ECG On-Demand

Sign In / Terms and Conditions

Terms and Conditions

1. Interpretation
1.1. The definitions and rules of interpretation in this clause apply in these T&Cs and in any other agreement between the parties.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Business Purpose: to provide data interpretation services to assist the Customer in the diagnosis of a patient condition.

Charges: the charges set out in the Order.

Commencement Date: the date specified in the Order.

Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or sub-contractors involved in the provision or receipt of the Services who need to know the confidential information in question (Representatives) to the other party and that party's Representatives in connection with the Contract, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.

Contract: the Customer's submission of the Order and Technomed's acceptance of it under clause 3.

Customer: the person, firm or company who purchases the Services from Technomed.

Customer Equipment: the recording equipment of the Customer used in connection with the Services but not being Rented Equipment.

Customer System: any information technology system or systems owned or operated by the Customer from which Data is received in accordance with these T&Cs.

Data: any data or information, in whatever form (wholly or in part), including any personal data.

Delivery: the transfer of physical possession of the Rented Equipment to the Customer at the delivery location.

Delivery Date: the estimated delivery date specified in the Order or such other date as may be agreed between the parties.

Documentation: published user guides and manuals for the Services and the Rented Equipment as detailed in the Order or as otherwise supplied by Technomed from time to time.

Initial Period: the initial period specified in the Order.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: the Customer’s order for the supply of the Services following delivery of a quote by Technomed.

Patient Data: the physiological data and personal data supplied by the Customer to Technomed under clause 6.3.

Privacy and Data Protection Requirements: all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority.

Processed Data: any Data that derives from Technomed having processed, analysed and reported on the Patient Data under the Contract, generally contained in the reports identified in the Order.

Renewal Period: the renewal period specified in the Order.

Rented Equipment: the recording equipment listed in the Order and all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided.

Security Breach: any security breach relating to:

(a) the personal data comprised in the Patient Data from time to time reasonably determined by Technomed to be sufficiently serious or substantial to justify notification to the Information Commissioner or other relevant supervisory authority in accordance with the Privacy and Data Protection Requirements; or
(b) the Patient Data reasonably determined by Technomed to be sufficiently serious or substantial to give rise to a material risk of litigation by the individuals whose Patient Data is the subject of the breach.

Service Credit: the abatement in the Charges due to the Customer in accordance with clause 5.2.

Service Levels: the levels of service identified in the Order.

Services: the physiological data analysis and reporting services to be supplied by Technomed under the Contract as more particularly set out in the Order and any Documentation.

Technomed Application: the ECG Cloud online software application provided by Technomed as part of the Services, including its underlying database and proprietary “Traffic Light” patient management system, and any other information technology system or systems owned or operated by Technomed to which Data is delivered or on which the Services are performed in accordance with the Contract.

Term: the Initial Period and any Renewal Periods.

T&Cs: these terms and conditions.
1.2. Data subject, personal data, processing and appropriate technical and organisational measures shall bear the meanings given to those terms respectively in the Data Protection Act 1998.
1.3. Clause headings shall not affect the interpretation of these T&Cs.
1.4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.
1.9. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
1.10. A reference to writing or written includes faxes but not e-mail.
1.11. References to clauses are to the clauses of these T&Cs.
1.12. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Application of T&Cs
2.1.

These T&Cs shall:

(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2.

No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Technomed unless in writing and signed by a duly authorised representative of Technomed.
3.

Effect of the Order
3.1.

Technomed has provided the Customer with a quote through the Quotient software platform in the form of the Order which the Customer can submit if it agrees with the contents of the Order. If the Customer does not agree with the contents of the Order, it must not click the “Accept Order” button. If the Customer agrees with the contents of the Order, the Customer must click the “Accept Order” button which will then constitute an offer by the Customer to purchase the Services specified in the Order on these T&Cs; accordingly, the return of the submitted Order by Technomed (by email or otherwise), or Technomed's commencement or execution of work or delivery of Rented Equipment pursuant to the Order, shall establish a contract (the Contract) for the supply and purchase of those Services on these T&Cs.
3.2.

