END USER LICENCE AGREEMENT (“EULA”)
This EULA governs your use of the Function 365 Practice Management Software (“Software”) and the site https://function365.co.uk/ (“site”). By using the Software, you are deemed to accept the terms of this EULA.
This is a legal contract between you, the user and Function 365 Limited, a company with registration number 240638127 and registered office at Third Floor, 95 The Promenade, Cheltenham, Gloucestershire, United Kingdom, GL50 1HH (“Function 365”,”we” or “us”) together referred to as the parties or each as a party.
You are only permitted to use the Software and site (“Platform”) in accordance with this EULA.
1. Function 365 Software
1.1 Function 365 grants you a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license to use the Platform, in object code form only, solely for the purpose stated at the time the Software is made available to you and in accordance with this EULA.
1.2 You may not sublicense, or charge others to use or access the Software. You may not translate, reverse engineer, reverse compile or decompile, disassemble, or otherwise attempt to discover the source code of the Software, or make derivative works from or of the Software. You may not modify the Software or use it in any way not expressly authorised in writing by Function 365.
1.3 You acknowledge that Function 365’s introduction of various technologies may not be consistent across all platforms and that the performance of the Software and site may vary depending on your computer or mobile device. From time-to-time, we may provide you with updates or modifications to the Software.
1.4 The Platform may require or allow you to download software, software updates or security patches and tools onto your computer or mobile.
1.5 Failure to install updates may cause the Platform to suffer degraded functionality, fail to perform as intended or cease working altogether. We will not be responsible for any such resulting or consequential effects, losses or damages and such effects will not constitute breach of this EULA or grant you any rights or remedies against us.
1.6 All rights not expressly granted herein are reserved. The license granted to you in this clause 1 shall immediately terminate (without any notice to you) if you breach any of the terms this clause or upon termination of your use of the Platform for any reason. Upon termination of such limited license, you agree to immediately destroy any downloaded or printed Materials as defined in clause 8 (Intellectual Property).
2. Using the Platform
2.1 The users of the Platform may be the employees or personnel authorised by a medical practice (“Practice”), including but not limited to its receptionist, clinic managers, accountants or medical practitioners. The patients of the Practice may also use the Platform.
2.2 The maximum number of users authorised by a Practice to use the Platform on its behalf or under its authority shall depend on the agreed pricing plan as specified in the applicable Order Form.
2.3 Users are only eligible to use the Platform if:
2.3.1 they have received an invite from a Practice to use the Platform and sent you the necessary enrolment details;
2.3.2 they have provided the necessary identity and professional credentials documents and/or information requested by Function 365; and
2.3.3 they have used the invitation code in such invitation to register a Function 365 account.
2.4 As part of the registration process, you must provide the following information to us through the registration page: your full name, professional credentials, email address, telephone number and postcode.
2.5 You will be asked to create a password. You may also provide additional optional information, which is not required to but may be helpful in providing you with a more customised experience when using the Platform.
2.6 You are responsible for maintaining the confidentiality of your password and you are solely responsible for all activities that occur using your password. You agree not to share your password, let anyone else access your Function 365 account or do anything else that might jeopardise the security of your Function 365 account. You agree to promptly notify us if your password is lost, stolen or disclosed to an unauthorised third party, if there is any unauthorised use of your password, or if you know of (or suspect) any other breach of security in relation to the Platform.
2.7 By using the Platform, you represent and warrant that all the information that you provide when registering for a Function 365 account is accurate and complete and that you will keep such information up to date. You may change or correct your Function 365 account registration information by logging into your Function 365 account directly or by contacting us at firstname.lastname@example.org.
3. Professional Responsibility
3.1 You acknowledge that the professional duty of care to the patient in providing healthcare services lies solely with the medical practitioner providing patient care services. The Practice and its personnel take full responsibility for the use of all information provided through the Platform in providing patient care.
3.2 Clinical information, if any, provided through the Platform is intended as a supplement to, and not a substitute for, the knowledge, expertise and judgment of professional personnel. Function 365 disclaims all liability for the use of any information or results provided by, or obtained through, the Platform and used by the Practice or its personnel.
3.3 Function 365 is not liable for your actions which may result in any liability due to malpractice. Function 365 provides no medical or other professional advice in connection with this EULA, the Platform and the information contained in the Platform.
