Innovator terms of use

NHS INNOVATION SERVICE

INNOVATOR TERMS OF USE ("TERMS")

PLEASE READ THESE TERMS CAREFULLY.

BY ACCESSING, BROWSING AND/OR UPLOADING DATA TO THE NHS INNOVATION SERVICE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT HAVE THE REQUIRED AUTHORITY TO AGREE TO THESE TERMS, YOU SHOULD EXIT THE NHS INNOVATION SERVICE IMMEDIATELY.

If you have any questions or queries in relation to these Terms or the NHS Innovation Service, please contact us via the Innovation Service Team via email to: aac.innovation@nhs.net or via the team’s other contact details on the NHS Innovation Service website

1. WHAT IS THE NHS INNOVATION SERVICE?

The NHS Innovation Service is an online database owned and delivered by NHSE ("we", "us" or "our") and the Innovation Service Team. The database contains information about the development of medical and healthcare services, software, devices, technologies, applications, diagnostics and digital products, which are available or likely to become available in the UK (“Health Technology(ies)”).

The NHS Innovation Service can be used by entities (which are either a developer of Health Technologies or working on behalf of such a developer) (each a “Company”) in order to share data and information relating to the development of Health Technologies (“Company Data”) with other interested parties who you selected to have access to your Company Data (each a “Support Organisation”) for the Agreed Purposes.

We may appoint a Health Innovation Network organisation (“HIN”) or another third party (“Need Assessor(s)”) to; (i) review the Innovation Service portal submissions and complete a needs assessment; (ii) work with the Innovators and Company to ensure all necessary information is present and accurate to enable best support by Support Organisations; (iii) complete needs assessment proforma on the Innovation Service portal and provide recommendations for support; (iv) allocate and handing over Innovators to the appropriate agencies; (v) re-engage with Innovators which have been left without active support and completing another needs assessment if appropriate; and (vi) working with Support Organisations to understand the support offer and define referral criteria. The Need Assessor(s) shall have access to personal data and Company Data on our behalf pursuant to clause 7.5.

In this context, "Agreed Purposes" means the purpose of: (i) providing the health and social care system (or parts of the health and social care system) in the UK with information on Health Technologies (such as guidance, advice, and policies); (ii) commissioning; (iii) supporting the development or adoption of Health Technologies; (iv) for medical/health technology procurement; (v) continuous improvement of the NHS Innovation Service and Support Organisation processes; and/or (vi) such other purposes as may be agreed in writing between the Support Organisation and a Company from time to time;

2. THESE TERMS

In these Terms, reference to "you" means (as applicable): i) any individual who registers an account on the NHS Innovation Service (“Account”) in order to access, browse and/or upload Company Data to the NHS Innovation Service and agrees to be bound by these Terms (“Innovator”); and/or ii) the Company that authorises the Innovator(s) to share its Company Data via the NHS Innovation Service and agrees to be bound by these Terms.

Any reference to "these Terms" shall include the terms of our Fair Usage Policy [see below], Privacy Notice and Cookies Policy which also apply and shall be incorporated into our contract with you.

These Terms were most recently updated in July 2023.

3. REGISTERING FOR AN ACCOUNT

3.1 This clause shall apply if you are an Innovator.

3.2 By registering for an Account, you represent and warrant that you are:

3.2.1 at least eighteen (18) years of age; and

3.2.2 authorised by the Company to register an Account and to upload Company Data to the NHS Innovation Service on behalf of the Company.

3.3 To register an Account, you are required to provide accurate and complete information, including: (i) the full Company name; and (ii) your name, email address and phone number (which ideally should be a direct dial or a mobile number). You must keep your Account details up to date at all times.

3.4 After filling in your details you will be required to create a password, which you will use every time you want to login to your Account in order to access the NHS Innovation Service. Once you have created a password you will be asked to accept these Terms and you will then be able to upload Company Data onto the NHS Innovation Service.

3.5 By clicking and accepting these Terms you are confirming that you have the authority (or have obtained approval from an Authorised Person in the Company) to legally bind the Company to these Terms.