The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Order shall not govern the Contract.
3.3. The quote in the form of the Order given by Technomed shall not constitute an offer and shall only be valid for the period stated in it.
4. Services
4.1. During the Term, Technomed shall supply the Services to the Customer and the Customer shall pay the Charges.
4.2. Technomed shall be the exclusive supplier of the Services to the Customer during the Term and the Customer shall purchase the Services only from Technomed during the Term. The Customer agrees not to purchase or use any services which compete with the Services for the Term.
4.3.

The Customer acknowledges and agrees that:

(a) physiological data analysis and reporting is subjective and open to interpretation because the Processed Data is premised on the opinion of an interpreting clinician which may be subject to professional differences of opinion and interpretation based on the two dimensions in diagnostic testing (“sensitivity” and “specificity”) and, as such, false-positives and false-negatives may occur;
(b) the Services have not been developed to meet any specific requirements of the Customer and that it is the responsibility of the Customer to ensure that the facilities and functions of the Services and the Processed Data, as described in the Documentation, meets its and its patients’ requirements;
(c) the Services provide results akin to a screening test and are not a substitute or alternative to medical advice, information, diagnosis or treatment from a doctor or other healthcare professional;
(d) the Processed Data is not intended to amount to advice or information on which the Customer or a patient should rely and is merely an adjunct to the formulation of a medical diagnosis by a doctor or other healthcare professional in conjunction with other medical diagnostic procedures;
(e) the Processed Data is provided as an aid only and the Processed Data and generic preliminary information and commentary contained therein may not be relevant or suitable to a patient’s specific condition or personal requirements;
(f) the Processed Data relies entirely on the accuracy and quality of the Patient Data and Technomed are under no duty or obligation to investigate the completeness, accuracy or sufficiency of the Patient Data; and
(g)

it is a condition and a material obligation to the receipt of the Services that the Customer assumes responsibility towards its patients to fully advise them of the limitations of the Processed Data outlined in clauses 4.3(a) to (f) (inclusive) above, including by providing the following written statements/disclaimers as part of that advice:

(i)

All physiological tests are open to interpretation and will be subject to “false-positive” and “false-negative” results.

A “false-positive” result is one that wrongly reports a patient as having a health condition.

A “false-negative” result is one that wrongly reports a patient as not having the health condition.

To minimise false-positives and false negatives, our clinicians and providers perform industry standard tests using accepted concepts such as sensitivity and specificity (see [REFER PATIENT TO A SUITABLE PUBLICATION ON SENSITIVY AND SPECIFICITY OF THE CUSTOMER’S CHOICE]). However, such tests do not provide sensitivity and specificity values of 100% but we do aim for as high a value as possible.

Accordingly, patients must appreciate that our tests are akin to a screening test; they may save or improve your quality of life by identifying a risk, and they may reduce the risk of developing a serious condition, but they do not guarantee protection and we cannot rule out your results being false-positives or false-negatives.
(ii) Patients must always consult a doctor or other healthcare professional and obtain professional and specialist advice before taking, or refraining from, any action on the basis of the results of their processed physiological data.
(iii) Patients must never delay seeking medical attention, disregard medical advice or discontinue treatment on the basis of the results of their processed physiological data.
(iv) The results of your processed physiological data is intended to serve as an aid only and should not be relied upon as the sole or primary analysis of your physiological data.
4.4. The Customer shall ensure that:
(a) its patients give unambiguous, informed and explicit consent to the taking of the Patient Data for use in the Services;
(b) its patients are advised that the Patient Data may be stored on servers anywhere within the European Economic Area (EEA); and
(c) its patients are advised of the relevance of “sensitivity” and “specificity” in medical diagnostic testing and refer them to a suitable publication explaining in lay terms these concepts (particularly in the statement required under clause 4.3(g)(i)).
4.5.

