NHS INNOVATION SERVICE

SUPPORT ORGANISATION TERMS OF USE ("TERMS")

PLEASE READ THESE TERMS CAREFULLY BEFORE YOU SIGN.

BY SIGNING YOU ARE AGREEING TO BE BOUND BY THESE TERMS. The NHS Innovation Service is an online database which can be used by Authorised Persons (acting on behalf of a Support Organisation) to access Company Data relating to the development of Health Technologies for the Agreed Purposes.

Each Authorised Person is granted access to the NHS Innovation Service as a result of NHSE’s agreement with the relevant Support Organisation (“Support Organisation Agreement”), and provided with log-in details and a password in order to access the NHS Innovation Service.

In these Terms, reference to "you" means the Authorised Person who is granted permission by the Support Organisation and who agrees to be bound by these Terms in respect of their use of the NHS Innovation Service. NHSE’s liability under these Terms to the Support Organisation and the Authorised Persons acting on its behalf is set out in clause 10 below. You as an individual will not be personally liable to NHSE in relation to any breach of these Terms, and your Support Organisation will take on liability on your behalf for any breaches which arise as a result of your actions in accordance with these Terms.

Any reference to "these Terms" shall include the terms of our FAIR USAGE POLICY, Privacy Notice [https://www.england.nhs.uk/contact-us/privacy-notice/how-we-use-your-information/public-and-partners/innovation-service/] and Cookies Policy [https://innovation.nhs.uk/transactional/policies/cookies-policy], which also apply and shall be incorporated into our contract with you.

These Terms were most recently updated in February 2022. We recommend that you save and keep a copy of these Terms.

Capitalised terms used in these Terms shall have the meanings set out in the DEFINITIONS below.

  1. WHO WE ARE AND HOW TO CONTACT US

1.1 Who we are. The NHS Innovation Service website and database is owned by NHSE ("we", "us" or "our"), with assistance and support from the Innovation Service Management Team and Senior Leadership Steering Group.

1.2 How to contact us. Please contact us via the Innovation Service Management Team via email to: aac.innovation@nhs.net or the team’s other contact details on the NHS Innovation Service website [https://innovation.nhs.uk].

1.3 We may contact you by email to the email address provided in your Account or by written communication to the postal address provided in your Account.

  1. DEFINITIONS

2.1 The following defined terms apply to these Terms:

”Access Rights” means the access rights that shall apply in respect of a Support Organisation and/or Authorised Person (acting on behalf of the Support Organisation), to access and view certain specified Company Data, as determined by the relevant Company (or Innovator acting on the Company's behalf);

”Account” means a registered account on the NHS Innovation Service;

”Authorised Person” means you being an individual working for or on behalf of the Support Organisation holding the role of qualifying accessor and/or accessor, who is granted permission and provided with log-in details and a password in order to access the NHS Innovation Service;

”Agreed Purposes” means the purposes for which the Support Organisations (and their Authorised Persons, acting on their behalf) are permitted to use the Company Data shared via the NHS Innovation Service, which are for 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;

”Company” means the entity (which is either a product developer or working on behalf of a product developer) who wishes to share Company Data with the Support Organisation via the NHS Innovation Service;

”Company Data” means the data and information entered into the NHS Innovation Service by a Company (or an Innovator acting on a Company's behalf) about their Health Technology in whatever format, including any text, graphics, or other data whether or not relating to their Health Technology, in accordance with these Terms;

”Confidential Information” shall have the meaning in clause 12.1;

”Content” shall have the meaning in clause 7.1;

”Content Standards” shall have the meaning in clause 7.1;

”Controller” shall have the same meaning as set out in the Data Protection Legislation, and for the avoidance of doubt to the extent that the Support Organisation provides NHSE and/or the NHS Innovation Service Management Team (as defined in the Support Organisation Agreement) with any personal data (other than as set out in clause 8.2.2 of the Support Organisation Agreement) for the purpose of providing the Services (including the name and contact details of any Authorised Person), NHSE and the Support Organisation will act as the joint data controllers of such personal data;