3.6 You must not disclose your log-in details or password to any third party. If you know or suspect that anyone other than you knows your log-in details or password you must promptly contact the Innovation Service Team via the details provided above.

3.7 You are solely responsible for all activity that occurs on your Account and you must notify the NHS Innovation Service Team immediately if you become aware of any unauthorised use of your Account or if your log-in details or password are lost or stolen. We shall not be liable for any losses that you or the Company incur as a result of any unauthorised use of your Account.

3.8 If we terminate your access to the NHS Innovation Service in accordance with these Terms, we will delete your Account. If you have not used your Account for a consecutive period of 6 months, we will contact you by email and ask you to log into your Account. If you have not logged into your account after 9 months, your Account will be locked. Company Data that you have uploaded will be stored in line with our Privacy Policy.

3.9 We reserve the right to monitor your use of the NHS Innovation Service from time to time in order to: (i) review your compliance with these Terms; and/or (ii) review the operation of the NHS Innovation Service and, where appropriate, make improvements.

4. GRANT OF LICENCE

4.1 This clause shall apply to Innovators and the Company (as applicable).

4.2 In consideration of the mutual obligations set out in these Terms, and subject to you complying with these Terms, NHSE hereby grants to you a royalty-free, non-exclusive, non-transferable right to access and use (and in the case of the Company, to permit the Innovator(s) to access and use) the NHS Innovation Service for the Agreed Purpose until termination of the licence in accordance with these Terms. The licence may not be sub-licensed, assigned or otherwise transferred to any other person without our prior written consent.

4.3 Subject to each Innovator’s compliance with these Terms, the licence above shall continue in respect of each Innovator for so long as the Company has a licence to use the NHS Innovation Service. We shall have no obligation to continue to provide access to the NHS Innovation Service to any individual Innovator (or other personnel of the Company) after termination or expiry of the Innovator’s Account.

5. USE OF THE NHS INNOVATION SERVICE

5.1 This clause shall apply to Innovators and the Company (as applicable)

5.2 You shall:

5.2.1 follow any reasonable instructions given to you by us or the Innovation Service Team in connection with your use of the NHS Innovation Service and only access and use the NHS Innovation Service for the purposes of viewing and/or uploading the Company Data, in accordance with any instructions issued by the Company;

5.2.2 comply with these Terms and our Fair Usage Policy at all times;

5.2.3 not use the NHS Innovation Service contrary to any restrictions stated in these Terms, or otherwise in a way that is not expressly permitted by these Terms; and

5.2.4 use your best endeavours to prevent any unauthorised access to, or use of, the NHS Innovation Service and, in the event of any such unauthorised access or use, shall immediately notify the Innovation Service Team.

5.3 Except to the extent such activities are permitted by applicable law or are expressly set out in these Terms, your right to use the NHS Innovation Service does not permit you to (or attempt to) use the NHS Innovation Service and the software embodied in or used in connection with the NHS Innovation Service other than for the Agreed Purpose.

5.4 By uploading Company Data onto the NHS Innovation Service, you warrant that you have been authorised by the Company or have the required authority on behalf of the Company to upload the Company Data to the NHS Innovation Service for the purpose of sharing the Company Data with the Support Organisations.

5.5 You will only be able to view Company Data that you have uploaded to the NHS Innovation Service. You will not, at any time, be able to see any Company Data that has been uploaded by any other Innovator (on behalf of the same Company as you or another Company).

5.6 You will have the ability to download and print out PDFs of any Company Data you have uploaded onto the NHS Innovation Service and you will be able to make additions, changes to or delete any Company Data that you have uploaded to the NHS Innovation Service (but not to any Company Data which has been uploaded by another Innovator.

5.7 Your Company Data uploaded to the NHS Innovation Service, including version histories of Company Data that you have uploaded, and comments, actions and status changes added by you and the Support Organisations, will be stored for a minimum of 6 years in line with our Privacy Policy.

