Terms and Conditions of Services

Terms and Conditions of use this policy relates to our customers and clients and the agreement between our clients and customers and Digital Fish Ltd who produce and provide the Benchmark54 system.

Clause

Interpretation
User subscriptions
Additional module and squad subscriptions
Services
Athlete data
Use of Athlete Data
use of anonymous athlete
Responsibility for Misuse by Other Users
Third party providers
Supplier's obligations
Customer's obligations
Charges and payment
Proprietary rights
Confidentiality
Indemnity
Limitation of liability
Term and termination
Force majeure
Waiver
Severance
Entire agreement
Assignment
No partnership or agency
Third party rights
Notices
Governing law and jurisdiction

Schedule

Schedule 1 ATHLETE Consent Notice

THIS AGREEMENT is currently active

Parties

Digital Fish Limited incorporated and registered in England and Wales with company number 07683254 whose registered office is at 16 Harlow Moor Drive, Harrogate, HG2 0JX (“ Supplier”)
The Client (“Customer”)

Background

The Supplier has developed certain software applications and platforms which it makes available to users via the internet.
The Customer wishes to use the Supplier's Services.
The Supplier has agreed to provide, and the Customer has agreed to take the Supplier's Services subject to the terms and conditions of this agreement.

Agreed terms

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Athlete Data: an Athlete’s personal data and sensitive personal data (including health information) as defined by the Data Protection Act 1998 which is inputted into the System by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

Anonymous Athlete Data: means Athlete Data from which the individual’s name date of birth, club and other unique identifiers have been removed, and from which the individual cannot reasonably be identified.

Athlete(s): means any individual who is a contracted to play for the Customer or to play in teams who are registered with the Customer.

Authorised Users: those Medical and other personnel, employees, agents and independent contractors of the Customer who are authorised by the Customer and Supplier to use the System and the Services and to whom the Supplier has assigned a User ID for access to the System.

Authorised User Agreement: means the agreement entered into by an Authorised User when first logging onto the System which is substantially in the same terms as this agreement. See Authorised User Agreement.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

Confidential Information: information that is proprietary or confidential and includes:

the existence and contents of this agreement and any other agreement or arrangement contemplated by this agreement;
information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, know-how, customers, suppliers, current or future products, technology, trade secrets, employees, processes or affairs of the other party;
any information which is treated or expressly indicated to be confidential or proprietary, or would reasonably be viewed as confidential or having value to competitors or is imparted by one party to the other in circumstances importing an obligation of confidence;

and which any party may from time to time receive or obtain (orally or in writing or in disk or electronic form) as a result of entering into, or performing its obligations pursuant to, this agreement or otherwise. [Confidential Information does not include Athletes Data.]

Documentation: the document made available to the Customer and/or Authorised Users by the Supplier online via www.benchmark54.com and https://app.benchmark54.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of this agreement.

Athlete Consent Form: means the consent notice set out in Schedule 1.

Initial Term: the initial term of this agreement

Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.

Our Website: mean the website located at www.benchmark54.com or https://app.benchmark54.com

Personal Information: means information that identifies the Authorised User personally as a user of the System, and all information concerning the Authorised User, and their use of the System providing that it is not Athlete Data.

Policies and Procedures means the Suppliers rules, regulations, policies and procedures for access to and use of Our Website, the System and Services (including but not limited to the Supplier’s Privacy and Cookies Policy and Our Website Terms of Use) as changed from time to time and as posted electronically on Our Website.

Renewal Period: the period described in clause 17.1.

Services: the services provided by the Supplier to the Customer under this agreement including but not limited to access to the Benchmark54 Software System by Authorised Users.

Benchmark54 Software: the online software applications provided by the Supplier as part of the Services and accessed by the Customer and Authorised Users via Our Website. Known as the “System”

System: means all software used or provided by the Supplier including the Benchmark54 software, and all documentation provided by the Supplier in connection with the System, paper or electronic.

Term: has the meaning given in clause 17.1 (being the Initial Term together with any subsequent Renewal Periods).

Support Services Policy: The Supplier's policy for providing support in relation to the Services as made available at https://app.benchmark54.com or such other website address as may be notified to the Customer from time to time. They are also mentioned in this document.

