Terms and Conditions
1. Definitions
“Seller”: Epicardio Ltd of 1 Church Terrace, Richmond, Surrey TW10 6SE, United Kingdom.
“Buyer”: The person or legal entity agreeing to these Terms and Conditions.
“Parties”: The Buyer and the Seller together.
“Product”: The Epicardio Simulation™ product, being a computer software simulation of the human heart which contains training tutorials for cardiac anatomy, physiology and pathology using real-time interactive 3-dimensional simulation of Cardiac Electrophysiology and Electrocardiography. The functionality is as specified in the attached Schedule 1 (the “Functionality”).
“Sales Price”: The given price for each Licence requested.
“Invoiced Sum”: The Sales Price.
“Licences Ordered”: The number of Education Licences ordered.
“Licence Users”: The end-users of each Licence Ordered.
“Effective Date”: The Effective Date shall be the date at which the Invoiced Sum is received in full by the Seller from the Buyer.
“Licence Date”: The date at which the Seller provides access to the Licence.
“Licence Period”: The period commencing on the Licence Date and ending twelve months from the Licence Date.
“Licence”: The Education Licence allotting the right to non-exclusive access to the Product during the Licence Period solely for training and educational purposes, not to otherwise to be used by salespeople to win new custom, or otherwise to be used for non-training or non-educational purposes.
2. The Licence
2.1 Upon the Effective Date the Buyer will be provided with a list of unique logins and passwords to access the Product, for each of the Licence Users of the Licences Ordered. Each login will be allocated to one machine of the Buyer’s choosing. Once the Product is first used on particular machine the login will become unique to that specified machine and shall not permit use on any other machine. Access to the Product will only be provided once the Invoiced Sum has been received in full.
2.2 The Licence permits unlimited usage of the Product during the Licence Period by the Licence Users. This Licence is permitted to be used solely for training and educational purposes and not to otherwise be used by salespeople, or anyone else, to win new custom, or for any non-training or non-educational purposes.
2.3 The Licence includes rights to updates and changes to the Product, as specified in clause 10.
2.4 The Licence Users must agree to an End-User Licence Agreement (“EULA”) as applicable at the time when accessing the Product. The Buyer shall ensure that each Licence User complies with the terms of the EULA.
2.5 Licence usage will be monitored by the Seller for compliance with its terms. The Seller reserves the right to suspend access to the Product for any Licence if the Seller reasonably believes that the terms of this Agreement and/or the EULA have not been complied with and to terminate access to the Product for any Licence where the terms have not been complied with.
3. The Sale and Contract Price
3.1 The Seller agrees to provide the Licences Ordered to the Buyer for the Licence Period.
3.2 The Buyer agrees to pay the Invoiced Sum promptly upon receipt of an invoice from the Seller and will undertake to provide that each Licence User will comply with the Feedback Process as defined in clause 4 below. The Buyer further agrees that it shall ensure that each Licence User complies with the terms of the EULA.
3.3 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Invoiced Sum on or before the Effective Date.
3.4 The Invoiced Sum are subject to United Kingdom Value-Added Tax, however the Buyer must ensure that it complies with all applicable tax obligations in Buyer’s own jurisdiction or jurisdictions. The Invoiced Sum shall be received in full by the Seller and any import or customs duty or other official taxes or charges arising from or necessary to enable provision of the Product shall be for the Buyer’s account and shall be reimbursed forthwith by the Buyer where necessarily paid by the Seller on the Invoiced Sum.
3.5 All payments shall be made to the Seller’s account as indicated on the invoice issued by the Seller without any deduction, credit or set off whatsoever.
3.6 If the Buyer fails to pay the Invoiced Sum in full, then without prejudice to any other right or remedy available to the Seller, the Seller shall not be to obliged supply the Product to the Buyer and the Seller may immediately terminate this Agreement.
4. The Feedback Process
4.1 Representatives of the Seller may contact Licence Users and the Buyer to obtain and discuss their feedback.
5. Software
5.1 The Buyer recognises that the Product may not operate effectively on all computers and that it is the responsibility of the Buyer to ensure that it maintains requisite hardware and an internet connection in order to effectively use the Product. The Buyer is aware of the computer hardware and software requirements for the use of the Product, as at the date of this Agreement, set out in Schedule 2.
