iESE CareCubed Fair Cost of Care Service:

End User Licence Agreement (EULA)

1         Terms & Conditions

By registering on www.fcoc.carecubed.org for the iESE CareCubed FCOC Fair Cost of Care service (CareCubed FCOC), you agree to the following terms and conditions.

2         Definitions

CareCubed FCOC is defined as the iESE CareCubed FCOC Fair Cost of Care service

Documentation is defined as CareCubed FCOC associated media, printed materials, and online documentation.

Licensor is iESE Innovation Ltd as the organisation issuing the licence for the use of CareCubed FCOC

Care Provider means an organisation or individual registered with the Care Quality Commission in England for the operation of one or more care homes (with or without nursing) for people aged 65 and upwards.

Local Authority means an upper tier local authority in England, with responsibility for adult social services.

Host Local Authority means, for a specific care home the Local Authority in which that care home is located.

The Organisation means the licensee, either a Care Provider or a Local Authority, which is granted a licence to use CareCubed FCOC.

You means the individual user of the CareCubed FCOC, an employee or representative of the Organisation.

3         Purpose of the CareCubed FCOC

3.1      The primary purpose of the CareCubed FCOC is to support the Cost of Care Exercise required by the UK Department of Health and Social Care (DHSC). The CareCubed FCOC achieves this purpose by:

3.1.1     allowing Care Providers to share data on care home operating costs, occupancy, and associated information with Local Authorities.

3.1.2     allowing Local Authorities to collate and analyse the shared data, to create the “Cost of Care” submission to the UK Department of Health and Social Care (DHSC), to inform their market sustainability plans, and for good stewardship of public funds.

4         Licence

4.1      iESE hereby grants to your Organisation a non-exclusive licence to use CareCubed FCOC system and the Documentation in the UK on the terms of this agreement. In return for the licence for the use of the CarCubed FCOC your Organisation and You agree that to abide by the terms of this agreement.

4.2      You may:

4.2.1     access CareCubed FCOC for the internal business purposes of the Organisation only; internal business use means the use of CareCubed FCOC by employees or authorised representatives of the Organisation.

4.2.2     receive and use any free supplementary updates of CareCubed FCOC and corrections of errors as may be provided by Licensor from time to time; and

4.3      Except as expressly set out in this Licence or as permitted by any local law, You undertake:

4.3.1     not to copy CareCubed FCOC or the Documentation except where such copying is incidental to normal use of CareCubed FCOC or where it is necessary for the purpose of back-up or operational security;

4.3.2     not to rent, lease, sub-license, loan, translate, merge, adapt, vary, or modify CareCubed FCOC or the Documentation;

4.3.3     not to make alterations to, or modifications of, the whole or any part of CareCubed FCOC;

4.3.4     not to disassemble, decompile, reverse engineer, or create derivative works based on the whole, or any part, of CareCubed FCOC nor attempt to do any such things except to the extent that such actions cannot be prohibited by virtue of section 296A of the Copyright, Designs and Patents Act 1988;

4.3.5     to supervise and control use of CareCubed FCOC and ensure that Your employees and authorised representatives use CareCubed FCOC in accordance with the terms of this agreement;

4.3.6     to include the copyright notice of the Licensor on all entire and partial copies you make of CareCubed FCOC on any medium.

5         GDPR (General Data Protection Regulation)

5.1      The only personal information intended to be contained in CareCubed FCOC is name, email address, and organisation for each user.

5.2      Licensor shall use this personal information to deliver the contract to operate the CareCubed FCOC.

5.3      CareCubed FCOC uses cookies, which are small pieces of information stored on your device, to track your journey from page to page and to store preferences relating to how the CareCubed FCOC operates. CareCubed FCOC uses essential cookies only and registration on the service gives your consent for their use.

6         Confidentiality

6.1      The data that Care Providers submit to CareCubed FCOC includes confidential information. The data items, who they may be disclosed to, and for what purpose as standard within the CareCubed FCOC are set out in Annex A. A Care Provider may choose to share their own information more widely.

6.2      Confidentiality and Data Protection Clauses for Care Provider users

6.2.1     You agree to share data via CareCubed FCOC with specified Local Authorities and other parties as defined at Annex A.

6.2.2     Under the terms of this Licence, You authorise the Licensor to manage the data submitted by You on behalf of your Organisation and to process this data, along with other similar datasets from other Organisations, in order create adaptations of the combined dataset.  Licensor undertakes to share confidential data in line with Annexe A relating to the organisations with whom your authorised system users choose to share your data. These adaptations will be provided to third parties as set out at Annex A.

6.2.3     In rare circumstances You may enter information about a home that is personal, for example, where there is only one employee in a role and there is salary information for that role. You authorise the Licensor on behalf of your Organisation to process that information, including passing on that information to those third parties permitted to access this information under this agreement.

