1. INTERPRETATION
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1.1 |
In these conditions of supply the following words will (unless the context otherwise
requires) have the following meanings:
"Conditions" the conditions set out below and overleaf.
In these conditions of supply the following words will (unless the context otherwise
requires) have the following meanings:
"Conditions" the conditions set out below and overleaf.
"Contract" the contract between the Provider and the Client for the supply
of the Services comprising these Conditions and any documents referred to in them.
“CPA” Clinical Pathology Accreditation from Clinical Pathology Accreditation
(UK) Limited (company number 2675095)
"Client" the company, academic institution, hospital, NHS Trust, firm, body
or any representative thereof or any other person who submits a Specimen and a Request
Form to the Provider or who submits a Specimen with a written request to the Provider
to purchase the Services.
“Client Property” Specimens and Specimen Request Information submitted by
the Client to the Provider.
“Report” the Report (in the format set out in the ‘Results’ section of the
Request Form or as otherwise provided from time to time) of the results of the testing
comprised within the Services.
“Request Form” the standard documentation, which has been developed by the
Provider to enable prospective clients to identify the type of test that they wish
the Provider to undertake on their Specimen and which the Client submits to the
Provider as an express request to undertake a given test.
“Retained Specimens” those Specimens that are submitted by the Client to
the Provider as slides and all slides that are prepared by the Provider through
the use of the Clients blocks or wet specimens.
“Specimen” any and all samples whether these be slides, blocks or wet specimens,
sent by the Client to the Provider for testing under these terms and conditions.
“Specimen Request Information” the patient request form or accompanying request
document or letter belonging to the Client, which accompanies any Specimens submitted
to the Provider.
"Services" the testing identified by the Client in the Request Form together
with the Report which the Provider undertakes on behalf of the Client following
receipt of a Specimen and a Request Form from the Client or receipt of a Specimen
and a written request from the Client.
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1.2 |
Any reference in these Conditions to "writing" or cognate expressions includes a
reference to facsimile transmission, email or comparable means of communication.
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1.3 |
The headings are for reference only and will not affect the interpretation of these
Conditions.
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1.4 |
The Provider reserves the right at anytime without liability to correct any clerical,
typographical or other similar errors or omissions made by it.
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1.5 |
References to statutes or statutory instruments shall be deemed to be references
to those statutes or statutory instruments as the same may be amended or re-enacted
from time to time.
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2. APPLICATION OF TERMS
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2.1 |
Subject to clause 2.3, these Conditions are the only conditions on which the Provider
is prepared to deal with the Client in relation to the Services and they will govern
the provision of the Services.
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2.2 |
No terms, conditions or warranties endorsed upon, delivered with, referred to or
stipulated or contained in any purchase order or other similar document delivered
or sent by the Client to the Provider will form part of the Contract.
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2.3 |
No variation to, waiver of or addition to these Conditions or any representation
about the Services will have any effect unless it is expressly agreed in writing
and contains a specific reference to these Conditions.
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2.4 |
Each submission of a Request Form for Services issued by the Client to the Provider
will be deemed to be an acceptance by the Client of the purchase of Services subject
to these Conditions.
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2.5 |
Each submission of a Specimen together with an express request for Services (“Order”)
issued by the Client to the Provider will be deemed to be an acceptance by the Client
of the purchase of Services subject to these Conditions.
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2.6 |
The Client must ensure that the content of its order for Services either by completion
and submission of the Request Form or submission of a Specimen together with an
express request for Services, is complete and accurate.
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2.7 |
Any Request Form or Order for Services which has been submitted to the Provider
may only be cancelled if written notification of such cancellation is received by
the Provider prior to the Provider undertaking the Services. The Client will indemnify
the Provider in full against all losses (including, without limitation, loss of
profit), costs (including, without limitation, inventory and other commitments made
by the Provider as a result of such Request Form), damages, charges and expenses
incurred (directly or indirectly) by the Provider as a result of such cancellation.
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3. DELIVERY
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3.1 |
Any times specified or agreed by the Provider for the delivery of the Services are
given in good faith but are an estimate only. If no time is specified or agreed
by the Provider delivery will take place within a reasonable time following receipt
of the Request Form and Specimen or receipt of the Specimen Request Information
and Specimen. The Provider will not be liable for any loss, costs, damages, charges
or expenses caused directly or indirectly by any delay in the delivery of the Services.
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3.2 |
The Provider shall supply the Report by post or facsimile transmission to the Client
contact and address (or, where relevant, facsimile number) noted in the Request
Form.
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3.3 |
Unless agreed in writing otherwise, the Provider shall retain all Retained Specimens
but shall return all other Specimens to the Client. Delivery will be deemed to take
place when the Provider delivers the Specimens to a carrier nominated by the Provider
for the purpose of transmission to the Client.
