Terms of Service

These terms of service are the standard terms which apply to provision of the Services described below. By signing any Customer Order Confirmation, the Customer agrees it has read, understands and accepts these terms of service (which are incorporated in full) and by purchasing, using or otherwise accessing the Services provided by LMC, the Customer accepts and agrees to be bound by the terms of this Agreement.  

LMC may update or amend these terms from time to time. Any changes will take effect upon notice to the Customer, which may be provided by email or by posting the updated terms on our website. Continued use of the Services by the Customer after such notice will constitute acceptance of the amended terms.

Background

(A) LMC provides software with the aim of facilitating care homes, homecare agencies, supported living providers and health care professionals to provide care to their patients, which it makes available to customers on a licence and consumption-based subscription.

(B) The Customer wishes to use LMC's software and services in its care operations.

(C) LMC has agreed to provide and the Customer has agreed to subscribe to LMC's software and services subject to the terms and conditions of this Agreement.

1. Interpretation

1.1

The definitions and rules of interpretation in this clause apply in this Agreement.

Active Resident: a current patient/service user of the Customer who is receiving care or support from the Customer and has not been discharged nor is deceased.

Additional User Fees: has the meaning defined in clause 2.3.

Agreement: the terms of service set out here, together with the terms contained in any Customer Order Confirmation to which the Customer and LMC are party.

App: the Log my Care mobile application known, as of the date of this Agreement, as the 'Carer App' and which may be rebranded or renamed by LMC from time to time.  

Authorised Users: those employees, agents and independent contractors engaged by the Customer and authorised by the Customer to use the Services per Customer Site, as further described in clause 2.

Business Critical Data: the care and health data of the Active Residents, including care plans and daily logs.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.

Contract Year: means the 12 month period from the Start Date and every 12 month period thereafter.

Customer: the entity set out in any Customer Order Confirmation or, where no Customer Order Confirmation is relevant, the organisation that you represent in agreeing to the Agreement.

Customer Data: the data (including any personal data and the Business Critical Data) inputted by the Customer, Authorised Users or LMC on the Customer's behalf for the purpose of the Customer and Authorised Users using and receiving the Services or facilitating the Customer's and Authorised Users' use and receipt of the Services (including without limitation all personal data of any patient receiving care within a care facility owned and/or otherwise operated by the Customer).

Customer Order Confirmation: means the interface for the Services, the online ‘checkout page’, order form or other document where Customer details, start date, initial term, fees/purchased package and/or any other additional special terms are detailed and signed by the Customer (on HubSpot or otherwise).

Customer Sites: those locations from where the Customer provides care or support to Active Residents or otherwise operates its business and is permitted to use the Software and Services.

Documentation: the documentation, which sets out a description of the Software and its features as set out at Schedule 2 as amended by LMC from time to time.

Fault: means any failure of the Software to operate substantially in accordance with the Documentation.

Implementation Fees: any implementation fees payable by the Customer to LMC in connection with onboarding, as set out in the Customer Order Confirmation.

Initial Subscription Term: the initial term of this Agreement, as set out in the Customer Order Confirmation.

LMC: means LMC Software Limited, a company registered in England and Wales under company number 10904934 whose registered office is at Lion Court, 25 Procter Street, London, United Kingdom, WC1V 6NY.

New Features: mean any new features or functionality of the Software, in addition to those described in the Documentation.

Renewal Period: the period described in clause 15.1.

Security Event: means (i) any unauthorised third party access to or use of the Services or (ii) any use of the Services by the Customer or any Authorised User that is in breach of this Agreement.

Services: the Software subscription services made available to the Customer at the App and at https://careoffice.logmycare.co.uk/ or any other website notified to the Customer by LMC from time to time, and the Support Services, as provided by LMC to the Customer under this Agreement and as more particularly described in the Documentation and Schedule 1.

Software: the care management platform and software applications, provided by LMC to the Customer as part of the Services, that allows social care providers to manage the care of their clients.

Start Date: the date on which this Agreement commences, as set out in the Customer Order Confirmation.

Subscription Fees: the monthly subscription fees payable by the Customer to LMC for use of the Software and Services (for the number of agreed Active Residents), as set out in the Customer Order Confirmation.

Subscription Term: means the Initial Subscription Term together with any subsequent Renewal Periods.

Support Services: the support services provided by LMC to the Customer, as set out in Schedule 1.  

Third Party Providers: mean LMC's third party software and technology providers, including Amazon Web Services as one of its cloud computing services providers and all third parties providing applications or other elements for the Software whose products and/or services are provided independently of LMC and subject to separate contractual terms to which LMC is not a party.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) ("UK GDPR"), the Data Protection Act 2018 (and regulations made thereunder), and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2

Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.4

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.5

References to clauses and schedules are to the clauses and schedules of this Agreement. References to paragraphs are to paragraphs of the relevant schedule to this Agreement.

