These Terms are issued by Malinko Health & Care Technologies Limited, a private limited company registered in England with number 4037650 whose registered office is at Bright Building, Pencroft Way, Manchester Science Park, Manchester M15 6GZ, UK (the “Company” and “we”). The term ‘you’ refers to the user of our Services.
If you do not agree to these Terms, then we are unwilling to allow you access to the website and/or the Services. Please do not access and/or use our website and/or Services.
1.1 In consideration of the payment by you of the then current fees agreed by email by the Company and you agreeing to abide by these Terms, we grant you access to use the Services on the terms set out in this document.
1.2 By accessing any part of the Services, you shall be deemed to have accepted the Terms in full which shall take effect immediately on your first use of the Services. If you do not accept the Terms in full, you must leave the Services immediately.
1.3 Any amendments, modifications, enhancements or changes to the Services made available by the Company from time to time shall be subject to these Terms.
1.5 If you are 18 years old or younger you may not register with us for these Services.
2.1 You are permitted to use the Services for your own internal business purposes or for your own personal use on the following basis:
(a) You have provided your legal full name, a valid email address, and any other information requested in order to complete the sign-up process; and
(b) if you provide or otherwise make available the Services in whole or in part in any form to any person including your employees, (“Invitees”) you undertake to ensure that all Invitees comply with these Terms and acknowledge that you shall remain responsible and liable for the acts or omissions of all Invitees to the same extent as if you had carried out such acts or omissions yourself.
2.2 Subject to the provisions of clause 2.3, all copyright and other intellectual property rights in the Services (including without limitation photographs and graphical images) are owned by the Company or its licensors. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
2.3 All copyright and intellectual property rights in any information uploaded by you or your employees to the Services in connection with the Services shall remain vested in you, your employees or your licensors. We do not have the right to use your data that you upload or contribute to your Malinko account.
2.4 No part of the Services may be reproduced or stored in any other website or software or included in any public or private electronic retrieval system or service without the Company’s prior written permission.
2.5 Any rights not expressly granted in these Terms are reserved.
3.1 Access to our site is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide on our site without notice.
3.2 Access to the Services may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond the Company’s control.
3.3 Whilst the Company endeavours to ensure that the Services is normally available 24 hours a day, the Company shall not be liable if for any reason the Services is unavailable at any time or for any period.
3.4 The Company will provide technical support and training to the current paying subscribers to the Services only. Technical support will only be provided for bugs or errors in the Services that are reproducible by the Company. You agree to provide the Company with full and accurate details of all bugs and errors in the Services requested by the Company. You acknowledge that the Company provides no warranty that all or any bugs or errors in the Services will be corrected.
4.1 You may only use our site for lawful purposes. You may not use our site:
(a) in any way that breaches any applicable local, national or international law or regulation;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent intent purpose or effect;
(c) to send, knowingly receive, upload, download, use or re-use any material which does not comply with our standards of content;
(d) to transmit, or procure the sending of, any unsolicited or unauthorised or promotional material or any other form of similar solicitation (spam);
(e) to knowingly distribute, introduce (or transmit data, send or upload any material that contains) viruses, Trojans, worms, time-bombs, keystroke loggers, spyware, adware, logic bombs or other material, programs or similar computer code which is malicious, technologically having the object or effect of adversely affecting the operation of any computer software, communications network, the Software, our site, or hardware.
4.2 You also agree:
(a) not to reproduce, duplicate, copy or re-sell any part of our site in contravention of these terms;
(b) not to access without authority, interfere with, damage or disrupt:
(i) any part of our site;
(ii) any equipment or network on which our site is stored;
(iii) any software used in the provision of our site; or
(iv) any equipment or network or software owned or used by any third party.
4.3 You must not attempt to gain unauthorised access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-of-service attack or a distributed denial-of-service attack.
4.4 By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your rights to use our site will cease immediately.
4.5 We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any material posted on it, or on any website linked to it.
5.1 These Content Standards apply to any and all material which you contribute to our site or service. Any material you post or transmit to or from the Services must comply with the spirit of the following standards as well as the letter. The standards apply to each part of any contribution as well as to its whole.