The Customer shall indemnify, hold harmless and keep Technomed indemnified against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, fines, settlements, judgments, invoices and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Technomed as a result of or in connection with:

(a)

any claim made against Technomed for actual or alleged negligence or negligent misstatement arising out of, or in connection with, the supply or use of, or reliance on, the Processed Data or other products of the Services (the Customer acknowledges and agrees that it assumes responsibility and any liability for the supply of the Processed Data to patients, which may have been processed due to deficiencies in the Patient Data supplied by the Customer, and accordingly that Technomed’s liability is limited to its liability to the Customer under the terms, but subject to the conditions, of the Contract);
(b) any claim made against the Purchaser by a third party for death, personal injury or damage to property arising out of, or in connection with, the supply or use of, or reliance on, the Processed Data or other products of the Services (the Customer acknowledges and agrees that it assumes responsibility and any liability for the supply of the Processed Data to patients, which may have been processed due to deficiencies in the Patient Data supplied by the Customer, and accordingly that Technomed’s liability is limited to its liability to the Customer under the terms, but subject to the conditions, of the Contract);
(c) the provision, receipt or processing of the Patient Data under the Contract, including any claim or action brought by a data subject arising from any act or omission by Technomed to the extent that such act or omission resulted directly or indirectly from the Customer's instructions; and
(d) any breach by the Customer of its obligations under clause 4.3 and/or clause 4.4, howsoever arising.
4.6. Technomed shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Technomed shall notify the Customer in any such event.
5. Clinical conduct
5.1. Technomed shall perform the Services in accordance with the Service Levels (if any), however, Technomed does not guarantee that the Technomed Application or Services will always be available, error free or be uninterrupted.
5.2.

If Technomed fails to meet any Service Levels other than due to a default by the Customer or an event, circumstance or case within the scope of clause 17, Technomed shall, as the Customer’s sole and exclusive remedy, allow the Customer a Service Credit as detailed in the Order.
5.3.

Technomed warrants that it will:

(a)

discharge its obligations under the Contract with the reasonable skill and care expected of a qualified member of Technomed's profession or specialism undertaking the Services and providing processed data similar in scope and character to the Processed Data and Technomed will use its reasonable endeavours to interpret (or have interpreted) the Patient Data with a sensitivity of 90% or more and a specificity of 75% or more;
(b)

employ a sufficient number of suitably qualified clinical personnel to ensure the proper fulfilment of the Services;
(c)

maintain its status with the Department of Health HSCIC as a NHS Business Partner;
(d)

ensure a minimum of 5% of the Processed Data will be subject to audit and review by a senior clinician;
(e)

process the Patient Data in compliance with the Privacy and Data Protection Requirements;
(f)

having regard to the state of technological development and the cost of implementing any measures, take appropriate technical and organisational measures against the unauthorised or unlawful processing of Patient Data and against the accidental loss or destruction of, or damage to, Patient Data to ensure a level of security appropriate to:

(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected.
5.4. Except as expressly stated in these T&Cs, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
6. Connection
6.1. The parties shall use reasonable efforts to establish connectivity between the Customer System and the Technomed Application on the Commencement Date.
6.2. Each party shall bear its own costs of establishing that connectivity.
6.3. The Customer shall after the Commencement Date upload the Patient Data in the form reasonably agreed between the parties from the Customer System to the Technomed Application for processing in accordance with the Contract.
7. Rented Equipment
7.1. Technomed shall lend the Rented Equipment (if any) to the Customer for the duration of the Term.
7.2. Technomed shall maintain the Rented Equipment in good repair and order.
7.3.

The Rented Equipment is not manufactured or produced by Technomed. Technomed warrants that, as far as it is able, it will pass on to the Customer the benefits of any manufacturers' warranties.
7.4.

Technomed shall use reasonable endeavours to deliver the Rented Equipment to the Customer on the Delivery Date. Title and risk shall transfer in accordance with clause 8 of these T&Cs.
7.5. The Customer shall procure that a duly authorised representative of the Customer shall be present at the delivery of the Rented Equipment. Acceptance of delivery by such representative shall constitute conclusive evidence that the Customer has examined the Rented Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by Technomed, the Customer's duly authorised representative shall sign a receipt confirming such acceptance.
7.6.

