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.
THIS AGREEMENT is currently active
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:
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.
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.
2.1 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:
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:
2.8 The Customer shall not and shall procure that any of its Authorised Users shall not:
(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
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:
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.
3.1 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.
4.1 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:
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
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.
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:
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.
6.1 Athlete Data may be used in the following ways:
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;
7.1 Anonymous Athlete Data maybe be used in the following ways:
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:
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.
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:
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.
The Customer shall:
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:
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:
12.4 All amounts and fees stated or referred to in this agreement:
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.
13.1 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.
14.1 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:
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.
15.1 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:
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:
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.
16.1 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:
16.2 Except as expressly and specifically provided in this agreement:
16.3 Nothing in this agreement excludes the liability of the Supplier:
16.4 Subject to clause 16.2 and clause 16.3:
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:
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:
17.3 On termination of this agreement for any reason:
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.
19.1 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.
20.1 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.
21.1 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.
22.1 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.
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).
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.
25.1 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).
26.1 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.
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
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:
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: firstname.lastname@example.org.
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. )
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|