In order to submit a data subjects rights request for your personal data please write to england.dpo@nhs.net

6. THE COMPANY'S OBLIGATIONS AND COMPANY DATA

6.1 This clause shall only apply to the Company only and not to the Innovator.

6.2 The Company shall:

6.2.1 be responsible for ensuring the legality, reliability, integrity, accuracy and quality of any Company Data that is uploaded to the NHS Innovation Service;

6.2.2 maintain (or, as applicable, procure that its Innovator(s)) maintain) a back-up of any Company Data that is uploaded to the NHS Innovation Service, and we shall have no liability to the Company or any Innovator for any loss or damage to the Company Data or failure by the Company or any Innovator to keep a back-up copy of such Company Data;

6.2.3 ensure that the Innovator uses the NHS Innovation Service in accordance with these Terms and shall be responsible for any breach of these Terms by an Innovator; and

6.2.4 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Company's network connections or telecommunications links or caused by the internet.

6.3 The Company warrants and confirms that:

6.3.1 the Company is the legal proprietor (or permitted licensee) of Company Data or otherwise has the right to use the Company Data in the manner required under these Terms;

6.3.2 the Company Data complies with the Contents Standards (as defined in clause 6.5 below); and

6.3.3 the Company has obtained and will maintain all necessary approvals, authorisations, licences, consents and waivers necessary for us to use the Company Data as envisaged by these Terms.

6.4 The Company shall notify us immediately if any Innovator ceases to be employed by the Company or is no longer authorised by the Company to access the NHS Innovation Service, in which case we will promptly terminate the relevant Innovator’s access to the NHS Innovation Service.

6.5 The Company shall ensure that all Company Data that is uploaded to the NHS Innovation Service by an Innovator complies with the following “Contents Standards”:

6.5.1 be accurate (where it states facts) or be genuinely held (where it states opinions);

6.5.2 comply with the maximum number of characters and formatting requirements applicable to the NHS Innovation Service;

6.5.3 comply with applicable law in England and Wales and in any country from which it originates (or where the Company is based);

6.5.4 not contain any identifiable personal data relating to patients (unless such data has been properly anonymised or pseudonymised) and not contain any Special Categories of Personal Data (as defined in Article 9(1) of the UK GDPR) or personal data relating to criminal convictions and offences (as referred to in Article 10 of the UK GDPR);

6.5.5 not contain any identifiable personal data relating to experts, clinicians or any other third party, unless the Company has complied fully with its obligations under clause 7.4.2 and all other obligations under the Data Protection Legislation in respect of such personal data; and

6.5.6 not:

a) be defamatory of any person;

b) be obscene, offensive, hateful or inflammatory;

c) promote sexually explicit material or violence;

d) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

e) infringe any copyright, database right or trade mark of any other person;

f) be likely to deceive any person;

g) breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;

h) promote any illegal activity;

i) be in contempt of court;

j) be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety;

k) be likely to harass, upset, embarrass, alarm or annoy any other person;

l) impersonate any person, or misrepresent your identity or affiliation with any person;

m) give the impression that it emanates from NHSE, the NHS Innovation Service or any third party, if this is not the case;

n) advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse; or

o) contain any express advertising or promote any third party services.

6.6 We have the right to remove any Company Data that is uploaded to the NHS Innovation Service if, in our opinion, it does not comply with the Contents Standards.

6.7 We also have the right to disclose the Company’s identity (and the identity of any relevant Innovator) to any third party and/or Support Organisation who is claiming that any Company Data uploaded to the NHS Innovation Service infringes their Intellectual Property Rights or other legal rights.

6.8 The Company grants us with a:

6.8.1 worldwide, non-exclusive, royalty-free licence to use, copy, distribute, display and store any Company Data that is uploaded to the NHS Innovation Service by an Innovator, as is necessary for us to carry out our obligations under these Terms; and

6.8.2 right to grant a sub-licence to:

a) the Innovation Service Team, the Senior Leadership Steering Group, as required in relation to the provision and maintenance of the NHS Innovation Service; and

b) the Support Organisations (and their permitted employees, agents or contractors) for the Agreed Purposes.

6.9 The Company shall continue to own all right, title and interest (including all Intellectual Property Rights) in and to all of the Company Data.

