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End User Licence Agreement

PSTEC LEGACY USE LICENCE AGREEMENT

This Agreement is made on 21 October 2021

Parties

  1. ORPHEUS MIND TECHNOLOGIES LIMITED, a company incorporated in England and Wales under number 12038605 whose registered office is at C/O Slater Heelis Limited, 86 Deansgate, Manchester, England M3 2ER (“Orpheus”); and
  2. ANY PERSON using the Therapeutic Content or Tracks for Therapy with a Patient (“Licensee”);

Recitals

  • PSTEC previously made the Tracks available to the Licensee for their personal self-help and for use with Patients.
  • Following its acquisition of PSTEC, Orpheus owns the Tracks and Orpheus has agreed to allow the Licensee to continue to use the Tracks on the terms of this Agreement.

The parties agree:

  • DEFINITIONS AND INTERPRETATION
    • In this Agreement, unless the context requires otherwise:
App The software application or applications owned and developed by Orpheus through which the Therapeutic Content can be accessed;
Business Day means a day other than a Saturday, Sunday or public holiday;
Commencement Date means the date of this Agreement;
Confidential Information shall have the meaning given in clause 10;
Corporate Entity means any limited, public, or other company, partnership, limited liability partnership, charity, or any other legal structure intended to form an institution or other organisational structure;
Fees as set out in the Schedule;
Month means the period of one calendar month from the Commencement Date and each successive calendar month during the term of this Agreement and Monthly shall be interpreted accordingly;
Notice Period as set out in the Schedule;
Patient means clients, customers, patients or private individuals who are engaged with the Licensee for the purposes of Therapy and Patients shall be interpreted accordingly;
PSTEC means PSTEC Worldwide Limited (company number 07370472);
Term the term referred to in clause 3;
Territory means anywhere;
Therapeutic Content means the therapeutic tracks, videos and other content made available by Orpheus for access via the App or has been downloaded from PSTEC websites;
Therapy means counselling, coaching, therapy, advice or any other reasonable definition of mental health help and support.
Tracks means;·                     the therapeutic tracks; and·                     the informational and instructional tracks;
VAT means United Kingdom value added tax as defined by the Value Added Tax Act 1994 or any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom; and
  • In this Agreement:
    • a reference to this Agreement includes its schedules;
    • the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement;
    • a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
    • a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
    • words in the singular include the plural and vice versa;
    • any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
    • a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
    • a reference to legislation is a reference to that legislation as in force as at the date of this Agreement.
  • SCOPE OF LICENCE
    • Subject to the terms of this agreement, Orpheus grants to the Licensee the non-exclusive right to continue to use the Tracks during one to one Therapy sessions with Patients of the Licensee in the Territory on the terms of this
    • Notwithstanding clause 2.1 and, for the avoidance of any doubt, the Licensee shall not be permitted to sell, distribute, or licence the Tracks to any persons in the Territory but the Licensee shall promote the App and the Therapeutic Content to Patients directly (not publicly) with a view to such Patients subscribing directly with Orpheus to use the App and the Therapeutic Content outside of Therapy sessions with the Licensee.
    • The Licensee shall not use the App as a mechanism to deliver the Therapeutic Content in sessions with Patients without first obtaining explicit written authorisation by a Director of Orpheus.
    • Where work between sessions is suggested by the Licensee for the Patient, the Licensee must advise the Patient to subscribe to the App.
    • The Licensee shall only use the Therapeutic Content with Patients.
    • The Licensee shall only use the Therapeutic Content when acting as either:
      • an individual sole trader, or
      • as a Corporate Entity existing for the sole purpose of providing the personal services of no more than one therapist to Patients and not other Corporate Entities,

and not in any other manner.