1.6

This Agreement is referenced in LMC’s Standard Terms and Conditions (https://www.logmycare.co.uk/policies/terms-and-conditions) as ‘Bespoke Terms’. This Agreement overrides LMC’s Standard Terms and Conditions and applies in place of LMC’s Standard Terms and Conditions to the relationship between LMC and the Customer in respect of the scope of the Services.

2. Authorised Users

2.1

Subject to the terms of this Agreement, LMC shall grant to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business administration and care management of the Active Residents for the number of Active Residents specified in the Customer Order Confirmation, and in accordance with any other terms, conditions or restrictions detailed on the Customer Order Confirmation or this Agreement generally. The rights provided under this clause 2.1 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

2.2

The Customer undertakes that:

2.2.1 it will allow each of the Authorised Users to use the Services on a one individual, one subscription basis (but that Authorised User subscriptions may be reassigned by the Customer when an Authorised User no longer requires the Services);  

2.2.2 it will use the Services solely for its own internal business purposes;  

2.2.3 it shall, at its sole cost and expense and during the Subscription Term, acquire, install and maintain all hardware, software and other technology necessary to access and use the Services (including the latest version of  Google Chrome from time to time);

2.2.4 each Authorised User shall be registered by the Customer for his/her own account, keep a secure password or pin for his/her use of the Services and that each Authorised User shall keep his/her password confidential;  

2.2.5 no Authorised User account or subscription shall be shared with another person; and

2.2.6 it shall permit, on 10 days' prior written notice, LMC or LMC's designated auditor to audit, during business hours, the Services and Customer's compliance with this Agreement, provided that the auditor must first enter into suitable undertakings of confidentiality with the Customer where requested by the Customer.

2.3

If any of the audits referred to in clause 2.2.6 reveal that the Customer has exceeded the number of Authorised Users and/or Active Residents then, without prejudice to LMC's other rights, the Customer shall pay to LMC its then current additional user fees (“Additional User Fees”) for each additional user and/or resident above the agreed number of Authorised Users and/or Active Residents within 10 Business Days of the date of the relevant audit.

3. Changes to Number of Permitted Active Residents

3.1

Subject to clauses 3.2 and 3.3, the Customer may from time to time increase the number of permitted Active Residents in connection with this Agreement.

3.2

If the Customer wishes to increase the number of permitted Active Residents, the Customer shall notify LMC in writing. LMC shall consider the request and respond to the Customer with approval or rejection of the request. Where LMC approves the request, LMC shall activate the additional subscriptions for the Active Residents within 5 days of its approval of the Customer's request.

3.3

LMC shall invoice the Customer the Additional User Fees for the additional Active Residents, and the Customer shall, within 30 days of the date of LMC's invoice, pay the invoice. If any additional Active Residents subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), the Additional User Fees and/or further Subscription Fee (as applicable) shall be pro-rated from the date of activation by LMC for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

3.4

The Customer may only request a decrease in the number of Active Residents, by providing written notice of the request to LMC at least 30 days before the end of the Initial Subscription Term or the then current Renewal Term (as applicable). LMC shall consider the request and respond to the Customer with approval or rejection of the request. Where LMC approves the request, LMC shall deactivate the requested number of Active Residents to take effect from the beginning of the next Renewal Period and the Subscription Fees shall be amended accordingly. The decision to approve or reject the Customer's request shall be in LMC's sole discretion.

3.5

The Customer acknowledges that if it decreases the number of Active Residents below the minimum stated in the Customer Order Confirmation, the Subscriptions Fees shall remain unchanged.

‍4. Software and Software Availability

‍4.1

LMC will, during the Subscription Term, provide the Software and make available the Documentation to the Customer. The Software will conform substantially to the Documentation.

4.2

LMC will use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

4.2.1 planned maintenance carried out any day during 10.00 pm to 2.00 am UK time, and LMC will use reasonable endeavours to give the Customer at least 2 days' notice in advance; and

4.2.2 unscheduled maintenance performed outside of the planned maintenance timeframe due to a Security Event or, when not due to a Security Event, provided that LMC has used reasonable endeavours to give the Customer at least 6 hours' notice in advance.

4.3

The Customer agrees that where the Software is unavailable, this may mean that the App is also unavailable.

4.4

Notwithstanding any other provision in this Agreement, if there is a Security Event, LMC may, without liability or prejudice to its other rights and without prior notice to the Customer:

4.4.1 suspend any Authorised User's access to the Services;  

4.4.2 suspend the Services; and/or

4.4.3 take any other reasonable steps LMC deems appropriate,

until the relevant Security Event has been resolved.