”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 terms ”data subject”, ”personal data”, ”processing”, ”personal data breach” and ”Special Categories of Personal Data” shall all have the meanings set out in the Data Protection Legislation;

”Health Technology(ies)” means the services, software, devices, technologies, applications, diagnostics and digital healthcare products being developed by a Company, which are available or likely to become available in the UK;

”Health Service Body” means a Support Organisation which is a health service body as defined in section 9(4) of the National Health Service Act including any executive agency of the Department of Health and Social Care;

”Innovation Service Management Team” means the team working on behalf of NHSE who are responsible for the day to day management and maintenance of the NHS Innovation Service;

”Innovator” means a person authorised to act on behalf of a Company;

”Intellectual Property Rights” means copyright, utility models, patent, rights to inventions, trademarks, design rights, domain names, goodwill and the right to sue for passing off or unfair competition, trade secrets, know how, rights of confidence, broadcast rights, rights in designs, rights in computer software, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority form, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

”Need Assessor(s)” means an Academic Health Science Network organisation (”AHSN”) or another third party appointed 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 hand over Innovators to the appropriate agencies; (v) re-engage with Innovators who have been left without active support and complete another needs assessment if appropriate; and (vi) work with Support Organisations to understand the support offer and define referral criteria. The Need Assessor(s) is appointed by us as a third party processor of personal data under this Agreement.

”NHSE” means NHS England;

”NHS Innovation Service” means the system delivered by NHSE and the Innovation Service Management Team, which contains information about Health Technologies and can be accessed by the Authorised Persons and the Innovators via the Website;

”Processor” shall have the same meaning as set out in the Data Protection Legislation and for the avoidance of doubt, NHSE shall be the Processor in respect of any personal data contained in any content which is uploaded onto the NHS Innovation Service by an Authorised Person (acting on the Support Organisation’s behalf);

”Senior Leadership Steering Group” means the oversight group (which reports to the Accelerated Access Collaborative Board and/or NHSE and is chaired by NHSE) who will oversee the governance, use and maintenance of the NHS Innovation Service and will include representatives from the Academic Health Science Networks; NHSX, the Medicines and Healthcare products Regulatory Agency, the National Institute for health and Care Excellence; the National Institute for Health Research; the Office for Life Sciences; the Department of Health and Social Care; the Association of the British Pharmaceutical Industry and representatives of the NHS with an interest in health technology and the Support Organisations (as such list may be varied and updated from time to time);

”Services” means the access to the NHS Innovation Service granted by NHSE to the Support Organisation and Authorised Persons (acting on behalf of the Support Organisation), which is intended to enable the Support Organisation and Authorised Persons (acting on behalf of the Support Organisation) to:

  i) access and browse any Company Data that has been shared by a Company with the relevant Authorised Person, depending on the applicable Access Rights;

  ii) upload Content in relation to any Company Data that the relevant Authorised Person has be granted access to on the NHS Innovation Service, depending on the applicable Access Rights; and/or;

  iii) communicate directly with relevant Companies and/or Innovators in order to develop commercial relationships in relation to their Health Technologies;

”Support Organisation” means the entity which has entered into a contract with NHSE, pursuant to which it has been given access to the NHS Innovation Service and the ability to grant access to the same to its Authorised Persons, in order to view the Company Data that has been shared via the NHS Innovation Service;

”Term” shall have the meaning set out in clause 11.1;

”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;

”upload” means upload, input and/or otherwise submit data, comments, materials or other content to the NHS Innovation Service, as applicable;

”Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and

”Website” means the portal through which the NHS Innovation Service can be accessed by an Authorised Person (on the Support Organisation’s behalf), at: innovation.nhs.uk or such other website address as is notified by NHSE from time to time.

