Nationwide Pathology Limited – Terms and Conditions
- In these Conditions, the following definitions apply:
This Agreement means the Contract incorporating these Terms and Conditions
Reference to a party includes its personal representatives, successors or permitted assigns;
Reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
A reference to writing or written includes faxes and e-mails
Applicable Law means as applicable and binding on the Client, the Supplier and/or the Services
- any law, statute, regulation, byelaw or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the Services are provided to or in respect of;
- the common law and laws of equity as applicable to the parties from time to time;
- any binding court order, judgment or decree; or
- any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business
Authorised Sub-Processors means
- accredited specialist centres for onward referral of esoteric assays
- persons who provide information technology services used by the Supplier in the course of providing the Services; and
- any Sub-Processor referred to in these Terms and Conditions.
Change Control Procedure means the procedure set out in clause 24
Change means a change agreed pursuant to the Change Control Procedure
Client: any Person, company, partnership or agent (including the Client’s patient and/or client) that purchases or orders, Services, or Supplier Materials, and for whom the Supplier has agreed to provide the Services.
Contract: the contract between the Supplier and the Client for the supply of Services in accordance with these Terms and Conditions.
Courier Fees: all fees levied by a courier to the Supplier for delivery of Supplier Materials to the Client.
Data Controller and Data Processor have the meanings given to those terms (or to the terms controller and processor respectively) in Data Protection Laws
Data Protection Laws means the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and/or any corresponding or equivalent national laws or regulations and any Applicable Laws replacing, amending, extending, re-enacting or consolidating the GDPR or Applicable Laws from time to time and any subordinate legislation under that law
Data Subject and Personal Data have the meaning given to those terms in Data Protection Laws
Data Subject Request means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws
Health Authority means (i) a department of the UK government or of a devolved administration (ii) an executive agency of such department or (iii) a body exercising statutory functions in relation to public health in the UK or any part of the UK
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Needle Pack means 1 x Vacuette complete plus shield, 1 x Steret, 1 x cotton wool ball and 1 x plaster, as may be amended or updated by the Supplier from time to time
Person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
Personal Data has the meaning given to the term in Data Protection Laws
Personal Data Breach means any breach of security leading to an accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data
Processing has the meanings given to that term in Data Protection (and related terms such as processes have corresponding meanings)
Processing Instructions has the meaning given to it in these Terms and Conditions
Protected Data means Personal Data received by the Supplier from or on behalf of the Client in connection with the performance of the Services
Public Health Programme means a programme administered by a Health Authority to monitor or analyse health data for the purpose of public health or for statistical or research purposes in the public interest
Phlebotomist: person, company, clinic or agent referred, recommended, employed, contracted or engaged by the Supplier or the Client to facilitate phlebotomy.
Quantiferon Kit means 4 x TB Quantiferon Gold blood sampling collection tubes in a protective box, 1 x Needle Pack, 1 x Request Form and 1 x Pre-paid envelope, as may be amended or updated by the Supplier from time to time
Request Form means the form provided by the Supplier to the Client for the Client to use to request Tests, as updated by the Supplier from time to time
Sample: a sample provided by the Client to the Supplier for investigation.
Services: the request for Supplier Materials, the conduct of a Test specified in the Supplier’s Request Form (or any other test carried out by the Supplier on the Sample whether requested by the Client or not) submitted by the Client and accepted by the Supplier, and/or such other services as the Supplier has agreed to supply to the Client either verbally or made in writing
Single Kit means 1 x blood sampling collection tube in a plastic Medipak, 1 x Needle Pack, 1 x Request Form and 1 x Pre-paid envelope, as may be amended or updated by the Supplier from time to time
Stool Kit means 1 x stool collection container in a plastic Medipak, 1 x Request Form and 1 x Pre-paid envelope, as may be amended or updated by the Supplier from time to time
Sub-Processor means another Data Processor engaged by the Supplier for carrying out processing activities in respect of the Protected Data on behalf of the Client
Supervisory Authority means any local, national, or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws
Supplier: Nationwide Pathology Limited registered in England and Wales with company number 07427189.