7. DATA PROTECTION

7.1 This clause shall apply to Innovators and the Company (as applicable).

7.2 In this clause "Data Protection Legislation" means all applicable data protection and privacy legislation in force from time to time including: (i) the UK GDPR; (ii) the Data Protection Act 2018; (iii) the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; (iv) any other legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and (v) the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party. The “UK GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended or supplemented from time to time by UK law. The terms "data subject", "personal data", “Controller”, “Processor”, “processing", "personal data breach" and "Special Categories of Personal Data" shall all have the meanings set out in the Data Protection Legislation;

7.3 We collect your personal data if you are an Innovator

7.3.1 If you are an Innovator, we need to collect and use your personal data in order to set up your Account. We may also collect other personal data, for example, related to your use of the NHS Innovation Service. We will be acting in the capacity of a Controller in relation to any personal data you provide to us or which we collect in respect of your use the NHS Innovation Service.

7.3.2 Subject to clause 7.3.3 below, we may share personal data that we hold about you in relation to your Account with Support Organisations (and their permitted employees, agents or contractors), where you have consented to them seeing your personal data and Company Data.

7.3.3 You can tell us if you do not wish us to share your personal data with Support Organisations (and their permitted employees, agents or contractors), by using the function available on the NHS Innovation Service which enables you to specify that you do not want your personal data to be shared in this way. Please note that if you opt-out of sharing your personal data in this way then Support Organisations will not be able to contact you directly in relation to the Company Data you have uploaded onto the NHS Innovation Service.

7.3.4 Please see the Privacy Policy for further details about how we process your personal data.

7.3.5 Where you provide any third party personal data in relation to your Account (for example, any personal data relating to the Authorised Person) it is your responsibility to ensure that you have the right to share such third party personal data with us for the purposes of these Terms and that you have given the third party information about the fact that you have shared their personal data with us (including by directing the third party to our Privacy Policy for further information about how we process their personal data).

7.3.6 By accepting these Terms you agree to Support Organisations with whom you have shared Company Data and/or permitted access to Company Data uploading your Company Data onto their own systems (which may comprise platforms hosted by third parties) for the Agreed Purpose in order to review, assess and provide services to your Company; and

7.3.7 us analysing and extrapolating key themes of each Company’s Data uploaded onto the NHS Innovation Service for the purpose of us obtaining an overview for analysing the range of Company Data uploaded on to the NHS Innovation Service and to inform policy makers of companies’ needs. Company Data may be hosted on third party platforms for this purpose. Specific Confidential Information including any commercially sensitive information relating to your Company will not be shared.

7.4 Personal data contained in Company Data that Innovators upload to the NHS Innovation Service

7.4.1 If any Company Data uploaded to the NHS Innovation Service contains any personal data relating to an Innovator or a third party, for the purposes of the Data Protection Legislation, the Company is the Controller and we shall be the Processor. We shall process such personal data on behalf of the Company as set out below:

a) Scope and purpose of processing: The processing of personal data contained in any Company Data that is uploaded to the NHS Innovation Service, for the purpose of sharing such Company Data with Support Organisations as envisaged by these Terms;

b) Nature of processing: This may include any operation such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means);

c) The duration of the processing: For as long as the relevant Company Data is held within the NHS Innovation Service (in accordance with these Terms);

d) Types of Personal Data This may include: names; contact details; email address, telephone numbers; job title/position; employer name; Special Categories of Personal Data (including, for example, data relating to ethnic origin, a disability, medical or health condition, etc);

e) Categories of Data Subject: This may include: Innovators and other employees, officers, agents, distributers and sub-contractors of the Company, experts, patients, etc.

7.4.2 The Company confirms that, in respect of any personal data that is uploaded to the NHS Innovation Service pursuant to these Terms, the Company has:

a) complied in all respects with its obligations under the Data Protection Legislation; and

b) all necessary consents, permissions and notices are in place to enable the lawful transfer of the personal data to us and to allow us to share such personal data with the Support Organisations (and their permitted employees, agents or contractors) (according to their applicable access rights) in accordance with these Terms, and the Company will indemnify (and keep indemnified) and defend NHSE and its employees, agents and contractors against all liabilities, claims (including any claim by a data subject), costs, expenses, losses and damages (including full legal costs) incurred by NHSE or its employees, agents or contractors arising out of or in connection with any breach or alleged breach of this clause by the Company or any of its employees, agents or contractors.

