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Terms of Service for individual clinician and clinic users

Last updated: October 16 2023

This document outlines the Terms of Service for users of MyOpNotes’ 'Individual' and 'Clinic' membership levels.

Your ongoing use of our services signifies your acceptance of these Terms of Service, and the linked Data Protection Addendum (see Data Protection Addendum (DPA) for Individual Clinician and Clinic Users).

Should you possess a separate written contract with MyOpNotes, these Terms of Service will not apply to you.

Terminology

• In these Terms of Service (also referred to as these “Terms” or this “Contract”), the phrases “you”, “your”, or “Customer” refer to you. If you are setting up an account for the use of the Services on behalf of an entity, then you are agreeing to these Terms on behalf of that entity and are assuring us that you are authorised to bind that entity to these Terms (in which case, the terms “you”, “your”, or “Customer” refer to that entity).
• The phrases “we”, “us,” “our”, “MyOpNotes” or “Opnote”, refer to Opnote Ltd, a company registered in England and Wales, with the registered address Opnote Ltd, 19 Clowbridge Drive, Loughborough, Leicestershire, LE11 4SU, and the registered number 14438750.
• When we mention the “Services” in these Terms, we are referring to all products and services provided by us that you utilise.
• “Confidential Information” refers to any data or information, regardless of whether it is tangible, disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) that is labelled or otherwise classified as confidential or proprietary or that should be reasonably understood to be confidential based on the nature of the information and the circumstances of its disclosure. Confidential Information does not include any information which: (a) is publicly available through no violation of these Terms or fault of the Receiving Party; (b) was correctly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by the Disclosing Party; (c) was correctly disclosed to the Receiving Party, and to its knowledge, without any restriction, by another person without violating the Disclosing Party’s rights; or (d) is independently created by the Receiving Party without use or reference to the Confidential Information of the Disclosing Party.

Modifications to these terms

We may occasionally modify these Terms. We will notify you of any significant updates at least thirty (30) days before the effective date, with the exception that we may not be able to provide at least thirty (30) days prior written notice of significant updates to these Terms that result from changes in laws or regulations.

Notices for significant updates to these Terms will be given in accordance with the notices section. Except as otherwise specified by us, updates will become effective and binding upon the date indicated at the top of these Terms. The updated version of these Terms will replace all previous versions.

Following such notice, your ongoing use of the Services on or after the date the updated version of these Terms becomes effective is binding and signifies your acceptance of the updated Terms. If you do not agree to the updated version of these Terms, you must immediately cease using the Services.

Obligations of MyOpNotes

We commit to:

• Provide you access to the MyOpNotes digital operation note application according to these terms and our documentation.
• Employ commercially reasonable efforts to deliver applicable support for the services. Abide by the terms stated within our data protection addendum.
• Deliver the services in line with industry practice and in compliance with all relevant laws and regulations (including all relevant equality law).
• Use commercially reasonable efforts to employ industry standard measures intended to scan, detect, and delete code, files, scripts, agents, or programmes meant to cause harm.
• Acquire and maintain all necessary consents, licences and permissions required to perform the services.
• Endeavour to achieve our service level objective of 99.9% system availability.

We may temporarily halt the Services immediately upon notice to you if:

• you have violated any provision of these Terms.
• Our provision of the Services is forbidden by applicable law or regulation.

If we suspend the Services in accordance with the above, we will not be liable for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may experience in connection with any such suspension other than anything which cannot be excluded by law.

The features and functionality of the Services may evolve over time, however, we will not significantly reduce the overall functionality of the Services (release notes can be provided to you upon request).

Charges and payment conditions

You agree to pay charges, via monthly direct debit, in line with the then-current applicable rates stated within the pricing documentation (see Pricing) unless stated otherwise in writing from us. Any change in charges and payment terms will be communicated to you with at least thirty (30) days’ notice.

Payment obligations are non-cancellable and charges, once paid, are non-refundable.

Where the maximum number of operation note episodes for the subscription level have been generated within the month, creation of further episodes will be disabled. Subscription levels can be upgraded at any point by emailing support@myopnotes.co.uk.

Ownership, customer data, and confidentiality

We exclusively own and reserve all right, title, and interest in and to the Services, the Documentation, our Confidential Information (as defined below), and any data derived from the use of the Services that does not directly or indirectly identify you or any natural person. This includes (a) data like usage volumes and performance data and (b) subject to any restrictions under applicable laws, data that is anonymised, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you or any natural person, and (c) any feedback or suggestions provided regarding the Services.

You exclusively own and reserve all right, title, and interest in and to your Confidential Information and, if applicable, patient data, subject to our rights to process patient data in accordance with these Terms.

You grant us the right to process patient data as required to provide the Services in a manner consistent with these Terms, our Data Protection Addendum (see Data Protection Addendum (DPA) for Individual Clinician and Clinic Users), and our Privacy Notice (see Privacy notice - Product (UK). If you do not agree with the terms of our Data Protection Addendum or our Privacy Notice, you must immediately stop using the Services.

Except as otherwise authorised by the Disclosing Party in writing, the Receiving Party will neither (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising the Receiving Party’s rights or fulfilling its obligations under these Terms or (b) disclose or make Confidential Information of the Disclosing Party available to any party, with the exception of its employees, legal counsel, accountants, contractors, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for the Receiving Party to exercise its rights or fulfil its obligations under these Terms. The Receiving Party is responsible for its Representatives’ compliance with this section. Representatives will be legally bound to protect Confidential Information of the Disclosing Party under terms of confidentiality that are at least as protective as the terms of this section. The Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.