Supplier Materials: all Triple Kits, Single Kits, Quantiferon Kits, Urine Kits and Stool Kits provided by the Supplier to the Client, as may be amended or updated by the Supplier from time to time
Technical and Organisational Measures means taking into account the state of the art, the cost of implementation and the nature, scope, context and purpose of the processing the Protected Data as well as the risk of varying likelihood and severity of the rights and freedoms of natural persons, appropriate technical and organisational measures to ensure for the Protected Data a level of security appropriate to the risk, including any special measures
Test: a laboratory test agreed to be carried out by the Supplier or the Supplier’s agent on any Sample supplied by a Client.
Triple Kit means 3 x blood sampling collection tubes in a plastic Medipak, 1 x Needle Pack, 1 x Request Form and 1 x Pre-paid envelope.
Urine Kit means 1 x urine collection container in a plastic Medipak, 1 x Request Form and 1 x Pre-paid envelope.
- Basis of Contract
- The request for Supplier Materials or a Test or the sending of a Sample to the Supplier constitutes an offer by the Client to purchase Services from the Supplier in accordance with these Terms and Conditions (Order).
- The Order shall only be deemed to be accepted when the Supplier accepts at which point and on which date the Contract shall come into existence (Commencement Date).
- The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier, which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Client for the supply of the Services.
2.4 These Terms and Conditions apply to the Contract to the exclusion of any other terms agreed between the parties previously or such terms as the Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 days from its date of issue.
2.6 The Client agrees that, if there are two or more Clients, then each Client is jointly and severally liable to the Supplier.
3.1 The Supplier warrants that services will be provided with reasonable skill and care and in accordance with its usual quality assurance standards; and
3.2 That the staff employed by the Supplier providing the Services will be suitably skilled and experienced to the satisfaction of the Supplier.
3.3 The Client impliedly and expressly acknowledges that, except as expressly provided in these terms, the Supplier gives no warranties or representations to the Client (whether express or implied) in respect of the Services. In particular, whilst every effort is made to achieve the turn-around times quoted by the Supplier for the conduct of Tests, no warranty or guarantee is given that such turn-around times will be achieved in any particular instance. The Supplier accepts no liability whatsoever for any loss incurred by the Client for such an occurrence.
3.4 The Supplier accepts no liability for any inaccuracy or error in any Test or report thereon nor for any consequences of such errors or defects, and the Client shall indemnify and hold harmless the Supplier, its respective directors, officers, employees and agents in respect of all liabilities, costs, claims, loss, damage, demands, action and expenses (to include any settlements or ex-gratia payments and reasonable legal and expert costs and expenses) arising directly or indirectly from any breach of the Services.
3.5 The Client impliedly and expressly acknowledges that, except as expressly provided in these terms, the Supplier gives no warranties or representations (whether express or implied) in respect of any Phlebotomist engaged, employed, referred or recommended by the Supplier. Further, the Supplier accepts no liability for any injury, damage, or loss however so incurred by the Client when using the Phlebotomist.
3.6 The Phlebotomist impliedly and expressly acknowledges that in carrying out the phlebotomy, except as expressly provided in these terms, that the Supplier gives no warranties or representations (whether express or implied) in respect of the Client. Further, the Supplier accepts no liability for any injury, damage, or loss however so incurred by the Phlebotomist when engaged in (or travelling to) phlebotomy services for, or on referral from, the Supplier.
3.7 The Phlebotomist warrants that services will be provided with reasonable skill and care and in accordance with its usual quality assurance standards and if required by law the Phlebotomist shall obtain CQC Registration; and
3.8 That any staff employed by the Phlebotomist will be suitably skilled and experienced and if required by law shall obtain CQC Registration.
3.9 Upon the Commencement Date, the Sample relating thereto automatically becomes the sole property of the Supplier and it may be destroyed or disposed of by the Supplier unless otherwise agreed in writing between the Client and the Supplier beforehand.
3.10 The Client shall notify the Supplier in writing of any clinical information relevant to the Services and provide the Supplier with such information as the Supplier may reasonably be expected to require concerning the Samples to enable the Supplier to conduct the Test and to report theron. The Client shall ensure that all Samples and Request Forms are labelled with the correct information and that any high risk Samples are clearly labelled and packed separately from other Samples.
