Content

1. Definitions and interpretations

1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

2. Agreement

2.1 Your Order constitutes an offer to purchase the Service in accordance with this Terms of Service Agreement and the Desuto Data Processing Agreement.

2.2 Your Order will be deemed to be accepted when, following Your Order, We allow You to use the Service whether on a full or a Trial basis at which point a Contract shall come into existence. 

2.3 This Terms of Service Agreement applies to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 

2.4 You acknowledge that You have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in this Terms of Service Agreement and that You shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Terms of Service Agreement.

2.5 The provisions of the Desuto Data Processing Agreement shall be deemed to be incorporated into the Terms of Service Agreement as if expressly set out in it. Subject to sub-Clause 2.6, definitions and interpretations set out in this Agreement shall apply to the interpretation of the Desuto Data Processing Agreement.

2.6. In the event of any conflict or ambiguity between any of the provisions of this Agreement and the Desuto Data Processing Agreement OR any other agreement between the Parties, the provisions of the Desuto Data Processing Agreement shall prevail.

2.7 The parties agree that this Terms of Service Agreement and the Desuto Data Processing Agreement represent the entire Agreement between the parties relating to the provision of the Service.

3. Service Provision

3.1 The Service, ‘TherapyRecord.Online’, provided by Desuto Ltd is a cloud based application and storage facility, or ‘Client Management System’, for the storage of client records. 

3.1 TherapyRecord.Online Customers (data controllers) will use the system for the Intended Purpose of storing health and care data gathered in the process of providing psychotherapy, counselling and other, similar services to their clients (data subjects). 

3.3 The Service will provide document templates but there is no requirement for customers to complete template fields. The system will store the data that is collected by the customer, its employees and /or Contractors in whatever form they choose. 

3.4 Desuto Ltd does not determine the type or category of data that is collected. Decisions about the type and category of data and the level of detail are the responsibility of the customer, its employees and Contractors. 

3.5 Desuto will store the data according to the time schedule determined by the customer. The length of storage and deletion of data will be under the control of the customer. 

3.6 Desuto Ltd will meet its Data processor obligations as required in this Agreement and in law. 

3.7 The service is centrally hosted on secure UK based servers with 99.995% uptime and is accessed by the customer and authorised users via the internet using a supported browser and personal computing device.

3.8 The TherapyRecord.Online Service is provided by, set up, managed and maintained by Desuto Ltd and Our appointed hosting partners, Digital Ocean.

3.9 We periodically make changes, fix, update or upgrade the service. This includes making changes to existing functions or introducing new functions and new features. These changes are made at Our discretion.

3.10 Access to the Service is limited to those who have been authorised and registered by the customer. To maintain access, the Customer must have paid, in advance, the appropriate subscription for the declared number of authorised users. 

3.11 To maintain access to the Service, a working and reliable internet connection is required at all times. 

3.12 In ordering a trial of the Service, You (The Customer) are agreeing to this Terms of Service Agreement and consenting to the processing of Your data in accordance with the Desuto Ltd Data Processing Agreement.

4. Technical Support

4.1 The Service includes access to Our online support to assist with the normal day to day use of the Software.. Support requests must be made using the ticketed support system or email. Support requests can be raised by email to [email protected]  

4.2 We shall endeavour to answer all requests for support raised by the Customer within 48 hours (provided that the request is raised on a Business Day) and correct any Errors within 90 Business Days.

5. Fees

5.1 To register with TherapyRecord.Online for a free trial, You will need to choose the appropriate subscription plan and provide valid payment details. You will have full access to Your chosen service without charge for a period of 14 days from the first time You access the service.

5.2 If You continue to use the service after the 14 day trial period, Your first payment will be taken using the details provided and You will be set up with a renewal subscription.

5.3 If You choose not to continue with the subscription, You must contact us before the end of the trial period.

5.4 During the trial period, You agree to comply with the general terms of this Agreement.

5.5 Notwithstanding any warranties in this Agreement, during any free trial, the service is provided without any warranty whatsoever.

5.6 This Agreement grants You the right to use the service (in accordance with these terms) while You continue to pay the appropriate annual or monthly fee for Your chosen service.