3.4 You acknowledge that a licensed medical practitioner is responsible for independently reaching any medical or other professional judgment, and for any resulting diagnosis, clinical impression, and treatments, notwithstanding any use of the Platform by such medical practitioner. The absence of a warning for a given lifestyle modification, drug, supplement, or combination thereof should not be construed to indicate that the lifestyle modification, drug, supplement, or drug/supplement combination is safe, appropriate, or effective in any given patient.
4. Use of Aggregate Information
We may use usage patterns, trends and other statistical data derived from your use of the Platform for purposes of providing, operating, maintaining, or improving Platform. All such information will be aggregated and/or anonymised to ensure you will not be identified and that your personal information will not be disclosed.
5. Your Communications
5.1 Practice shall be solely responsible and liable for communications with its patients and other persons or entities through the Platform.
5.2 Function 365 does not control the content of user communications, and does not guarantee the accuracy, integrity, quality, reliability or suitability of such communications. Function 365 do not screen communications sent through the Platform.
5.3 By using any communications feature, you understand that you may be exposed to content that is offensive, indecent or objectionable, and your use of such features is solely at your own risk and we have no responsibility or liability to you in connection with such communications.
5.4 Any disputes between you and any patient or Practice (or any other person or entity), whether arising from your use of the Platform or otherwise, are solely a matter between you and the patient or Practice (or any other person or entity).
6. Third Party Service Features
6.1 Certain features of the Platform (“Third Party Service Features”) permit you to access and use services and content which are provided by third party suppliers who have contracted with Function 365 to allow such access. The Platform in this EULA includes the Third Party Service Features except as otherwise expressly stated. Function 365 has been granted the right by its third party suppliers to enable you to access the Third Party Service Features.
6.2 Function 365 may be required to suspend or terminate use of a Third Party Service Feature at any time, to the extent required by the applicable third party supplier for any reason.
6.3 Your use of certain Third Party Service Features may be subject to the third party supplier’s terms and conditions which shall be provided to you or the Practice when you access the relevant Third Party Service Feature for the first time. Such terms are solely between you and the third party supplier. Function 365 has no control over such terms.
6.4 Function 365 does not monitor, review, edit or otherwise control content or other information provided through the Third Party Service Features and your use of such information is solely at your own risk. Function 365 expressly disclaims any liability arising from your use of or reliance on such information or otherwise arising from any act or omission of third party suppliers.
7. Data Protection
7.1 Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
7.2 UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
7.3 Function 365 will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
7.4 In this clause, Applicable Laws means (for so long as and to the extent that they apply) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
7.5 The parties acknowledge that for the purposes of the Data Protection Legislation, Function 365 is both the data controller and data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
7.6 Without prejudice to the generality of clause 7.3, Function 365 shall, in relation to any Personal Data controlled (for example Personal Data of subscribing clinic users) and processed (for example Personal Data of patients) in connection with the performance of Function 365 obligations under this EULA:
7.6.1 control and process that Personal Data in accordance with Applicable Laws;
7.6.2 ensure that Function 365 has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.6.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
7.6.4 not transfer any Personal Data outside of the European Economic Area unless Function 365 complies with obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
7.6.5 maintain complete and accurate records and information to demonstrate its compliance with this clause.
8. Intellectual Property
8.1 The information, documents, content, data, products, services, logos, graphics, images, icons, including its arrangement, software, technology, site design, graphics, and know-how made available to you through the Platform, except to the extent you or a patient owns any health, personal or other confidential information contained in a patient’s record in accordance with applicable law (“Materials”), are the copyrighted and/or trademarked work of Function 365, or are otherwise subject to Function 365’s other intellectual property or other proprietary rights, including without limitation, patent and trade secret rights.
8.2 Except as stated herein, you acknowledge that you have no right, title, ownership or interest in or to the site, Platform or any Materials. All rights not expressly granted herein are reserved.
9. Electronic Communications
9.1 By using the site and Platform, you consent to receive electronic communications from us concerning or related to the Platform. These electronic communications are part of your relationship with us.
9.2 You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
10.1 This Contract grants you the non-exclusive, non-transferable right to use the Service (in accordance with these Terms of Service) while you continue to pay the appropriate monthly fee for the Subscription you have selected.
10.2 All monthly fees must be paid monthly in advance.
10.3 A valid credit or debit card or UK bank account is required to pay for the Service.
10.4 All fees are quoted exclusive of Value Added Tax which is payable in accordance with current legislation.
10.5 All credit card transactions are processed by Stripe.
10.6 When upgrading or downgrading your subscription your user count will increase/decrease immediately and you will be charged the higher/lower amount when your next payment is due.