  1. LOGGING IN TO THE NHS INNOVATION SERVICE

3.1 By logging in to the NHS Innovation Service, you represent and warrant that you work within a Support Organisation and have been granted access to the NHS Innovation Service by the Support Organisation (acting on behalf of the Support Organisation), pursuant to the Support Organisation Agreement.

3.2 Before you log in to the NHS Innovation Service for the first time, you will be asked to accept these Terms and you will then be able to view Company Data on the NHS Innovation Service (subject to the applicable Access Rights). You are required to change your password no less frequently than every six (6) months.

3.3 You must not disclose your log-in details or password to us or 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 Management Team via the details provided in clause 1 above.

3.4 You are solely responsible for all activity that occurs on your Account and you must notify us 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 Support Organisation incur as a result of any unauthorised use of your Account.

3.5 The Support Organisation is responsible for informing us immediately if you cease to be employed within the Support Organisation or are otherwise no longer authorised by the Support Organisation to access the NHS Innovation Service, in which case we will terminate your access to the NHS Innovation Service. If we terminate your access to the NHS Innovation Service in accordance with these Terms, we will delete your Account and you will no longer be able to access the NHS Innovation Service or any content that you have uploaded via the NHS Innovation Service. We will delete any Content that you have uploaded to the NHS Innovation Service in accordance with our Privacy Notice https://www.england.nhs.uk/contact-us/privacy-notice/how-we-use-your-information/public-and-partners/innovation-service/. If you have not used your Account for a consecutive period of 6 months, we will contact you (and/or the Support Organisation) by email and ask you (or the Support Organisation, as applicable) to confirm to us, within 3 months of our email, if you still wish to keep your Account. If you (or the Support Organisation, as applicable) have not contacted us or logged into your account after 9 months or if you (or the Support Organisation, as applicable) contact us to confirm that you do not wish to keep your Account we will terminate your Account.

3.6 We reserve the right to monitor your use of the NHS Innovation Service and/or the Services 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. We reserve the right to disable any Account or password chosen by you, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms or if we suspect any unauthorised use or misuse of the NHS Innovation Service and/or the Services.

  1. GRANT OF LICENCE

4.1 In consideration of the Support Organisation entering into the Support Organisation Agreement and subject to you complying with these Terms, NHSE hereby grants to you a royalty-free, non-exclusive, non-transferable right to access the NHS Innovation Service during the Term solely for the purpose of viewing, downloading and/or using the Company Data on the NHS Innovation Service (subject to any applicable Access Rights), and/or uploading Content in respect of such Company Data, for the Agreed Purposes.

4.2 The licence above may not be sub-licensed, assigned or otherwise transferred to any other person without our prior written consent.

4.3 Subject to your compliance with these Terms, the licence above shall continue for so long as you are authorised by the Support Organisation to access the NHS Innovation Service and for so long as the Support Organisation has a licence to use the NHS Innovation Service (pursuant to the Support Organisation Agreement). We shall have no obligation to continue to provide access to the NHS Innovation Service to any individual Authorised Person (or other personnel of the Support Organisation) on termination or expiry of the Support Organisation Agreement.

  1. SUPPLY OF SERVICES

5.1 During the Term, we will use commercially reasonable endeavours to:

        5.1.1 perform the Services with reasonable skill and care; and

        5.1.2 ensure the Services materially comply with these Terms and any description of the Services on the Website.

5.2 We do not guarantee that the NHS Innovation Service, or any content on it, will always be available or be uninterrupted. 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.

5.3 We will not be liable to you, or to the Support Organisation, or required to remedy, any problem arising from:

        5.3.1 any failure by you to comply with your obligations under these Terms;

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

        5.3.3 any defect or problem with third party software or equipment, or your failure (or the Support Organisation’s 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

        5.3.4 insufficient or out dated anti-virus, anti-malware and firewalls being used by you or the Support Organisation.