The Customer shall use the Rented Equipment for the Business Purpose only and shall during the Term and any further term during which the Rented Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Rented Equipment is returned to Technomed:

(a) ensure that the Rented Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
(b) take such steps (including compliance with all safety and usage instructions provided by Technomed) as may be necessary to ensure, so far as is reasonably practicable, that the Rented Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) ensure that the Rented Equipment undergoes an annual Portable Appliance Test at the Customer’s expense;reimburse Technomed for the cost of replacement of damaged or lost parts and the cost of making good any damage to the Rented Equipment;
(d) reimburse Technomed for the cost of replacement of damaged or lost parts and the cost of making good any damage to the Rented Equipment;
(e) make no alteration to the Rented Equipment and shall not remove any existing component(s) from the Rented Equipment.
(f)

keep Technomed fully informed of all material matters relating to the Rented Equipment;
(g)

at all times keep the Rented Equipment in the possession or control of the Customer and keep Technomed informed of its location;
(h)

permit and procure permission for Technomed or its duly authorised representative to inspect the Rented Equipment at all reasonable times and for such purpose to enter upon any premises at which the Rented Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(i)

not, without the prior written consent of Technomed, part with control of, sell or offer for sale, underlet or lend the Rented Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(j)

not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Technomed in the Rented Equipment;
(k)

not suffer or permit the Rented Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Rented Equipment is so confiscated, seized or taken, the Customer shall notify Technomed and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Rented Equipment and shall indemnify Technomed on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(l)

not use the Rented Equipment for any unlawful purpose;
(m)

ensure that at all times the Rented Equipment remains identifiable as being Technomed's property and wherever possible shall ensure that a visible sign to that effect is attached to the Rented Equipment;
(n)

deliver up the Rented Equipment at the end of the Term or on earlier termination of these T&Cs at such address as Technomed requires, or if necessary allow Technomed or its representatives access to any premises where the Rented Equipment is located for the purpose of removing the Rented Equipment; and
(o)

not do or permit to be done anything which could invalidate the insurances referred to in 8.2.
7.7. The Customer acknowledges that Technomed shall not be responsible for any loss of or damage to the Rented Equipment arising out of or in connection with any negligence, misuse, mishandling of the Rented Equipment or otherwise caused by the Customer or its Representatives and the Customer undertakes to indemnify, hold harmless and keep Technomed indemnified on demand against the same, and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, fines, settlements, judgments, invoices and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Technomed arising out of or in connection with any failure by the Customer to comply with clause 7.4.
7.8.

These T&Cs sets forth the full extent of Technomed's obligations and liabilities in respect of the Rented Equipment. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on Technomed except as specifically stated in these T&Cs. Any condition, warranty or other term concerning the Rented Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.
7.9. The Customer shall in respect of all Customer Equipment comply with clauses 7.6(a) to 7.6(c) (inclusive) mutatis mutandis (replacing references to Rented Equipment with Customer Equipment) for the duration of the Term.
8. Rented Equipment title and risk
8.1. The Rented Equipment shall at all times remain the property of Technomed, and the Customer shall have no right, title or interest in or to the Rented Equipment (save the right to possession and use of the Rented Equipment subject to the terms and conditions of these T&Cs).
8.2. The risk of loss, theft, damage or destruction of the Rented Equipment shall pass to the Customer on Delivery. The Rented Equipment shall remain at the sole risk of the Customer during the Term and Risk Period. During the Term and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
(a)

insurance of the Rented Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Technomed may from time to time nominate in writing;
(b)

insurance for such amounts as a prudent owner or operator of the Rented Equipment would insure for, or such amount as Technomed may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Rented Equipment; and
(c)

insurance against such other or further risks relating to the Rented Equipment as may be required by law, together with such other insurance as Technomed may from time to time consider reasonably necessary and advise to the Customer.
8.3. All insurance policies procured by the Customer shall be endorsed to provide Technomed with at least twenty (20) Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon Technomed's request name Technomed on the policies as a loss payee in relation to any claim relating to the Rented Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
8.4. The Customer shall give immediate written notice to Technomed in the event of any loss, accident or damage to the Rented Equipment arising out of or in connection with the Customer's possession or use of the Rented Equipment.
8.5.

If the Customer fails to effect or maintain any of the insurances required under these T&Cs, Technomed shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
8.6. The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Technomed and proof of premium payment to Technomed to confirm the insurance arrangements.
9. Charges
9.1.

The Customer shall pay the Charges to Technomed.
9.2.

Technomed shall invoice the Customer monthly in arrears for all reports. Rented Equipment may be invoiced at any time after Delivery.
9.3.

