Hessington Health

Terms & Conditions

Hessington Health Limited: Terms and Conditions for the supply of Products and Services.

The Customer’s attention is particularly drawn to the provisions of clause 12 of the Conditions.

1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party

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

Business Hours: between 09:00 and 17:00 GMT Monday to Friday

Charges: the fees payable by the Customer to the Provider

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7

Consultant: the Provider’s employees and or subcontractors who have been assigned by the Provider to carry out work in the execution of the Contract

Contract: the contract between the Provider and the Customer for the supply of Products and/or Services in accordance with these Conditions

Control: a business entity shall be deemed to “control” another business entity if it owns, directly of indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity as defined in section 1124 of the Corporation Tax Act 2010

Customer: the person or firm who purchases the Products and/or Services from the Provider to include their employees or workers

Deliverables: the deliverables set out in the Order

Delivery Location: has the meaning set out in clause 4.2

Force Majeure Event: has the meaning given to it in clause 15.1

Health- Port®: means the subscription based on-line secure medical record storage service

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, software data, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 Products and/or Services, as set out the Customer’s purchase order form, or any Order made by telephone or email or the Customer’s written acceptance of the Provider’s quotation, as the case may

Price: the price of the Products and or Services

Privacy Policy: means the Provider’s privacy policy on their website

Products: the products (or any part of them) set out in the Order

Products Specification: any specification for the Products agreed in writing by the Customer and the Provider.

Provider: Hessington Health Limited a company incorporated in England and Wales registered at Global House, 303 Ballards Lane, London N12 8NP with company number 8180824, and any of its Affiliates. 22 Crystal Court, 95 Bramley Road, London N14 4EY

Services: the services, including the Deliverables, supplied by the Provider to the Customer as set out in the Service Specification below

Services on Locations: the description or specification for Services provided in writing by the Provider to the Customer at the following locations, which can be amended at any time, at the Spire Bushey Hospital, The BMI Cavell Hospital, The Wellington Hospital (10 Harley Street), The BMI Shelbourne and the Warwickshire Nuffield Hospital

Service Specification: the description or specification for the Services provided in writing by the Provider to the Customer. For Health- Port® see Schedule One, for SMaRT Absence Management® Schedule Two

SMaRT Absence Management®: A subscription based application which is web based for sickness monitoring

1.2 Construction. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its personal representatives, successors or permitted assigns;

(c) a 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;

(d) 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

(e) a reference to writing or written includes faxes and e-mails

(f) headings to clauses are inserted for convenience of reference only and shall not in any manner affect the construction meaning or effect of anything here in contained

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Product and/or Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Provider issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Provider, which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by the Provider and any descriptions of the Products illustrations or descriptions of the Services contained in the Provider’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by the Provider shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.

2.7 All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.

3. PRODUCTS

3.1 The Products are described in the Provider’s website, catalogue or brochure as modified by any applicable Products Specification

3.2 The Provider reserves the right to amend the specification of the Products Specification if required by any applicable statutory or regulatory requirements.

4. DELIVERY OF PRODUCTS AND OR SERVICES

4.1 The Provider shall ensure that:

(a) each delivery of the Products is accompanied by a delivery note, where applicable, which shows the date of the Order, all relevant Customer and Provider reference numbers, the type and quantity of the product (including the code number of the Product, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered; and

(b) if the Provider requires the Customer to return any material to the Provider, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times, as the Provider shall reasonably request.

4.2 The Provider shall deliver the Products and or Services to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Provider notifies the Customer that the Products and or Services are ready. Provided that for any cosmetic Services the Provider will only administer treatments if the establishment has the relevant valid certificates from the relevant local authority.

4.3 The Customer should refer to Schedule One for specific information relating to Health-Port®, and Schedule Two for SMaRT Absence Management®.

4.4 Delivery of the Products and or Services shall be completed on Product’s arrival at the Delivery Location.

4.5 The general timescales for delivery are as follows, but these are only estimated and should not be relied upon: –

(a) Medical reports and clinic letters are generally sent within14 days of assessment

(b) occupational health assessments are generally booked with 21 days of the Customer’s request

(c) occupational health reports are generally dispatched within 7 days of the assessment, but dispatch time will be increased if any of the following occur: –

(i) Delays in the return of any relevant forms, including but not limited to consent forms

(ii) If the Customer has requested sight of the report before its released

4.6 Any dates quoted for delivery of the Products and or Services are approximate only, and the time of delivery is not of the essence. The Provider shall not be liable for any delay in delivery of the Products or Services that is caused by a Force Majeure Event or the Customer’s failure to provide the Provider with adequate delivery instructions or any other instructions that are relevant to the supply of the Products or Services.

