “data processor” shall have the meaning set out in Data Protection Law.
4.4 Unless otherwise set out in the Standards, you shall be the data controller in relation to any personal data processed by your Digital Tool(s).
4.5 If You (or any third party plug-in or service provider You use) process personal data of any kind in connection with the Digital Tool(s), You shall (without limitation):
4.5.1 provide legally adequate privacy notices to end users;
4.5.2 obtain any necessary consents from the end user for the collection, use, transfer and storage of the information;
4.5.3 only use and authorise others to access and use the information for the purposes permitted by the end user; and
4.5.4 ensure the information is collected, used, transferred and stored in accordance with applicable Laws.
4.6 You shall promptly rectify any defects or deficiencies in relation to the Digital Tool(s) which are notified to You by the Nominated Gate Keeper or users of the Digital Tool(s) in accordance with the Response Times.
4.7 You shall promptly respond to any queries raised by NHS Digital in respect of the Digital Tool(s) in accordance with the Response Times.
4.8 You must not use any NHS logo, branding, trade marks, or any other features which would associate your or the Digital Tool(s) with the NHS in connection with this Agreement, without the express prior written consent of the Department of Health which you shall evidence to nominated Gate Keeper on request, if relevant.
4.9 Other than as may be permitted pursuant to Clause 4.8, You shall not otherwise use any trade mark, service mark, commercial symbol, or other proprietary right of the Department of Health, (or its licensors including an Approval Body), issue press releases or other publicity relating to NHS Digital or this Agreement, or refer to NHS Digital or the NHS in promotional materials.
4.10 You shall promptly notify the Nominated Gate Keeper and/or relevant Approval Body of any safety related incidents or safety concerns in relation to Digital Tool(s) in accordance with the Response Times, throughout the period of this Agreement. You acknowledge that such notification may at the absolute discretion of the Nominated Gate Keeper lead to removal of the Digital Tool(s) from the Digital Tools Library.5 Portal Management
5.1 NHS Digital has sole discretion to determine all features and operations of the Portal and Digital Tools Library and to make changes to them from time to time.
5.2 You acknowledge that NHS Digital has no obligation to promote, distribute, or offer any promotion or materials with respect to your Digital Tool(s) or any App, to permit You or your Digital Tool(s) to use any Portal materials, or to continue any of the foregoing once begun. NHS Digital gives no warranties or other commitments as to the level of traffic that may be directed to your Digital Tool(s) as a consequence of featuring the Digital Tool(s) on the Digital Tools Library.
5.3 NHS Digital is responsible for and has sole discretion related to its operations, and NHS Digital will have sole ownership and control of data it obtains from end users in connection with the Portal and Digital Tools Library.
5.4 If You receive any complaints from users of the Digital Tool(s) which relate to the NHS, an Approving Body, the Portal or any directly related matter, You shall:5.4.1 provide the Helpdesk with a copy of the complaint promptly within the course of normal office hours and without undue delay, and in any event within 24 hours of receipt;
5.4.2 provide the Approving Body with any assistance it may reasonably require to respond to the complaint; and
5.4.3 not respond to such complaints without the express written consent of the Nominated Gatekeeper.6 Term and Termination
6.1 This Agreement shall start on the date on which it is signed by You and shall continue until it is terminated in accordance with this Clause 6.
6.2 NHS Digital may, at its sole discretion and immediately on written notice to You:6.2.1 terminate this Agreement at any time; or
6.2.2 remove Digital Tool(s) from the Digital Tools Library until notified by the Nominated Gatekeeper that the Digital Tool(s) are able to be available on the Digital Tools Library.
6.3 You may terminate this Agreement at any time on no less than 60 days’ written notice to NHS Digital other than where you have committed to Digital Tool(s) being used as part of a broader NHS scheme, in which case such notice shall take effect on the expiry of that scheme, unless otherwise agree with NHS Digital in writing.
6.4 On termination or expiry of this Agreement for any reason:
6.4.1 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect;
6.4.2 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; and
6.4.3 NHS Digital is not obligated to return copies of any Digital Tool(s) or other materials that You provide to it or any Approval Body.7 Representations and Warranties.
7.1 You represent, warrant and covenant that:
7.1.1 You have the full right, power, and authority to enter into and fully perform this Agreement;
7.1.2 You are able to form a legally binding contract;
7.1.3 before providing the Digital Tool(s) to NHS Digital or an end user, You have obtained the rights necessary for the exercise of all rights granted under this Agreement and to make the Digital Tool(s) available, and You will be solely responsible for and will pay any licensors or co-owners any royalties or other monies due to them related to such Digital Tool(s);
7.1.4 none of the following will violate any Laws; require NHS Digital to obtain any license, authorisation, or other permission from any governmental agency or other third party; contain any defamatory material; or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights):7.1.4.1 the exercise of any rights granted under this Agreement;
7.1.4.2 any Content or Intellectual Property Rights embodied in or supplied with the Digital Tool(s);
7.1.4.3 the sale, distribution, or promotion of the Digital Tool(s) as envisaged by this Agreement; or
7.1.4.4 any notices, instructions or advertising by You for or in connection with any Digital Tool(s);
7.1.5 the Digital Tool(s) is/are either not a medical device (as defined in Medical Devices Directive), or is compliant and regulated in accordance with the Law and requirements of the Medicines and Healthcare Products Agency;
7.1.6 the Digital Tool(s) is/are lawfully able to be available and used worldwide, (without the need for NHS Digital to obtain any license or clearance or take any other action) and Your Digital Tool(s) is/are in full compliance with all applicable Laws and regulations governing and applicable to your software and Digital Tool(s), including but not limited to information security technology and encryption technology;
7.1.7 the Digital Tool(s) will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code, and will not cause injury to any person or damage to any property; and
7.1.8 You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users based on your use of third party “open source” software or other third party intellectual property in any of the Digital Tool(s) and Content. You will also promptly make available to NHS Digital, end users and any other third party that is entitled to it, the source code corresponding to any Digital Tool(s) and Content or portion thereof if and in the manner required by applicable third party terms and conditions (e.g., open source software licenses).8 Indemnities
8.1 You will indemnify, defend and hold an Approval Body and its licensors (including the Department of Health, and in each case their respective officers, directors, employees, contractors and assigns) harmless from and against any loss, potential claim, actual claim, liability, damage, proposed action, action or cause of action (including reasonable legal fees) that arises from any claim relating to the Digital Tool(s) and/or Content or use thereof, or from any breach of your representations, warranties or obligations set forth in this Agreement (individually, a “Claim,” and collectively, the “Claims”).