5.7 All fees must be paid in advance either on a monthly or annual basis.

5.8 All fees are quoted exclusive of Value Added Tax (VAT) which is payable in accordance with current legislation.

5.9 Payment can be made using a credit or debit card, direct debit or bank transfer.

5.10 All card transactions are processed using a certified PCI Service Provider Level 1 using secure encryption.

5.11 Invoices are payable within 14 days

5.12 It is the customers responsibility to ensure that their subscription and payment-plan meets their service needs.

5.13 We will review accounts on a Monthly basis to ensure that the number of registered users does not exceed the subscription plan. Where the number of registered users exceeds the subscription plan, the customer’s payment plan may be adjusted, in line with Our fees, from the following month. Customers on annual payment plans will be invoiced for additional user accounts following each review.

5.14 We will not refund for unused accounts, nor will We charge retrospectively for excess accounts.

5.15 5.16 Downgrading or cancelling Your account may cause the loss of access, content or features of the service. We do not accept liability for any such loss.

5.17 All fees related to the service, including but not limited to the monthly subscription fees, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by updates to the website or by email correspondence.

5.18 If You have any questions about changes made to Your account, please contact us immediately. If there are charges made in error, We will credit Your account or credit card account for the appropriate amount.

5.19 We reserve the right to charge an administration fee for any failed or late payments in respect of credit/debit card payments.

5.20 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5.21 If You register for a free trial and do not purchase a subscription before the end of the free trial, this Agreement will terminate at the end of the trial period.

6. Acceptable Use

6.1 This part of the Agreement describes the acceptable use of the Service. It ensures that You do not use the Service for illegal or prohibited purposes

6.2 You are solely responsible for Your conduct and Your data related to the Service

6.3 You warrant that You have all rights, licences, authorisations and consents required to use the Service, including without limitation in respect of Your data.

6.4 You agree to indemnify us from any and all loss, cost, liability, and expense arising from or related to Your data or use by You or Your employees, Contractors or agents of the Service or violation of this Terms of Service Agreement.

6.5 The Service, including any software that forms part of the Service, is made available to You for Your personal use or internal business purposes, and such use must comply with all applicable laws, rules and regulations, including without limitation privacy laws, and must not infringe or violate third party rights.

6.6 The Subscription Plan You purchase will limit the number of users that are authorised to use the Service. You must not allow any additional users to use the Service or permit User accounts to be shared between Users.

6.7 We reserve the right to audit Your use of the Service, at Our own cost and upon giving You reasonable notice, to determine whether Your use is in accordance with this Terms of Service Agreement and any other terms that apply to the Service. If an audit reveals that You have exceeded the scope of use permitted, You may be required to pay an additional service fee for such use;

6.8 Any unauthorised use of the Service is a violation of this Terms of Service Agreement and may breach English Law. Such violations may subject You or Your staff to civil and criminal penalties;

6.9 We will endeavour to make the Service available 24 hours a day, seven days a week. However, You acknowledge and agree that the Service may occasionally be unavailable during periods of planned or unscheduled maintenance. We may perform unscheduled maintenance at any time, but will do this outside of normal business hours where possible.

7. Term and Termination

7.1 The Agreement commences on the date that We allow You to use the Service whether on a full or a Trial basis and will continue with the agreed terms until such time it is terminated by either party or it expires. 

7.2 You are solely responsible for the cancellation of Your account. 

7.3 To cancel an Account, You should make a cancellation request via email to [email protected]. Once the account has been cancelled a confirmation email will be sent to You. Cancellation requests can take up to 2 weeks to process. If Your account is cancelled before the end of Your currently paid month, the Service will end at the end of that month and You will not be charged again.

7.4 Following cancellation of Your subscription Your content and data will be available to You for another 90 days after which point it will be deleted and will no longer be available to You.

7.4 During the 90 day period and at Your request Your data will be returned to You in the format(s) reasonably requested by You, in a reasonable time frame.

7.5 Your account will be suspended if You fail to pay Your subscription fees. The suspension period lasts for a maximum of 90 days before the account may be terminated by us. As above, Your content and data will no longer be available to You and We are not responsible for any loss You suffer as a result of such suspension or termination. A suspended account can be reactivated by supplying valid payment credentials and resuming Your subscription. A terminated account cannot be resumed and all data will be lost to You.

7.6 You agree and acknowledge that Desuto Ltd has no obligation to retain Your data and may delete such data irretrievably 90 days after termination of this Agreement and You indemnify and hold Desuto Ltd harmless from and against any loss damage claim or liability arising from such deletion in accordance with this clause.