4.5

If the Software experiences downtime, other than due to maintenance works (clause 4.2), a Security Event (clause 4.4), any act or omission of the Customer (including breach of this Agreement or any improper use or unauthorised alteration of the Services by the Customer or its Authorised Users) or any other reason outside of LMC's reasonable control, including issues relating to hardware, networks or Third Party Providers (unless such issues arise as a result of LMC’s failure to properly manage or oversee the relevant Third Party Provider or LMC’s own act or omission contributed to or caused the issue related to the Third Party Provider), LMC will use reasonable endeavours to resume availability of the Software as soon as possible.

4.6

LMC reserves full discretion to make modifications and/or updates to the Software and/or the Services at any time, including without limitation, New Features, changing functionality, and updating licence terms, provided that where the Customer contests such modifications and/or updates demonstrably and materially adversely impact the Customer’s use of the Software and/or Services, then the Customer shall be entitled to terminate this Agreement on written notice to LMC. At all times, LMC shall, as part of the development of its business offering, be entitled to implement new features, limitations, specifications, capabilities, functions, release dates, general availability or other characteristics that do not affect the Software and the Services as they are currently being provided to the Customer. Subject to the foregoing, the Customer shall request and procure that the Authorised Users install on the App any updates, upgrades and new versions of the Software released by LMC.

4.7

Where the updates, upgrades and/or new versions of the Software include New Features (or LMC otherwise makes available to the Customer the New Features), the New Features may, at LMC's sole discretion, be subject to an optional additional charge to be paid by the Customer which shall be notified by LMC to the Customer if it wishes to benefit from those New Features. LMC will also notify the Customer if the provision of the New Features is subject to the entry by the parties into a separate agreement.

‍5. Support Services

‍5.1

LMC will at no additional cost to the Customer, provide the Customer with the Support Services. LMC may amend the Support Services in its sole and absolute discretion from time to time.

5.2

LMC shall provide the Support Services in a professional and workmanlike manner. The Support Services will substantially conform with Schedule 1.

5.3

LMC shall categorise, respond to and resolve Faults according to their severity and the materiality of their impact on the Authorised Users' ability to use the Software (as determined by LMC acting reasonably). LMC shall have no obligation to provide support or resolution for any error, malfunction, failure or other performance or operational problems of the Services that is not directly caused by LMC.

5.4

If the Customer requests, LMC may provide remote or on premises training on the use of the Software to the Customer and the Authorised Users. Any training may be subject to a separate charge to the Customer (where Implementation Fees are specified in the Customer Order Confirmation, or as otherwise notified by LMC in advance to the Customer).

5.5

Additional bespoke technical support is provided to the Customer at LMC’s discretion for which there may be additional charges, which shall be agreed upon before being incurred.

‍6. Customer Data

‍6.1

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 all such Customer Data.

6.2

LMC warrants that it shall use its reasonable endeavours in accordance with good industry practice to keep the Customer Data secure at all times, and shall protect against unauthorised access, accidental loss or destruction of, and damage to, the Customer Data.

6.3

In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against LMC shall be for LMC to use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by LMC. Notwithstanding the foregoing, this limitation shall not apply in the event that the loss or damage results from LMC’s breach of its obligations under the UK Data Protection Legislation.

6.4

The parties acknowledge that the Customer Data will include personal data. In order to comply with UK Data Protection Legislation, the parties have separately entered into a supplemental data processing agreement on or around the date of this Agreement, which sets out the terms and conditions upon which LMC will process personal data on behalf of the Customer ("Data Processing Agreement").

6.5

Each of LMC and the Customer warrants that it shall comply with its obligations as set out in the Data Processing Agreement. This clause 6.5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the UK Data Protection Legislation.

6.6

The Customer hereby permits LMC to anonymise a copy of the Customer Data during the Subscription Term. Once the Customer Data has been anonymised, such that it can no longer be used, directly or indirectly to  identify the Customer or any individual, the Customer hereby agrees that LMC or subcontractors engaged to provide analytical services on its behalf (and bound by obligations of confidentiality and data protection consistent with this Agreement), has the right to undertake data analysis on the anonymised Customer Data solely for the purposes of researching, refining, improving and enhancing the functionalities and features of its services over time.

‍7. Third Party Providers

‍7.1

The Customer shall pay the Subscription Fees to LMC in accordance with each Customer Order The Customer acknowledges that the Services contain elements provided by the Third Party Providers, including cloud infrastructure, software components, and integrations. While LMC will use reasonable care in selecting and managing its Third Party Providers, LMC makes no representation, warranty or commitment, and to the extent permitted by law shall have no liability in relation to any failure, unavailability, or performance issues relating to the elements provided by the Third Party Providers except where such issues arise from LMC’s own negligence or wilful misconduct. and the terms of this Agreement generally.

‍

‍8. LMC's Obligations

‍8.1

The Customer acknowledges and agrees that LMC and/or its licensors own all intellectual property rights in the Software, Services and the Platform. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, LMC will make the App available for the Authorised Users to download, primarily on iTunes and Google Play app stores. right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or the Platform.