4 The Client warrants and covenants that it will:
4.1 ensure that the terms of the Order and any information it provides are complete and accurate;
4.2 co-operate with the Supplier in all matters relating to the Services;
4.3 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.4 obtain and maintain all necessary licences, permissions and consents including under the data protection legislation, the General Data Protection Regulations, good medical practice or otherwise which may be required before the date on which the Services are to start in order to permit the conduct of any Test;
4.5 keep any Phlebotomist’s contact details confidential and not use them for the Client’s own gain or profit;
4.6 comply with all relevant laws, regulations and guidelines including all applicable data protection laws, for the collection of Samples being referred for Tests and their shipment to the Supplier;
4.7 provide to the Supplier confirmation that it has complied with all relevant laws including all applicable data protection laws, for the collection of Samples being referred for Tests and their shipment to the Supplier.
4.8 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation under clause 4 (Client Default):
4.9 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
4.10 the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4;
4.11 the Client shall indemnify and hold harmless the Supplier and its respective directors, officers, employees and agents in respect of all liabilities, costs, claims, loss, damage, demands, action and expenses (to include any settlements or ex-gratia payments and reasonable legal and expert costs and expenses) arising directly or indirectly from the Client Default;
4.12 the Client shall indemnify the Supplier in full on the same basis and/or amount as any gain or profit received either directly or indirectly from using a Phlebotomist or from the use of a Phlebotomist’s contact details without the Supplier’s written express authority to do so.
5.1 As at the date of these Terms and Conditions VAT is not payable on the Services. If the Services subsequently become subject to VAT, this will be charged in addition at the applicable rate.
6 Charges and Payment
6.1 The Client shall pay each invoice submitted by the Supplier:
6.1.1 within 20 days of the date of the invoice; and
6.1.2 in full and in cleared funds to a bank account nominated in writing by the Supplier or cash payment; and
6.1.3 time for payment shall be of the essence of the Contract.
6.2 Without limiting any other right or remedy of the Supplier, if the Client fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum above the then current Barclays Bank base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.3 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Supplier to the Client.
6.4 The Client agrees that if the Client makes any change, amendment or alteration to a Phlebotomist booking or appointment, a cancellation charge (100% of the Phlebotomist’s charges) will apply which will be immediately paid to the Supplier in full by the Client.
7 Intellectual Property
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
7.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Client’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Client.
7.3 All Supplier Materials are and remain the exclusive property of the Supplier throughout the Contract. Subject to Clause 10.2 (c), Supplier Materials may at the Supplier’s discretion, which can be changed without notice to the Client, be provided free of charge.
8.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
8.2 The Supplier agrees that it will hold and maintain the confidence of:
8.2.1 all information of a confidential nature which is received by the Supplier from the Client in connection with the Services;
8.2.2 all Test results, invoices and other information of a confidential nature issued by the Supplier to the Client in connection with the Services; and
8.2.3 save with the Client’s consent, will not disclose such information other than to its professional staff, independent consultants and/or persons to whom it has delegated the performance of the Tests and who require the information for such purpose and save where the Client has informed the Supplier of its employment agency or insurer, the Supplier shall be entitled to assume and the Client warrants that both the Client and/or patient consent to the disclosure of information relating to that Client and/or patient to that employment agency or insurer.
The restrictions in paragraph 8.2 shall not apply to information which: (i) was in the Supplier’s possession prior to disclosure by the Client or (ii) is now or hereafter comes into the public domain other than by default of the Supplier or (iii) was lawfully received by the Supplier from a third party acting in good faith having a right of further disclosure or (iv) is required by law to be disclosed by the Supplier or (v) which is required by a regulatory or accreditation body to be disclosed to it for the purpose of regulating or accrediting the Supplier.
8.3 This clause 8 shall survive termination of the Contract.
9 Limitation of liability: the Client’s attention is particularly drawn to this clause
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
9.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
9.1.5 defective products under the Consumer Protection Act 1987.
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any loss of anticipated savings or any indirect or consequential loss or damage arising under or in connection with the Contract (including any losses that may result from any incorrect result provided by the Supplier OR the Supplier’s deliberate personal repudiatory breach of the Contract OR a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors OR any loss as a result of a Phlebotomist’s actions whether or not carried out under instruction from the Supplier) howsoever caused including without limitation, any indirect loss of profit, loss of anticipated profit including loss of profit on contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation and/or loss of data or costs pursuant to any Data Protection issue; and
9.2.2 the Supplier’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by the Supplier’s deliberate personal repudiatory breach OR a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors) shall not exceed £1,000 OR the price paid for the particular requested Service (whichever is the smaller).
9.2.3 The supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000 per claim. The supplier’s liability is therefore limited to £1,000 and the Client is responsible for making its own arrangements for the insurance of any excess loss.