The Receiving Party may disclose Confidential Information of the Disclosing Party if so required pursuant to a regulation, law, or court order (collectively, “Compelled Disclosures”), provided the Receiving Party gives the Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). The Receiving Party will provide reasonable cooperation to the Disclosing Party in connection with a Compelled Disclosure at the Disclosing Party’s sole expense.

Assurances, warranties, and disclaimer

We represent and warrant that

• the Services perform materially in accordance with the applicable Documentation. Our sole obligation, and your sole and exclusive remedy, in the event of any failure by us to comply with this will be for us to, at our option, (a) remediate any material non-conformity or (b) refund to you the Fees paid for the time period during which the affected Services do not comply. Anything else is excluded.
• we are not aware of any matters within our reasonable control which might or will adversely affect our ability to provide the Services as per these Terms.
• we have no reason to believe that the provision of the Services would be an infringement of any Intellectual Property Rights, other proprietary or equitable rights of any third party.

Each party (a) warrants that it will conduct business in accordance with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, and (b) represents that it has not made, offered, promised to make, or authorised any payment or anything of value in violation of Anti-Corruption and Trade Laws.

Indemnification and limitation of liability

You are responsible for the accuracy of the digital operation note information if ever shared with patients and no responsibility can be taken by us for the operation information shared, as long as the Services faithfully reproduce the intended information selected by the clinician user. Where you are in breach of this you agree to indemnify and keep indemnified and defend at your own expense against all costs, claims, damages or expenses incurred by us or for which we may become liable.

In no event (except for the indemnity given above) will the aggregate liability of either party arising out of or related to these Terms exceed the amounts paid or payable by you under these Terms for the Services during the twelve (12) month period preceding the first incident out of which the liability arose.

Nothing in these Terms will exclude or limit the liability of either party for (i) gross negligence or intentional misconduct of such party; (ii) death or personal injury caused by such party’s negligence; (iii) fraud or fraudulent misrepresentation; or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of applicable law.

Use of marks

You grant us a royalty free, irrevocable and perpetual licence to use your name and logo to refer to you on our website, marketing or promotional materials in order for us to provide the Services and fulfil our obligations under these Terms.

Term, termination, and survival

These Terms, as may be updated from time to time, will commence on the date they are accepted by you - by entering a direct debit agreement - and continue until terminated in accordance with this section. These terms and conditions apply to the exclusion of all other terms and conditions, unless we specifically confirm otherwise in writing.

Termination for convenience

You may terminate these Terms and disable your MyOpNotes account for any reason by notifying us in writing at support@myopnotes.co.uk. Your subscription will terminate one month after you have given notice. We may terminate these Terms and disable your MyOpNotes account for any reason by notifying you upon thirty (30) day’s prior written notice which may be by email.

Termination for material breach

Either party may terminate these Terms in the event that the other party commits a material breach of these Terms and such breach remains uncured for fourteen (14) days from receipt of written notice of the breach from the non-breaching party.

Termination for insolvency

Either party may, subject to applicable law, terminate these Terms immediately by providing written notice, should the other party enter liquidation, begin dissolution proceedings, engage in any process related to receivership, fail to continue business, make an assignment for the benefit of creditors, or become subject to bankruptcy.

Data access post-termination

Following the termination of these Terms, your data will be available in a read-only format for your use, unless MyOpNotes is no longer a functioning application. In the event that MyOpNotes ceases to function, all patient data, including operation notes and associated metadata, will be transferred to you.

General

Waivers

Neither party's failure or delay in exercising any right or enforcing any provision under these Terms will constitute a waiver of such right or provision. Any waiver must be in writing and signed by both parties to be legally binding.

No partnership

Both parties are independent contractors in relation to each aspect of these Terms. Nothing in these Terms is intended to create or should be construed as creating an employer-employee relationship, or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its own employees and agents, as well as all associated labor costs and expenses. Each party will also bear sole responsibility for any and all claims, liabilities, damages, or debts of any type that may arise due to its own activities or those of its employees and agents in relation to these Terms. Neither party has the authority to make commitments on behalf of the other party and will not attempt to do so or imply that it has such authority.

Severability

If any provision in these Terms is deemed unenforceable by a court or other tribunal of competent jurisdiction, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable, and the remainder of these Terms will continue in full force and effect.

Notices

Notices to us under these Terms should be provided via email to support@myopnotes.co.uk.  Notices to you under these Terms will be provided via email to the email address linked to your account.

Force Majeure

Neither party will be considered in breach of these Terms due to any failure, delay, or default in performance of its obligations if such failure to perform, delay, or default arises from a cause beyond its control and without its negligence, including but not limited to actions or inactions of governmental, pandemic, civil, or military authority; fire; strike; flood; terrorist act; war; riot; theft; earthquake; or other natural disaster. The party affected by such cause will take all reasonable actions to minimise the consequences of the event.

Whole agreement

Unless otherwise provided in these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, whether oral or written.

This privacy policy applies between you, the User of this Website, and Opnote Ltd, the owner and provider of this Website. Opnote Ltd takes the privacy of your information very seriously. This privacy policy applies to our use of any and all Data collected by us or provided by you in relation to your use of the Website.

This privacy policy should be read alongside, and in addition to, our Terms and Conditions, which can be found at: www.myopnotes.co.uk/standards-policies/terms-of-service/.

We accept no liability for any act, omission or default, whether negligent or otherwise, of any third party service provider and have no liability for any loss or damage incurred by any negligent act or omission of any third party service provider or any other third party.

Where liability cannot be excluded, such liability is limited to the value of your order. We make no warranty or representation regarding the standard of any third party services to be provided to you.

Governing law

These Terms shall be construed as being made in Wales and in accordance with and governed by the Laws of England and Wales, as applied in Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the Courts of England and Wales.