7.4.3 To the extent that we are required to process any personal data on behalf of the Company in connection with the Services, we shall ensure that we comply with our obligations under the Data Protection Legislation and (without limitation) shall:

a) process that personal data only on the documented written instructions of the Company unless we are required to process such personal data otherwise by the laws applicable to us ("Applicable Laws"). Where we are relying on Applicable Laws as the basis for processing personal data, we shall promptly notify the Company of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying the Company;

b) ensure that we have 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);

c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Company has been obtained and the following conditions are fulfilled:

i) either us or the Company has provided appropriate safeguards in relation to the transfer;

ii) the data subject has enforceable rights and effective legal remedies;

iii) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

iv) we comply with reasonable instructions notified to us in advance by the Company with respect to the processing of the personal data;

e) assist the Company, at the Company's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

f) notify the Company without undue delay on becoming aware of a personal data breach; and

g) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Company or the Company's designated auditor and immediately inform the Company if, in our opinion, an instruction infringes the Data Protection Legislation.

7.5 You authorise us to appoint third party processors of personal data in connection with the Agreed Purposes and this Agreement, including Needs Assessor(s) as described in clause 1. We confirm that we will enter into a written agreement with any such third party processors, which agreement shall contain provisions which comply with the Data Protection Legislation and which, in any event, are no less onerous than those imposed under this clause 7. We shall remain fully liable for all acts or omissions of the third party processors pursuant to this clause 7. We shall inform you of any intended changes concerning the addition or replacement of third party processors.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 This clause shall apply to Innovators and the Company (as applicable).

8.2 Save as expressly set out in these Terms, the Company and the Innovators shall not acquire in any way, any title, rights of ownership, or Intellectual Property Rights of whatever nature in the NHS Innovation Service, the Software or in any copies of it.

8.3 You acknowledge and understand that the NHS Innovation Service and the Software contain confidential and proprietary information and you shall not conceal, modify, remove, destroy or alter in any way any proprietary markings of NHSE on or in relation to the same.

9. OUR LIABILITY TO YOU

9.1 This clause shall apply to Innovators and the Company (as applicable).

9.2 We may suspend or withdraw or restrict the availability of all or part of the NHS Innovation Service for business or operational reasons, including (without limitation) for technical or security reasons. We will try to give you reasonable notice of any suspension or withdrawal but are under no obligation to do so.

9.3 We do not warrant or guarantee that:

9.3.1 your use of the NHS Innovation Service will be uninterrupted or error-free or compatible with any third party software or equipment other than that described on the Website;

9.3.2 that defects in relation to the NHS Innovation Service, if any, will be corrected;

9.3.3 that the NHS Innovation Service and/or the information obtained by you through the NHS Innovation Service will meet your requirements; or

9.3.4 the NHS Innovation Service will be 100% secure or free from bugs or viruses. You are responsible for configuring your information technology and computer programmes in order to access the NHS Innovation Service. You should use your own virus protection software; and

9.3.5 we will 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, or any failure caused by third party software and you acknowledge that the NHS Innovation Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

9.4 You acknowledge and agree that it is your responsibility to ensure the facilities and functions of the NHS Innovation Service meet your requirements and are fit for your purposes.

9.5 We have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under these Terms.

9.6 We will not be liable to any Innovator or to the Company, or required to remedy, any problem arising from:

9.6.1 any failure by an Innovator or the Company to comply with its obligations under these Terms;

9.6.2 use of the NHS Innovation Service contrary to our, or the Innovation Service Team's, instructions;

9.6.3 any defect or problem with third party software or equipment, or your failure to install any update, new release, new version, fix or improvement previously recommended by us in respect of the third party software or equipment; or

9.6.4 insufficient or out dated anti-virus, anti-malware and firewalls being used by you or the Company.

9.7 Save as set out in these Terms, all warranties and representations as to the Services, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by applicable law.

9.8 Any claims in relation to these Terms must be brought by the Company, as the party with whom we have contracted with to provide access to the NHS Innovation Service and allow access to the Innovators.