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3.4 |
The Provider will use reasonable endeavours to ensure where necessary that any Specimens
to be returned to the Client are packed so as to be adequately protected against
damage in normal conditions of transit of usual duration.
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4. RISK AND OWNERSHIP
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4.1 |
Unless otherwise agreed in writing all Specimens to be returned to the Client are
at the risk of the Client from the time of delivery to the Client in accordance
with clause 3.3.
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5. PRICE AND PAYMENT
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5.1 |
Unless expressly agreed otherwise in writing by the Provider, the Services are supplied
by reference to the Provider's price list published by the Provider from time to
time.
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5.2 |
The Provider may invoice the Client for the Services at any time after the despatch
of the Report on a given Specimen in accordance with clause 3.2.
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5.3 |
The Client shall pay the fees for the Services within 30 days of receipt of an invoice
from the Provider.
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5.4 |
All fees are exclusive of VAT, which sum shall be added to the invoice and shall
be payable by the Client.
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5.5 |
No payment will be deemed to have been received until the Provider has received
the payment in full in cleared funds.
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5.6 |
Time for payment will be of the essence of the Contract and the Client will indemnify
the Provider against all expenses and legal costs (on a solicitor client basis)
incurred by the Provider in recovering overdue amounts.
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5.7 |
All payments payable to the Provider under the Contract will become due immediately
on termination of this Contract despite any other provision of these Conditions.
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5.8 |
The Client will make all payments due under the Contract without any deduction whether
by way of set-off, counterclaim, discount, abatement or otherwise unless the Client
has a valid court order requiring an amount equal to such deduction to be paid by
the Provider to the Client.
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5.9 |
If the Client fails to pay the Provider any sum due pursuant to the Contract the
Client shall pay interest to the Provider on such sum from the due date for payment
at the statutory rate from time to time in force accruing on a daily basis until
payment is made in full (whether before or after any judgement.
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6. WARRANTIES
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6.1 |
The Provider warrants (subject to the provisions of this clause 6) that the Services
will be performed:
(a) safely and with reasonable care and skill;
(b) using properly qualified and experienced persons; and
(c) in accordance with English law.
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6.2 |
The Provider will not be liable for a breach of the warranties in clause 6.1 where
and to the extent that a defect arises: from the Specimen being of an inferior quality
such that the laboratory testing is unsuccessful; or as a result of the Client's
negligence;
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6.3 |
Subject to clause 6.2, if any of the Services do not conform with the warranties
set out in clause 6.1 the Provider will at its option and cost re-perform such Services
or refund the price of such Services at the pro rata Contract rate.
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6.4 |
The Provider shall (subject to clause 7.2) have no further liability (in contract,
tort (including, without limitation, negligence) or otherwise) for breach of any
of the warranties in clause 6.1 in respect of the Services or any other term of
this Contract.
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7. LIMITATION OF LIABILITY
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7.1 |
Save for the warranties given by the Provider at clause 6.1, all warranties, conditions
and other terms (whether implied by statute or otherwise) are, to the fullest extent
permitted by law, excluded from the Contract.
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7.2 |
Nothing in these Conditions excludes or limits the liability of the Provider for
fraudulent misrepresentation or for any death or personal injury caused by the Provider's
negligence.
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7.3 |
Subject to clause 6 and clause 7.1 and 7.2, the Provider will not be liable to the
Client in contract, tort (including, without limitation, negligence), misrepresentation
or otherwise for any:
(a) economic loss of any kind (including, without limitation, loss of use, profit,
anticipated profit, business, contracts, overhead recovery, revenue or anticipated
savings);
(b) any damage to the Client's reputation or goodwill: or
(c) any other special, indirect or consequential loss or damage
(even if the Provider has been advised of such loss or damage) arising out of or
in connection with the Contract.
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7.4 |
Subject to the provisions of clause 6 and clause 7.1, 7.2 and 7.3) the Provider's
total liability in contract, tort (including, without limitation, negligence), misrepresentation
or otherwise arising out of or in connection with this Contract (a “Default”) will
be limited to the price paid or payable in respect of the Services (or the relevant
part of the Services) to which the Default relates.
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7.5 |
The provisions of this clause 7 shall survive the termination or expiry (for whatever
reason) of this Contract.
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8. THE CLIENT'S PROPERTY
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8.1 |
The Provider will take reasonable care of the Client's Property whilst it is in
the Provider's possession until delivery in accordance with clause 3.3.
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8.2 |
The Provider will not be liable for any loss or damage to the Client Property unless
such loss or damage arises as a direct result of the Provider's negligence. Where
the Provider is liable under this clause 8.1 the Provider's liability to the Client
will be limited to the lesser of: the sums noted in the limitation of liability
set out at clause 7.4; or the actual value of the Client Property; or the cost of
the replacement or repair of the loss or damage to the Client Property.