9.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, are excluded from the Contract.
9.4 This clause 9 shall survive termination of the Contract.
10.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
10.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
10.1.3 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 (where 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;
10.1.4 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 the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
10.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
10.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.1.7 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);
10.1.8 a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
10.1.9 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;
10.1.10 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 10.1;
10.1.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
10.1.12 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.2 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services and all further deliveries of Supplier Materials under the Contract or any other contract between the Client and the Supplier if:
10.2.1 the Client fails to make pay any amount due under this Contract on the due date for payment; OR
10.2.2 the Client becomes subject to any of the events listed in clause 10.1 (b) to clause 10.1 (l), or the Supplier reasonably believes that the Client is about to become subject to any of them; OR
10.2.3 the Supplier in its own opinion believes a material adverse change occurs in relation to the Client’s business; OR
10.2.4 the Supplier in its own opinion believes that the Client is no longer intending to exclusively use the Supplier for Services.
11 Consequences of Termination
11.1 On termination of the Contract for any reason:
11.1.1 the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
11.1.2 the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt, for all Supplier Materials that have been previously sent to the Client and for Courier Charges incurred in delivery of the same, as set out below. If the Client returns any Supplier Materials using the pre-paid envelopes that are unused and/or do not contain a Sample, then the Client will be liable for the full cost of the Supplier Materials as set out below.
The Client hereby agrees that the Supplier Materials shall be charged at the following rates:
(i) Triple Kits at a rate of £8.00 per kit plus Courier Charges;
(ii) Single Kits at a rate of £8.00 per kit plus Courier Charges;
(iii) Quantiferon Kits at a rate of £15.00 per kit plus Courier Charges;
(iv) Urine Kits at a rate of £8.00 per kit plus Courier Charges; and
(v) Stool Kits at a rate of £8.00 per kit plus Courier Charges.
11.1.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
11.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12 Dispute resolution
12.1 Except to the extent clearly prevented by the area of dispute, the parties will continue to perform their respective obligations under the Contract and these Terms while such dispute is being resolved.
13 Data Processor and Data Controller
13.1 Insofar as the Supplier processes Protected Data in providing the Services the parties agree that:
13.1.1 the Client shall be the Data Controller and the Supplier shall be the Data Processor of the Protected Data;
13.1.2 the Supplier shall process Protected Data in compliance with:
(a) the obligations of Data Processors under Data Protection Laws; and
(b) the terms of clauses 13 to 31 (inclusive).
13.2 The Client warrants, represents and undertakes, that:
13.2.1 in connection with the Protected Data it has complied and shall continue to comply in all respects with Data Protection Laws, including in terms of its collection, storage and processing (which shall include the Client providing all of the fair processing information to, and obtaining all necessary consents from, Data Subjects); and
13.2.2 all instructions given by it to the Supplier in respect of Personal Data shall at all times be in accordance with Data Protection Laws.
13.3 The Client shall not unreasonably withhold, delay or condition its agreement to any Change requested by the Supplier in order to ensure the Services and the Supplier (and each Sub-Processor) can comply with Data Protection Laws.
14 Instructions and Details of Processing
14.1 Insofar as the Supplier processes Protected Data on behalf of the Client, the Supplier:
14.1.1 unless required to do otherwise by Applicable Law, shall (and shall take steps to ensure each person acting under its authority shall) process the Protected Data only on and in accordance with the Client’s documented instructions as set out in the request for Services pursuant to the Terms and Conditions as updated from time to time in accordance with the Change Control Procedure (the Processing Instructions);
14.1.2 if Applicable Law requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Client of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest); and
14.1.3 shall promptly inform the Client if the Supplier becomes aware of a Processing Instruction that, in the Supplier’s opinion, infringes Data Protection Laws, provided that:
(a) this shall be without prejudice to clauses 13.2 and 13.3; and
(b) to the maximum extent permitted by Applicable Law, the Supplier shall have no liability howeverso arising (whether in contract (including any indemnity), tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities (including Data Protection Losses) arising from or in connection with any processing in accordance with the Client’s Processing instructions following the Client’s receipt of any notice pursuant to this clause 14.1.3.
14.1.4 The parties acknowledge that the confidentiality provisions set out in clause 8 of these Terms and Conditions shall apply to all processing of the Protected Data.