  • The Licensee shall not copy, reproduce, modify, amend, add to or in any way alter or create derivatives or translations of the Tracks without Orpheus’s prior written consent or as permitted by applicable law.
  • Where the Licensee references or discusses the Tracks in any way with any third party it shall refer to them as being PSTEC only where they were downloaded from PSTEC websites. The Licensee shall not describe themselves as Orpheus affiliated or in any way reference being Orpheus Tracks.
  • The Orpheus name and logo are registered marks and cannot be used by the Licensee without first obtaining explicit and detailed written authorisation by a Director of Orpheus. The Licensee also shall not describe themselves or in any way reference being Orpheus accredited, or any other association to the Orpheus branding and logo, without first obtaining explicit written authorisation by a Director of Orpheus. This includes on websites or any other promotional materials.
  • TERM
    • The Licence shall commence on the Commencement Date and shall continue unless terminated in accordance with any of the provisions of clause 11 or any other clause of this Agreement.
    • For the avoidance of any doubt, any previous rights to use the Tracks granted by Orpheus, PSTEC or any other third party shall cease and the terms of this Agreement shall replace them.
  • COMMERCIAL AND TECHNICAL ASSISTANCE

Orpheus undertakes from time to time during the continuance of this Agreement, at the request of the Licensee, to render to the Licensee adequate commercial and technical assistance in connection with the use of the App (where applicable) and the Therapeutic Content.

  • FEES
    • In consideration of the rights granted under this Agreement, the Licensee shall pay Orpheus the Fees set out in Schedule 1.
    • The Fees shall be payable monthly in advance and Orpheus shall issue an invoice (where applicable) and the Licensee shall pay the invoice via electronic bank transfer within 30 days properly due plus any VAT due in respect of such
  • UNDERTAKINGS BY THE LICENSEE

The Licensee undertakes and agrees with Orpheus that it will at all times during the continuance in force of this Agreement:

  • use reasonable endeavours to promote and extend the market for the App (where applicable) and the Therapeutic Content therein to all of its Patients in respect of whom it uses the App (where applicable) and the Therapeutic Content;
  • not represent or otherwise hold itself out as being an agent, partner, representative or otherwise formally associated with Orpheus or PSTEC other than being authorised to use the Tracks in Therapy sessions on the terms of this Agreement.
  • not incur any liability on behalf of Orpheus or in any way pledge or purport to pledge Orpheus’s credit or purport to make any contract binding upon Orpheus;
  • immediately bring to the attention of Orpheus any improper or wrongful use of Orpheus’s trade marks, emblems, designs, models or other intellectual or commercial property rights which come to the notice of the Licensee and will in the performance of its duties under this Agreement use reasonable efforts to safeguard the property rights and interests of Orpheus and take all steps required by Orpheus to defend such rights; and
  • promptly bring to the attention of Orpheus any information received by the Licensee which is likely to be of interest, use or benefit to Orpheus in relation to the clinical/therapeutic use, marketing and/or support of the App (where applicable) and/or Therapeutic Content.
  • LIABILITY
    • The Licensee warrants that they are sufficiently trained to offer Therapy to Patients and accepts full liability for any such service given to their Patients.
    • The Licensee shall from the date of this Agreement, and thereafter for the remainder of the term of this Agreement be liable for any legal costs arising from their provision of Therapy, including claims made against the Licensee. It must maintain employer’s liability, third party liability, product liability and professional indemnity insurance cover in respect of its liabilities arising out of or connected with this Agreement and/or its use of the Tracks with Patients, such cover to be to a minimum value of £1,000,000 per year and with an insurance company of repute. Such cover must be maintained for a period of time sufficient to cover any retrospective claims.
    • The Licensee shall on request supply copies of the relevant certificates of insurance to Orpheus as evidence that such policies remain in force and that the current premium has been paid. The Licensee undertakes to use reasonable commercial efforts to pursue or defend claims under such insurance policies.
    • The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 7.
    • Subject to clause 7.6, neither party shall be liable for consequential, indirect or special losses.
    • Subject to clause 7.6, neither party shall be liable for any of the following (whether direct or indirect):
      • loss of profit;
      • loss of contract;
      • loss of opportunity;
      • loss of savings, discount or rebate (whether actual or anticipated);
    • Except as expressly stated in this Agreement, and subject to clause 7.6, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
    • Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
      • death or personal injury caused by negligence;
      • fraud or fraudulent misrepresentation;
      • any other losses which cannot be excluded or limited by applicable law;
      • any losses caused by wilful misconduct.
    • FORCE MAJEURE

Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party or which could not have reasonably contemplated and taken reasonable steps to mitigate. If such circumstances continue for a continuous period of more than 1 month, the non-affected party may terminate this Agreement by written notice to the other party.