5.2 Material must:
(a) be accurate (where they state facts);
(b) be genuinely held (where they state opinions);
(c) comply with applicable law in the UK and in any country from which they are posted.
Material must not:
(a) contain any material which is defamatory of any person;
(b) contain any material which is obscene, offensive, hateful or inflammatory;
(c) include sexually explicit material;
(d) endorse or promote violence;
(e) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
(f) infringe any patent, design copyright, database right or trade mark of any other person;
(g) be deceptive;
(h) be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidentiality;
(i) endorse or promote any illegal activity;
(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) be used to impersonate any person, or to misrepresent your identity or affiliation with any person;
(m) give the impression that they emanate from us, if this is not the case;
(n) advocate, endorse, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
6.2 Responsibility for the security of any usernames and passwords issued (including those of any Invitees) rests with you. You are responsible for making all arrangements necessary for you to have access to our site. You are also responsible for ensuring that all persons who access our site through your internet connection are aware of these terms, and that they comply with them. Unauthorised use of this website may give rise to a claim for damages and/or be a criminal offence.
6.3 Setting up an account authorises us to add you to our mailing list. While you have an active account we have two forms of communication – for marketing purposes and these emails are opt out; and for technical or service information purposes – we reserve the right to send these emails to you in order to ensure a high standard of customer service and to keep you aware of any changes to your service.
6.4 For paying accounts, you agree to provide us with a valid bank details and authorise us to deduct from such accounts of the current monthly fees via Direct Debit. The fees have been agreed with you by email and we may vary these from time to time. The bank details must be registered in either your name or that of your organisation.
6.5 For paying accounts the Services are billed monthly in advance on or around the day after your account was created. Payments are non-refundable, and no refunds or credits will be given for any partial use within any month.
6.6 Please note that if you downgrade your Services then you may lose content, features or capacity. We do not accept any liability.
6.7 All fees are exclusive of all taxes, charges, levies, assessments and other fees of any kind imposed on your use of the Services and shall be the responsibility of, and payable by, you. If you reside or have your place of business within the UK then we will add UK VAT to our fees at the then current rate.
6.8 We reserve the right to suspend your Services immediately if you fail to provide us with bank details that enable us to charge the full amount of any outstanding fees and charges within 7 days of the due date. We will provide prior notice of our intention to suspend your Account by email to your then registered email address, at which point all monies are owed for the full Minimum Period. If no payment is made to clear the full amount of any outstanding fees and charges within a further 60 days we reserve the right to delete your account and all associated data.
7.1 While the Company endeavours to ensure that the information provided in connection with the Services is correct, the Company does not warrant the accuracy and completeness of such material. The content of the pages of this website is for your general information and use only. It is subject to change without notice. Any of the material on our site may be out of date at any given time, and we are under no obligation to update such material. Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
7.2 The material on the Services is provided “as is”, without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, the Company provides you with access to the Services on the basis that the Company excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which, but for this legal notice, might have effect in relation to the Services.
7.3 You acknowledge that:
(a) the Services has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Services as described on the website meet your requirements;
(b) it is not possible to test the Services in advance in every possible operating combination and environment; and
(c) it is not possible to produce a Services known to be error free in all circumstances.
8.1 The Company, any other party (whether or not involved in creating, producing, maintaining or delivering the Services), and any of the Company’s officers, directors, employees, shareholders or agents of any of them, exclude all liability and responsibility for any amount or kind of loss or damage that may result to you or a third party (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) in connection with the Services in any way or in connection with the use, inability to use or the results of use of the Services, any websites linked to the Services or the material on such websites, including but not limited to loss or damage due to viruses that may infect your computer equipment, software, data or other property on account of your access to, use of, or browsing the Services or your downloading of any material from the Services or any websites linked to the Services.
8.2 Nothing in this legal notice shall exclude or limit the Company’s liability for:
(a) death or personal injury caused by negligence (as such term is defined by the Unfair Contract Terms Act 1977; or
(b) fraud; or
(c) misrepresentation as to a fundamental matter; or
(d) any liability which cannot be excluded or limited under applicable law.
8.3 If your use of material on the Services results in the need for servicing, repair or correction of equipment, software or data, you assume all costs thereof.