User Subscriptions: the user subscriptions granted to the Customer which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

Other Users: means any other user authorised to use the System.

User ID: means a unique user identification assigned to an Authorised User.

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

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written includes faxes but not e-mail.

1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. User Subscriptions

2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Customer's internal business operations.

2.2 The rights granted in clause 2.1 and the Customer’s use of the Services and Documentation are subject to the Supplier obtaining verification of each Authorised User’s identity and credentials as a health care practitioner and to their ongoing qualification as such.

2.3 The Customer undertakes to obtain all Authorised Users consent for:

(a) the Supplier to use and disclose the Authorised Users Personal Information for such purposes, including (without limitation) making inquiry of third parties concerning their identity and professional and practice credentials; and (b) such third parties to disclose to the Supplier such information as maybe request for such purposes.

2.4 The Customer agrees to hold relevant third parties and the Supplier harmless from any claim or liability arising from a request for or disclosure of information in accordance with clause 2.3 and agrees that the Supplier may terminate the relevant Authorised User’s access to or use of the System at any time if it is unable at any time to determine or verify the Authorised Users qualifications or credentials.

2.5 In relation to the Authorised Users, the Customer undertakes that:

the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has been granted by the Supplier from time to time;
it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than bi monthly and that each Authorised User shall keep passwords confidential;
it will not allow others to log on to the System using an Authorised User’s User ID and/or password;
it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; in addition you are reminded that the system has an indelible audit trail tracking all users use of the System this shall include logging actions from the moment of log on, including logging records viewed with the date and time of all entries and deletions
if any of the audits referred to in clause e reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual;

2.6 Prior to uploading an Athletes Data onto the System, the Athlete must provide their express written consent. The Customer undertakes to ensure that the relevant Athlete has signed the Consent Notice in the form set out in Schedule 1 and provided the Supplier with a copy of the signed Consent Notice. This can be done by post or by electronic means.

2.7 The Customer shall not and shall procure that any of its Authorised Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
in a manner that is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.8 The Customer shall not and shall procure that any of its Authorised Users shall not:

except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

abuse or misuse the System or the Services or use the System or Services in a manner that interferes with Other Users' use of the System or use the System or the Services in any manner that violates our Policies and Procedures or the terms of this agreement;
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
use the Services and/or Documentation to provide services to third parties; or
subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.

2.9 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.10 The Customer undertakes to comply with the terms of this agreement, the Suppliers Policies and Procedures, and all applicable laws and regulations and shall procure that all of its Authorised Users shall comply with the terms of this agreement, the Suppliers Policies and Procedures, and all applicable laws and regulations.

2.11 The Customer shall be solely responsible for the use of the Services by the users authorised to access the Benchmark54 Software / The System by the Customer, and shall indemnify the Supplier and hold it harmless from any claim, cost or liability arising from such use, including reasonable legal fees.

2.12 Certain Authorised Users are granted access rights to Athletes (Medical) Data through the System, the Customer undertakes, and procure that it’s Authorised User’s undertakes to:

only used such information for treatment diagnosis and for obtaining reports and analysis;
only access Athlete Data pertaining to Athletes with whom they have a treatment relationship or for whom a provider who has a treatment relationship with the Athlete has requested a professional consultation from the Authorised User;
obtained authorisation from the Athlete to use their Athlete Data;
only use the minimum necessary information for these purposes; and
comply with all applicable laws, including laws relating to maintenance of privacy, security, and confidentiality of the Athlete and Athlete Data

2.13 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3. Additional module and squad subscriptions

3.1 Subject to clause 3.2, the Customer may, from time to time during any Subscription Term, be granted additional modular subscriptions or additional squads being added to the system in addition to the number set out in the initial agreement. The Supplier shall grant access to the Services and the Documentation to such additional modules in accordance with the provisions of this agreement.

3.2 If the Customer wishes to be granted additional modular subscriptions or additional squads, the Customer shall notify the Supplier in writing or by email or via live chat or other written communication. The Supplier shall evaluate such request for additional User Subscriptions by providing an estimate for these modules and or squad additions and respond to the Customer awaiting further approval or rejection of the request. If Approved by the customer the agreed increase in subscription fee will be payable.

4. Services

4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.

