- Introduction
1.1
Elephant Healthcare Limited, incorporated and registered in England and Wales under company registration number 11438806 with a registered office at 6th Floor One London Wall London EC2Y 5EB, United Kingdom, creates healthcare software applications (Software) for healthcare professionals which includes providing patients (Patients) with electronic health records (Digital Health Record), and associated services (together, our Services).
1.2
Depending on where you are in the world, you may also contract with a different Elephant entity (Group Company). Your obligations under these Terms extend to Elephant Healthcare Limited as well as any Elephant Group Company in your country or region of residence, as applicable.
1.3
For the purposes of these Terms, all references to “Elephant”, “we”, “us” or “our” include all Elephant Group Companies in existence from time to time.
- Software Terms of Use
2.1
These Software Terms of Use (Terms) set out the terms and conditions under which we provide our Software (applicable to all Elephant’s software which you have the right to use) and Services to you.
2.2
By using our Software and Services you agree to be legally bound by these Terms. Please read them carefully as they are important. If you have any questions you can email us at hello@elephant.healthcare.
2.3
These Terms apply to the use of our Software or Services (unless they have Product Specific Terms, in which case the Product Specific Terms will prevail):
- by our customers and their employees and agents; and
- by Patients of our customers who have been provided with a Digital Health Record.
2.4
We may update these Terms from time to time and will provide updates on our website.
2.5
By agreeing to these Terms you acknowledge that you have read and agree to Elephant’s Privacy Policy which is available at www.elephant.healthcare/privacy-policy.
- Eligibility
3.1
By accessing our Software you represent that you have legal capacity to enter into and agree to these Terms. If you are using our Software or Services on behalf of someone without legal capacity or under the age of consent, you confirm that you have the authority to do so.
- Right of Access
4.1
By using our Software, you agree to accept the terms relating to your right to access the Software and Services (Right of Access).
4.2
We remain the owners of our Software, and do not sell the Software to you.
4.3
Right of Access is granted to you upon the condition that you (i) become a registered authorised user, or (ii) are granted access as a Patient having been issued a Digital Health Card and (iii) consent to these Terms, our Privacy Policy and any additional agreements as appropriate or required.
4.4
Except as expressly agreed or as permitted by any applicable local law, you agree:
- not to copy our Software except where such copying is incidental to normal use of our Software;
- not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify our Software;
- not to make alterations to, or modifications of, the whole or any part of our Software, or permit the Software or any part of it to be combined with, or become incorporated in, any other programs unless agreed with Elephant;
- not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of our Software or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving interoperability of the Software with a software program, and provided that the information obtained by you during such activities:
- is used only for the purpose of achieving interoperability of the Software with a software program;
- is not unnecessarily disclosed or communicated without our prior written consent to any third party;
- is not used to create any software or application that is substantially similar to our Software;
- not to provide or otherwise make available our Software in whole or in part (including object and source code), in any form to any person without prior written consent from us;
- to comply with all technology control or export laws and regulations that apply to the technology and hardware used or supported by the Software or any Services;
- to comply with all data protection laws and regulations that apply to the access and use of Patient Data including sensitive health data in the use of the Software or any Services; and
- to the extent that you upload any content through the use of the Software, to represent that you own all rights in, or have authorisation or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Software.
4.5
You must not:
- use our Software or any Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously including, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Software, any Services or any operating system;
- infringe our intellectual property rights or those of any third party in relation to your use of the Software or any Services, including by the submission of any material;
- transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Software or any Services;
- use the Software or any Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
- collect or harvest any information, data or source code (in whatever form) from any Services or our systems or attempt to decipher any transmissions to or from the servers running any Service (together, the Acceptable Use Restrictions).
- Accounts and registration
5.1
To access our Software, you may be required to register for an account. If you register for an account, you will be required to provide us with some information about yourself (such as your name, date of birth, email address, physical address, phone number, company name, job title or other personal information). Some of this information may be of a confidential nature and may include personally identifiable information or “PII” (all “Personal Data”).
5.2
If you provide Personal Data to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep your Personal Data current and to update your Personal Data if any of your Personal Data changes.
5.3
Our collection use and disclosure of your Personal Data is governed by these Terms, our Privacy Policy and any applicable law.
5.4
If you have an account or password issued to you by Elephant in connection with your use of the Software or Services, you are responsible for the safeguarding of your password and any other credentials used to access your account. You are responsible for any activity which occurs on your account. If you become aware of any unauthorised activity on your account you must contact us immediately at privacy@elephant.healthcare.
- Limitation of liability
6.1
At all times you remain solely responsible for the use of the Software or Services by you or your employees or agents where applicable.
6.2
You acknowledge that our Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the functions of the Software meet your needs.
6.3
We supply the Software for use by healthcare professionals, related organisations and Patients only, in connection with the purposes set out above or in your Agreement with us. You agree not to use the Software for any other commercial, business or resale purposes, and we have no liability to you for any: (i) loss of profit, sales, business, revenue or anticipated savings; (ii) business interruption; (iii) loss of business opportunity, goodwill or reputation; (iv) loss or corruption of data or information; or (v) any indirect or consequential loss or damage.