5.2 The Product is not intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of the Product could lead to death, personal injury, or severe physical or environmental damage.
5.3 The Buyer recognises that Product is a generic training tool and not designed for medical advice or any specific patient or case for which the Buyer or any Licence User is responsible.
5.4 Information provided in the Product is for informational purposes only. It is not intended as a substitute for advice from medical professionals.
5.5 The information provided by the Product is not to be used for diagnosing or treating any health concerns the Buyer may have for the Buyer, the Buyer’s patients or anyone else.
5.6 The Buyer should not, and shall procure that Licence Users should not, take, or refrain from taking, any medical action solely on the basis of information obtained from the Product and without other professional qualifications and training.
5.7 The Buyer should, and should procure that Licence Users should, take specialist advice before taking or refraining from taking any medical action on the basis of the training provided by the Product.
5.8 THE SELLER DOES NOT ACCEPT ANY RESPONSIBILITY FOR MEDICAL DECISIONS TAKEN ON THE BASIS OF INFORMATION OBTAINED FROM THE PRODUCT.
5.9 The Buyer is responsible for its own training requirements, for the Licence Users’ use of the Product and for their acts and omissions. The Seller does not warrant that the Product will meet the Buyer’s or any Licence User’s training requirements.
6. Intellectual Property
6.1 The Seller retains all right, title, and interest in and to the Product, including without limitation all software used to provide the Product and all logos and trademarks reproduced through the use of the Product. This Agreement, or the use of the Product by the Buyer or any Licence Users, does not grant the Buyer or any of the Licence Users any intellectual property rights in or to the Product or any of its components. Any property rights, title or ownership in the Product shall remain with the Seller. The provisions of this clause 6.1 shall not apply to elements of the Product that incorporate confidential proprietary information provided by the Buyer or Licence Users.
6.2 The Product may incorporate, operate with or interface with software or other technology (“In-Licensed Code”) that is in-licensed from, and owned by, third parties (“Third Party Licensors”). The Buyer agrees that: (a) it will use In-Licensed Code as an integral part of the Product in accordance with this Agreement and any other restrictions specified in the applicable Licence set forth or referenced in the documentation provided by the Seller, (b) no Third Party Licensor makes any representation or warranty to the Buyer concerning the In-Licensed Code or the Product and (c) no Third Party Licensor will have any obligation or liability to the Buyer as a result of this Agreement or any use of the In-Licensed Code or the Product.
6.3 The Seller shall indemnify and hold harmless the Buyer from any suit or proceeding or threatened suit or proceeding brought against the Buyer based on a claim or claims that the Product provided by the Seller infringes or constitutes wrongful use of any copyright, patent, registered industrial design, trade-mark or trade secret right of any third party (a “Proprietary Right” herein). The Buyer shall notify the Seller in writing of any such suit or proceeding or threatened suit or proceeding promptly after the Buyer first learns of such suit or proceeding or threatened suit or proceeding. In the event of any claim of infringement or wrongful use of a Proprietary Right as aforesaid, the Seller may either defend or settle such claim in its sole discretion. The Seller agrees to pay such damages and costs awarded against the Buyer or payable by the Buyer pursuant to a settlement agreement in connection with such suit or proceeding together with reasonable legal fees of the Buyer. The Seller shall have complete control over any such suit or proceeding, including, without limitation, the right to settle on behalf of the Buyer or the Seller on any terms the Seller deems desirable (in the sole exercise of its discretion); however, the Seller shall give notice to the Buyer of all material stages involved in any such suit or proceeding. The Buyer shall provide, at the Seller’s cost, such assistance and cooperation as the Seller may reasonably request from time to time in connection with the defence of any such suit or proceeding or threatened suit or proceeding. The Buyer shall have the right to be independently represented by counsel of its own choice. If the Buyer fails to notify the Seller promptly of any such suit or proceeding or threatened suit or proceeding, and that failure prejudices the Seller’s ability to defend, settle or respond to the suit or proceeding, then the Seller’s obligation to defend or indemnify the Buyer with respect to that suit or proceeding will be reduced to the extent that Seller has been prejudiced. In addition, such failure to provide prompt notification shall relieve the Seller of any obligation to reimburse any fees incurred prior to notification.