4.7 If the Provider fails to deliver the Products or Services, the Provider does not accept any liability for costs and expenses incurred by the Customer. The Provider shall have no liability for any failure to deliver Products or Services for any failure, which is caused by a Force Majeure Event.

5. TITLE AND RISK

5.1 The risk in the Products shall pass to the Customer on receipt of payment of the full Price and any other monies payable to the Provider.

5.2 Title to the Products shall not pass to the Customer until the earlier of:

(a) the Provider receives payment in full (cleared funds) for the Products and any other Products or Services that the Provider has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment.

5.3 Until title to the Products has passed to the Customer, the Customer shall:

(a) store the Products separately from all other Products held by the Customer so that they remain readily identifiable as the Provider’s Products;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price on the Provider’s behalf from the date of delivery;

(d) notify the Provider immediately if it becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(m); and

(e) give the Provider such information relating to the Products as the Provider may require from time to time.

5.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(m), then, without limiting any other right or remedy the Provider may have:

(a) the Provider may at any time:

(i) require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and

(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.

6. SUPPLY OF SERVICES

6.1 The Provider shall provide the Services to the Customer in accordance with the Service Specification in all material respects.

6.2 The Provider shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

6.3 The Provider 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 the Provider shall notify the Customer in any such event.

6.4 The Provider will use reasonable care and skill in supplying the Services.

6.5 The Provider shall provide all relevant occupational health consent forms, human resources referral forms, and other organisational health templates as part of the Services.

6.6 The Provider will only instruct appropriately qualified health professionals to carry out applicable Services. The Provider does not make any representation or warranty as to the suitability of any doctor or occupational health professional.

6.7 The Provider shall ensure that the doctors providing third party Services have full personal medical indemnity insurance.

7. CUSTOMER’S OBLIGATIONS

7.1 The Customer shall:

(a) ensure that the terms of the Order and (if submitted by the Customer) the Products Specification are complete and accurate. The Customer must notify the Provider within 10 days of receipt of the Order of any discrepancy or inaccuracy.

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

(c) provide the Provider, its employees, agents, consultants and subcontractors, if required, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Provider to provide the Services;

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

(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(f) keep and maintain all materials, equipment, documents and other property of the Provider (Provider Materials) in safe custody at its own risk, maintain the Provider Materials in good condition until returned to the Provider, and not dispose of or use the Provider Materials other than in accordance with the Provider’s written instructions or authorisation; and

(g) undertake to provide all necessary and sufficient supervision and verification of the Services where applicable, as provided by any Consultant in accordance with the advice and recommendations given by the Consultant

(h) not for a period of 12 months from the expiry of the Contract, to solicit or entice away from the Provider or offer to employ any person who is employed by the Provider at any time during the course of the Contract.

7.2 If the Provider’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) the Provider shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Provider’s performance of any of its obligations;

(b) the Provider shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Provider’s failure or delay to perform any of its obligations as set out in this clause 7.2; and

(c) the Customer shall reimburse the Provider on written demand for any costs or losses sustained or incurred by the Provider arising directly or indirectly from the Customer Default.

7.3 The Customer must notify the Provider during Business Hours, and within 72 hours, of any circumstances giving cause for complaint about any Services or Products. The Customer should confirm this in writing to the Provider. The Provider will then acknowledge receipt of the Customer’s complaint and investigate the matter with a reasonable timescale.

8. CHARGES AND PAYMENT

8.1 The price for Products shall be the price set out in the Order or, if no price is quoted, the price set out in the Provider’s published price list as at the date of delivery. The price of the Products is exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be paid by the Customer when it pays for the Products.

8.2 The price for Services on Location will be based on the assessments required, and undertaken at the relevant location. If the Customer is recommended additional treatments from the providers of the Services on Location directly, and the Customer utilises those services, the Customer will pay the provider of the Services on Location directly.

8.3 The charges for Services shall be based on the bespoke quotation provided, and will be valid for 30 days.

8.4 The Customer should refer to Schedule One for specific information relating to Health-Port® charges, and Schedule Two for SMaRT Absence Management® specific information relating to SMaRT Absence Management® charges.

8.5 The Provider reserves the right to:

(a) increase the price in the quotation if any alterations are required at the Customer’s request

(b) amend and or increase the price if the Customer requests a suspension of work, or if the Customer fails to give instructions, or where there are uncertainties or ambiguities in the instructions provided by the Customer.

(c) increase the price of the Products, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Products to the Provider that is due to:

(i) any factor beyond the control of the Provider (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(ii) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Products Specification; or

(iii) any delay caused by any instructions of the Customer in respect of the Products or failure of the Customer to give the Provider adequate or accurate information or instructions in respect of the Products or where there are uncertainties or ambiguities in the instructions provided by the Customer.