8.2

LMC warrants and undertakes that:

8.2.1 it shall perform the Services in accordance with the Documentation, with reasonable skill and care in accordance with good industry practice;

8.2.2 it shall obtain and shall maintain all necessary licences, consents, and permissions for LMC to perform its obligations under this Agreement, including without limitation, providing the Services;

8.2.3 it will comply with all applicable laws and regulations with respect to its obligations under this Agreement.

8.3

LMC shall not be liable under this Agreement where:

8.3.1 the Customer uses the Services contrary to this Agreement, LMC's instructions or Documentation; and/or  

8.3.2 here is modification or alteration of the Services by any party other than LMC or any party under LMC's instructions.

8.4

LMC does not warrant that:

8.4.1 the Customer's use of the Services will be uninterrupted or error-free or free from vulnerabilities or viruses, or that LMC will correct errors within a specified period; or

8.4.2 the Services will meet the Customer's requirements or will be compatible with the Customer's systems.

8.5

LMC shall not be 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.

8.6

LMC does not monitor or assume any responsibility for content posted onto the Software. If at any time LMC decides to monitor the Software on any occasion it does not mean that LMC assumes responsibility for removing any content or the conduct of any users at the time or in the future.

8.7

This Agreement shall not prevent LMC from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

8.8

LMC shall be free to use and incorporate any feedback, suggestions or enhancement requests provided by the Customer (or any Authorised User) to LMC into the Software and Services and LMC's services or software offerings to other parties.

‍9. Customer's Obligations

‍9.1

The Customer shall be fully responsible and liable for the Authorised Users' use of the Services and shall ensure the Authorised Users' use of the Services complies with this Agreement, the Documentation and applicable law.

9.2

The Customer shall not:

9.2.1 make the Services and Documentation available (in any way) to anyone other than the Authorised Users and shall not permit the Services to be accessed by more than the specified number of Active Residents;

9.2.2 access, store, distribute, introduce or transmit any:

(a) viruses, trojan horses or any other harmful, unlawful, offensive, discriminatory or illegal material into the Software or via the Services; or

(b) other thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect access to or the operation of the Services, or adversely affect the Authorised User experience.

Breach of this obligation 9.2.2 shall be a material breach by the Customer of this Agreement.

9.3

The Customer shall not:

9.3.1 (except to the extent permitted by law), copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute, de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any portion of the Software or the Services in any way;  

9.3.2 access all or any part of the Services or Documentation to build a product or service which competes with the Services and/or the Documentation;  

9.3.3 use the Services to provide services to third parties (save for the provision of care services to the Active Residents); or

9.3.4 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under clause 2.

9.4

The Customer shall:

9.4.1 provide LMC in a timely manner with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by LMC in order to provide the Services;

9.4.2 use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify LMC;

9.4.3 obtain and shall maintain all necessary licences, consents, and permissions for LMC to perform its obligations under this Agreement, including without limitation, providing the Services, and otherwise comply with all applicable laws and regulations with respect to its activities under this Agreement;

9.4.4 ensure that its network and systems comply with the relevant specifications provided by LMC from time to time, including ensuring that the Services are not blocked by the Customer's firewalls or other security measures and that the App can be downloaded onto the Authorised Users' devices; and

9.4.5 be, except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and links from its systems to LMC's 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.

9.5

The Customer agrees to participate in LMC’s marketing efforts as follows:

9.5.1 Subject to the Customer's prior written approval (not to be unreasonably withheld or delayed), the Customer agrees to reasonably support LMC's marketing and promotional efforts. This support may include, but is not limited to:

(a) Participating in a written case study prepared by LMC and approved by the Customer prior to publication;

(b) Providing a brief testimonial quote for use in reports, marketing collateral, or online media;

(c) Participating in a short video testimonial, coordinated at a mutually agreeable time; and

(d) Participating in LMC's referral program under mutually agreed terms.

9.5.2 LMC agrees to collaborate with the Customer to ensure all such activities are aligned with the Customer's brand guidelines and public communication policies.

9.6

The Customer warrants that it is a provider of social care and that it (and its authorised signatory) has the right, power and authority to enter into this Agreement.