6.3      Licensor undertakes to share confidential data in line with Annexe A relating to the organisations with whom your authorised system users choose to share your data.

6.4      Confidentiality Clauses for Local Authority and other data users

6.4.1     You undertake to keep data that Care Providers share with you confidential where specified as such in Annex A, to use this data for the specified purposes only, and not to disclose it without prior written permission of the relevant Care Provider.

6.4.2     Local Authorities undertake to ensure that any third parties working as their representatives are aware of their duty of confidentiality.

7         Security of your account

7.1      You will be responsible for all activities that occur on CareCubed FCOC under your username and password combination. Therefore, You must keep your password confidential and not disclose it or share with anyone.

8         Intellectual property

8.1      The CareCubed FCOC Service

8.1.1     The content and function of the CareCubed FCOC website is protected by copyright, trademarks, and other intellectual property rights.

8.1.2     You may use and display the content of the iESE CareCubed FCOC on a computer or Internet connected device, analyse and download information in electronic form or print copies for discussion and distribution.

8.1.3     You may not otherwise reproduce, modify, copy, or distribute or use for commercial purposes any of the materials or content on the iESE CareCubed FCOC site without written permission from iESE.

8.1.4     You acknowledge that all intellectual property rights in CareCubed FCOC and the Documentation throughout the world belong to iESE and that you have no rights in, or to, CareCubed FCOC or the Documentation other than the right to use them in accordance with the terms of this agreement.

8.1.5     No licence is granted to you in these Terms and Conditions to use any trademark of iESE other than as set out in these terms and conditions.

8.2      The data entered into, and intellectual property generated by, the CareCubed FCOC Service.

8.2.1     The data entered into CareCubed FCOC will be and remain the intellectual property of the Care Provider.

8.2.2         Authorised users of the data that You enter, including your Organisation, will use these data to conduct analysis and create reports generated from this analysis.  The intellectual property in these analysis and reports will be owned by their author.

9         Warranty

9.1      Licensor warrants that, at the time CareCubed FCOC is supplied, CareCubed FCOC will, when used properly, perform substantially in accordance with the description in the Documentation (provided that CareCubed FCOC is used properly and with the operating system for which it was designed as referred to in the accompanying documentation), and the Documentation correctly describes the operation of CareCubed FCOC in all material respects.

9.2      This warranty period extends for the licence period.

9.3      If, within the Warranty Period, you notify the Licensor in writing of any defect or fault in CareCubed FCOC in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended CareCubed FCOC or used it in contravention of the terms of this agreement the Licensor will use reasonable endeavours to correct the defect or fault.

9.4      iESE are not held liable for the accuracy of information inputted by users of the CareCubed FCOC.

9.5      You acknowledge that CareCubed FCOC has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of CareCubed FCOC meet your requirements.

10    Liability 

10.1   This condition sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents, and subcontractors) to each other in respect of:

10.1.1   breach of this agreement, however arising;

10.1.2   any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

10.2   Nothing in this agreement shall limit or exclude the liability of either party for:

10.2.1   fraud or fraudulent misrepresentation; or

10.2.2   breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

10.2.3   breach of section 2 of the Consumer Protection Act 1987; or

10.2.4   the deliberate default or wilful misconduct of that party, its employees, agents, or subcontractors.

10.3   Without prejudice to condition 10.2, neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any personal injury; loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data; or any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise; provided that this condition 10.3 shall not prevent claims for loss of or damage to your tangible property any other claims for direct financial loss that are not excluded by any of categories in this condition 8.3.

10.4   Subject to conditions 10.2 and 10.3, Licensor’s maximum aggregate liability under or in connection with this Agreement and other similar agreements with other Organisations, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the fee paid by the Improvement and Development Agency to iESE for the licences to use the CareCubed FCOC.

10.5   Subject to conditions 10.2, 10.3 and 10.4, iESE liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in the UK.

10.6   This agreement sets out the full extent of iESE’s obligations and liabilities in respect of the supply of CareCubed FCOC and the Documentation. There are no conditions, warranties, representations, or other terms, express or implied, that are binding on iESE except as specifically stated in this agreement. Any condition, warranty, representation, or other term concerning the supply of CareCubed FCOC and the Documentation which might otherwise be implied into or incorporated in this agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

11    Entire agreement

11.1   This agreement and any document expressly referred to in it constitute the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of CareCubed FCOC and the Documentation.

11.2   We each acknowledge that, in entering into this agreement (and the documents referred to in it), neither of us relies on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents.

11.3   Each of us agrees that the only rights and remedies available to us arising out of or in connection with a Representation shall be for breach of contract as provided in this agreement.

12    Applicable Law

12.1     The parties agree that the law of England and Wales will govern the performance and interpretation of this agreement and any disputes arising under it and submits to the-exclusive jurisdiction of the courts of England for all purposes relating to this agreement.