6.4 If the use of the Product is substantially restricted as a result of such action, the Seller shall, at its option and expense:
4.4.1 obtain for the Buyer the right to continue using the Product;
4.4.2 modify the Product so that it no longer infringes Proprietary Rights, provided that it continues to operate, function and perform in substantially the same manner intended; or
4.4.3 terminate this Agreement and return a proportion of the Invoiced Sum pro rata to the period from the termination to the end of the Licence Period.
6.5 The Seller shall have no liability hereunder for infringement claims based solely upon or due to modifications or misuse of the Product by the Buyer or Licence Users, which modifications or misuse cause or contribute to the infringement claimed.
6.6 The Seller shall have no liability hereunder for any claims to the extent that they are due to any acts or omissions of the Buyer or any Licence User in the use of the Product.
7. Confidentiality
7.1 The Buyer undertakes to the Seller that:
7.1.1 the Buyer recognises that the Product, its content and its software, excluding the elements of the Product that incorporate confidential proprietary information provided by the Buyer, is the proprietary and confidential property of the Seller (the “Confidential Information”). Accordingly, Buyer shall not, and shall procure that each Licence User shall not, without the prior express written consent of the Seller, during the term of the Licence Period and thereafter, disclose or reveal to any third party or utilise for its own benefit other than pursuant to this Agreement, any Confidential Information, provided that such information was not previously known to the Buyer or to the general public other than by reason of the Buyer’s default. The Buyer shall, and shall procure that each Licence User shall, agree to take all reasonable precautions to preserve the confidentiality of the Product, its content and its software and assumes responsibility for the acts of its employees, the Licence Users, and assignees preserving the Confidential Information against disclosure to third parties;
7.1.2 the Buyer will not use or authorise or permit any other person to use any name, trade mark, house mark, emblem or symbol associated with the Seller upon any premises, notepaper, visiting cards, advertisements or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller;
7.1.3 the Buyer shall, and shall procure that each Licence User shall, take no steps in attempting to reverse-engineer the Product; and
7.1.4 the Buyer will ensure compliance with this clause by the Licence Users, its employees, servants and agents.
7.1.5 this clause 7 shall survive the termination of this Agreement for whatever reason, and for the longest period of time permitted by applicable law up to and including forever.
8. General
8.1 Before accessing the Product, the Buyer must advise the Seller in writing of any special, legal, administrative or regulatory requirements applying to the use of the Product in the territory from which the Buyer is to access it and must advise the Seller immediately of any change made in such requirements.
8.2 The Buyer shall be responsible for complying with any legislation or regulations governing the use of the Product in the country of usage as well as for the payment of any government-imposed fees, taxes or duties thereon.
8.3 No waiver by the Seller of any breach of this Agreement by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.4 If any provision of this Agreement is held by a competent court of law to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected thereby. In the event the invalidity or unenforceability of provisions causes other provisions to become ambiguous, the Parties agree to negotiate amended replacement provisions in good faith in order to avoid ambiguity and to retain the original meaning of the original provisions as nearly as possible.
8.5 The Seller reserves the right to make updates to the Product or any other any changes in the specification of the Product which do not materially detract from its quality or performance.
9. Force Majeure
9.1 Neither Party shall be liable for any delay or failure in performing its obligations or duties under this Agreement which results from circumstances outside his reasonable control including but not limited to acts of God, industrial action, war, fire, threat of terrorism, civil disturbance or rioting, government or regulatory action, breakdown in plant or machinery or shortage of raw materials or supplies. Upon such circumstances abating, the Party or Parties shall forthwith perform such obligations or duties as may have been delayed.
10. Product Maintenance and Support
10.1 The Seller reserves the right to make the Product unavailable to the Licence Users for essential maintenance (“Maintenance Periods”). Maintenance Periods shall not be between 9am and 5pm Central European Time unless maintenance is required to maintain the functionality of the Product. The Seller will endeavour to give all Licence Users adequate notice prior to essential maintenance.