7.7 Either party may terminate this Agreement for the following causes

7.7.1  upon 14 days written notice to the other party of a material breach by the other, if such breach remains uncured at the expiration of such period; 

or 

7.7.2  if the other party becomes insolvent or the subject of  any insolvency process or procedure in any jurisdiction 

or 

7.7.3  makes any arrangement with its creditors or applies to make such an arrangement.

7.8 Desuto Ltd has sole discretion and the right to suspend or terminate Your account and refuse any and all current or future use of the Service, for any reason, at any such time which may result in all data being lost to You.

7.9 On termination of the Agreement, for any reason, You shall immediately cease to use all of the Service and all rights granted to You under this Agreement shall cease and for the avoidance of doubt any licence to use the Service is automatically terminated.

7.10 Desuto Ltd also reserves the right to refuse service to anyone for any reason at any time.

8. Customer Data

8.1 Where We process any personal data on Your behalf, when performing Our obligations under this Agreement, You shall be the data controller and We shall be a data processor.

8.2 You shall own all right, title and interest in and to all of theSubject Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subject Data. Desuto Ltd and TherapyRecord.Online do not have any claim on data or other material that You as the customer add or upload to our site.

8.3 Each party shall duly observe and fully comply with their obligations under the Data Protection Legislation, which arise in connection with the Contract.

8.4 You shall ensure that You are entitled to transfer the relevant personal data to Us so that We may lawfully use, process and transfer such personal data in accordance with this Agreement on Your behalf.

8.5 You shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Legislation

8.6 You consent to us transferring Your data to third party IT providers, including our website host and back-up service provider, in the United Kingdom. 

8.7 We shall process the personal data only in accordance with these Terms and any lawful instructions given by You from time to time

8.8 We shall not store any Subject Data outside the UK without YOur written consent; and 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.

9. Intellectual Property

9.1 You acknowledge that We and/or Our licensors own all intellectual property rights in the TherapyRecord.Online website and application software. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered),or any other rights or licences in respect of the application Software.

9.2 Except to the extent that applicable laws prevent us from restraining You from doing so, You agree that You will not copy, reproduce, alter, modify, or create derivative works from the Service.

10. Confidentiality

10.1 We, Desuto Ltd (Data Processor) shall maintain the Personal Data in confidence, and in particular, unless the You the customer (Data Controller), have given written consent for Us to do so, We shall not disclose the Personal Data to any third party. We will not process or make any use of any Personal Data supplied to Us by You otherwise than as necessary and for the purposes of the provision of Our Services to You.

10.2 Nothing in this Agreement shall prevent Us from complying with any requirement to disclose or process Personal Data where such disclosure or processing is required by domestic law, court, or regulator (including, but not limited to, the Information Commissioner). In such cases, We shall notify You of the disclosure or processing requirements prior to disclosure or processing (unless such notification is prohibited by domestic law) in order that You can challenge the requirement if You wish to do so.

20.3 We shall ensure that all employees who are to access and/or process any of the Personal Data are informed of its confidential nature and are Contractually obliged to keep the Personal Data confidential.

11. Accounts and Passwords

11.1 You and all Users authorised by You to use TherapyRecord.Online shall keep secure any identification, password and other confidential information relating to Your account and shall notify us immediately of any known or suspected unauthorised use of Your account or breach of security, including loss, theft or unauthorised disclosure of

passwords or other security information.

12. Freedom of Information Act (FOIA)

12.1 We acknowledge that We or You may be subject to the requirements of the Freedom of Information Act (FOIA). In the event of a Freedom of Information request, the Receiving Party shall immediately notify the other Party of the existence, terms and circumstances surrounding such request and if disclosure of the Confidential Information is required or deemed advisable, exercise its best efforts to obtain from such court, agency or body an order, stipulation or other reliable assurance acceptable to the other Party that confidential treatment will be accorded to such portion of the Confidential Information to be disclosed.

12.2 In the case of the request being to You. We shall assist and cooperate with You (at Your expense) to enable You to comply with these information disclosure requirements.

12.3 At all times We will act in accordance with the FOIA, the associated Codes of Practice and regulations (and any other applicable codes of practice or guidance notified to Us from time to time) to the extent that they apply to Our performance under the Agreement.

13. Publicity

13.1 You agree not to publicise Your relationship with Us or disclose the terms of this Agreement or use Our name or other trademarks or service marks in any advertisement or publication without Our prior consent and without adhering to Our guidelines for doing so.