4.2 The Supplier shall use commercially reasonable endeavours to make the services available 24 hours a day, seven days a week, except for:

planned maintenance carried out during the maintenance window of 10.00 pm to 4.00 am GMT (Greenwich Mean Time); and
unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice to be given in advance.

4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours. This will include

Support Features

Our support policy has been designed in such a way as to provide multiple touch points for our clients. Email and Live Chat and Telephone.

Technical + User support backed by a team of support agents and technicians who developed Benchmark54. The support agents are further backed by high-level technical support from the systems administrator.
Transfer support. It is essential that transfers are pre-notified to the Supplier to ensure accuracy and legality of the data being held.
Diagnostic / Procedure code requests: These can be submitted to the supplier we will pass on the requests to our dedicated coding team, a response will be provided within 5 business days
Normal Support Hours The supplier provides all levels of technical and user support GMT 6 am – 5 pm. During normal Business days. This is via our live help system embedded into the Benchmark54 system or by email to info@benchmark54.com or by telephone 01423564175.

5. Athlete Data

5.1 Subject to clause 5.2, the Customer and/or the Athlete shall own all right, title and interest in and to all of the Athlete Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Athlete Data.

5.2 The Supplier shall own all right, title and interest in and to all Anonymous Athlete Data. Anonymous Athlete Data: means Athlete Data from which the individual’s name date of birth, club and other unique identifiers have been removed, and from which the individual cannot reasonably be identified.

5.3 The Customer agrees that the Supplier may use, disclose, market, license and sell any Anonymous Athlete Data for any purpose without restriction and that the Customer, Athlete and /or Authorised User shall have no interest in such Anonymous Athlete Data or in the proceeds of any sale, license, or other commercialisation of such information.

5.4 The Supplier shall follow its archiving procedures for Athlete Data, all data is subject to routine daily back up (daily) as well as live sql back up and data is normally restored the following business day. Data is backed up within our servers inside the EEA In the event of any loss or damage to Athlete Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Athlete Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Athlete Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Athlete Data maintenance and back-up).

5.5 Subject to the terms of any Consent Notice signed by Athletes relating to Athlete Data, the Supplier shall, in providing the Services, comply with its Privacy and Cookies Policy available by following links on https://app.benchmark54.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

5.6 The Supplier shall be processing personal information on behalf of the Customer, Authorised User’s and Athletes. When performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

the Customer acknowledges and agrees that the personal data is not transferred or stored outside the EEA. Unless the customer resides outside of the EEA temporarily for example international tournaments or events.
the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
the Customer shall ensure that the Authorised Users, Athletes and any other relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
the Supplier shall process the personal data only in accordance with the terms of this agreement, the Privacy and Cookies Policy and any relevant signed Consent Notice and any lawful instructions reasonably given by the Customer from time to time; and
ensure that any results or reports produced by the Supplier as a result of the Athlete’s Data being inputted into the System are treated confidentially and are only provided to third parties with the consent of the relevant Athlete.
ensure that when the Authorised User access the System, the screen and/or any printouts cannot be read by passers by and that the System is properly logged out of when not using the System;
ensure that all printouts from the System are kept securely stored away and that all Athlete Data that is accessed offline is stored securely on a laptop or other media (including removable media such as memory sticks) which is password protected and encrypted;
The Customer shall be solely responsible for ensuring that Athlete Data and any other personal information may properly be disclosed and shall:
1. ensure that the Athlete Data and any other personal information submitted into the System is not subject to any restriction on use or disclosure (whether arising from Customer’s agreement with the Athlete or Authorised User or by any law;)
2. obtain any necessary consents, authorisations or releases from Athletes and/or Authorised Users required for making their personal information and/or Athlete Data available through the System;
3. include such statements (if any) in its notice of privacy practices as may be required in connection with the Customer’s and Authorised Users use of the System; and
4. not place in the System any information that is false or materially inaccurate.

5.7 The Supplier shall not disclose any Athlete Data to any third party unless authorised under this agreement or expressly by the Athlete.