10.2 The Buyer or Licence Users may contact the Seller via email at support@epicard.io with queries in relation to the usage of the Product. The Seller will endeavour to respond within a reasonable period of time, it being understood that the Seller has no obligation to respond. The Seller will similarly be under no obligation to provide support should it choose to provide a telephone-based or any other means of support service. The only recourse to the Buyer or Licence Users is as set out in clause 11.2.2.
10.3 The Seller may continue to make improvements and additions to the Product during the Licence Period.
11. Warranties
11.1 The Parties warrant that the signatories to this Agreement are authorised and permitted to enter into this agreement through the necessary corporate actions, if applicable, so as to bind their respective organisations, and have obtained all necessary permissions and approvals.
11.2 Subject to the provisions of clause 11.3 the Seller warrants that:
11.2.1 the Licence Users will have access to the Product at all times during the Licence Period except during Maintenance Periods. In the event of the continued occurrence of a material error in Functionality, the Buyer or Licence User shall promptly notify the Seller and the Seller shall attempt to remedy the non-performance; and
11.2.2 if it fails to remedy a non-performance in Functionality within a reasonable period of time from being notified, the Buyer’s sole recourse shall be to terminate the Agreement and the Seller’s sole obligation shall be to return a proportion of the Invoiced Sum pro rata to the period from the commencement of the non-performance to the end of the Licence Period.
11.3 The Seller does not warrant that:
9.3.1 access to the Product will be uninterrupted or error free, nor that there will be no material errors in Functionality where such interruptions are due to factors outside of the Seller’s control, including but not limited to the state of the Buyer’s or Licence User’s hardware or internet access; or
9.3.2 the Product will have interoperability with the Buyer’s or any Licence User’s hardware or third party software.
11.4 Except as expressly provided in this Agreement, and subject always to clause 11.7, the Seller shall not be liable to the Buyer or Licence Users:
11.4.1 by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute; or
11.4.2 under the express terms of this Agreement;
for any direct or consequential loss or damage sustained by the Buyer or Licence Users (including, without limitation, loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Product.
11.5 In no event, subject always to clause 11.7, shall the Seller be liable for any incidental, consequential, or punitive damages as a result of its performance, breach of this Agreement or negligence or otherwise.
11.6 In no event, subject always to clause 11.7, shall the Seller’s total liability to the Buyer for all damages (whether due to breach of contract, tort (including negligence), breach of statutory duty or otherwise) exceed the amount of the Invoiced Sum.
11.7 Nothing in the Agreement shall exclude or limit in any way the liability of the Seller for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence or any other matter which cannot be limited by law.
12. Termination
12.1 The Seller reserves the right to terminate this Agreement, and cease all access to the Product, immediately and without any obligation to return the Invoiced Sum, if the Buyer breaches any term of this agreement, or the Buyer or any Licence User breaches any term of the EULA.
12.2 The Seller may terminate this Agreement at any time, without cause, by giving the Buyer at least 28 days’ prior notice of termination. Termination under this clause 12.2 shall only become effective once the notice period has expired. The Seller shall return to the Buyer a proportion of the Invoiced Sum pro rata to the period from date of termination to the end of the Licence Period.
12.3 Other than in accordance with clauses 6.4, 11.2 and 10.1 and 12.2, this Agreement may only be terminated by the written mutual consent of the Parties.
13. Interpretation
13.1 Clause, schedule and paragraph headings are inserted for the convenience of the Parties and shall not affect the interpretation of this agreement.
13.2 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
13.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
13.4 Unless the context otherwise requires, references to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
14. Publicity
14.1 The Seller may, at its own expense, refer to the identity of the Buyer and the fact that the Buyer is a customer of the Seller, via announcements in newspapers and periodicals, in other marketing materials, media and on its website (such as is customary).
14.2 The Buyer shall not be entitled to any form of compensation for Seller’s use of Buyer’s identity in any announcements or media.
15. Whole Agreement, Governing Law, Severability and Miscellaneous Provisions
15.1 This document constitutes the entirety of the agreement between the Parties. It supersedes any prior representations which may have been made, whether orally or in writing. Any modification to this Agreement must be made in writing and signed by both the Buyer and the Seller.