15 Technical and Organisational Measures
15.1 In relation to the processing of the Protected Data, the Supplier shall implement and maintain, at its cost and expense, the Technical and Organisational Measures.
15.2 Any additional technical and organisational measures shall be at the Client’s cost and expense.
16 Using Staff and Other Processors
16.1 The Supplier shall not engage any Sub-Processor for carrying out any processing activities in respect of the Protected Data that the Supplier processes on behalf of the Client without the Client’s written consent of that specific Sub-Processor (such authorisation not to be unreasonably withheld, conditioned or delayed) provided that the Client authorises the appointment of the Authorised Sub-Processors.
16.2 The Supplier shall:
16.2.1 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as clauses 13 to 31 (inclusive), that is enforceable by the Supplier;
16.2.2 ensure each Sub-Processor complies with all such obligations; and
16.2.3 remain fully liable for all the acts and omissions of each Sub-Processor as if the y were its own.
16.3 The Supplier shall ensure that all persons authorised by it (or by any Sub-Processor) to process Protected Data are subject to a binding obligation to keep the Protected Data confidential (except where disclosure is required in accordance with Applicable Law in which case the Supplier shall, where practicable and not prohibited by Applicable Law, notify the Client of any such requirement before such disclosure).
17 Assistance with the Client’s compliance and Data Subject rights
17.1 Taking into account the nature of the processing the Supplier shall, at its cost and expense implement and maintain reasonable measures to assist the Client to respond to the Data Subject Requests relating to Protected Data.
17.2 The Supplier shall refer all Data Subject Requests it receives to the Client promptly.
17.3 The Supplier shall provide such reasonable assistance as the Client reasonably requires (taking into account the nature of processing and the information available to the Supplier) to the Client in ensuring compliance with the Client’s obligations under Data Protection Laws with respect to:
17.3.1 security of processing;
17.3.2 data protection impact assessments (as such term is defined in Data Protection Laws); and
17.3.3 notifications to the Supervisory Authority and/or communications to Data Subjects by the Client in response to any Personal Data Breach, provided the Client shall pay the Supplier’s charges for providing the assistance in this clause 17.3, such charges to be calculated by the Supplier on a time and materials basis.
18 International Data Transfers
18.1 The Client agrees that the Supplier may transfer Protected Data to countries outside the European Economic Area (EAA) for the purpose of providing the Services, provided all transfers by the Supplier of Protected Data to such recipients are in accordance with such legally enforceable mechanisms for transfers of Personal Data as may be permitted under Data Protection Laws from time to time. The provisions of clauses 13 to 31 (inclusive) shall constitute the Client’s instructions with respect to transfers in accordance with clause 14.1.
19 Records, Information and Audit
19.1 The Supplier shall maintain, in accordance with Data Protection Laws binding on it, written records of all categories of processing activities carried out on behalf of the Client.
19.2 The Supplier shall, in accordance with Data Protection Laws, make available to the Client such information as is reasonably necessary to demonstrate the Supplier’s compliance with its obligations under clauses 13 to 21 (inclusive) and with the obligations of each party under Article 28 of the GDPR (and under any Data Protection Laws equivalent to Article 28), and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose, subject at times to the Client:
19.2.1 giving the Supplier reasonable prior notice of such information request, audit and/or inspection being required by the Client;
19.2.2 ensuring that all information obtained or generated by the Client or its auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential (save for disclosure to the Supervisory Authority or as otherwise required by Applicable Law);
19.2.3 ensuring that such audit or inspection is undertaken during normal business hours, with minimal disruption to the Supplier’s business, the Sub-Processors business and the business of other customers of the Supplier; and
19.2.4 paying the Supplier’s costs in full without set off or deduction for assisting with the provision of the information and allowing for and contributing to inspections and audits.
20 Breach notification
20.1 In respect of any Personal Data Breach involving Protected Data that the Supplier processes on behalf of the Client, the Supplier shall, without undue delay:
20.1.1 notify the Client of the Personal Data Breach; and
20.1.2 provide the Client with details of the Personal Data Breach.
21 Deletion or return of Protected Data and copies
21.1 Subject to clause 22, the Supplier shall, at the Client’s written request, either delete or return all the Protected Data to the Client in such form as the Client reasonably requests within a reasonable time after the end of the provision of the relevant Services related to processing; and delete existing copies (unless storage of data is required by Applicable Law and, if so, the Supplier shall inform the Client of any such requirement).