8.6 In respect of Products, the Provider shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Provider shall invoice the Customer as specified in the Order. Some payments are paid by monthly or yearly instalments, but the Customer must refer to their specific Order for payment terms.

8.7 The Customer shall pay each invoice submitted by the Provider:

(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 the Provider, and

time for payment shall be of the essence of the Contract.

8.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Provider to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Provider, pay to the Provider such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.

8.9 If the Customer fails to make any payment due to the Provider under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8.5% per annum above Barclay’s 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.

8.10 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Provider may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Provider to the Customer.

8.11 The Provider can terminate the contract in accordance with the provisions of the Termination clause 13, in addition to the provisions in clause 13 the Provider has a right to:-

(a) cease any release of any material until full payment is made.

(b) cease performance of the Contract without liability whatsoever, and:

(c) terminate the Contract with immediate effect for failure to make any payment due to the Provider following a 14 overdue notice.

8.12 The Provider can pass any unpaid debt to a debt collection agency if the 14 day overdue notice has elapsed.

8.13 All invoice enquires should be addressed to the Provider at 22 Crystal Court, 95 Bramley Road, London, N14 4EY

9. INTELLECTUAL PROPERTY RIGHTS

9.1 All Intellectual Property Rights in or arising out of or in connection with the Services and or Products shall be owned by the Provider.

9.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Provider obtaining a written licence from the relevant licensor on such terms as will entitle the Provider to license such rights to the Customer.

9.3 The Customer shall at the Provider’s expense do all things and execute all such necessary documentation as the Provider may reasonably require to vest in the Provider all rights and protection of all Intellectual Property Rights.

9.4 All Provider Materials are the exclusive property of the Provider. The Customer assigns to the Provider all existing and future Intellectual Property Rights and investigations arising from the use of the Provider’s software applications and all related material – clarification as the purpose of this clause.

9.5 The Customer irrevocably waives all moral rights under the Copyright Designs and Patents Act 1988 (and all similar rights in other jurisdictions).

9.6 The Customer using the Health-Port® or SMaRT® Services acknowledge and accept that recreating similar systems that deliver the same Services is a material breach of Contract

10. PRIVACY

The Customer acknowledges and accepts the Provider’s Privacy Policy

11. CONFIDENTIALITY

11.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, medical information, all personal information, 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, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, where the disclosing party is at risk of harm, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 10 shall survive termination of the Contract.

11.2 The Customer should refer to Schedule One for specific information relating to Health-Port®, and Schedule Two for specific information relating to SMaRT Absence Management®.

12. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1 Nothing in these Conditions shall limit or exclude the Provider’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; save for: –

(i) any Services provided by any third party doctor, the Customer accepts that the Provider does not accept the liability for death or personal injury to them as a result of medical negligence, and the liability will be with the third party doctor carrying out the assessment/treatment personally. The Provider will not under any circumstances be liable whether in contract, tort or otherwise for any consequential damage, loss however arising, or suffered or incurred by the Customer for loss of profits, loss of data, loss of operation time or loss of use of anticipated savings.

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 2 of the Supply of Products and Services Act 1982 (title and quiet possession);

(d) breach of the terms implied by section 12 of the Sale of Products Act 1979 (title and quiet possession); or

(e) defective products under the Consumer Protection Act 1987.

12.2 The Provider accepts no liability for any advice or recommendations given other than by the Consultant to the Customer as to the storage, application or use of the Products and or Services. Any third party advice is taken entirely at the Customer’s own risk.

12.3 Subject to clause 12.1:

(a) the Provider shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, for any system failure from our third party IT service providers, or any computer viruses, or any indirect or consequential loss arising under or in connection with the Contract; and

(b) the Provider’s will not be liable for any third party hacking, technical failures affecting third party servers, or interference with software outside the Provider’s control, whether or not it leads to loss of data or any other consequential losses. The Customer accepts full liability for their own back up systems.

(c) the Provider’s total liability to the Customer 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, shall in no circumstances exceed £500.00

(d) any typographical, clerical or other error or omission in sales literature, Orders, quotations, price lists, acceptance of offer, invoice, or other documents or information issued by the Provider, including any inaccuracies produced by the SMaRT® systems, shall be subject to correction without any liability on the part of the Provider.

(i) The Customer will immediately notify the Provider of any factor arising from clause (d) above without delay.

(e) the Provider shall under no circumstances whatsoever be liable for any employment tribunal compensation to the Customer, for any occupational health assessments provided.