9.7

If rostering is chosen by the Customer as an add-on to the base Pro or Outstanding plan, the following obligations in clauses 9.7.1 and 9.7.2 shall also apply:

9.7.1 Where the Customer develops or deploys any application or functionality (including through the rostering app made available by LMC as part of the Services) that makes use of the Google Maps API(s), including but not limited to a Distance Matrix API, the Customer acknowledges and agrees that:

(a) the Customer acts as a data controller in respect of any personal data (including geolocation data) collected or processed through such application or functionality (the “Customer App”);

(b) the Customer shall be solely responsible for complying with (and procuring compliance of the Authorised Users with) Google Maps Platform Terms of Service in connection with the Customer App, including but not limited to ensuring that the Customer App’s terms of service will (A) notify users that the Customer App includes Google Maps features and content; and (B) state that use of Google Maps features and content is subject to the then-current versions of the: (1) Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps/; and (2) Google Privacy Policy at https://policies.google.com/privacy;

(c) ensuring that any such Customer App is accompanied by a publicly available Terms of Use and Privacy Policy which comply with the Google Maps Platform Terms of Service and other applicable guidelines or policies required under the Customer’s agreement with Google;

(d) such Terms of Use must expressly state that, by using the Customer App, end users are bound by the Google Terms of Service; and

(e) such Privacy Policy must notify end users that the Customer App uses the Google Maps API(s) and must incorporate by reference the Google Privacy Policy.

9.7.2 The Customer agrees to indemnify and hold harmless LMC against any loss, liability, claim or regulatory action arising from the Customer’s failure to comply with its above obligations.

‍10. Subscription Fees and Payment

‍10.1

The Customer shall pay the Subscription Fees to LMC for the Services by direct debit in advance according to the payment frequency specified in the Customer Sheet, or monthly where no payment frequency is specified (and where on a monthly basis, payment shall be on the 1^st Business Day of each month). The Customer shall additionally pay the Implementation Fees once the training has been completed following completion of the first implementation session and upon presentation of an invoice.

10.2

LMC shall issue invoices for the Subscription Fees on a monthly or annual basis in advance (depending on the agreed payment frequency). The Customer shall ensure that a valid direct debit mandate is in place at all times during the Subscription Term to enable timely collection of payments.

10.3

If LMC has not received payment of the Subscription Fees and the Implementation Fees within 30 days after the due date, without prejudice to any other rights and remedies of LMC:

10.3.1 LMC may, on no less than 5 Business Days' notice to the Customer and without liability to the Customer, disable and suspend the Customer's (and its Authorised Users') access to the Services until the Customer has paid all outstanding amounts due; and

10.3.2 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.

10.4

In the defence or settlement of any claim, LMC may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or,All amounts and fees stated or referred to in this Agreement are exclusive of VAT or other applicable tax, which shall be added to LMC's invoice(s) at the appropriate rate, and unless expressly stated otherwise, are non-cancellable and non-refundable. if such remedies are not reasonably available, terminate this Agreement 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.

10.5

LMC shall be entitled to increase the Subscription Fees and/or Additional User Fee at the start of each Renewal Period upon 30 days' prior notice to the Customer.

‍11. Proprietary Rights

‍11.1

Subject to clause 11.3, LMC and/or its licensors own all rights, title and interest in and to the Services and the Documentation (including all intellectual property rights). Except as stated in this Agreement, this Agreement does not grant the Customer any rights to, under or in the Services or the Documentation.

11.2

LMC confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights to the Customer under this Agreement.

11.3

The Customer shall own all rights, title and interest in any bespoke reports that are generated by the Customer through use of the Services and are downloaded or printed by the Customer using the Services (including all intellectual property rights), provided that such ownership shall not extend to the underlying software, templates, formats, or any other LMC-owned intellectual property rights contained therein.

11.4

The Customer hereby grants to LMC a royalty free, non-exclusive, worldwide licence to use the Customer Data for the Subscription Term to provide the Services.

11.5

The Customer hereby grants to LMC a royalty free, non-exclusive, worldwide, perpetual and irrevocable licence to use, copy, modify, create derivative works from, transmit, distribute and perform analysis of the anonymised Customer Data created by LMC in accordance with clause 6.6.

‍12. Confidentiality

‍12.1

This AEach party undertakes that it shall keep confidential and shall not at any time during this Agreement, and for a period of five years thereafter, disclose to any person any confidential information of the other party, meaning any confidential information concerning the business, affairs, technology, know how, customers, clients or suppliers of the other party or any other information of a confidential nature (including any health data of the Active Residents), except to its employees, officers, representatives, subcontractors or advisers (including, in the case of LMC to Amazon Web Services) to the extent they need to know such information for the purposes of carrying out the party's obligations under this Agreement and as may be required by law.greement shall continue throughout the Subscription Term and any Renewal Term (as applicable).  

12.2

Each party shall not use the other party's confidential information for any purpose other than to perform its obligations under this Agreement.

12.3

The Customer acknowledges that details and know-how of the Services, and the operations, processes, product information, designs, trade secrets and software of LMC, as well as any information in the Schedules, constitute LMC's confidential information. LMC acknowledges that the Customer Data is the confidential information of the Customer.

12.4

The Customer agrees that LMC may publicly announce and list the Customer as a customer of LMC, including on LMC's website and in its marketing materials, and hereby grants to LMC a non-exclusive, royalty free, irrevocable, worldwide licence use the Customer name/trade mark for such purposes.