The Customer shall pay each invoice submitted by Technomed:

(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Technomed, and

time shall be of the essence regarding the Customer's obligations to make payments in accordance with this clause 9.3 and such obligations are material obligations for the purpose of clause 16.2(b).
9.4. If the Customer fails to make any payment due to Technomed under the Contract by the due date for payment, then, without limiting Technomed's other rights and remedies (including claiming under the Late Payment of Commercial Debts (Interest) Act 1998 in the alternative), the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the National Westminster Bank Plc base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.5. All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
10. Confidentiality
10.1.

Technomed acknowledges that the Customer's Confidential Information includes any Patient Data.
10.2. The term Confidential Information does not include any information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its representatives in breach of this clause 10);
(b)

was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c)

was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
(d)

was known to the receiving party before the information was disclosed to it by the disclosing party;
(e)

the parties agree in writing is not confidential or may be disclosed; or
(f) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
10.3.

Each party shall keep the other party's Confidential Information confidential and shall not:

(a) use any Confidential Information except for the Business Purpose; or
(b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.4.

A party may disclose the other party's Confidential Information to those of its representatives who need to know that Confidential Information for the Business Purpose, provided that:

(a) it informs those representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for the representatives' compliance with the confidentiality obligations set out in this clause 10.
10.5. A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, as far as it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.
10.6. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information, other than those expressly stated in these T&Cs, are granted to the other party, or are to be implied from these T&Cs.
10.7. The provisions of this clause 10 shall continue to apply after termination of the Contract.
11. Security and passwords
11.1. Technomed shall ensure that the Patient Data and the Processed Data is kept secure and in an encrypted form, and shall use reasonable security practices and systems applicable to the use of the Patient Data and the Processed Data to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Patient Data and the Processed Data.
11.2. Technomed shall take reasonable precautions to preserve the integrity of any Patient Data and the Processed Data processed by it and to prevent any corruption or loss of the same.
11.3.

If either party:

(a)

becomes aware of any unauthorised or unlawful processing of any Patient Data and the Processed Data or that any Patient Data and the Processed Data is lost or destroyed or has become damaged, corrupted or unusable;
(b)

becomes aware of any Security Breach; or
(c)

learns or suspects that any security feature (including any key, PIN or password) has been revealed to or obtained by any unauthorised person,

that party shall, at its own expense, promptly notify the other party and fully co-operate with the other party to remedy the issue as soon as reasonably practicable.
11.4.

Technomed's obligations under clause 11.3 shall be performed at the Customer's reasonable expense, except to the extent that the Security Breach arose out of any negligence or wilful default of Technomed or any breach by Technomed of its warranties in clause 5.3.
11.5.

The parties shall act in good faith and with all reasonable endeavours to agree a back-up procedure that shall require them to back up Patient Data and the Processed Data and in any event Technomed shall make a back-up copy of the Processed Data every week and record the copy on media from which the Processed Data can be reloaded in the event of any corruption or loss of the Processed Data.
11.6. If any Patient Data is lost or corrupted, Technomed's obligation under clause 11.5 shall be the Customer's exclusive right and remedy against Technomed in respect of such loss or corruption.
12. Intellectual Property Rights
12.1.

The parties acknowledge and agree that:

(a) any Intellectual Property Rights in the Patient Data are and will remain the property of the Customer or its licensors, as the case may be;
(b) the Customer shall have no rights in or to the Processed Data other than the right to use it for the Business Purpose and to distribute it to the relevant patients;
(c) all Intellectual Property Rights in the Technomed Application, the Documentation, the Services and the Processed Data are and will remain the property of Technomed or its licensors, as the case may be;
(d)

Technomed shall have no rights in or to the Patient Data other than the right to use it for the Business Purpose and the performance of the Services; and
(e) Technomed or its licensors has or have made and will continue to make substantial investment in the obtaining, verification, selection, co-ordination, development, presentation and supply of the Technomed Application (particularly its underlying database) and Services.
12.2. Technomed hereby grants to the Customer a non-exclusive, irrevocable right to distribute the Processed Data to the relevant patients.
13. Technomed Application
13.1. Technomed hereby grants to the Customer a non-exclusive, non-transferable right for the Customer to use the Technomed Application during the Term solely for the Business Purpose.
13.2. The rights provided under this clause 13 are granted to the only and shall not be considered granted to any subsidiary or holding company of the Customer without the prior written consent of Technomed.
13.3. Technomed, without liability or prejudice to its other rights, reserves the right to disable access to the Technomed Application in response to any breaches of the Contract (in particular non-payment).
13.4. The Customer shall not, and shall procure that no other person shall:
(a)

