Terms and conditions

PLEASE READ CAREFULLY

This licence is for:

1. The healthcare organization that is named in the contract with Exact Sciences for the supply of diagnostic test services (“Main Contract”);
2. any employee or contractor of any healthcare organization that is party to a Main Contract and that employee or contractor has authority from that healthcare organization to use the Tool.

This licence (“Licence”) is a legal agreement between you (“Licensee” or “you”) and Exact Sciences UK Limited of 100 New Bridge Street, London EC4V 6JA (“ Licensor”, “us” or “we”) for Test User Review Audit tool, and the data supplied with the software, reports and documentation containing Audit results (“ Documents”).

“You” or “Licensee” may be an individual account holder or a healthcare organisation under a Main Contract.

We licence use of the TUR and Documents to you on the basis of this Licence. Ownership of the TURl does not transfer to you, we remain the owners of the TURl at all times.

OPERATING SYSTEM REQUIREMENTS:

This Tool requires the following:

• Processor. 1 gigahertz (GHz) or faster with support for PAE, NX, and SSE2
• RAM. 4 gigabyte (GB) (32-bit) or 2 GB (64-bit)
• Graphics card. Microsoft DirectX 9 graphics device with WDDM driver
• Version. Windows 10 or later
• Microsoft or Chrome Browser

Please refer to the system functional requirements document for more information which can be obtained from Exact Sciences UK LTD Head office.

We also maintain a system product backlog maintained with implemented changes and bugs.

By inputting data into the Tool and or accessing data from the TUR, you are agreeing to be bound by the terms and conditions contained in this EULA.

You should print a copy of this Licence for future reference.

1. GRANT AND SCOPE OF LICENCE

1.1 In consideration of the contract between Exact Sciences UK Limited and your healthcare organization, we grant to you a non-exclusive, non-transferable licence to use the Tool in the UK on the terms of this Licence.

1.2 Ownership in Documents containing audit results shall pass to your healthcare organization upon downloading of the Document.

You may:

(a) use the TUR for conducting Audits;

(b) use and download any Documents containing Audit data.

2. RESTRICTIONS

2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:

(a) not to copy the TUR or any software in the TUR except where such copying is incidental to normal use of the software, or where it is necessary for the purpose of back-up or operational security;

(b) not to rent, lease, sub-licence, loan, translate, merge, adapt, vary or modify the TUR or any of the Documents;

(c) not to make alterations to, or modifications of, the whole or any part of the Tool or its software, nor permit the TUR or its software or any part of it to be combined with, or become incorporated in, any other programs;

(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the TUR or its software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the software with another software program, and provided that the information obtained by you during such activities:

(i) is used only for the purpose of achieving inter-operability of the TUR software with another software program; and

(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and

(iii) is not used to create any software which is substantially similar to the TUR software;

(e) to keep copies of the Tool software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the TUR;

(f) to supervise and control use of the TUR and ensure that the TUR is used by your healthcare organization, employees and contractors in accordance with the terms of this Licence;

(g) to include our copyright notice on any entire and partial copies you make of the TUR software on any medium;

(h) not to provide or otherwise make available the TUR or its software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from us; and

(i) to comply with all applicable technology control or export laws and regulations; and

(j) not use the TUR via any communications network or by means of remote access.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 You acknowledge that all intellectual property rights in the TUR anywhere in the world belong to us, that rights in the Software are licenced and not sold to you, and that you have no rights in, or to, the TUR or its software other than the right to use them in accordance with the terms of this Licence.

3.2 You acknowledge that you have no right to have access to the TUR software in source code form.

4. LIMITED WARRANTY

4.1 We warrant that:

(a) the TUR will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described; and

(b) that the Documents will provide you with the TUR results.

5. LIMITATION OF LIABILITY

5.1 You acknowledge that the TUR has not been developed to meet your individual requirements, including any particular cybersecurity requirements you might be subject to under law or otherwise, and that it is therefore your responsibility to ensure that the facilities and functions of the TUR meet your requirements.

5.2 We only supply the TUR and Documents for internal use by healthcare organisations subject to a Main Contract. You agree not to use the TURl or Documents for any re-sale or re-licencing purposes.

5.3 We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for:

(a) loss of profits, sales, business, or revenue;

(b) business interruption;

(c) loss of anticipated savings;

(d) loss or corruption of data or information;

(e) loss of business opportunity, goodwill or reputation;

where any of the losses set out in 5.3 (a) to (d) are direct or indirect; or

(f) any special, indirect or consequential loss, damage, charges or expenses.

5.4 Other than the losses set out in clause 5.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal £100. This maximum cap does not apply to clause 5.5.

5.5 Nothing in this Licence shall limit or exclude our liability for:

(a) death or personal injury resulting from our negligence;

(b) fraud or fraudulent misrepresentation;

(c) any other liability that cannot be excluded or limited by English law.

5.6 This Licence sets out the full extent of our obligations and liabilities in respect of the TUR and Documents. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

6. TERMINATION

6.1 We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.

6.2 On termination for any reason:

(a) all rights granted to you under this Licence shall cease;

(b) you must immediately cease all activities authorised by this Licence; and

(c) you must immediately and permanently delete or remove the TUR from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the TUR in your possession, custody or control and, in the case of destruction, certify to us that you have done so. You are advised to download all your Documents beforehand.

7. COMMUNICATIONS BETWEEN US

7.1 We may update the terms of this Licence at any time on notice to you. Your continued use of the TUR and Documents following the deemed receipt and service of the notice under clause 7.3 shall constitute your acceptance to the terms of this Licence, as varied. If you do not wish to accept the terms of the Licence (as varied) you must immediately stop using and accessing the TUR on the deemed receipt and service of the notice.

7.2 If we have to contact you, we will do so by email or by pre-paid post to the address you provided in accordance with your account or as provided in the Main Contract.

7.3 Note that any notice:

(a) given by us to you will be deemed received and properly served 24 hours after it is first posted on our website, 24 hours after an email is sent, or three days after the date of posting of any letter; and

(b) given by you to us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.

7.4 In proving the service of any notice, it will be sufficient to prove, in the case of posting on our website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.

8. EVENTS OUTSIDE OUR CONTROL

8.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 8.2:

8.2 An Event Outside Our Control means any act or event beyond our reasonable control.

8.3 If an Event Outside Our Control takes place that affects the performance of our obligations under this Licence:

(a) our obligations under this Licence will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and

(b) we will use our reasonable endeavours to find a solution by which our obligations under this Licence may be performed despite the Event Outside Our Control.

9. HOW WE MAY USE YOUR PERSONAL INFORMATION

9.1 Under data protection legislation, we are required to provide you with certain information about who we are, how we process the personal data of those individuals who use the Tool and the Documents and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided in the privacy notice on the TUR and it is important that you read that information.

10. OTHER IMPORTANT TERMS

10.1 We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence.

10.2 You may only transfer your rights or your obligations under this Licence to another person if we agree in writing.

10.3 This Licence constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter, save for the Main Contract. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence.

10.4 If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing signed by us, and that will not mean that we will automatically waive any later default by you.

10.5 Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

10.6 This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.