15.2 This Agreement is prepared, shall be construed, and shall be governed by the Law of England and Wales and the Parties, and each of them, agree to submit to the exclusive jurisdiction of the English Courts.
15.3 All clauses, sub clauses and parts thereof shall be severable and shall be read and construed independently.
15.4 All terms, conditions and covenants contained in this Agreement shall bind the Parties and their heirs, legal representatives, successors to title and permitted assignees.
15.5 Except as expressly provided in this Agreement, the Buyer may not sub-licence or transfer all or any of its rights and responsibilities under this Agreement. The Seller may transfer all or any of its rights and/or obligations under this Agreement at any time upon prior notice to the Buyer.
15.6 Nothing in the Agreement, including these Terms and Conditions shall devolve any rights on a third party and no third party may enforce any provision of this Agreement under the Contracts (rights of Third Parties) Act 1999 et seq. (UK).
15.7 The failure by either Party to enforce any provision of this agreement shall not be deemed a waiver or limitation of that Party’s right to subsequently compel and require strict compliance with every provision of this Agreement.
Schedule 1
Functionality of the Product
The Product is a computer software simulation of the human heart which contains training tutorials for cardiac anatomy, physiology and pathology. The Product uses real-time interactive 3-dimensional simulation of Cardiac Electrophysiology and Electrocardiography. The heart simulation has various adjustable views of the heart and settings to adjust factors such as, including but not limited to, the heart rate and AV node conduction velocity. The speed at which the simulated ECG heart functionality is represented in the Product will depend upon the hardware and software specifications used.
The Product contains the following key features: Online help with pdf files and videos; Feedback; Start Here tutorial; Tutorial MCQ Tests; ECG MCQ Test; Tutor Quiz; 3D heart anatomy and electrical views; Anatomy view controls; Temporary Pacer; Defibrillator; Tool Settings; Heart Rate; 12-lead ECG half window with controls; ECG electrodes and fixed leads on torso; ECG callipers; Change ECG lead; Pause ECG and scroll or step; Simulation speed; Full screen app window; Create Complex Pathologies.
The Product contains the following tutorials: Introduction to the Heart; Normal Rhythm; Cardiac Axis; Conduction Abnormalities: Left Bundle Branch Block, Right Bundle Branch Block, Left Anterior Fascicular Block, Left Posterior Fascicular Block, Bi-fascicular Block; AV Blocks & Bradycardias: 1st Degree AV Block, 2nd Degree AV Block – Mobitz I, 2nd Degree AV Block – Mobitz II, 3rd Degree AV Block, Sinus Bradycardia, Junctional Bradycardia, Sick Sinus Syndrome; Atrial Arrhythmias: Sinus Arrhythmia, Sinus Tachycardia, Atrial Flutter, Atrial Fibrillation; Supraventricular Tachycardias: Atrial Tachycardia, AV Re-entry Tachycardia (AVRT); Wolf-Parkinson-White Syndrome: Left Lateral Accessory Pathway, Left Posterior Accessory Pathway, Right Accessory Pathway; Ventricular Arrhythmias: Ventricular Tachycardia, Idioventricular Rhythm, Ventricular Fibrillation; Ischaemia & Infarction; Misc Abnormalities: QT prolongation, Hyperkalemia, Hypokalemia; Pathology Combinations: Atrial Fibrillation with WPW; Single Chamber Pacing, Dual Chamber Pacing, Bi-ventricular Pacing; Quadripolar Pacing; Multi Point Pacing; Temporary Pacing; Introduction to Cardiac EP.
Schedule 2
Hardware and software requirements
Supported operating systems: macOS 10.4+, Microsoft® Windows XP, Vista, Windows 7+.
Recommended web-browsers for WebGL version: Safari, Chrome, Edge, Firefox.
Functioning broadband internet connection required.
Required Graphics Environment: OpenGL2+ for macOS, DirectX9+ for Windows.
System firewall enabled for incoming and outgoing connections.
Recommended minimum hardware requirements: Processor speed: 2GHz Memory: 2GB.