5.8 This clause shall survive termination of this agreement, however arising.

5.9 Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6. Use of Athlete Data

6.1 Athlete Data may be used in the following ways:

inputted into the System by Authorised Users;
made available to the Supplier and Customer [and its Authorised Users];
shared with such other [Authorised] Users [subject to restrictions as agreed by the parties];
in order to prepare analyses, statistics and reports, such as activity or quality-metrics reports, or any other reports the System makes available, in order to render these reports to the Customer;
for injury audit purposes;
combined with other information available in the public domain.
to facilitate the sharing of Athlete Data among nominated other approved Users;
accessed by nominated health care providers [and their business associates] providing the relevant Athlete has consented to provide access and the customer has approved this access.
[If the Customer requires the Athlete Data to be made available to other providers the Customer shall obtain the relevant Athletes consent to provide such access. The Customer acknowledges and shall procure the Athletes acknowledgement that once the Supplier has granted access rights to a provider, the Supplier shall have no control over the uses and disclosures that the provider makes of that Athlete Data.]
disclosed or accessed by nominated health care insurance companies providing the relevant Athlete has consented to provide access;
for the proper management and administration of the System and the Suppliers business, and to carry out the Supplier’s legal responsibilities;
for the purpose of [recording treatment or assessments, updating the injury / illness status of athletes, preparing reports, producing injury and illness audits and for entering accessing and updating data on athletes]
disclosed for such purposes as required by law;

With your consent, we will make on-line heath record for any athlete you designate accessible to any medical or allied medical user of the System whom you approve.

With your consent, we will make on-line performance record for any athlete you designate accessible to any other user of the System whom you approve.

You may revoke your consent with respect to any other user at any time. While your consent is in effect, an approved user may view and edit any health record you have designated for their use. If you revoke your consent, the approved user will not be able to view the record thereafter, and will not be able to edit the record. The same rules apply to your use of another user's record who approves access for you. You and your Workforce are fully responsible for the information in any data that you share. You and/or your Workforce should not share athlete information that violates any English laws. In any event, but especially in cases of potential fraud, misuse and/or abuse of the System, Digital Fish ltd reserves the right, in its sole judgment, to revoke, remove, cancel or deny continued access to any athlete data request.

6.2 The Supplier may permit access to the System by its contracted system developers under appropriate confidentiality agreements. For the following reasons;

For maintenance and back up the system.
To assist users with issues which arise during routine use of the system
For problem solving and fault correction.
To instruct in the correct usage of the system.
To ensure the system operates normally.

7. Use of Anonymous Athlete Data

7.1 Anonymous Athlete Data maybe be used in the following ways:

to create limited data sets and disclose them for any purpose for which you may disclose a limited data set; this data set would include diagnostic data e.g. injury diagnosis, investigation data e.g. MRI Scan and treatment data e.g. Injection
to amalgamate it with other user’s anonymous data for bench marking purposes;
medical audit purposes;
research purposes;

8. Responsibility for Misuse by Other Users

8.1 The Customer acknowledges that in granting access to the System for the purposes set forth in this agreement, the Supplier will rely on the assurances of the Authorised Users as to:

their identity and credentials;
the purposes for which they are accessing the System; and
the nature and extent of the information to which they will have access.

8.2 The Customer acknowledges that, while the System will contain certain technical safeguards against misuse of the System, it will rely to a substantial extent on the representations and undertakings of the Authorised Users and Other Users.

8.3 The Supplier shall not be responsible for any unlawful access to or use of Athlete Data or other personal information by any Other User resulting from the Other User's misrepresentation to us, or breach of the Authorised User Agreement or our Policies and Procedures.

9. Third Party Providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

10. Supplier's Obligations

10.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

10.2 The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 10.1. Notwithstanding the foregoing, the Supplier:

does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
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 Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10.3 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

10.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

11. Customer's Obligations

The Customer shall:

provide the Supplier with:
1. all necessary co-operation in relation to this agreement; and
2. all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
comply with all applicable laws and regulations with respect to its activities under this agreement;
carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
obtain a unique User ID from the Supplier for each of your Authorised Users;
ensure that each Authorised User is trained in and understands the requirements of this agreements and the Policies and Procedures relating to their access to and use of the System and the Services and take appropriate disciplinary action against any Authorised User who breaches the terms of this agreement or the Policies and Procedures;
ensure that only Authorised Users access the System;
immediately notify the Supplier of the termination of employment of any Authorised User, or of the Customer’s withdrawal of authorisation for any such person to access the System.
obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

12. Charges and Payment

12.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with any approved estimate provided by the supplier to the Customer.