9.9 Neither party excludes or limits its liability for: (i) personal injury or death arising from its negligence; (ii) fraud or fraudulent misrepresentation; (iii) any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (iv) any other liability to the extent the same cannot be excluded or limited by applicable law.

9.10 Subject to clause 9.9, our liability to the Company (including to all Innovators), and the Company’s liability to us, in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with these Terms shall not extend to any: (i) loss of profits; (ii) loss of sales or business opportunity; (iii) loss of agreements or contracts; (iv) loss of or damage to goodwill or data; (v) loss of anticipated savings; or (vi) loss of any special, indirect or consequential loss or damage whatsoever.

9.11 Subject to clause 9.9, we will not be liable to any Innovator or the Company for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:

9.11.1 use of, or inability to use, the NHS Innovation Service;

9.11.2 use of or reliance on any content displayed on the NHS Innovation Service; or

9.11.3 any loss of use or corruption of software, data or information arising in connection with any use of the NHS Innovation Service.

9.12 We will not be liable to the extent that we are delayed in or prevented from performing our obligations under these Terms due to an event or circumstances beyond our reasonable control, including war, revolution, terrorism, riot or civil commotion, cyber-attack, or precautions against the same, strikes, lock outs or other industrial action, blockage or embargo, acts of or restrictions imposed by government or public authority, explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions.

10. TERM AND TERMINATION

10.1 Our contract with you shall commence on the date that you confirm your agreement with these Terms and shall continue for the period of your use of the NHS Innovation Service, unless terminated earlier in accordance with this clause 10 (the "Term").

10.2 We may, without prejudice to our other rights and remedies, immediately terminate access to the NHS Innovation Service in respect of any Innovator(s) and/or the Company as a whole, at our option:

10.2.1 if any Innovator or the Company is in material or persistent breach of any of its obligations under these Terms or if we suspect any unauthorised use or misuse of the NHS Innovation Service; or

10.2.2 if the Company is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.

10.3 Failure to comply with our Fair Usage Policy constitutes a material breach of our Terms and may result in our taking all or any of the following actions (at our sole discretion):

10.3.1 deletion of any Company Data uploaded to the NHS Innovation Service that we deem in our sole discretion to be in breach of our Fair Usage Policy

10.3.2 suspension or termination of any Innovator(s) and/or the Company’s right to use the NHS Innovation Service;

10.3.3 issue of a warning to any Innovator(s) and/or the Company;

10.3.4 legal proceedings against the Company for reimbursement of all costs on an indemnity basis (including, but not limited to, administrative and legal costs) resulting from the breach;

10.3.5 further legal action against the Company; and/or

10.3.6 disclosure of such information to law enforcement authorities as we reasonably feel is necessary or as required by law.

We exclude our liability for all action we may take in response to breaches of our Fair Usage Policy. The actions we may take are not limited to those described above, and we may take any other action we reasonably deem appropriate.

10.4 You may terminate your use and access of the NHS Innovation Service at any time and you must comply with the requirements in clause 10.6 following termination of your access to the NHS Innovation Service.

10.5 For the avoidance of any doubt, each Innovator’s right to access the NHS Innovation Service will immediately terminate on termination or expiry of the Innovator’s Account.

10.6 In the event of termination of your access to the NHS Innovation Service for any reason:

10.6.1 you shall immediately cease to use the NHS Innovation Service; and

10.6.2 we have the right to delete all data, files or other information relating to you that we store or control for any reason, subject to UK law concerning the keeping and maintenance of your records and the Data Protection Legislation. Please see our Privacy Policy for further information; and

10.6.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.

11. CONFIDENTIAL INFORMATION

11.1 NHSE and the Company shall treat (and the Company shall procure that the Innovators shall treat) any information relating to the other party, its business, the NHS Innovation Service, the Company Data and any Intellectual Property Rights as strictly confidential (“Confidential Information”) except to the extent that such information can be proved to be within the public domain at the time of disclosure other than as a result of any breach of these Terms. Neither NHSE nor the Company shall disclose (and the Company shall procure that the Innovators shall not disclose) such information to any third party nor use it for any purpose except as expressly permitted by these Terms or as is strictly necessary for the performance of its obligations set out in these Terms. Neither NHSE nor the Company shall (and the Company shall procure that the Innovators shall not) make any announcements relating to the existence of any relationship between NHSE and the Company in connection with these Terms without the express written consent of the other party.