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

(i)

attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Technomed Application 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 Technomed Application; or
(b)

access all or any part of the Technomed Application in order to build a product or service which competes with the Technomed Application or the Services; or
(c)

use the Technomed Application to provide services to third parties; or
(d)

license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Technomed Application available to any third party except those of its employees who require access for the Business Purpose; or
(e)

attempt to obtain, or assist third parties in obtaining, access to the Technomed Application.
13.5. The Customer shall, and shall procure that its officers, employees, agents and contractors:
(a)

shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Technomed Application and, in the event of any such unauthorised access or use, promptly notify Technomed; and
(b)

shall not access, store, distribute or transmit anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of the Technomed Software, hardware or network, any telecommunications service, Rented 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.
13.6. Except as expressly stated in these T&Cs:
(a)

the Customer acknowledges and agrees that Technomed and/or its licensors own all Intellectual Property Rights of whatever nature in the Technomed Application; and
(b)

these T&Cs do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Technomed Application.
14. Customer’s obligations and warranties
14.1.

In addition to the obligations set out in clause 4, the Customer shall:

(a)

co-operate with Technomed in all matters relating to the Services;
(b)

provide Technomed with Patient Data in the best possible quality;
(c)

obtain the Patient Data using the best care, skill and diligence in accordance with best practice by qualified staff in the Customer's profession;
(d)

provide Technomed with such information and materials as Technomed may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
(e)

obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
14.2. The Customer warrants and represents that:
(a)

it has the right to license the receipt and processing of the Patient Data for the Business Purpose;
(b)

the processing of the Patient Data and Processed Data from time to time has been carried out in accordance with the Privacy and Data Protection Requirements at all times;
(c)

it is not aware of any circumstances likely to give rise to breach of any of the Privacy and Data Protection Requirements in the future (including any Security Breach);
(d)

Technomed is entitled to process the Patient Data for the Business Purpose and such use will comply with all Privacy and Data Protection Requirements;
(e)

all data subjects have given and will give their valid consent and, where required under the Privacy and Data Protection Requirements, their explicit consent to the transfer of the Patient Data by the Customer to Technomed and to the processing of the Patient Date by Technomed for the Business Purpose; and
(f) it is registered with all relevant data protection authorities to process all Patient Data and Processed Data for the Business Purpose.
15. Limitation of liability
15.1. Nothing in these T&Cs excludes or limits Technomed’s liability for:
(a)

fraud or fraudulent misrepresentation;
(b)

death or personal injury caused by its negligence;
(c)

a breach of any terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d)

any matter for which it would be unlawful for Technomed to exclude liability.
15.2. Subject to clause 15.1, Technomed (including any liability for the acts or omissions of its employees, agents and sub-contractors) shall not in any circumstances be liable whether in contract, tort (including for negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
(a)

loss of profits; or
(b)

loss of business; or
(c)

depletion of goodwill or similar losses; or
(d)

loss of anticipated savings; or
(e)

loss of goods; or
(f)

loss of contract; or
(g)

loss of use; or
(h)

any transaction with a third party; or
(i)

any loss or damage due to viruses or other malicious software, data, or other property caused by any person accessing or using the Technomed Application;
15.3.

Subject to clause 15.1, Technomed (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) shall not in any circumstances be liable whether in contract, tort (including for negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
15.4.

Subject to clause 15.1, Technomed's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract or any collateral contract shall in all circumstances be limited to the total Charges paid by the Customer to Technomed during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of actions arose during the Initial Period, in respect of the Initial Period.
15.5.