12.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
1. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
2. subject to clause 17.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
1. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
2. subject to clause 17.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.

12.3 If the Supplier has not received payment within [30 days] after the due date, and without prejudice to any other rights and remedies of the Supplier:

the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on such due amounts at an annual rate equal to [3]% over the then current base lending rate of [the Supplier's bankers in the UK] at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

12.4 All amounts and fees stated or referred to in this agreement:

shall be payable in [pounds sterling];
are non-refundable and; until the contract termination date non-cancellable for the subsequent term.
are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

12.5 The Supplier shall be entitled to increase the Subscription Fees, in relation to fees payable in respect of the additional module or squad subscriptions purchased pursuant to clause 3.2 and 3.3.

13. Proprietary Rights

13.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

13.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

14. Confidentiality

14.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:

is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party's lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
is independently developed by the receiving party, which independent development can be shown by written evidence; or
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

14.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

14.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

14.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

14.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

14.6 This clause 14 shall survive termination of this agreement, however arising.

15. Indemnity

15.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:

the Customer is given prompt notice of any such claim;
the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
the Customer is given sole authority to defend or settle the claim.

15.2 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

15.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

a modification of the Services or Documentation by anyone other than the Supplier; or
the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

15.4 The foregoing and clause b] states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

16. Limitation of Liability

16.1 This clause 16 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

arising under or in connection with this agreement;
in respect of any use made by the Customer of the Services and Documentation or any part of them; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

16.2 Except as expressly and specifically provided in this agreement:

the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
the Services and the Documentation are provided to the Customer on an "as is" basis.

16.3 Nothing in this agreement excludes the liability of the Supplier:

for death or personal injury caused by the Supplier's negligence; or
for fraud or fraudulent misrepresentation.

16.4 Subject to clause 16.2 and clause 16.3:

the Supplier shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 12.2)], tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the [12] months immediately preceding the date on which the claim arose.

17. Term and Termination

17.1 This agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
otherwise terminated in accordance with the provisions of this agreement;

17.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

the other party commits a material breach of any of the terms of this agreement 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; or
an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
the other party ceases, or threatens to cease, to trade; or
there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

17.3 On termination of this agreement for any reason:

all licences granted under this agreement shall immediately terminate;
each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
the Supplier may destroy or otherwise dispose of any of the Athlete Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Athlete Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Athlete Data;
The Supplier shall retain all Anonymous Athlete Data; and
the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

18. Force Majeure

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

19. Waiver

19.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

19.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

20. Severance

20.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

21. Entire Agreement

21.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

21.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

22. Assignment

22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

22.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

23. No Partnership or Agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

24. Third Party Rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25. Notices

25.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.

25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

26. Governing Law and Jurisdiction

26.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

26.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date stated at the beginning of it.

Athlete Consent and Benchmark54 Overview

Benchmark54 is a medical and performance record system. Digital Fish Ltd who run the Benchmark54 system on behalf of your club or organisation, manage and process your personal, medical and performance information. This data helps the people who look after you, such as your doctor, physiotherapist and coach, make informed decisions about your training, treatment and rehabilitation.

We know this data is sensitive and confidential. That is why we use an athlete consent form.

Please watch this short video that explains how we manage your information and what we do with athlete data. https://youtu.be/QM1FtE0FIRg

Benchmark54 Information Governance

Hopefully our video has helped you to understand what we do with your data. You can watch it again by following this link https://youtu.be/QM1FtE0FIRg. The following will give you an overview of our information governance (how we handle and store data) and how it relates to the Data Protection Act.

The “Benchmark54” system (Referred to as ‘the system’ in this document), is managed by Digital Fish Ltd. The system is a centralised electronic medical and performance record system on which information, including personal performance and medical information, regarding athletes is stored.

The core purpose of the system is to enable authorised medical staff (Doctors, Physiotherapists, Sports Therapists, Clinical Nutritionists, Osteopaths, Chiropractors, Clinical Psychologists, Nurses, Podiatrists, other clinical and allied health professionals and Medical Administrators); to access and update a centralised and current medical record on athletes.

Other performance based staff (Coaches, S+C, Biomechanists, Analysts, GPS Analysts, Fitness Coaches, Rehab Coaches, Rehab Trainers etc) can access and update a centralised performance and rehab record.