11.2 For the avoidance of any doubt, NHSE shall ensure that each Support Organisation (and any of its employees, agents or contractors that it permits to access the NHS Innovation Service) are subject to contractual obligations to treat the Company Data as confidential and use the Company Data solely for the Agreed Purposes. To the extent that the Company suffers (or believes that it is likely to suffer) any loss or damage as a result of any misuse of the Company Data by a Support Organisation (or any of its employees, agents or contractors), (where we deem it to be appropriate) we will seek to enforce those contractual obligations against the Support Organisation (and/or its employees, agents or contractors, as applicable) and/or will use commercially reasonable endeavours (at the Company’s cost) to assist the Company in taking appropriate direct action against the relevant Support Organisation (and/or its employees, agents or contractors, as applicable).

11.3 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed where it is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction law including the Freedom of Information Act 2000 (“FOIA”) or the Environmental Information Regulations 2004 (“EIRs”).

11.4 The Company acknowledges that NHSE is subject to the requirements of the FOIA and the EIRs. The Company shall:

11.4.1 provide all necessary assistance and cooperation as reasonably requested by us to enable us to comply with its obligations under the FOIA and EIRs;

11.4.2 transfer to us all requests under the FOI or EIRS relating to these Terms that it receives as soon as practicable and in any event within two (2) working days of receipt;

11.4.3 provide us with a copy of all information belonging to us requested in the relevant request which is in the Company’s possession or control in the form that we require within five (5) working days (or such other period as we may reasonably specify) of our request for such information; and

11.4.4 not respond directly to a relevant request unless authorised in writing to do so by us.

11.5 The Company acknowledges that we may be required under the FOIA and EIRs to disclose Confidential Information belonging to the Company without consulting or obtaining consent from the Company. We shall take reasonable steps to notify the Company of a relevant request to the extent that it is permissible and reasonably practical for it to do so but (notwithstanding any other provision in these Terms) we shall be responsible for determining in its absolute discretion whether any Confidential Information and/or any other information is exempt from disclosure in accordance with the FOIA and/or the EIRs.

11.6 To the extent that the Company is a public authority as defined by the FOIA or EIR, we and the Innovation Service Team will cooperate and work with the Company as reasonably requested by the Company regarding any FOIR or EIRs requests received by the Company relating to these Terms or the Services.

12. NOTICES

Notices under these Terms must be in writing and sent to the other party's registered office (or such other applicable address for service agreed by the parties from time to time in writing). Notices may be given, and will be deemed received if correctly addressed: (i) by first-class post: two (2) Business Days after posting; (ii) by airmail: seven (7) Business Days after posting; (iii) by hand: on delivery; and (iv) by email: on successful transmission to the correct email address.

13. DISPUTE RESOLUTION

13.1 If a dispute arises out of or in connection with these Terms or the performance, validity or enforceability of it (“Dispute”) then except as expressly provided in these Terms, the Company and NHSE shall follow the procedure set out in this clause:

13.1.1 the Company or NHSE shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the authorised representatives shall attempt in good faith to resolve the Dispute;

13.1.2 if the authorised representatives are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to NHSE’s Senior Officer and the Company’s Senior Officer who shall attempt in good faith to resolve it; and

13.1.3 if NHSE’s Senior Officer and the Company’s Senior Officer are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Company and NHSE, the mediator shall be nominated by CEDR. To initiate the mediation, the Company or NHSE must serve notice in writing (“ADR notice”) to the other party to the Dispute, requesting a mediation. The mediation will start not later than fourteen (14) days after the date of the ADR notice.

13.3 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 14.8 which clause shall apply at all times.

14. OTHER IMPORTANT TERMS

14.1 Entire Agreement. These Terms and the documents expressly referred to in them contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in these Terms.

