Terms of Use

Thalamos, is a website and service that provides a clinical administration system and other features relating to clinical psychiatry practice. The website is owned and the service provided by Thalamos Ltd (“the company”, “us”, “our” and “we” below), a private limited company incorporated in England and Wales (registered number 10814088) with its registered office at Health Foundry, 1 Royal Street, London, SE1 7LL, United Kingdom.

These Terms of Use (“Terms”) apply to your (“Client” and “you” below) use of the website at https://www.thalamos.co.uk/ or https://www.app.thalamos.co.uk(“Website”) and any features or services (“Services”) offered through it.

To use the Services you must agree to these Terms so please read them carefully. Please note that we may change or update these Terms. We will post any changes to our Website and communicate them by email. We will assume that you agree with them if you continue to use the Services. If you do not agree to these Terms, you must not use our Website or Service.

A FEW FURTHER DEFINITIONS

“Client” means either an individual mental health professional (Doctor or AMHP) or institutional client (NHS Trust, Local Authority, Private Provider) or any combination thereof.

“Commencement Date” means the date on which the Client creates an account for accessing the Service.

“Confidential Information” means all confidential information (however recorded or preserved) disclosed by a Party or its Representatives to the other party and that Party’s Representatives whether before or the Commencement Date in connection with the Service, including but not limited to:

Personal Data relating to Data Subjects:

“User Data” Personal Information provided by the Client in order to maintain an account and use the service.

“Patient Data” means Personal Information or Health or Care Data entered by the client into the clinical administration system in order to fulfil a professional and/or statutory function.

“Sub Processor Data” means the details of a third party who a Client Shares information with through the system to fulfil a professional or statutory function.

“Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the United Kingdom, the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom and then (ii) any successor legislation to the GDPR that is applicable in the United Kingdom or to the Data Protection Act 1998.

“Fees” means the fees payable for use of the Service, as specified in the these Terms.

“Free Trial” means a pre-agreed period during which the Client may have full use of the service without paying Fees.

“Intellectual Property Rights” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world.

“Parties” means the Client and the Company and Party means either one of them.

“Representatives” means, in relation to a Party, its employees, officers, sub-contractors, agents, representatives and advisers.

“Service” means the use of the online clinical administration system hosted by the Company via the Website as updated from time to time and including any additional services that the Company may agree or wish to supply from time to time.

“Term” means the period during which the Client uses the Service commencing on the Commencement Date and terminating in accordance with these Terms of Service.

OUR CONTRACT WITH YOU

The Company grants the Client the right to access and use the Service. This right is non-exclusive, non-transferable, and limited by and subject to these Terms of Service.

By accessing the Website, the Client agrees, to be bound by these Terms of Service and accordingly, a legally binding contract shall arise for the provision of the Service.

The Company may agree, from time to time, to provide additional services as it may agree in writing in relation to the Service. Any such additional services may be subject to further conditions which shall be posted on the Website or provided to the Client in order for the Client to confirm their agreement to sign-up to such additional service from time to time.

ACCESS TO THE SERVICE

In order to access the Service, the Client must become a registered user and provide accurate, up-to-date and complete information (User Data) upon registration. Whilst the Company will exercise standard confidentiality measures, it is the Client’s sole responsibility and liability to keep passwords secure and not disclose them to third parties. Passwords should be complex in nature, at least 12 characters in length and contain a combination of upper case letters, lower case letters, numbers and symbols.

The Client is also solely responsible and liable for any activity that occurs under that Client’s username and/or login. Each Client must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and shall notify the Company immediately in the event of any unauthorised access or use, or any suspected unauthorised access or use. Accordingly, the Company accepts no responsibility for misuse of a Client’s account in any manner due to a Client’s disclosure of account details and access information to third parties. In the event of access information being lost, stolen or otherwise disclosed, a Client may reset the password by following the instructions provided on the Website.

USE OF THE SERVICE

The user IDs and log-ins created by the Client shall only be used by the Client. The Company reserves the right to monitor the Client’s usage of the Website and the Client shall be liable to pay any additional charges levied by the Company in respect of unauthorised persons accessing the Service through the Client’s login ID and password.