13    Waiver 

13.1    If Licensor fails, at any time during the term of this agreement, to insist upon strict performance of any of your obligations under this agreement, or if we fail to exercise any of the rights or remedies to which we are entitled under this agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve You from compliance with such obligations.

13.2   A waiver by us of any default shall not constitute a waiver of any subsequent default.

13.3   No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

14    Availability and support

14.1   Licensor cannot guarantee that the service will be fault free. If a fault occurs in the service, you should report it to carecubed@iese.org.uk, and Licensor may attempt to correct the fault at our discretion and considering the severity of the issue.

14.2   Your access to CareCubed FCOC may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. In such events, Licensor will attempt to restore the service as soon as it can.

14.3   The CareCubed FCOC support team can be contacted via email to carecubed@iese.org.uk during working hours.

14.4   Working hours are defined as 9am-5pm Monday to Friday excluding English Bank Holidays.

15    Transfer of rights and obligations

15.1   This agreement is binding on You and us and on our respective successors and assignees. You may not transfer, assign, charge or otherwise dispose of this agreement, or any of your rights or obligations arising under it, without our prior written consent.

15.2   Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this agreement, or any of our rights or obligations arising under it, at any time during the term of the agreement.

16    Severability

16.1   If any of the terms of this agreement are determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition, or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

17    TERM AND TERMINATION

17.1   This Licence shall take effect on the date granted by Licensor and shall continue until 31^st December 2024, or such other term as may be agreed in writing.

17.2   Licensor will review and may amend the terms of the licence from time to time. Licensor will give reasonable notice of any changes in the licence.

17.3   The Licensor may terminate this Licence immediately on written notice to You if:

17.3.1   You commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on You of written notice requiring you to do so; or

17.3.2   the Organisation (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.

17.4   You may terminate the Licence at any time by written notice to Licensor.

17.5   Upon termination for any reason:

17.5.1   all rights granted to You under this agreement shall cease;

17.5.2   You must cease all activities authorised by this agreement; and

17.5.3   You must immediately delete or remove CareCubed FCOC from all computer equipment in your possession and immediately destroy or return to iESE. Notwithstanding this, organisations shall be entitled to retain completed cases of the CareCubed FCOC in accordance with their own data protection and retention standards.

18    Survival of Confidentiality Obligations. 

18.1   Notwithstanding any other provision of this Agreement, the provisions of Section 6 shall survive any expiration or termination of this Agreement.

By proceeding to use CareCubed FCOC you agree to the terms & conditions of this agreement including the Annexes to this agreement.

19    Annex A to the End User Licence Agreement

19.1   Table of confidential data

19.2   Confidential data sharing

19.2.1   Confidential data from Care Providers will be shared via CareCubed FCOC with Local authorities and their authorised representatives.

19.2.2   Care providers can choose which Local Authorities they share data with on a home-by-home basis. Typically, this will be with the Host Local Authority, but the Care Provider can choose to share with additional Local Authorities.

19.2.3   Care home data will be shared with local authorities only at the point that a Care provider chooses to submit the data to the Local Authority i.e., they will have the opportunity to review and check their data on CareCubed FCOC before submitting it to the Local Authority.

19.3   Purposes for which Confidential data may be used

19.3.1   Confidential data may be used by the Local Authority or their representatives only for the following purposes:

·         Audit/validation of the data supplied including contacting the Care Provider with queries

·         Analysis of costs

·         Analysis of operational data to inform the understanding of cost patterns

·         General purposes that are part of the Local Authority duty of good stewardship of public funds including but not limited to contract management, negotiation, fee setting

·         Independent audit/validation of the Local Authority analysis and conclusions

·         Preparation of a Cost of Care return as required by DHSC.

19.4   Expected use of non-confidential data

19.4.1   Data aggregated to local authority level and not identifiable to a particular care provider or care setting is not confidential.

19.4.2   Aggregated data is required to be submitted to DHSC by each local authority by 14^th October 2022, and to be published on the local authority .gov.uk website, at which point it will be in the public domain.

19.4.3   DHSC will be allowed access to all data that does not identify care homes or providers, although they may choose to have it only at aggregate level.

19.4.4   Summary data on the number of care providers per local authority area who have registered on CareCubed FCOC and the number of care homes for which data has been submitted by providers will be visible to each local authority (for their own area only), to DHSC, LGA (Local Government Association), and the Care Provider Alliance as a representative of the providers.

19.4.5      The Care Provider Alliance and the Local Government Association will be given access to data to enable it to segment responses by beds, groups and care type.

19.4.6   Data on the Local Authorities registered on the system (summary numbers as well as individual LA names) will be shared with care providers registered on CareCubed FCOC, with LGA, and with DHSC.