5.4 We do not warrant or guarantee that:

        5.4.1 your use of the NHS Innovation Service will be uninterrupted, 100% secure or error-free or compatible with any third party software or equipment other than that described on the Website;

        5.4.2 defects in relation to the NHS Innovation Service or the Services, if any, will be corrected;

        5.4.3 the NHS Innovation Service, the Services and/or the information obtained by you (including the Company Data) through the Services will meet your (or the Support Organisation’s) requirements;

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

        5.4.5 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 and the Support Organisation acknowledge that the NHS Innovation Service and the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.5 You acknowledge and agree that it is yours and the Support Organisation’s responsibility to ensure the facilities and functions of the NHS Innovation Service, as described on the Website, meet your requirements and are fit for your purpose.

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

5.7 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.

  1. USE OF THE SERVICES AND COMPANY DATA

6.1 You shall:

        6.1.1 provide NHSE and the Innovation Service Management Team with all necessary co-operation in relation to these Terms and the Services;

        6.1.2 follow any reasonable instructions given to you by us or the Innovation Service Management Team;

        6.1.3 comply with our Fair Usage Policy and these terms at all times;

        6.1.4 only access and use the NHS Innovation Service for the purposes of accessing, viewing, downloading, commenting on and/or using the Company Data (subject to applicable Access Rights) for the Agreed Purposes, in strict accordance with any instructions issued by the relevant Company and these Terms. For the avoidance of any doubt, you will not use the Company Data in order to commercialise any Health Technology(ies) or otherwise exploit or infringe upon any Intellectual Property Rights belonging to any Company, without the prior written agreement of the relevant Company;

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

        6.1.6 comply with all applicable laws and regulations with respect to your activities under these Terms (including in respect of your use of the Company Data); and

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

6.2 You acknowledge and agree that the Company owns all rights, titles and interest in and to all of the Company Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Company Data. Although we shall make reasonable efforts to ensure that the Company is under a contractual obligation to update its Company Data on the NHS Innovation Service, NHSE makes no representations, warranties or guarantees, whether express or implied, that any Company Data or other content on the NHS Innovation Service is accurate, complete or up to date at any time.

6.3 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):

        6.3.1 distribute, license, sell, rent, lease, transfer, assign, display, disclose or otherwise deal in, commercially exploit or encumber any software embodied in or used in connection with the NHS Innovation Service (the ”Software”);

        6.3.2 translate, adapt, disassemble, reverse engineer, reverse compile or decompile the Software (or any part of it), or otherwise reduce to human-perceivable form all or any part of the Software, nor make any modifications, additions or enhancements to it;

        6.3.3 combine, merge or otherwise permit the Software (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it;

        6.3.4 duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or copy the Software (or any part of it), in any form or media by any means; or

        6.3.5 access all or any part of the NHS Innovation Service, the Services or the Software in order to build a product or service which competes with the NHS Innovation Service or the Services.

6.4 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the NHS Innovation Service that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (vi) in a manner that is otherwise illegal or causes damage or injury to any person or property; and we reserve the right, without liability or prejudice to our other rights, to suspend or terminate your access (and/or the Support Organisation’s access) to the NHS Innovation Service in the event that you breach this clause.

6.5 We reserve the right to suspend or terminate your access to the NHS Innovation Service at any time, without notice and without us bearing any liability to you, if we reasonably believe you have breached any of these Terms.

  1. CONTENT STANDARDS

7.1 To the extent that you make any comments in respect of any Company Data on, or upload any other material or content to, the NHS Innovation Service (”Content”), such Content:

        7.1.1 must as far as you are aware, be accurate (where it states facts) or be genuinely held (where it states opinions);

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

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

        7.1.4 must not contain any identifiable personal data relating to patients (unless such data has been properly anonymised or pseudonymised) and must 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);

        7.1.5 must not contain any identifiable personal data relating to experts, clinicians or any other third party, unless you have complied fully with your obligations under clause 8.3.2 and all other obligations under the Data Protection Legislation in respect of such personal data; and

        7.1.6 must 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) knowingly 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 advertising or promote any services,

(together the ”Contents Standards”).