  • INTELLECTUAL PROPERTY RIGHTS
    • The Licensee acknowledges that any and all of the copyrights and other intellectual property rights used or embodied in or in connection with the Tracks, the App and the Therapeutic Content shall remain the property of Orpheus.
    • The Licensee also acknowledges that such copyrights and other rights belonging to Orpheus are only used by the Licensee with the consent of Orpheus and during continuation of this Agreement. Upon expiry or termination of this Agreement the Licensee shall forthwith discontinue such use, without receipt of compensation for such discontinuation.
    • The Licensee shall not during or after the expiry or termination of this Agreement, without the prior written consent of Orpheus, use or adopt any name, trade name, trading style or commercial designation used by Orpheus.
    • Orpheus shall defend at its own expense any claim brought against the Licensee alleging that the Tracks, the App (where applicable) or the Therapeutic Content infringe the intellectual property rights of a third party (“Intellectual Property Claim”) and Orpheus shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that the Licensee:
      • furnishes Orpheus with prompt written notice of the Intellectual Property Claim;
      • provides Orpheus with reasonable assistance in respect of the Intellectual Property Claim;
      • gives to Orpheus the sole authority to defend or settle the Intellectual Property Claim.
    • If, in Orpheus’s reasonable opinion, a Track is or may become the subject of an Intellectual Property Claim then Orpheus shall either:
      • obtain for the Licensee the right to continue using the Tracks which are the subject of the Intellectual Property Claim; or
      • replace or, with the prior written consent of the Licensee, modify the Tracks which are the subject of the Intellectual Property Claim so they become non-infringing.
    • If the remedies set out in clause 9.5 above are not in Orpheus’s opinion reasonably available (including on the grounds of cost), then the Licensee shall return the Tracks which are the subject of the Intellectual Property Claim and Orpheus shall refund to the Licensee the corresponding portion of the Fees paid in respect of such Tracks.
    • Orpheus shall have no liability for any Intellectual Property Claim resulting from any modification of any of the Tracks by a party other than Orpheus or its authorised agent. Such modifications or derivatives are forbidden as set out under 2.5.
    • Orpheus warrants to the Licensee that:
      • so far as it is aware the Tracks, the App and the Therapeutic Content are its or the author’s own original work and do not infringe the intellectual property rights of any third party;
      • it is the owner of the Tracks, the App and the Therapeutic Content and has entered into all necessary documents (including, where necessary, assignments) with any relevant author(s) to allow it to enter into and comply with this Agreement;
      • Orpheus has obtained from all author(s) of the Tracks, the App and the Therapeutic Content waivers of all moral rights or similar rights in respect of the Tracks, the App and the Therapeutic Content;
      • neither the Tracks, the App nor the Therapeutic Content infringes the intellectual property rights of any third party nor, so far as Orpheus is aware, are there any infringing items owned by any third party.
    • CONFIDENTIAL INFORMATION
      • Except as expressly provided, each party (“the Receiving Party“) undertakes, to treat as confidential and keep secret all information of the other party (“the Disclosing Party“) marked ‘confidential’ or which may reasonably be supposed to be confidential that is disclosed by the Disclosing Party to the Receiving Party during the negotiations or the performance of this Agreement (“the Information“). The Receiving Party shall protect the Information with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of the Receiving Party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
      • The Receiving Party shall not without the prior written consent of the Disclosing Party divulge any part of the Information to any person except:
        • to its own employees who need to know the same; and
        • to its auditors, an officer of HM Revenue and Customs, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the Receiving Party and then only in pursuance of such right duty or obligation.
      • The Receiving Party undertakes to ensure that persons and bodies referred to in clause 10.2 are made aware before the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the Disclosing Party.
      • The Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the Disclosing Party all reasonable assistance in connection with any proceedings which the Disclosing Party may institute against such person for breach of confidence.
      • Clause 10 shall remain in full force and effect for two years following any termination of this Agreement.
      • The Licensee further agrees that upon expiry or termination of this Agreement it shall not itself or through any subsidiary or agent or otherwise, sell, sub-license, market, distribute or otherwise deal with any of the Tracks (in whole or in part) or have any software developed upon any confidential information supplied to it by Orpheus, or in any way pursuant to this Agreement.
    • TERMINATION OR EXPIRY
      • This Agreement may be terminated by either party giving the other not less notice than the Notice Period.
      • Notwithstanding any provisions contained in it, this Agreement may be terminated immediately by either party by notice in writing from the party not at fault if:
        • the other party shall commit any act of bankruptcy, shall have a receiving order made against it, shall make or negotiate for any composition or arrangement with or assignment for the benefit of its creditors or if the other party being a body corporate, shall present a petition or have a petition presented by a creditor for its winding up or shall enter into any liquidation (other than for the purpose of reconstruction or amalgamation), shall call any meeting of its creditors, shall have a receiver of all or any of its undertakings or assets appointed, or shall cease to carry on business;
        • the other party shall at any time be in default under this Agreement and shall fail to remedy such default within 30 days from receipt of notice in writing from the first party specifying such default.
      • The expiry or termination of this Agreement shall be without prejudice to the rights of the parties accrued up to the date of such expiry or termination nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or to continue in force on or after such termination.
      • Upon expiry or termination (for whatever reason) of this Agreement, the Licensee shall return or destroy (as Orpheus shall instruct) no later than 14 days thereafter, all technical information and any other data (including master versions of the Tracks) supplied to the Licensee for the purpose of their business during the continuance of this Agreement and all and any copies made of the whole or any part of the same.
    • WAIVER