14.2 We may amend these Terms from time to time. Every time you wish to use the NHS Innovation Service, please check these Terms (as published on the NHS Innovation Service website) to ensure you understand the Terms that apply at that time. If we make any material changes to the Terms, we will try to give you reasonable notice prior to the change becoming effective via the NHS Innovation Service or contacting you directly. Any change will be effective immediately when the revised Terms are posted on the NHS Innovation Service. You should stop using the NHS Innovation Service if you do not agree to any changes. Except as set out in this clause, no amendment or variation of these Terms will be valid unless agreed in writing by an authorised signatory of NHSE.

14.3 We may transfer our rights and obligations to someone else. We may transfer our rights and obligations under these Terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect you rights under the contract you have with us.

14.4 You need our consent to transfer your rights to someone else. You may only transfer your rights or obligations under these Terms to another person if we agree to this in writing.

14.5 Nobody else has any rights under these Terms. No other person shall have any rights to enforce any of these Terms unless we notify you in writing prior to enforcing these Terms of such organisation acting on our behalf.

14.6 If a court finds part of these Terms illegal, the rest will continue in force. Each of the clauses of these Terms 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.

14.7 Even if we delay in enforcing these Terms, we can still enforce them later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaching these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

14.8 Which laws apply to these Terms and where you may bring legal proceedings. These Terms are governed by English law and you can bring legal proceedings in respect of the NHS Innovation Service in the English courts.

FAIR USAGE POLICY

Our Fair Usage Policy is designed to prevent misuse of the NHS Innovation Service and ensure that everyone who wishes to access and/or share Company Data via the NHS Innovation Service can do so as fast and securely as possible.

Unlawful, prohibited or unusual activities (non-exhaustive list)

You are not permitted to (or permit anyone else to):

use the NHS Innovation Service in any unlawful or fraudulent way and/or for any unlawful, fraudulent or inappropriate purpose;
use the NHS Innovation Service in any way that breaches any applicable local, national or international law or regulation;
use the NHS Innovation Service for the purpose of harming or attempting to harm minors in any way;
upload or transmit content (in any format) under a false name or use our network resources to impersonate another person or misrepresent authorisation to act on behalf of others or NHSE or the NHS Innovation Service. All content uploaded or transmitted via the NHS Innovation Service should correctly identify you as the Innovator and you may not attempt to alter the origin of content which is uploaded by any other Innovator;
upload any content which does not comply with our Content Standards;
allow another person or entity to use your Account, username or password, as applicable;
market, promote or solicit the NHS Innovation Service except as expressly permitted by these Terms;
distribute chain letters or unsolicited bulk electronic mail ("spamming") via the NHS Innovation Service, to NHSE, or to any third party allegedly acting on behalf of us;
attempt to undermine the security or integrity of computing systems or networks of NHSE or the NHS Innovation Service or any sites or platforms accessed through or via the NHS Innovation Service, and you must not attempt to gain unauthorised access;
harvest or collect data about any other individual who uses the NHS Innovation Service;
access, store, distribute, upload, post or transmit any data, materials, content or information which is threatening, false, misleading, abusive, defamatory, derogatory, pornographic or profane, or that contains or promotes any virus, worm, Trojan horse, time bomb or other computer programming or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate or otherwise interrupt or expropriate the NHS Innovation Service;
tamper, hack, spoof, copy, modify or otherwise corrupt or attempt to gain unauthorised access to the administration, security or proper function of the NHS Innovation Service, or the server on which the NHS Innovation Service or related materials are stored or any server, computer or database connected to the NHS Innovation Service. You will not use robots or scripts with the NHS Innovation Service;
attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate or otherwise alter, defraud or create false results from any executable code or information on or received by the NHS Innovation Service. You agree to have anti-virus and/or anti-spyware software running that is set to override the Internet browser's cookie setting;
upload or provide any information to the NHS Innovation Service or any Support Organisation in breach of any third party's Intellectual Property Rights and/or any obligation of confidentiality or contractual duty owed to any third party; or
reproduce, duplicate, copy or sell any part of the NHS Innovation Service in contravention of the provisions of our Terms.