7.2 You and the Support Organisation shall have responsibility for ensuring:

        7.2.2 the legality, reliability, integrity, accuracy and quality of any Content that you upload to the NHS Innovation Service; and

        7.2.3 that a back-up of any Content that you upload to the NHS Innovation Service is maintained, and we shall have no liability to you or the Support Organisation for any loss or damage to any Content or failure by you to keep a back-up copy of such Content.

7.3 By uploading Content onto the NHS Innovation Service you warrant that:

        7.3.1 you have been authorised by the Support Organisation to upload the Content to the NHS Innovation Service;

        7.3.2 you have the right to share the Content in the manner required under these Terms;

        7.3.3 the Content complies with the Contents Standards (as defined above);

        7.3.4 you (or the Support Organisation) have obtained and will maintain for the Term all necessary approvals, authorisations, licences, consents and waivers necessary for us to use the Content as envisaged by these Terms; and

        7.3.5 in receipt and use of such Content in the performance of the Services as envisaged by these Terms by NHSE and its agents, subcontractors or consultants, you shall not knowingly infringe the rights, including any Intellectual Property Rights, of any third party.

7.4 By uploading the Content onto the NHS Innovation Service, you (acting on behalf of the Support Organisation) grant us with a:

        7.4.1 non-exclusive, non-transferable, royalty-free licence to use, copy, distribute, display and store the Content as is necessary for us to carry out our obligations under these Terms; and

        7.4.2 right to grant a sub-licence to:

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

                b) any applicable Companies (and Innovators acting on behalf of the Companies) in respect of whom you have the ability to view their Company Data and in respect which Company Data the Content relates or is linked on the NHS Innovation Service.

7.5 The Support Organisation or its third party licensor (as applicable) shall continue to own all right, title and interest (including all Intellectual Property Rights) in and to all of the Content which you upload to the NHS Innovation Service.

7.6 You will only be able to view Content that you have uploaded to the NHS Innovation Service and Content which is uploaded by other Authorised Persons in respect of Company Data which you have Access Rights in respect of.

7.7 You will be able to make additions or changes to any Content that you have uploaded to the NHS Innovation Service (but not to any Company Data which has been uploaded by an Innovator or any other Content that has been uploaded by another Authorised Person).

7.8 We have the right to remove any Content you upload to the NHS Innovation Service if, in our opinion, it does not comply with these Terms.

7.9 We also have the right to disclose your identity to any third party and/or any Company who is claiming that any Content uploaded by you to the NHS Innovation Service, or your use of the NHS Innovation Service or the Company Data, infringes on their Intellectual Property Rights or rights under the Data Protection Legislation.

7.10 Your Content uploaded to the NHS Innovation Service, including version histories of Content that you have uploaded, and comments, actions and status changes added by you and the Innovator, will be stored for a minimum of 6 years in line with our Privacy Notice [https://www.england.nhs.uk/contact-us/privacy-notice/how-we-use-your-information/public-and-partners/innovation-service/].

  1. DATA PROTECTION

8.1 We will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, our obligations or rights under the Data Protection Legislation.

8.2 Your personal data

        8.2.1 We need to collect and use your personal data in order to set up your Account and provide you with the Services. 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 and the Services.

        8.2.2 We may share personal data that we hold about you in relation to your Account with the Support Organisation, or in accordance with clause 7.9.

        8.2.3 Please see our Privacy Notice https://www.england.nhs.uk/contact-us/privacy-notice/how-we-use-your-information/public-and-partners/innovation-service/ for further details about how we process your personal data.

        8.2.4 Where you provide any third party personal data in relation to your Account (for example, any personal data relating to another 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).