The Client is solely responsible for their conduct and their data related to the Service and shall use the Service solely for the purposes of the Client’s business or statutory function as a Mental Health Professional or as otherwise agreed in writing with the Company. The Service, including any software that forms part of the Service, is made available to the Client for these purposes, and such use must comply with all applicable laws, rules and regulations, including without limitation privacy laws and mental health law, and must not infringe or violate third party rights. The Client warrants that it has all rights, licenses, medical approvals, authorisations, registrations and consents required to use the Service, including without limitation in respect of its data. Further, the Client shall not use the Service for any illegal or immoral purposes. Any unauthorised use of the Service is a violation of these Terms of Service and may breach English laws. Such violations may subject the Client to civil and criminal penalties.

Each Client agrees to indemnify, defend, and hold harmless the Company, its directors, officers, agents and suppliers from any and all loss, cost, liability, and expense arising from or related to its data or use by it or its employees, contractors or agents of the Service or violation of these Terms of Service.

The Company will endeavour to make the Service available 24 hours a day, seven days a week. However, the Client acknowledges and agrees that the Service may occasionally be unavailable during periods of planned or unscheduled maintenance or in order to put in place any changes, modifications or upgrades to the Service. The Client further agrees that to the extent that access to the Service will not be affected or restricted, the Company may at any time perform such maintenance or put in place any changes, modifications or upgrades to the Service. In the event that it is anticipated that access to the Service may be affected or restricted, the Company will use reasonable endeavours to provide reasonable notice to the Client and will further use reasonable endeavours to perform such maintenance or put in place any changes, modifications or upgrades to the Service outside of normal business hours, in each case where possible.

The Client further acknowledges and agrees that the Service may occasionally be unavailable in the event that a third-party infrastructure provider suffers an interruption in its own service. In such event, the Company will use reasonable endeavours to work with such third-party in order to minimise such interruption. For the avoidance of doubt, the Company shall not be responsible for any disruption to the Service in such event.

PAYMENT OF FEES

For Individual Clients, Thalamos will remain free of charge. For Institutional Clients, Thalamos standard pricing is in accordance with the Crown Commercial Service G-Cloud 12 framework. Continued use of Thalamos beyond the later date of the 3 month “free trial” period or the 25th September 2020, will become subject to the G-Cloud 12 standard agreement. Any agreed contract with an Institutional Client supersedes these Terms of Use.

All Fees shall be paid via bank transfer to the Company’s account as notified to the Client by the Company in writing.

All fees are exclusive of VAT (or other applicable taxes) which shall be added to all invoices at the rate prevailing on the date of each of the Company’s invoices. Invoices shall be emailed to the Client monthly.

When upgrading or downgrading a subscription to the Service, the Client will be pro-rata credited for the remainder of its current subscription. The Client will then be charged the full amount for the new subscription selected and the next billing date will be adjusted accordingly. The changes to the subscription will apply to the Client’s account immediately. If this adjustment causes the Client’s account to be credited, this will be applied to its subscription and used for future payments of Fees. The Company does not provide refunds for such amounts.

All Fees relating to the Service, including but not limited to the monthly subscription fees, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by updates to the notices on the Website within the Service itself, or by email correspondence.

If the Client has any questions about charges made to its account, the Client should contact the Company by email immediately. If there are charges made in error, the Company will credit the Client’s account or credit card account for the appropriate amount.

The Company expressly excludes any and all liability whatsoever arising from or in connection with any email sent via or through the Service which is delayed, not sent or corrupted save for any such liability arising directly from a negligent act or omission of the Company.

In the event that a Client fails to pay any Fees due, the Company shall be entitled to suspend the Client’s account for a maximum period of 90 days before the account may be terminated by the Company. The Company is not responsible for any loss the Client may suffer as a result of such suspension or termination. A suspended account can be reactivated by supplying valid payment credentials and resuming the subscription.

In the event that a Client cancels its subscription before the end of the currently paid month or insufficient notice is provided by the Client to terminate the Service, the Service will end immediately, and the Client will not be charged again, however the Client shall not be entitled to any refund in respect of the currently paid month.

TERM, CANCELLATION AND TERMINATION

The right of use of the Service shall commence on the Commencement Date and shall continue automatically each month unless terminated in accordance with these Terms of Service. An Individual Client may cancel or terminate its subscription to the Service upon 30 days’ written notice to the Company. Institutional Client’s should review their contract with Thalamos for cancelation and termination rights.

Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate the use of the Service without liability to the other immediately on giving notice to the other if:

the other Party fails to pay any amount due under these Terms of Service on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
the other Party commits a material breach of any of these Terms of Service and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach;
the other Party repeatedly breaches any of these Terms of Service in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms of Service;
the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party;
an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other Party; or
any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in points 1 to 6 above.

Without prejudice to the Company’s rights above and otherwise should any of the circumstances and/or events specified above arise or occur, the Company may in its absolute discretion suspend the provision of the Service and/or access to the Website by the Client on not less than 48 hours’ notice. All other provisions of this Contract shall remain in full force and effect.

On termination of the access to the Service for any reason:

the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Service supplied but for which no invoice has been submitted and all payments that would have become due during the remainder of the Term (assuming that notice had been served in accordance with the Terms), the Company may submit an invoice, which shall be payable immediately on receipt;
the Company shall provide the Client with a copy of its data and delete all copies of any such data held by the Company (unless the Company is obliged to retain copies as a matter of law) 90 days after the cancellation or termination of the Client’s use of the Service; and
the accrued rights and liabilities of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

Reinstatement of the provision of Service and/or access to the Website in the event of suspension or cancellation of the same shall be at the discretion of the Company and shall render the Client liable to pay such relevant reinstatement charges as are specified by the Company from time to time.

HOW WE GET IN TOUCH

The Client acknowledges and agrees that the Company may at times send communications regarding its account or the Service via email. The Company may also send the Client communications about upgrades to the Service or other products and services that may be of interest to the Client. The Client can contact the Company at any time to opt out from such emails.

NO WARRANTIES OR REPRESENTATIONS

The Client acknowledges and agrees that the Service is provided “as is” and, to the extent permitted by law, the Company expressly disclaims all warranties or representations of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or bailment of a Client’s data on the servers of the Company. The Company makes no warranty or representation that a Client’s use of the Service will be uninterrupted or error-free or regarding the results that may be obtained from the use of the Service, the security of the Service, or that the Service will meet a Client’s requirements. Further, the Company is not 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, and the Client acknowledges and agrees that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

Save in respect of death or personal injury and to the maximum extent permitted by law, in no event shall the Company be liable for any indirect, special, incidental, consequential or punitive damages, loss of use, loss of profits, revenue, interest or business or loss or corruption of data, whether in an action in contract, tort (including but not limited to negligence), equity or otherwise in connection with the Service, the Website or any other service provided by the Company. If the Client suffers loss or damage as a result of the Company’s negligence or failure to comply with these Terms of Service, any claim by the Client against the Company arising from Company’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by the Client in the previous 6 months.

The Parties acknowledge and agree that the limitations contained herein are reasonable in the light of all the circumstances.

The Client’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in these Terms of Service is excluded to the fullest extent permitted by law. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, the ‘Company’ includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in these Terms of Service shall exclude or limit liability for fraudulent misrepresentation.

INTELLECTUAL PROPERTY

The Client acknowledges and agrees that the Company owns all right, title and interest in and to the Service or the Website, including without limitation all Intellectual Property Rights, and such rights are protected by English and international intellectual property laws. The Client expressly acknowledges and agrees, that it will not copy, reproduce, alter, modify, or create derivative works from the Service.

The Client shall notify the Company immediately if the Client becomes aware of any third-party infringement of the Company’s Intellectual Property Rights (an “Intellectual Property Infringement”). The Client shall use all reasonable endeavours to assist the Company in defending and/or taking any such necessary action in respect of an Intellectual Property Infringement (including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents) and shall act in accordance with the reasonable instructions of the Company.

CONFIDENTIALITY

Each Party shall keep the other Party’s Confidential Information confidential and shall not use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with these Terms of Service and the use of the Service (“Permitted Purpose”) or disclose such Confidential Information in whole or in part to any third party, except as expressly permitted in this section.

A party may disclose the other Party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that it informs such Representatives of the confidential nature of the Confidential Information before disclosure and it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this section as if they were a party to these Terms of Service, and at all times, it is liable for the failure of any Representatives to comply with the obligations set out in this section.