8.4 Subject to clauses 8.1 and 8.2, the Company’s maximum aggregate liability under or in connection with these Terms, or any collateral contract, whether in contract, tort (including negligence) or otherwise (a “Claim”), shall be limited to a sum equal to the aggregate amount which you are obliged to pay the Company in the twelve (12) month period immediately prior to the period giving rise to such Claim.
9.1. In this condition, the terms “data controller”, “data processor”, “data subject”, “personal data”, “sensitive personal data” and “process” or “processing” have the respective meanings given to them in the Data Protection Legislation. For the purposes of this Agreement, the parties acknowledge that, in respect of Personal Data in Customer Data, the Customer shall be a data controller and Malinko shall be a data processor.
9.2. Malinko shall:
9.2.1. only carry out processing of Personal Data on the Customer’s instructions and only to the extent necessary to perform Malinko’s obligations under this Agreement;
9.2.2. put in place appropriate technical and organisational measures to protect any Personal Data against any unauthorised or unlawful processing and against accidental loss or destruction or damage;
9.2.3. take reasonable steps to ensure the reliability of employees who will have access to the Personal Data.
9.3. With effect from the GDPR Enforcement Date, the remainder of this condition 9 shall apply in addition to above sub-conditions 9.1 to 9.2 inclusive. In the event of any conflict or inconsistency between the provisions of above sub-conditions 9.1 – 9.2 inclusive and the remainder of condition 9 below, the latter shall prevail.
9.4. Malinko shall Process the Personal Data only in accordance with documented instructions from the Customer, including with regard to transfers of Personal Data to a third country, save where such instructions are unlawful, and / or where such instructions would cause Malinko to breach its obligations under this Agreement or any other agreement with a third party, and / or otherwise where such instruction delays or prevents performance, in which case Malinko shall be granted relief from liability hereunder. Where Malinko can reasonably demonstrate that such instructions have affected the cost of providing the Service, any increase in the Service Charges shall be implemented in accordance with condition 30.
9.5. Malinko shall ensure that all Malinko Personnel who are involved in the Processing of Personal Data have committed themselves to confidentiality or are under statutory obligations of confidentiality concerning the Personal Data;
9.6. Malinko shall not provide any third party with access to the Personal Data or sub contract any of its obligations under this Agreement that involve Processing Personal Data without the prior written approval of the Customer, not to be unreasonably withheld or delayed.
9.7. Malinko shall comply with its obligations under Article 32 of the GDPR;
9.8. Taking into account the nature of the Processing, Malinko shall assist the Customer (at the Customer’s cost) by appropriate technical and organisational measures to enable the Customer to comply with its obligations under the Data Protection Legislation to respond to requests from Data Subjects (insofar as this is possible).
9.9. Malinko shall assist the Customer, at the cost of the Customer, to comply with the following obligations under the GDPR, taking into account the nature of Processing and information available to Malinko:
9.9.1. Article 32 (Security of Processing);
9.9.2. Article 33 (Notification of a Personal Data breach to the supervisory authority) and Article 34 (Communication of a Personal Data breach to the Data Subject) – although the parties acknowledge that Malinko shall only be required to communicate with the Customer regarding such data breaches;
9.9.3. Article 25 (Data protection impact assessment); and
9.9.4. Article 36 (Prior consultation).
9.10. Malinko shall make available to Customer, at the cost of the Customer, all information necessary to demonstrate compliance with the obligations imposed on Malinko under this condition and/or the Data Protection Legislation and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer (but not being a competitor of Malinko) for the purposes of demonstrating such compliance. Malinko may apply its reasonable charges associated with the provision of information and access as aforesaid.
9.11. With regard to sub-condition 9.10, Malinko shall immediately inform the Customer if in its opinion, an instruction received from the Customer infringes the Data Protection Legislation.
9.12. Malinko shall ensure that any sub-contract entered into by Malinko (where Personal Data is Processed by such sub-contractor) contains provisions which comply with the Data Protection Legislation and in any event are no less onerous than those imposed under this condition 9.
9.13. Unless required by law, Malinko shall, upon termination or expiry of this Agreement for whatever reason, at the option of the Customer (but in either event, at the Customer’s cost), either securely delete or return all of the Personal Data to the Customer. Malinko shall determine the method by which the said obligation is met.