10.7 Downgrading or cancelling your account may cause the loss of access, content or features of the Service. We do not accept liability for any such loss.
10.8 All fees related to the Service, including but not limited to the monthly subscription fees, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by updates to the Function365 website (function365.co.uk), notices within the Service itself, or by email correspondence.
10.9 If you have any questions about charges made to your account, please contact us immediately. If there are charges made in error, we will provide a refund via Stripe or bank transfer for the appropriate amount.
10.10 We reserve the right to charge an administration fee for any skipped, failed or late payments in respect of credit/debit card or direct debit payments.
10.11 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11. Unauthorised Activities
11.1 When using the Platform, you agree not to:
11.1.1defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
11.1.2 use racially, ethnically, or otherwise offensive language;
11.1.3 discuss or incite illegal activity;
11.1.4 use abusive, threatening, violent, explicit or obscene language or solicit/post sexually explicit images (actual or simulated);
11.1.5 post or transmit any content or communications that exploit children or minors or that depicts cruelty to animals;
11.1.6 post or transmit any copyrighted or trademarked materials, or materials that constitute trade secrets, or are subject to patents or other intellectual property rights, without the express permission from the owner;
11.1.7 disseminate any unsolicited or unauthorised advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation;
11.1.8 use any robot, spider, scraper or other automated means to access the Platform; or
11.1.9 take any action that imposes an unreasonable or disproportionately large load on our infrastructure or the infrastructure of our third party service providers.
11.2 Function 365 reserves the right to immediately terminate your use of the Platform with or without notice for any of your action in our sole discretion, is inappropriate or disruptive to the Platform or to any other user of the Platform.
11.3 If Function 365 terminates your access to the Platform as a result of your breach of this EULA (and without limiting our rights and remedies), we will inform the Practice and this may have consequences on your relationship with them for which Function 365 is not responsible or liable.
11.4 You acknowledge that unauthorised use of any Materials contained on, or accessible from, the Platform may violate certain laws, rules and regulations.
11.5 Function 365 may report to law enforcement authorities, and its suppliers, any actions that may be illegal or otherwise in breach of this EULA, and any reports it receives of such conduct. When legally required or at our discretion, we will cooperate with law enforcement agencies and its suppliers in any investigation of alleged illegal activity involving the Platform.
12. Links to Third Party Sites
12.2 Function 365 provides links to Third Party Sites for your convenience. We do not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed or any other activities conducted on or through such Third Party Sites.
12.3 We are not liable for any harm you suffer as a result of visiting or otherwise interacting with Third Party Sites. You access Third Party Sites and use their content, products, and services entirely at your own risk.
12.4 Function 365 and its officers, directors, employees, and agents will not, under any circumstances, be responsible or liable, directly or indirectly, for any products, services, information, resources and/or content available on or through any third party sites and/or arising from your dealings or communications with any third parties, or for any harm related thereto, or for any damages or loss caused or alleged to be caused by or in connection with your use of, or reliance on, the products, services, content or business practices of any third party.
13. Disclaimer, Warranties and Limitation of Liability
13.1 Your use of the site, Software, Materials, any Record and any other information you obtain through the Platform is entirely at your own risk.
13.2 The Materials and any Record are directly inputted or uploaded by the Practice and have not been verified or authenticated in whole or in part by Function 365, and they may include inaccuracies or typographical or other errors. Function 365 does not warrant the accuracy, appropriateness or timeliness of the Platform, Materials, any Record, or other information contained on, or accessible through the Platform. Function 365 has no liability for any errors or omissions in the site, Platform, Materials, any Record or other information, whether provided by Function 365, Practice or our suppliers.
13.3 Function 365 on behalf of itself and its suppliers and their respective officers, directors, employees, and agents, hereby disclaims and makes no express, implied or statutory representations, warranties, or guarantees in connection with the site, service, materials, any record or other information, relating to quality, suitability, truth, accuracy, completeness unless otherwise explicitly stated, to the maximum extent permitted by applicable law.
13.4 The site, Software, Materials, any Record and any other information contained or presented through the Service is provided to you on an “as is,” “as available” and “where-is” basis with no express or implied warranty of merchantability, fitness for a particular purpose, title, non-infringement of third party rights or security. Function 365 does not provide any warranties against viruses, spyware or malware that may be installed on your computer or mobile device or that may damage your computer, mobile device or data.