‍13. Limitation of Liability

‍13.1

The Customer's attention is drawn to the warning/disclaimer on the Customer Order Confirmation (among other things, explaining that care providers and health care professionals remain at all times primarily and fully responsible for providing care to their patients) and this warning is incorporated into this Agreement.

‍13.2

Except as expressly and specifically provided in this Agreement:

13.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions or inferences drawn from such use. LMC shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to LMC by the Customer in connection with the Services, or any actions taken by LMC at the Customer's direction, or for any actions taken or not taken by the Customer following results or trends identified from the Authorised Users' use of the Services (including the provision of any medical treatment to the Active Residents);

13.2.2 the Services and the Documentation are provided to the Customer on an "as is" basis; and

13.2.3 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 this Agreement.

‍13.3

Nothing in this Agreement excludes either party's liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.

‍13.4

Subject to clauses 13.2 and 13.3:

13.4.1 neither party shall be liable to the other whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any indirect or consequential loss, costs, damages, charges or expenses arising out of, or in connection with, this Agreement; and

13.4.2 LMC 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, loss of opportunity, loss of savings or depletion of goodwill however arising under this Agreement (in each case, whether direct or indirect).

‍13.5

Subject to clause 13.3, LMC's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with this Agreement for all claims in any Contract Year shall be limited to the total Subscription Fees paid or payable in the Contract Year in which the defaults occurred.

‍13.6

The Customer accepts responsibility for its selection of the Services and acknowledges that the Services have not been developed to meet the individual requirements of the Customer.

‍14. Indeminification

‍14.1

In addition to clause 9.7.2, the Customer shall defend, indemnify and hold LMC harmless from and against any and all actions, demands, liability, claims, damages, losses, penalties, fines, expenses and costs (including without limitation reasonably incurred legal fees and court costs), due to, arising out of, resulting from or in connection with: (a) any information (including Customer Data or any other data) that the Customer or any person on its behalf submits, posts, or transmits as part of the Services; (b) the use of the Software, Services or Documentation by the Customer or Authorised Users in breach of this Agreement; or (c) the violation of any rights of any third party, including intellectual property or personal data rights by the Customer or Authorised Users.

‍14.2

In no event shall LMC, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged intellectual property infringement is based on:

14.2.1 a modification of the Software, Services or Documentation by anyone other than LMC; or

14.2.2 the Customer's use of the Software, Services or Documentation in a manner contrary to the instructions given to the Customer by LMC; or

14.2.3 the Customer's use of the Software, Services or Documentation after notice of the alleged or actual infringement from LMC or any appropriate authority;  

14.2.4 the Customer's delay in implementing a Services update, upgrade or new version that would have avoided infringement; or

14.2.5 the Customer Data; or

14.2.6 the Customer’s breach of this Agreement.

‍15. Term and Termination

‍15.1

This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Start Date and continue for the Initial Subscription Term. Thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period) at the end of the Initial Subscription Term and each Renewal Period.

15.2

Without prejudice to clauses 15.3 and 15.4, either party may terminate this Agreement by giving to the other written notice, at least 30 days before the end of the Initial Subscription Term or any Renewal Period. If terminated under this clause 15.2, this Agreement shall terminate upon the expiry of the Initial Subscription Term or applicable Renewal Period. If the Customer fails to terminate this Agreement in accordance with this clause 15.2, the Agreement shall automatically renew further to clause 15.1.

15.3

Without affecting any other right or remedy available to it, LMC may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment. LMC may additionally terminate this Agreement with immediate effect by giving written notice to the Customer if there is a Change of Control of the Customer.

15.4

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

15.4.1 the other party commits a material breach of any term of this Agreement (other than non-payment by the Customer which is covered by clause 15.3) 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; or

15.4.2 subject to clause 15.5:

(a) the other party is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(b) the other party takes any step in connection with its inability to pay debts or its winding up;  

(c) the other party is the subject of the appointment of a receiver or administrator or administrative receiver;

(d) the Customer's financial position deteriorates to such an extent that in LMC's opinion, the Customer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;  

(e) the other party commences negotiations with all or any of its creditors;  

(f) any event occurs, or proceeding is taken, with respect to the other party that has an effect equivalent or similar to any of the events mentioned in clause 15.4.2(a) to 15.4.2(e);

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

(h) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

15.5

In the event that LMC seeks to terminate this Agreement pursuant to clause 15.4.2(c) because the Customer enters administration, LMC shall:

15.5.1 prior to termination, instruct the Customer to export, to the extent possible, in electronic form all Business Critical Data and shall provide reasonable support to the Customer for 60 days following export of the Business Critical Data to enable it to use such Business Critical Data for the purposes of on-going care management; and/ or  

15.5.2 be permitted to terminate the Agreement pursuant to section 233A(3) of the Insolvency Act 1986.