9.14. Customer warrants that it shall not upload any Customer Data onto the Service which would place Malinko in breach of Applicable Law and the Customer shall hereby indemnify Malinko in full and shall hold Malinko indemnified in full against all and any liability, cost or loss in connection with a breach of this condition 9.14.
10.1 The Company may terminate this Agreement immediately by written notice to you if:
(a) you commit a material or persistent breach of these Terms which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
(b) a petition for a bankruptcy order to be made against you has been presented to the court; or
(c) you (being a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986).
10.2 You may terminate this Agreement at any time by writing to an authorised employee of the company, however you should be aware of your Minimum Period.
10.3 Your Minimum Period. Your agreement has a minimum contract term called a Minimum Period. Unless otherwise specified, the Minimum Period is 12 months from the Effective Date. The Effective Date means the date you ticked to state you have read and agreed to these terms.
10.4 Following the Minimum Period, the Agreement shall automatically renew for consecutive additional periods of one (1) year each, unless either party gives the other party written notice of its intention not to renew at least one (1) month prior to the date on which the Agreement would otherwise renew. Unless specified otherwise (such as written confirmation from an authorised employee of the Company), if you want to end the Agreement during the Minimum Period or a consecutive additional period or we end this Agreement as a result of your material breach, then you will have to pay a fee of no more than your Monthly Subscription Charges multiplied by the number of months left in your Minimum Period.
10.5 Unless otherwise specified (such as written confirmation from an authorised employee of the Company), if you end this Agreement during any Minimum Period or we end this Agreement under paragraph 10.1. you must pay us a fee of no more than each of the Monthly Subscription Charges up to the end of the Minimum Period. If you pay us the fee of no more than each of the Monthly Subscription Charges up to the end of that Minimum Period in a single payment, we may reduce the amount due by a rate determined by us. This doesn’t apply if you end the Agreement for the one of reasons in paragraph 10.6 below.
10.6 You can end this Agreement by giving us Notice if:
(a) we break this Agreement in any material way and we don’t correct the breach within 7 days of receiving your written request;
(b) we go into liquidation or a receiver or administrator is appointed over our assets;
(c) we change the terms of this Agreement to your significant disadvantage
10.7 Upon termination for any reason:
(a) all rights granted to you under these Terms shall cease;
(b) you must cease all activities authorised by these Terms;
(c) you must immediately pay to the Company any sums due to the Company under these Terms;
(d) you will not be entitled to any refund or credit in respect of any fee paid by you in advance for any cancelled Services; and
(e) the Company may immediately and without further notice delete or remove any content, data or other information submitted by you or your Invitees to the Services.
10.8 The Change-Your-Mind Period – This period lasts for 4 weeks from the start of this contract.
10.9 Unless we’ve said otherwise, you can cancel this contract before the end of the Change-Your-Mind Period and there will be no further commitment. This is in addition to any statutory rights you may have. It applies as long as you give us notice within this period in writing to an authorised employee of the Company.
10.10 You can use the Services during the Change-Your-Mind Period, but you will have to pay for the cost of any Charges incurred (this includes a single month subscription charge)
11.1 These Terms are binding on you and us, and on our respective successors and assigns.
11.2 You may not transfer, assign, charge or otherwise dispose of these Terms or any of your rights or obligations arising hereunder, without our prior written consent.
11.3 We may transfer, assign, charge, sub-contract or otherwise dispose of these Terms, or any of our rights or obligations arising hereunder, at any time.
12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations hereunder that is caused by events outside our reasonable control (a “Force Majeure Event”).
12.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of public or private telecommunications networks;
(e) the acts, decrees, legislation, regulations or restrictions of any government.
12.3 Our performance is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms may be performed despite the Force Majeure Event.
13.1 If we fail, at any time to insist upon strict performance of any of your obligations under these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled hereunder, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
13.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
13.3 No waiver by us of any of these Terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
14.1 If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
15.1 These Terms and any document expressly referred to in it represents the entire agreement between us in relation to the use of and the provision of the Services and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
15.2 We each acknowledge that, in entering into these Terms, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to entering into these Terms except as expressly stated herein.
15.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into these Terms (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these Terms.