13.5 Function 365 shall not be liable for delays, interruptions, data loss, service failures and other problems inherent in the use of the internet.
13.6 Function 365 and its suppliers and their respective officers, directors, employees and agents shall not be liable to you or any third party for any damages, losses or claims resulting from your use of the site, Software, Materials, any Record or other information made available through the Platform, including without limitation, your reliance on the site, Platforms, Materials, any Record or other information.
13.7 In no event shall Function 365 or its suppliers or their respective officers, directors, employees or agents be liable to you or any third party for any indirect, extraordinary, exemplary, punitive, special, incidental, reliance or consequential damages (including, without limitation, loss of data, revenue, profits, use or other economic advantage) howsoever arising, even if it knows there is a possibility of such damage.
13.8 Nothing in this limitation of liability section shall exclude or limit Function 365’s or its suppliers’ liability for losses or damages which may not be lawfully excluded or limited by applicable law, in which case, Function 365’s and its suppliers’ liability will be limited to the extent permitted by applicable law.
14. Term and Termination
14.1 Either party shall have the right to terminate the Contract if the other party is in material breach of these Terms of Service and does not rectify the breach within 30 days of written notification.
14.2 Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect by giving you written notice if:
14.2.1 You fail to pay any amount due under this agreement on the due date for payment and remains in default not less than  days after being notified in writing to make such payment.
14.2.2 You suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or you admit inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
14.2.3 You commence negotiations with all or any class of your creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party.
14.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the your winding up.
14.2.5 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over you;
14.2.6 the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
14.2.7 a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
14.2.8 a creditor or encumbrancer of attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
14.2.9 any event occurs, or proceeding is taken, with respect to the you in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause;
14.2.10 you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business.
14.3.1 You are solely responsible for the cancellation of your account
14.3.2 You can cancel your account at any time in the Settings->Account section. Email or phone requests to cancel your account are not considered a cancellation
14.3.3 All of your content and data will be deleted 45 days after cancellation or termination of your account. This information will not be able to be recovered. Prior to cancelling your subscription we recommend that you perform a Data Export using the Tools provided in Function365.
14.3.4 Failure to pay your subscription fees will result in your account being suspended. Accounts are suspended for a maximum of 45 days before the account may be terminated by us. We are not responsible for any loss you suffer as a result of such suspension or termination. A suspended account can be reactivated by supplying valid payment credentials and resuming your subscription.
14.3.5 If you cancel your account before the end of your currently paid month the service will continue to be available until Midnight before your next payment date. You will not be entitled to a refund
14.3.6 At our sole discretion we have the right to suspend or terminate your account and refuse any and all current or future use of the Service, for any reason, at any such time. Such termination can result in the deactivation or deletion of your account
14.3.7 We reserve the right to refuse service to anyone for any reason at any time
15.1 CHANGES TO THE EULA: We may change the terms of this EULA from time to time, and any such changes become effective immediately upon being posted to the site or Software. It is your sole responsibility to be updated of such changes. If you do not agree to any changes, you must cease use of the Platform. Your use of the Platform after any changes are made to the EULA indicates that you agree to such changes.
15.2 WAIVER: If we do not insist immediately that you do something you are required to do under this EULA, or if we delay in taking steps against you in respect of that you breaking the EULA, that will not mean that you do not have to do those things and will not prevent us taking steps against you at a later date.
15.3 RIGHTS AND REMEDIES: Except as expressly provided in this EULA, the rights and remedies provided under this EULA are in addition to, and not exclusive of, any rights or remedies provided by law.
15.4 SEVERANCE: Each of these clauses operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
15.5 ASSIGNMENT: You will not transfer your rights or obligations under this EULA to another person or organisation. We may transfer our rights and obligations under this EULA to another organisation. We will always tell you if this happens and we will ensure that the transfer does not affect your rights under the EULA.
15.6 RIGHTS OF THIRD PARTIES: This EULA does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of this EULA.
15.7 ENTIRE AGREEMENT: This EULA constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.8 NO PARTNERSHIP OR AGENCY: Nothing in this EULA is intended to or shall operate to create a partnership, employment or agency relationship between the parties. Neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
15.9 SURVIVAL: Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination of this EULA, including the right to claim damages in respect of any breach of the EULA which existed at or before the date of termination shall not be affected or prejudiced.
15.10 GOVERNING LAW: This EULA shall be governed by and construed in accordance with the law of England.
15.11 JURISDICTION: Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this EULA or its subject matter or formation (including non-contractual disputes or claims).