22 Protected Data that the Supplier processes as a Data Controller
22.1 The Supplier may retain and submit to Public Health England or another Health Authority in the United Kingdom such extracts from the Protected Data as are required for the purposes of a Public Health Program operated by that Health Authority (Public Health Data).
22.2 The Supplier may retain such copies of the Protected Data and such records of processing in connection with the Services (the Processing Records) as the Supplier requires to maintain its accreditation for clinical pathology with the United Kingdom Accreditation Service (UKAS) and as required by the Royal College of Pathologists (in accordance with its retention and storage of pathological records and specimens guidelines).
22.3 The parties acknowledge and agree that the Supplier processes the Processing Records and the Public Health Data on its own behalf and shall be responsible for the Processing Records and the Public Health Data as a Data Controller. The Supplier shall ensure that its processing of the Processing Records and the Public Health Data is in accordance with the Data Protection Laws.
23 Liability, Indemnitees and Compensation claims
23.1 The Supplier shall not indemnify nor keep indemnified the Client in respect of any Data Protection losses suffered or incurred by, or awarded against the Client arising from or in connection with any:
23.1.1 non-compliance by the Supplier with the Data Protection Laws (insofar as these impose obligations on Data Processors); or
23.1.2 any processing of Protected Data carried out by the Supplier outside the Processing Instructions; or
23.1.3 breach by the Supplier of any of its obligations under clauses 13 to 31 (inclusive).
23.2 The Client shall indemnify the Supplier and keep indemnified the Supplier in respect of all Data Protection Losses suffered or incurred by, or awarded against, the Supplier and any Sub-Processor arising from or in connection with any:
23.2.1 non-compliance by the Client with the Data Protection Laws; or
23.2.2 processing carried out by the Supplier or any Sub-Processor pursuant to any Processing Instruction that infringes any Data Protection Law; or
23.2.3 breach by the Client of any of its obligations under clauses 13 to 31 (inclusive).
23.3 The Supplier shall not be liable for Data Protection Losses (howeverso arising, whether in contract (including any indemnity), tort (including negligence) or otherwise) to the extent that such Data Protection Losses (or the circumstances giving rise to them) are contributed to or caused by any breach of clauses 13 to 31 (inclusive) by either party.
23.4 If a party receives a compensation claim from a person relating to the processing of Personal Data, it shall promptly provide the other party with notice and full details of such claim. The party with conduct of the action shall:
23.4.1 make no admission of liability nor agree to any settlement or compromise of the relevant claim without the prior written consent of the other party (which shall not be unreasonably withheld or delayed); and
23.4.2 consult fully with the other party in relation to any such action, but the terms of any settlement or compromise of the claim will be exclusively the decision of the Supplier.
23.5 The parties agree that the Client shall not be entitled to claim back from the Supplier any part of any compensation paid by the Client.
23.6 This clause 23 is intended to apply to the allocation of liability for Data Protection Losses as between the parties, including with respect to compensation to Data Subjects, notwithstanding any provisions under Data Protection Laws to the contrary, except:
23.6.1 to the extent not permitted by Applicable Law (including Data Protection Laws); and
23.6.2 that it does not affect the liability of either party to any Data Subject.
24 Change of Control Procedure
24.1 If as a result of any change of Applicable Law, the Supplier sees a need to Change clauses 13 to 31 (inclusive) the Client hereby agrees to be bound by any such subsequent change to the exclusivity of all others.
24.2 Any work performed by the Supplier in order to give effect to the Change shall be at the expense and liability of the Client.
25 Subject matter and nature of processing
25.1 The subject matter and nature of the Supplier’s processing of the Protected Data are:
25.1.1 pathology samples and test results for the purpose of providing clinical pathology services;
25.1.2 information about Client(s) who order pathology tests, for the purposes of reporting the test results to the Client;
25.1.3 information about a patient’s health insurance for administrating payment of the Services; and
25.1.4 billing information for a patient where the Client has asked the Supplier to direct its invoice to the patient.
26 Duration of Processing
26.1 The duration of the processing is the time necessary to carry out the Services.
27 Types of personal data
27.1 The Protected Data comprise the following types of personal data:
27.1.5 Types of pathology tests required
27.1.6 Results of pathology tests
27.1.7 Health insurance policy details
27.1.8 Billing information
27.1.9 Other data as may be required in the course of carrying out the Services.
28 Categories of data subjects
28.1 The Protected Data concerns patients in respect of whom the Supplier conducts pathology tests, and Clients who request pathology tests.