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8.3 |
The Client will ensure that the Client Property is in good condition and suitable
for use by the Provider in the performance of the Contract and while the Provider
will use reasonable endeavours to verify any relevant aspects of the Client's Property
no responsibility is accepted by the Provider for its accuracy.
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8.4 |
Any defect in the Services which is due in whole or in part to defects in the Client's
Property will not entitle the Client to terminate the Contract, reject the Services,
make any deductions from the Contract price or claim damages in respect of such
defect.
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8.5 |
The Client will keep the Provider indemnified in full against all liability, loss,
damage, injury, claim, action, demand, expense or proceeding awarded against or
incurred by the Provider as a result of or in connection with the use by the Provider
of the Client's Property
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9. CONFIDENTIALITY AND DATA PROTECTION
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9.1 |
The Provider shall maintain the confidentiality of all patient information in accordance
with the obligations of non-disclosure and non-use set forth in this clause 10 and
shall at all times:
(a) process patient information in accordance with the provisions of this Agreement
solely for the purposes of the Services as specified in the applicable Request Form
or the Clients other written request for Services;
(b) process the patient information as the Client’s 'data processor' (as 'data processor'
is defined in the Data Protection Act 1998 (the "DPA") and only process the patient
information for the purposes set out in this Agreement;
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9.2 |
Subject to the Client supplying patient information which is compliant in all respects
with the DPA (including, without limitation, the eight Data Protection Principles
contained in Schedule 1 of the DPA), ensure that all patient information is kept
in accordance with the reasonable instructions of the Client.
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9.3 |
The Client will keep the Provider indemnified in full against all liability, loss,
damage, claim, action, demand, expense or proceeding in respect of any breach by
the Client of the provisions of clause 9.2.
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10. INTELLECTUAL PROPERTY RIGHTS (“IPRS”)
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10.1 |
The Client will keep the Provider indemnified in full against all liability, loss,
damage, claim, action, demand, expense or proceeding in respect of any infringement
or alleged infringement of any IPRs resulting from any use by the Provider of the
Client Property or any compliance by the Provider with the Client's instructions,
whether express or implied.
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11. TERMINATION
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11.1 |
The Provider may terminate the Contract immediately if: (a) the Client fails to
pay the price on the due date;
(b) the Client is in breach of any term of the Contract and has failed to remedy
such breach within 28 days of receipt of written notice specifying the breach and
requiring it to be remedied;
(c) there is a material change in the ownership or control of the Client; or
(d) the Client is wound up or becomes insolvent or has a receiver or administrative
receiver appointed or suffers the appointment or the presentation of a petition
for the appointment of an administration or any equivalent or analogous event occurs
in any other jurisdiction.
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11.2 |
The termination of the Contract (howsoever arising) will be without prejudice to
any rights and remedies which may have accrued to either party.
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11.3 |
Any Conditions which impliedly have effect after termination or expiry will continue
to be enforceable notwithstanding termination or expiry.
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12. FORCE MAJEURE
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The Provider will not be liable to the Client or be deemed to be in breach of these
Conditions by reason of any delay in performing or failure to perform any of its
obligations under these Conditions if such delay or failure was beyond the Provider's
reasonable control including, without limitation, fire, flood, strike or other industrial
action of whatever nature . If the Provider is unable to perform its obligations
under these Conditions it will promptly notify the Client of the nature and extent
of the circumstances in question.
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13. GENERAL
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13.1 |
The Client will not without the prior written consent of the Provider assign or
transfer the Contract or any part of it to any other person.
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13.2 |
The Provider may without the prior written consent of the Client assign, transfer
or subcontract the Contract or any part of it to any other person
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13.3 |
Each right or remedy of the Provider under these Conditions is without prejudice
to any other right or remedy which the Provider may have under these Conditions
or otherwise.
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13.4 |
Any notice or other document to be served under the Contract must be in writing
and may be delivered or sent by prepaid first class post or facsimile transmission.
Any notice or document shall be deemed served, if delivered at the time of delivery,
if posted, 48 hours after posting and if sent by facsimile transmission, at the
time of transmission
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13.5 |
If any provision of the Contract is found by any court, tribunal or administrative
body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable
or unreasonable it will, to the extent of such illegality, invalidity, voidness,
unenforceability or unreasonableness, be deemed severable and the remaining provisions
of the Contract and the remainder of such provision shall continue in full force
and effect.
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13.6 |
Failure or delay by either party in exercising any right or remedy provided by the
Contract or by law will not be construed as a waiver of such right or remedy or
a waiver of any other right or remedy.
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13.7 |
A person who is not a party to the Contract will have no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of the Contract.
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13.8 |
The Contract will be governed by English law and the parties submit to the exclusive
jurisdiction of the English courts.
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