If Technomed’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation Technomed shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer’s default, and to rely on the Customer’s default to relieve it from the performance of any of its obligations to the extent the Customer’s default prevents or delays Technomed’s performance of any of its obligations.
16. Term and termination
16.1. The Contract shall commence on the Commencement Date. Unless terminated earlier in accordance with this clause, the Contract shall continue for the Initial Period and shall automatically extend for a Renewal Period at the end of the Initial Period and at the end of each Renewal Period. Either party may give written notice to the other party, not later than 40 Business Days before the end of the Initial Period or the relevant Renewal Period, to terminate the Contract at the end of the Initial Period or the relevant Renewal Period, as the case may be.
16.2.

Without prejudice to any rights that have accrued under the Contract, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)

the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified to make that payment;
(b)

the other party commits a material breach of any material term of the Contract (other than failure to pay any amounts due under the Contract) and (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;
(c)

the other party:

(i)

suspends, or threatens to suspend, payment of its debts;
(ii)

is unable to pay its debts as they fall due or admits inability to pay its debts;
(iii)

(being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(iv)

(being a partnership) has any partner to whom any of clause 16.2(c)(i) applies;
(d)

the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (in the case of a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e)

a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f)

an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(g)

the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h)

a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i)

a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of the other party's assets and that attachment or process is not discharged within 14 days;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2(c) to clause 16.2(i) (inclusive); or
(k)

the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.3. Technomed may terminate the Contract with immediate effect by giving written notice to the Customer if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
16.4. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract (for example clause 4.5) shall remain in full force and effect.
16.5. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
16.6 On any termination of the Contract for any reason or expiry of the Term, the Customer shall immediately pay any outstanding amounts owed to Technomed under the Contract.
16.7. On any termination of the Contract for any reason or expiry of the Term each party shall as soon as reasonably practicable return or destroy (as directed in writing by the other party) all Data, information and other materials provided to it by the other party in connection with the Contract including all materials containing or based on the other party's Confidential Information except, in the case of the Customer only, for all Processed Data delivered up to the date of termination and accounted for under clause 5 and clause 16.6.
16.8. If Technomed is required or requested by any law, regulation, or government or regulatory body to retain any documents or materials that it would otherwise be required to return or destroy under clause 16.7, it shall notify the Customer in writing of that retention, giving details of the documents or materials that it must retain. Technomed shall not be in breach of clause 16.7 with respect to the retained documents or materials, but clause 10 shall continue to apply to them.
17. Force majeure
Technomed shall not be in breach of the Contract nor be 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 Technomed shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four weeks, the Customer may terminate the Contract by giving 10 Business Days' written notice to Technomed.
18. Assignment
18.1. The Contract is personal to the Customer and it shall not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Technomed (which is not to be unreasonably withheld or delayed).
18.2.

The Customer confirms it is acting on its own behalf and not for the benefit of any other person.
18.3.

Technomed may authorise a third party (Subcontractor) to process the Patient Data provided that:

(a)

the Subcontractor's contract contains confidentiality obligations no less onerous than those in these T&Cs; and
(b)

the Patient Data is destroyed by the Subcontractor on termination of the Contract for any reason.
18.4. Subject to clause 18.3, Technomed may at any time assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any of its rights and obligations under the Contract without the consent of the Customer.
19. Waiver
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20. Rights and remedies
Except as expressly provided in these T&Cs, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
21. Notice
21.1. Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a)

Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(b)

sent by fax to its main fax number.
21.2. Any notice or communication shall be deemed to have been received:
(a)

if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b)

if sent by fax, at 9.00 am on the next Business Day after transmission; or
(c) otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
21.3. This clause 21 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, writing shall not include e-mail.
22. Entire agreement
22.1. The Contract constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, statements, promises, understandings and agreements between them relating to its subject matter.
22.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any promise, statement, representation or warranty (whether made innocently or negligently) that is not set out in the Contract.
22.3. No party shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
22.4. Nothing in these T&Cs limits or excludes any liability for fraud.
23. Variation
Except as expressly provided in these T&Cs, no variation of the Contract, in particular any of these T&Cs, shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24.

Severance
24.1.

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
24.2.

If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. No partnership or agency
25.1.

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
25.2.

Each party confirms it is acting on its own behalf and not for the benefit of any other person.
26 Third-party rights
26.1.

A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
26.2.

No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
27. Governing law

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.
28. Jurisdiction

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).