Unless a party expressly waives its rights in writing, no delay, neglect or forbearance by either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

  • ASSIGNMENT

This Agreement shall not be assigned by either, in whole or in part, to any third party without the prior written consent of the other party.

  • SUCCESSORS AND ASSIGNEES
    • This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
    • In this Agreement references to a party include references to a person:
      • who for the time being is entitled (by assignment, novation or otherwise) to that party’s rights under this Agreement (or any interest in those rights); or
      • who, as administrator, liquidator or otherwise, is entitled to exercise those rights,

and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party’s rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.

  • NOTICES
    • All notices under this Agreement shall be in writing and must be in English.
    • Notices shall be deemed to have been duly given:
      • when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
      • on the second business day of the sender following mailing, if mailed by national ordinary mail, postage prepaid.

in each case addressed to the address set out at the beginning of this Agreement or such other address as is notified to the other party.

  • ANNOUNCEMENTS

Neither party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from the other party.

  • ENTIRE AGREEMENT

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

  • SEVERABILITY

If any provision of this Agreement is or becomes prohibited by law or is judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the remainder of this Agreement.

  • COUNTERPARTS
    • This Agreement may be executed in any number of counterparts, each of which shall be an original, and such counterparts shall together constitute one and the same agreement.
    • Each party may evidence their signature of this Agreement by transmitting by email a signed copy of this Agreement or signed signature page of this Agreement in PDF format together with the final version of this Agreement in PDF or Word format, which will constitute an original signed counterpart of this Agreement.
  • THIRD PARTIES

Without prejudice to any right or remedy of a third party which exists or is available apart from such Act, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. The parties to this Agreement do not require the consent of any third party to terminate, rescind or to agree any variation, waiver or settlement in relation to it.

  • PROPER LAW AND JURISDICTION
    • The parties agree that this Agreement shall be governed by English law.
    • The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
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