8.2 You will not consent to the entry of a judgment or settle a Claim without NHS Digital’s prior written consent, which may not be unreasonably withheld.
8.3 If an Approval Body reasonably determines that a Claim might adversely affect it, NHS Digital may take control of the defence at its expense (and without limiting your indemnification obligations). Your obligations under Clause 8.1 and 8.2 are independent of your other obligations under this Agreement.9 Confidentiality
9.1 Notwithstanding the provisions of this Clause 9, NHS Digital may require You to enter into a separate confidentiality agreement from time to time.
9.2 Each party agrees that it may use the other party’s confidential information only in the performance of its rights and obligations under this Agreement and that, during the term of this Agreement and for a period of five years following termination of this Agreement, it shall not disclose the other party’s confidential information other than in accordance with this Clause 9.
9.3 Each party may disclose the other party’s confidential information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s Confidential Information in order to perform the disclosing party’s rights and obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom confidential information is disclosed is aware of its confidential nature and complies with this Clause 9 as if it were a party.
9.4 Each party may disclose any confidential information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.10 Publicity
10.1 You shall not issue any publicity statements referencing an Approval Body, the Portal, the Digital Tools Library or the subject matter of this Agreement without the prior written consent of the relevant Approval Body. To obtain the relevant Approval Body’s consent, You shall provide that Approval Body with a copy of the proposed publicity statement.
11 Disclaimers and Limitations of Liability
11.1 You acknowledge that the management of the Digital Tools Library and the display by NHS Digital of your Digital Tool(s) on the it is provided without charge to You.
11.2 The Portal, Digital Tools Library and any materials provided by NHS Digital in connection with operation of them are provided on an “as is” basis.
11.3 NHS Digital will include a disclaimer on the Digital Tools Library which shall include a statement that it is not responsible for the provision of Digital Tool(s), and that in the event of any concerns or issues of any kind other than as referred to in Clause 5.4, then the end user should contact You.
11.4 NHS Digital shall not be liable under this Agreement for any loss of data or content, loss of profits or revenue, cost of cover or other special, incidental, consequential, indirect, exemplary or reliance damages arising from or in relation to this Agreement, or for any equitable remedy or otherwise, however caused and regardless of theory of liability.
11.5 NHS Digital specifically disclaims, with respect to all services, software, content or products provided by or on behalf of it in connection with this Agreement or the Portal or Portal materials, all warranties, express, implied, or statutory, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
11.6 You acknowledge and agree that NHS Digital cannot ensure that the Digital Tool(s) and Content submitted by or on behalf of You will be protected from theft or misuse, and NHS Digital will have no liability arising from a failure of any security technology or procedure, or of any end user to comply with any terms of use regarding the Portal or otherwise.12 Agreement Changes
12.1 NHS Digital reserves the right to change this Agreement at any time in its sole discretion. NHS Digital will give You notice of the changes by posting an updated version of this Agreement and/or Standards online, or by emailing You at an email address You have provided.
12.2 An Approval Body reserves the right at any time and at its sole discretion to change the relevant Standards.
12.3 Changes to this Agreement will be effective as of the date NHS Digital post them online on the Digital Tools Library or otherwise notify You of them, unless NHS Digital specifies a different effective date when NHS Digital make a particular change.
12.4 Your continued participation in the Digital Tools Library after changes to this Agreement and/or Standards take effect will constitute your acceptance of the changes. If You do not agree to a change, You must stop participating in the Digital Tools Library and terminate this Agreement.13 General
13.1 This Agreement may not be amended except in writing signed by both parties or as provided in Clause 12 above.
13.2 If any provision of this Agreement is held invalid by a court in England, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect.
13.3 Any rights, powers or remedies conferred upon a party by this Agreement shall be in addition to and without prejudice to all other rights, powers and remedies available to the party under general law (except as expressly excluded in this Agreement).
13.4 Without prejudice to the indemnities given by You in Clause 8, each party will bear its own costs and expenses in performing this Agreement.
13.5 NHS Digital may use subcontractors to exercise its rights and perform its obligations hereunder.
13.6 NHS Digital’s failure to enforce any provision of this Agreement will not constitute a waiver of its rights to subsequently enforce the provision.
13.7 You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without NHS Digital’s prior written consent, except that You may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as You give NHS Digital written notice of any such assignment no later than thirty (30) business days before such proposed assignment.
13.8 Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.9 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including noncontractual disputes or claims).
13.10 This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder.
13.11 Any notice or other communication to be given hereunder will be in writing and given
(i) by NHS Digital via email to [app developer email], or
(ii) by You via email to patientdigitalservices@nhs.net or to such other email or physical addresses as NHS Digital may specify or as otherwise notified from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.SIGNED by the duly Authorised signatory for You:
Name:
Position:
Date:
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