Only individuals authorised by Digital Fish Ltd are permitted to access and /or input medical or performance information into the System. Digital Fish Ltd seek authorisation from your club or organisation, who inform us which users are authorised to have medical access to your data, and which only performance and rehab notes. If you would like to know who these users are, this information can be obtained from your club or organisation.

Digital Fish Ltd is a privacy conscious organisation, and is strongly committed to your right to privacy. We follow the guidelines set out in the Data Protection Act 1998 which provide rules for processing personal information, and applies to structured paper records as well as data held on computers and cloud based servers.

The Data Protection Act states that those who record, and process personal information must be open about how the information is used, and must follow the eight principles of ‘good information handling’. These principles state that data must be:

Fairly and lawfully processed
Processed for limited purposes
Adequate, relevant and not excessive
Accurate
Not kept for longer than is necessary
Processed in line with your rights
Secure, and
Not transferred to countries without adequate protection.

If you believe in any way that Digital Fish Ltd is not processing your personal data in accordance with these principles, please contact us by email: info@benchmark54.com.

Athlete Consent Form

I consent to the processing and storage of my personal information including medical data on Benchmark54 Medical and Performance system (the system), a centralised electronic medical records and performance database for elite athletes which is managed by Digital Fish Ltd. I also consent to;

Personal information, medical data and other sensitive data (e.g. ethnicity, physical and mental health and condition and disability classification) being stored and processed in the system;
Authorised Club or Organisation sports medicine practitioners inputting and accessing my personal information, medical data and other sensitive data (e.g. ethnicity, physical and mental health and condition and any disability classification) about me on the System; (these personnel may include doctors, physiotherapists, sports therapists, clinical nutritionists, osteopaths, chiropractors, clinical psychologists, nurses, podiatrists, medical administrators or other allied health professionals);
Authorised medical staff disclosing general training intensity / Injury Status information to coaches and performance personnel as appropriate; and
Authorised performance personnel staff inputting and accessing my performance information and data and sharing this with other performance and medical staff
Authorised B54, helpdesk personnel and authorised technical staff to access my data including medical data and other personal sensitive data (e.g. ethnicity, physical and mental health and condition and any disability classification). All such B54 personnel interactions with the system are carried out under strict obligations of confidentiality and compliance with data protection legislation. This access is only for the following reasons.
- For maintenance and back up the system.
- For problem solving and fault correction.
- To ensure the system operates normally.
Transfer of my data from one club or organisations authorised medical and performance staff to another for example during an official and confirmed loan period, conformed and official transfer to a national team, or after an agreed formal transfer between clubs or organisations.

I understand that I can (at any time) withdraw my consent to data concerning me being processed as part of the system. If I do withdraw my consent, then the B54 System Administrator will (as quickly as is practical) take steps to remove and destroy the data from the system.

I understand that if I do withdraw consent to my data being processed this will likely impair my club or organisations ability to manage both my medical and performance data. I agree to discuss these implications first with my club or organisation.

We may anonymise your personal injury / illness data to make Anonymous Data* and use it in the following ways:

( *Anonymous Data: means Data from which the individual’s name and other unique identifiers have been removed including club date of birth etc, and from which the individual cannot reasonably be identified. )

to amalgamate it with other user’s anonymous data for benchmarking and injury audit purposes; for example, comparing injury rates within a sport as part of an audit or research project
to create limited data sets and disclose them for any purpose for which you may disclose a limited data set; this data set would include diagnostic data e.g. diagnostic data, investigation data e.g. MRI Scan and treatment data e.g. Injection
to provide anonymous numerical data on injuries / illness to companies involved in sports data

In consideration of our provision of the system, you hereby transfer and assign to us all right, title and interest in and to all “Anonymous Data” that we make from your personal information, and you agree that we may use, disclose, market, license and sell your Anonymous Data for the purposes set out above, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialisation thereof.

We shall not disclose your personal information to any third parties unless expressly authorised by you. I hereby give my consent for Digital Fish Limited to use and process the information given by me for the purposes detailed above.

I hereby give my consent for Digital Fish Limited to use and process the information given by me for the purposes detailed above.

Name of Athlete	Date of Birth (dd/mm/yy)	Signature of Athlete	Date