6.4
Subject to the other provisions in this Term 6, we are only responsible for loss or damage you suffer that is a foreseeable result of either (i) our breach of these Terms or (ii) our negligence, up to the limit specified in Condition 6.7, but we are not responsible for any unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of our breach or if the category and potential value of that loss or damage were contemplated by you and us at the time we granted you the Right of Access.
6.5
The Software is provided "as is" and we provide no warranty, guarantee or undertaking (express or implied, statutory or otherwise) including but not limited to warranties as to the availability of the Software or as to their fitness for a particular purpose; reliance should not therefore be placed on it and in particular on any connectivity, software and hardware resilience or other circumstances. No liability can be accepted for any failure of the Software to detect a specific occurrence or to give notification of a particular occurrence. YOU ACKNOWLEDGE AND AGREE THAT NO MEDICAL ADVICE, MEDICAL SERVICE, MEDICAL INFORMATION OR OTHER MEDICAL ENGAGEMENT IS PROVIDED, WHETHER THROUGH THE SOFTWARE, SERVICES OR OTHERWISE, BY US OR BY ANYONE ON OUR BEHALF, AND THAT YOU ARE USING THE SOFTWARE AT YOUR OWN RISK, WITHOUT ANY RELIANCE, ASSUMPTION, EXPECTATION, OR INTENT WHATSOEVER THAT THE SOFTWARE, SERVICES OR WE SHALL PROVIDE YOU ANY MEDICAL ADVICE, MEDICAL SERVICE, MEDICAL INFORMATION OR OTHER MEDICAL ENGAGEMENT.
6.6
We will not be liable for any loss nor will you be entitled to reimbursement if the services provided through the Software are discontinued.
6.7
Our maximum aggregate liability under or in connection with these Terms (including your use of any Services) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the sum of £10,000. This does not apply to the types of loss set out in Condition 6.8.
6.8
Nothing in these Terms shall limit or exclude our liability for:
- death or personal injury resulting from our negligence;
- fraud or fraudulent misrepresentation; and
- any other liability that cannot be excluded or limited by law.
- Acknowledgements
7.1
If any open-source software is included in our Software, the terms of an open-source licence may supplement or override some of these Terms.
7.2
You acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send using the Software may be read or intercepted by others, even if a transmission is encrypted.
7.3
By using our Software, you agree to Elephant collecting and using the categories of data as set out in our Privacy Policy. You also acknowledge the terms in the Privacy Policy relating to the use of third-party websites.
- Intellectual property rights
8.1
You acknowledge that:
- all intellectual property rights in the Software or created during the performance of the Services, anywhere in the world belong to us;
- rights in the Software are provided for your use (not sold to you); and
- you have no rights in, or to, the Software other than the right to use each of them in accordance with these Terms.
- Termination
9.1
We may terminate your Right of Access:
- on 30 days' prior written notice to you for any reason;
- immediately by written notice to you if you:
- commit a material or persistent breach of these Terms which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
- breach any of the Acceptable Use Restrictions.
9.2
On termination for any reason:
- all rights granted to you under these Terms shall cease; and
- you must immediately cease all activities authorised by these Terms, including your use of any Software or Services.
- Communication
10.1
If you wish to contact us about these Terms you can:
- email us at hello@elephant.healthcare; or
- write to us at any of Elephant’s registered addresses, which are available on our website www.elephant.healthcare.
10.2
We will confirm receipt of your communication in writing by email or by pre-paid post to the address you provide to us in your request.
- Force majeure
11.1
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (Force Majeure Event).
11.2
If a Force Majeure Event takes place that affects the performance of our obligations under these Terms, the provision of our Software and Services will be suspended and the time for performance of our obligations will be extended for the duration of the Force Majeure Event.
- Cloud storage
12.1
You agree that any data provided will be stored by way of a cloud storage service, currently Amazon Web Services ("AWS"). We may change the cloud service provider from time to time. AWS is a secure, durable technology platform with industry-recognised certifications across multiple geographies. AWS services and data centres have multiple layers of operational and physical security to ensure the integrity and safety of your data.
12.2
Elephant processes, stores, and transfers any data at AWS servers in the United Kingdom, Kenya or within the European Union. Thus your information or Personal Data may be processed, stored, and transferred in a server located in an area outside of your resident country. By agreeing to these Terms, you consent to this processing, storage, and transfer of your information or Personal Data outside of your own country.
- Further important terms
13.1
We may transfer our rights and obligations under these Terms to another organisation, but this will not affect your rights or our obligations.
13.2
You may only transfer your rights or obligations to another person if we agree in writing.
13.3
If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
13.4
Each of the Conditions of these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining Conditions will remain in full force and effect.
13.5
These Terms, its subject matter and its formation, are governed by English law. You and we both agree that the courts of England and Wales will have exclusive jurisdiction.