A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

The provisions of this clause shall not apply to any Confidential Information that:

is or becomes otherwise generally available to the public;
was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
the parties agree in writing is not confidential or may be disclosed; or
is disclosed with the prior written consent of the other Party.

PRIVACY AND DATA PROTECTION

The Parties will comply with all applicable requirements of the Data Protection Legislation. These Terms are in addition to, and do not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

The Parties acknowledge that, for the purposes of the Data Protection Legislation, the Client is the controller and the Company is the processor (where “controller” and “processor” have the meanings as defined in the Data Protection Legislation) when using the service. The Company’s privacy policy sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, “Personal Data”) and categories of data subject (as defined in the Data Protection Legislation, “Data Subject”). Data Subjects are also defined in these Terms.

The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the User Data and Patient Data to the Company for the duration and purposes of these Terms of Service and the provision of the Service by the Company. These notices and consents should also extend to the lawful transfer of data to sub processors within the system. The Client should process data on the Clinical Administration System in line with local retention policies. Further, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of the Service:

Process that Personal Data only on the written instructions of the Client unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company to process Personal Data (“Applicable Laws”). Where the Company is relying on Applicable Laws as the basis for processing Personal Data, the Company shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Client on important grounds of public interest;
ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
not transfer any Patient Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and adequate safeguards are in place in relation to the transfer, as required by GDPR;
only transfer User Data outside of the EEA if necessary and only to countries within the EU – USA Privacy shield or countries deemed to have adequate protections in place by the European Commission;
assist the Client, at the Client’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;
notify the Client without undue delay on becoming aware of a Personal Data breach;
at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Service unless required by Applicable Laws to store the Personal Data; and

The Client consents to the Company appointing third-party processors of Personal Data under these Terms of Service (each a “Sub-Processor”) and further acknowledges and agrees that the Company may share such data to such Sub-Processors. The Company shall inform the Client of any intended changes concerning the addition or replacement of other Sub-Processors. The Company confirms that it has entered, or (as the case may be) will enter, into a written agreement with the Sub-Processor incorporating terms which are substantially similar to those set out in these Terms. As between the Client and the Company, the Company shall remain fully liable for all acts or omissions of any Sub-Processor appointed by it.

FORCE MAJEURE

Neither Party shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, strikes (of its own or other employees), war, insurrection, riots, acts of terrorism, embargoes, power failures, failure of the internet or other telecommunications systems, environmental or other causes creating a shutdown of the servers hosting the Website; inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an “Event of Force Majeure”).

Each Party agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

If a default due to an Event of Force Majeure shall continue for more than six weeks, then the Party not in default shall be entitled to terminate the Contract by written notice to the other. Neither Party shall have any liability to the other in respect of the termination of such Contract as a result of an Event of Force Majeure.

MISCELLANEOUS

The Client shall not assign, encumber or otherwise transfer its rights or any benefit of the Service in whole or in part to any other person. Save as expressly provided in in these Terms, a person who is not a party to these Terms of Service has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of these Terms of Service.

Any notice given under these Terms of Service by either Party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to the Company must be sent to hello@thalamos.co.uk or to any other email address notified by email to the Client by the Company. Notices to the Client will be sent to the email address which the Client provided when setting up its access to the Service.

Failure or neglect by the Company to enforce at any time any of the provisions of these Terms of Service shall not be construed nor shall be deemed to be a waiver of its rights nor in any way affect the validity of the whole or any part of these Terms of Service nor prejudice the Company’s rights to take subsequent action. Further, a waiver by the Company of a particular default(s) of these Terms of Service shall not constitute a waiver of any subsequent default(s) of these Terms of Service.

In the event that any of these Terms of Service shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such Terms of Service shall to that extent be severed from the remaining Terms of Service which shall continue to be valid to the fullest extent permitted by law and shall not affect the validity or enforceability of the remaining provisions.

The Company may modify these Terms of Service at any time provided that the Company shall provide the Client with a reasonable period of time for the Client to notify the Company that it does not agree to the modified Terms of Service and wishes to cease using the Service.

These Terms of Service shall be governed by and construed in accordance with the laws of England and Wales. The Parties irrevocably agree that the courts of the England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).