14. Liability and Indemnity

14.1 You, The Data Controller, shall be liable for, and shall indemnify (and keep indemnified) Us, the Data Processor in respect of, any and all actions, proceedings, liabilities, costs, claims, losses, expenses (including reasonable legal fees and payments on a solicitor and client basis), or demands, suffered or incurred by, awarded against, or agreed to be paid by, Us, the Data Processor, and any subContractor appointed by Us [under Clause 11 of the Desuto Data Processing Agreement] arising directly or in connection with:

14.1.1 any non-compliance by You with the Data Protection Legislation;

14.1.2 any Personal Data processing carried out by Us [or any subContractor appointed by Us [under Clause 11 of the Desuto Data Processing Agreement] in accordance with instructions given by the You to the extent that the instructions infringe the Data Protection Legislation; or

14.1.3 any breach by You of Your obligations or warranties under this Agreement;

but not to the extent that the same is or are contributed to by any non-compliance by Us, or any subContractor appointed by Us [under Clause 11 of the Desuto Data Processing Agreement] with the Data Protection Legislation or its breach of this Agreement.

14.2 We shall be liable for, and shall indemnify (and keep indemnified) You in respect of, any and all actions, proceedings, liabilities, costs, claims, losses, expenses (including reasonable legal fees and payments on a solicitor and client basis), or demands, suffered or incurred by, awarded against, or agreed to be paid by, You arising directly or in connection with:

14.2.1 any non-compliance by Us, or any subContractor appointed by the Data Processor [under Clause 11 of the Desuto Data Processing Agreement] with the Data Protection Legislation;

14.2.2  any Personal data processing carried out by Us, or any subContractor appointed by the Data Processor [under Clause 11 of the Desuto Data Processing Agreement] which is not in accordance with instructions given by You to the extent that the instructions are in compliance with the Data Protection Legislation; or

14.2.3  any breach by Us of Our obligations or warranties under this Agreement;

14.3 but not to the extent that the same is or are contributed to by any non-compliance by You with the Data Protection Legislation or its breach of this Agreement.

14.4 You shall not be entitled to claim back from Us or under sub-Clause 14.2 or on any other basis any sums paid in compensation by You in respect of any damage to the extent that You are liable to indemnify Us under sub-Clause 14.1.

14.5 Nothing in this Agreement (and in particular, this Clause 14) shall relieve either Party of, or otherwise affect, the liability of either Party to any Data Subject, or for any other breach of that Party’s direct obligations under the Data Protection Legislation. Furthermore, We hereby acknowledges that We shall remain subject to the authority of the Information Commissioner and shall cooperate fully therewith, as required, and that failure to comply with Our obligations as a data processor under the Data Protection Legislation may render it subject to the fines, penalties, and compensation requirements set out in the Data Protection Legislation.

14.6 Nothing in this Clause 14 shall be deemed to be limited, excluded, or prejudiced by any other provision(s) of this Agreement.

14.7 Any limit of liability set out in this Agreement shall not apply to any indemnity or reimbursement provisions set out in the Desuto Data Processing Agreement.

15.  Limitation of Liability

15.1 You agree that You assume sole responsibility for use of the TherapyRecord.Online application software and the quality of Subject Data entered.  We shall have no liability for any damage caused by errors in Subject Data.  You acknowledge that the application was not designed to meet Your individual requirements and that it is Your responsibility to ensure that the Software meets Your requirements.  

15.2 This clause sets out Our entire financial liability (including any liability for the acts or omissions of Our employees, agents and subContractors) to You:

15.2.1 arising under or in connection with the Contract;

15.2.2 in respect of any use made by You of the application Software and Documentation or any part of them; and

15.2.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

15.3  Except as expressly and specifically provided in these Terms:

15.3.1 You assume sole responsibility for any results obtained from the use of the Software and the Documentation, and for conclusions drawn from such use; and 

15.3.2 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 these Terms.   

15.4 Nothing in this Agreement excludes Our liability:

-for death or personal injury caused by Our negligence; or

-for fraud or fraudulent misrepresentation. 

15.5 Subject to clause 15.3 and clause 15.4 above, We 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 the Contract; and

15.6 Our total aggregate liability in Contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total subscription Fees paid by You. 

16. Force Majeure 

16.1 Neither party shall be in breach of this Terms of Service Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances [the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

17.  Governing Law and Jurisdiction

17.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-Contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

17.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-Contractual disputes or claims).