15.6

On termination of this Agreement for any reason:

15.6.1 all licences and rights granted to the Customer under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;  

15.6.2 the Customer shall pay to LMC all of LMC’s outstanding unpaid fees due, along with any Services supplied but not yet paid for (and LMC shall submit an invoice payable on 30 day terms where no invoice or payment instruction has been sent yet);

15.6.3 LMC may destroy or otherwise dispose of any of the Customer Data in its possession, unless LMC receives, no later than thirty days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. LMC shall use reasonable 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). The Customer shall pay all reasonable expenses incurred by LMC in returning or disposing of Customer Data;  

15.6.4 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after its terminatio, shall remain in full force and effect; and

15.6.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall not be affected or prejudiced.

‍16. Force Majeure

‍LMC shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations, 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 LMC 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 (including the Third Party Providers).

‍17. General

‍17.1

Any notice given under or in connection with this Agreement shall be in writing and shall be sent to the relevant email addresses provided by each party in the Customer Order Confirmation. Any email notices shall be deemed to have been received at the time of transmission. This clause does not apply to the service of any proceedings or other documents in any legal action which will be sent to the registered address of each party.

17.2

This Agreement and any documents referred to in it (including the Customer Order Confirmation) constitute the entire agreement and understanding of the parties. Except for any documents permitted to be varied by LMC under this Agreement, no amendment to this Agreement shall be effective unless in writing and signed by both parties. This Agreement takes priority in all cases over the Standard Terms and Conditions in case of conflict.

17.3

This Agreement is personal to the Customer and the Customer shall not assign, subcontract or deal with any right or obligation under this Agreement to any person. LMC may at any time assign or transfer its rights and obligations under this Agreement to any third party (provided that the assignee agrees to be bound by the terms) or subcontract any of its obligations under this Agreement.

17.4

English law applies to this Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it. The parties irrevocably submit to the exclusive jurisdiction of the English Courts.

17.5

This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999. The rights of the parties to rescind or vary this Agreement is not subject to the consent of any other person.

17.6

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

17.7

An individual purchasing the Services on behalf of the Customer (being a company or other legal entity or organisation) must be at least 18 years old. By entering into to this Agreement, any such individual represents and warrants to LMC that: (i) they are at least 18 years old; and (ii) they have authority to legally bind the entity on whose behalf it enters into this Agreement.

17.8

If there is any conflict or ambiguity between the terms of the documents listed in this clause 17.8, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list:

17.8.1 These Terms of Service;

17.8.2 the Customer Order Confirmation;  

17.8.3 Schedule 1; and

17.8.4 the Documentation.

‍

Schedule 1 - Support Services

1. LMC will use reasonable endeavours to provide the Support Services on Business Days from 09:00-17:30 (Support Hours) and shall use reasonable endeavours to acknowledge Customer requests for support within two hours of receipt insofar as such requests are made during the Support Hours.

2. LMC shall use reasonable endeavours to ensure that the Customer has access to:

2.1 LMC's web chat during the Support Hours; and

2.2. LMC's online help articles and videos (https://support.logmycare.co.uk) 24 hours a day, seven days a week; and

2.3 LMC’s support email inbox (support@logmycare.co.uk) during the Support Hours.

3. LMC will prioritise the resolution of Faults according to their severity and the materiality of their impact on the Authorised Users' ability to use the Software (as designated by LMC).

4. LMC cannot guarantee that a temporary workaround or permanent Fault correction will be implemented within any particular period or time frame indicated by LMC.  

5. The Customer shall first promptly attempt to resolve the Faults itself, using the online help articles made available by LMC under paragraph 2.2. If the Customer is unable to resolve the Fault in this way, within a reasonable period of time, the Customer shall promptly report the Fault to LMC using the web chat, as described in under paragraph 2.1, and cooperate with LMC while LMC investigates and remedies (if required under this Agreement) any Faults.  

6. The Customer shall promptly report all Faults that materially impact the operations of the Customer or the Authorised Users' ability to use the Software directly to LMC using LMC's contact details, as described under paragraph 2.3. The Customer shall not use LMC's contact details for any Faults that immaterially impact the operations of the Customer or the Authorised User's ability to use the Software.

7. When reporting a Fault to LMC, the Customer shall include details of the Fault and any other information reasonably requested by LMC.

Schedule 2 - Documentation

Pro and Outstanding Plans

Encryption

Data is encrypted to at least the AES-256 bit standard when stored on a device using the App and on the cloud-based database and Transport Layer Security (TLS) when in-flight.

Secure login

Each Authorised User can set their own pin for accessing the App and where granted access, a password for accessing the web portal. Pins and passwords can are set and reset by email. Authorised Users’ access can be paused, changed or removed by an admin-level Authorised User.  

Device Access Control

Your organisation can enrol mobile devices into the software so that only those permitted mobile devices can access your data through the mobile App.