8.3 Personal data contained in any Content that you upload to the NHS Innovation Service

        8.3.1 If you upload any Content to the NHS Innovation Service which contains any personal data relating to you or a third party, for the purposes of the Data Protection Legislation, the Support Organisation is the Controller and we shall be the Processor. We shall process such personal data on behalf of the Support Organisation as set out below:

                a) Scope and purpose of processing: The processing of personal data contained in any Content that is uploaded to the NHS Innovation Service, for the purpose of providing the Services;

                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 Content 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 and any other information uploaded by you from time to time;

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

        8.3.2 You warrant and confirm that, in respect of any personal data that you upload to the NHS Innovation Service pursuant to these Terms, the Support Organisation has:

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

                b) all necessary consents, permissions and notices in place to enable the lawful transfer of the personal data to us for the purpose of us proving the Services and to allow us to share such personal data via the NHS Innovation Service (including with the Companies, Innovators, other Support Organisation and other Authorised Persons) in accordance with these Terms.

8.4 You consent to us appointing a Needs Assessor as a third-party processor of personal data under this Agreement. We confirm that we will enter into a written agreement with each Needs Assessor, 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 8. We shall remain fully liable for all acts or omissions of the Needs Assessor acting as a third-party processor pursuant to this clause 8.

  1. INTELLECTUAL PROPERTY RIGHTS

9.1 You acknowledge and agree that the relevant Company and/or its licensors own all Intellectual Property Rights in the Company Data on the NHS Innovation Service. Except as expressly stated herein, these Terms do not grant you any Intellectual Property Rights or rights of ownership to, under or in respect of any Company Data

9.2 Save as expressly set out in these Terms, you 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 the Services or in any copies of it and no Intellectual Property Rights of NHSE are transferred or licensed as a result of these Terms.

9.3 You acknowledge and understand that the NHS Innovation Service, the Software and the Services 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.

  1. LIABILITY

10.1 Notwithstanding clause 10.4, and subject to clause 10.3, in no event shall our aggregate liability to you and the Support Organisation on whose behalf you are acting (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with these Terms, exceed the relevant cap on our liability to the Support Organisation as set out in the Support Organisation Agreement. Any claims in relation to these Terms must be brought by the Support Organisation (as the party with whom we have contracted with to provide access to the NHS Innovation Service and allow access to the Authorised Persons). Our liability under this clause 10.1 shall not be increased by the number of Authorised Persons who are granted access to the NHS Innovation Service by the Support Organisation.

10.2 Our liability to you and the Support Organisation on whose behalf you are acting 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.

10.3 We do not exclude or limit our liability for: (i) personal injury arising from our 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.

10.4 Subject to clause 10.3, we will not be liable to you and the Support Organisation on whose behalf you are acting 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:

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

        10.4.2 use of or reliance on any content displayed on the NHS Innovation Service, including any use of or any reliance on the Company Data and/or any other content uploaded by an Innovator or another Authorised Person; or

        10.4.3 any loss of use or corruption of software, data or information arising under or in connection with these Terms.

10.5 We will not be liable to you and the Support Organisation on whose behalf you are acting 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.

  1. TERM AND TERMINATION

11.1 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 11 (the ”Term”).

11.2 We may, without prejudice to our other rights and remedies, by notice in writing to you and/or the Support Organisation, immediately terminate access to the NHS Innovation Service in respect of you and/or the Support Organisation as a whole, at our option, if you are in material or persistent breach of any of your obligations under these Terms and if that breach is capable of remedy and you fail to remedy that breach within fourteen (14) days after receiving written notice requiring you to remedy that breach.