29 Reporting pathology test results
29.1 The Supplier shall report Test results using the method selected by the Client from the range of options offered by the Supplier or, if no method is selected by the Client, using a method that complies with the Supplier’s obligations under clause 15 and is notified by the Supplier to the Client from time to time.
30 Fee to Client’s client
30.1 Where a Client instructs the Supplier to seek payment from the Client’s client of the fees owed by the Client in respect of that Test. The Client confirms that the Client’s client has agreed with the Client to pay those fees to the Supplier for the Client. The Client instructs the Supplier to recover the fees by invoicing the Client’s client using the personal data provided by the Client. The Client instructs the Supplier on the Client’s behalf to appoint debt collectors to recover the fees from the Client’s client if the Client’s client does not pay the invoice by the date the payment falls due. The Client authorises the Supplier to appoint those debt collectors as Sub-Processors in accordance with clauses 13 to 31 (inclusive).
31 Survival of Data Protection provisions
31.1 This clause and clauses 13 to 31 (inclusive) shall survive termination (for any reason) or expiry of the Services and continue:
31.1.1 indefinitely in the case of clauses 22 and 23; and
31.1.2 until 2 months following the earlier of termination or expiry of the Services in the case clauses 13 to 22 (inclusive), provided always that any termination or expiry of clauses 13 to 22 (inclusive) shall be without prejudice to any accrued rights or remedies of the Supplier under any such clauses at the time of such termination or expiry.
31.2 The Client hereby warrants and agrees that this clause and clauses 13 to 25 (inclusive) supersede and takes precedent of any other agreement, contract or indemnity entered into by the Supplier either verbally or in writing at any time.
32.1 The Client agrees that the Supplier may change or vary these Terms and Conditions at any time and without notice to the Client.
33 Rights and waiver
33.1 All rights granted to either of the parties shall be cumulative and not exhaustive of any rights and remedies provided by law. The failure of either party to enforce (or delay in enforcing) at any time for any period any one or more of these terms shall not be a waiver of such term or of the right of such party at any time subsequently to enforce all these terms.
34.1 The Supplier may assign or sub-contract the performance of the Contract (in whole or in part) or any one or more of the Tests to be performed hereunder to anyone it so wishes. The Client may not assign the Contract or any of its rights or obligations hereunder without the prior written approval of the Supplier.
35 Relationship of the parties
35.1 It is acknowledged and agreed that the Supplier and the Client are independent contractors and nothing in the Contract or these Terms shall create or be construed as creating a partnership or a relationship of agent and principal between the parties. The Client acknowledges and agrees that, in requesting Services from the Supplier, it is not acting as agent for any patient or patient to which the Services relate.
36.1 All notices given under these Terms shall be sufficiently served if sent in writing and shall be delivered by hand or sent by prepaid first class post or by prepaid first class recorded delivery or by e-mail. All notices shall be delivered at or sent, in the case of the Supplier, to Elkington Lodge, Welford, Northampton, NN6 6HE. In the case of the Client, all notices shall be sent to the address or fax number or usual e-mail address or last know place of business.
36.2 A notice sent by post shall be deemed to be served at 9.00 am on the second business day following the date of posting.
36.3 The Supplier’s proof of dispatch or email shall be conclusive evidence of receipt by the Client in the course of transmission.
37 Force Majeure
37.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
37.2 The Supplier shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
37.3 If the Force Majeure Event prevents the Supplier from providing any of the Services, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
38 Waiver and cumulative remedies
38.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
38.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
39.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
39.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
40 Third Parties
40.1 For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this agreement these Terms and Conditions are not intended to, and do not, give any person who is not a party to it any right to enforce any of the provisions, except that any sub-contractor of the Supplier and the servants and agents of the Supplier and any such sub-contractor are third parties to these Terms and Conditions within the meaning of the Act and shall be entitled to enforce these Terms and Conditions accordingly.
41 Governing law
41.1 The Contract and these terms and conditions shall be governed by and construed in accordance with English law and each of the parties agree to submit to the exclusive jurisdiction of the English Courts.
41.2 Expect to the extent clearly prevented by the area of the dispute, the Client will continue to perform its obligations under the Contract and these terms and conditions while such dispute is being resolved.