MFA and other authentication enhancements

When MFA or any other authentication enhancements are developed by LMC, they will be made available to you.

Daily logs

The ability to record regular logs regarding the care and support given to Active Residents. The logs form a time-stamped timeline of activity on an Active Resident by Active Resident basis. The author of each log is the signed-in Authorised User who created the log. The content of daily logs can be edited by admin-level Authorised Users but a full revision history is maintained. GPS location of each log can optionally be recorded.

Active Resident charts

A subset of the daily log data flows automatically into visualised graphs and charts for trend analysis e.g. weight recordings.

Task management

One-off or recurring tasks can be scheduled to be performed for particular Active Residents or by a certain Authorised User.

Active Resident document storage

Word, PDF and Image files can be uploaded to an Active Resident’s profile and can be viewed by Authorised Users.

Offline mode

Daily logs can be created and task status updated without an internet connection for a period of time using the iOS and Android App. The logs are temporarily stored on the mobile device in an encrypted state before syncing to the cloud once an internet connection is restored and the App unlocked.

Incident push notifications

When an incident is recorded by an Authorised User, all online devices of that site will receive a near-instant push notification of the incident log.

Handover tool

Using the App, Authorised Users can flag daily logs to flow into a current handover report. Authorised Users are able to finalise the report in a two-person validation process and the report is then accessible to be read in the historical handovers.

Log photos and videos

Photos or videos may be attached to daily logs through the App. The original media is deleted from the mobile device after sending to the cloud.

Zoning feature

Active Residents can be grouped together into zones (e.g. by floor) and Authorised Users are able to choose which zone they would like to see data for, decluttering the App.

Home-level document storage

Documents (e.g. policies and procedures) can be uploaded for each site, with Authorised Users able to read them through the App.

Active Resident profile fields

Ability to store Active Resident data such as allergies, current medications, medical history and contact details for health professionals or family.

About me

The About Me section has been developed based on the PRSB standards and NHS Assured Supplier criteria.

Initial assessment form

Authorised Users can complete an initial assessment form, designed to help gather the care requirements of a prospective Active Resident. When the form is finalised, answers from the form flow into the Active Resident’s care plan.

Care plans

The system contains a number of care plans sections by default for each Active Resident, each with space for outcomes, strengths, needs, associated risk assessments and actions. Authorised Users can edit answers, schedule next reviews and view historical versions. Care Plans can be e-signed.

Risk assessment forms

Risk assessments can be attached to care plan sections or completed separately. The system contains a library of assessment forms, most of which contain some form of risk score calculation. Authorised Users can also complete generic risk assessments for topics not covered by the library forms.

Consent Management

Consent templates are available in a library and can be edited to suit the service. Consent forms for each Active Resident can be used to gather and manage consent on a range of topics.

Hospital Passport export

With one click, Authorised Users can export a PDF document from the system summarising the common detail that a hospital might need to know.

Resident data archiving

When a resident leaves the service, their status can be changed from Active. In other status modes (e.g. deceased, discharged), no data is deleted but Authorised Users without higher access levels will cease to be able to access the data.

Active Resident data deletion

An Active Resident’s data can be completely deleted by admin-level Authorised Users. As per GDPR requirements, data is not easily recoverable once deleted and additional fees may apply to recover accidentally deleted data from historical backups.

PDF export

Active Resident daily logs and Active Resident charts can be exported with one-click in PDF format.

CSV export

Daily log data can be bulk exported as a CSV file. Size limits may apply on each export.

Noticeboard

Admin-level Authorised Users can publish a notice from the Care Office which appears in the mobile Apps of all staff belonging to that site.

Outstanding plan only

Outcomes & Goals

A comprehensive feature set allowing Authorised Users to record desired outcomes for Active Residents and the steps required to meet those goals. Daily logs and care plans can be linked to specific goals so that progress against the goal can be easily evidenced.

Head Office dashboard

Access for head office staff or regional managers to a separate dashboard to view performance and compliance statistics of different sites.

Site switching

Authorised Users can be granted access to multiple sites and are then able to switch their account between sites from the mobile App or web portal.

PBS plans

Dedicated Positive Behaviour Support plans.

Supported Person Involvement

Features to allow supported people to write logs from their own perspective and to sign their own support plans, consent forms and goals from the mobile App.

Family plan

Family App

Admin-level Authorised Users can optionally invite Family members of Active Residents to be able to view certain information of their loved one through the Family App. This can include daily logs, care plans, risk assessments and other uploaded documents. Through the Preferences section of each Site, your Organisation can control what information gets shared with Family members.

Rostering

Rostering

Your organisation (where rostering is chosen as an add-on) is granted the ability to develop or deploy any application or functionality that makes use of the Google Maps API(s) (including but not limited to a Distance Matrix API) to support carers in tracking locations to organise their rosters.