11.3 Without limitation, failure to comply with this 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):

        11.3.1 deletion of any Content uploaded by you that we deem in our sole discretion to be fraudulent, abusive, defamatory, obscene or in violation of any third party Intellectual Property Right;

        11.3.2 suspension or termination of your Account and right to use the NHS Innovation Service;

        11.3.3 subject to any employment contract you may have with the Support Organisation, issue of a warning to you and notification to the Support Organisation that employs you;

        11.3.4 legal proceedings against the Support Organisation for reimbursement of all costs on an indemnity basis (including, but not limited to, administrative and legal costs) resulting from the breach; and/or

        11.3.5 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.

11.4 For the avoidance of any doubt, your right to access the NHS Innovation Service will immediately terminate on termination of the Support Organisation Agreement or on termination of the relevant Support Organisation’s licence to access the NHS Innovation Service.

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

        11.5.1 you shall immediately cease to use the NHS Innovation Service;

        11.5.2 you shall destroy and make no further use of any equipment including the use of the NHS Innovation Service, property and any other items belonging to NHSE;

        11.5.3 you (in cooperation with the Support Organisation) shall immediately take appropriate measures to:

                a) securely destroy all hard copies of reports of Company Data printed from the NHS Innovation Service;

                b) delete all electronic copies of Company Data downloaded or scanned from all electronic devices used to access the NHS Innovation Service by you, with the exception of any electronic copies made by the Support Organisation as a matter of routine back-up where it would be unreasonable for the Support Organisation to ensure complete deletion across its IT systems; and

                c) retrieve and securely destroy any materials or advice which contains Confidential Information obtained and downloaded from the NHS Innovation Service;

        11.5.4 we will 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 Notice [https://www.england.nhs.uk/contact-us/privacy-notice/how-we-use-your-information/public-and-partners/innovation-service/] for further information; and

        11.5.5 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.

  1. CONFIDENTIAL INFORMATION

12.1 You shall treat any information relating to us, our business (or the business of the Support Organisation), the Services, 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. You 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 your obligations set out in these Terms. You shall not make any announcements relating to the existence of any relationship between us (or between NHSE and the Support Organisation) in connection with these Terms without the express written consent of both us and the Support Organisation.

  1. 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.

  1. DISPUTE RESOLUTION

If a dispute arises out of or in connection with these Terms or the Support Organisation Agreement, the dispute resolution provisions in clause 14 of the Support Organisation Agreement shall apply.

  1. OTHER IMPORTANT TERMS

15.1 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.

15.2 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 Website) to ensure you understand the Terms that apply at that time. We will inform you of any update or change to these Terms, and if we make any material changes to the Terms, we will try to give you reasonable notice prior to the change becoming effective, by contacting you directly. Any change will be effective immediately after notification of such change and 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. A change of these Terms will not trigger a variation of the Support Organisation Agreement.

15.3 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 your rights under the contract you have with us.

15.4 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.

15.5 Nobody else has any rights under these Terms. Except as expressly set out in these Terms and/or the Support Organisation Agreement, 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.

15.6 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.

15.7 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.

15.8 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 and/or the Services 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 use 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):

  1. use the NHS Innovation Service or any Company Data in any unlawful or fraudulent way and/or for any unlawful, fraudulent or inappropriate purpose;
  2. use the NHS Innovation Service or any Company Data in any way that breaches any applicable local, national or international law or regulation;
  3. use the NHS Innovation Service for the purpose of harming or attempting to harm minors in any way;
  4. 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 Authorised Person inputting the data and you may not attempt to alter the origin of content which is uploaded by any other person;
  5. upload any content which does not comply with our Content Standards;
  6. allow another person or entity to use your Account, username or password, as applicable;
  7. market, promote or solicit the Services except as expressly permitted by these Terms;
  8. 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;
  9. 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;
  10. harvest or collect data about any other individual who uses the NHS Innovation Service;
  11. 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 and/or the Services;
  12. 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 and/or the Services, 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;
  13. 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;
  14. upload or provide any information to the NHS Innovation Service 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
  15. reproduce, duplicate, copy or sell any part of the NHS Innovation Service or the Services in contravention of the provisions of our Terms.

Updated: 03 August 2022