12.4 The terms implied by sections 13 to 15 of the Sale of Products Act 1979 and the terms implied by sections 3 to 5 of the Supply of Products and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

12.5 This clause 12 shall survive termination of the Contract.

13. INDEMNITY

The Customer shall indemnify the Provider against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect, or consequential losses, loss of profits, loss of reputation, and all interest, penalties, and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Provider arising out of or in connection with any breach of these Conditions by the Customer.

14. TERMINATION

14.1 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:

(a) 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 30 days after receipt of notice in writing to do so;

(b) 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 or limited liability partnership) 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;

(c) 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;

(d) 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;

(e) the other party (being an individual) is the subject of a bankruptcy petition or order;

(f) 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;

(g) 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);

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

(i) 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;

(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 14.1(b) to clause 14.1(i) (inclusive);

(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;

(l) the other party’s financial position deteriorates to such an extent that in the Provider’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(m) 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.

14.2 Without limiting its other rights or remedies, the Provider may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

14.3 Without limiting its other rights or remedies, the Provider may suspend the supply of Services or all further deliveries of Products under the Contract or any other contract between the Customer and the Provider if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(m), or the Provider reasonably believes that the Customer is about to become subject to any of them, or the Provider wishes to refuse supply of Services, provided they give reasonable notice to the Customer.

14.4 On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Provider all of the Provider’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Provider shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall return all of the Provider Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Provider may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(c) 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

(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

15. FORCE MAJEURE

15.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Provider including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Provider or any other party), failure of a utility service or transport network, act of God, threat of war, war, riot, terrorism, explosion, sabotage, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, import or export embargoes, or default of providers or subcontractors.

15.2 The Provider shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

15.3 If the Force Majeure Event prevents the Provider from providing any of the Services and/or Products for more than 12 weeks, the Provider shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

16. GENERAL

16.1 Assignment and other dealings.

(a) The Provider may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b) The Customer shall not, without the prior written consent of the Provider, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

16.2 Notices.

(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is sign.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

16.3 Severance.

(a) 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.

(b) If one party gives notice to the other of the possibility that any provision or part-provision of this 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.

16.4 Waiver. A waiver of any right under the Contract or law 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 prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

16.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

16.7 Variation.

(a) The Customer accepts that the Provider may vary these Conditions by providing the Customer at least 3 months written notice. These variations will not be retrospective and will only apply as at the date of the variation to new Orders and on-going transactions that do not expire and transactions which are renewable.

(b) For any renewable contracts the Customer may request in writing that the Provider defer any variation to these Conditions.

(c) The Customer acknowledges their agreement to any variation to these Conditions if they proceed to do the following: –

(i) place new Orders after the variations have been made

(ii) fail to request a deferment for renewable contracts until the start of the next renewal period

(iii) allowing transactions to renew after receipt of the variation notice

(iv) Failing to terminate non expiring transactions after receipt of the variation notice

16.8 Except as set out in these Conditions, no variation of the Contract including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Provider.

16.9 Governing law. This agreement 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.

16.10 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 this Contract or its subject matter or formation (including non-contractual disputes or claims).

SCHEDULE ONE – HEALTH-PORT®

THIS SCHEDULE FORMS PART OF THE HESSINGTON HEALTH TERMS AND CONDITIONS AND MUST BE READ IN CONJUCTION THOSE TERMS AND CONDITIONS

1. INTERPRETATION

1.1 Definitions. In this Schedule One the following definitions apply:

Customer Materials: means all works and materials uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer, or by any person or application, or automated system using the Customer’s account, or otherwise provided by the Customer to the Provider

PDF: means Portable Document Format (Adobe Acrobat)

Platform: means the software platforms known as Health-Port® that are owned and operated by the Provider, and that will be made available to the Customer as a Service via the internet

Support Services: means support and maintenance of the Services provided or to be provided by the Provider to the Customer in accordance with this Schedule One

2. DELIVERY

The Provider shall make available to the Customer the Health-Port® Platform 99% of the time, barring when system upgrades occur.

3. CHARGES AND PAYMENT

3.1 The Customer utilising the Health-Port® Services will pay £100 per annum by standing order.

3.2 Access Charges and Support Charges

(a) The Customer will pay access charges, in respect of access to and use of Platform, and support charges, in respect of helpdesk support with the use of the Platform, which are paid as follows: –

(i) monthly in advance, by direct debit and standing order, or by debit or credit card, granting access to take the monthly instalment from the card

(ii) the Provider will raise invoices for the access and support charges, and this can be provided to the Customer on request.

3.3 Other Charges

(a) In addition to the charges detailed in clause 3.2 of this Schedule One, the Provider will invoice the Customer for:

(i) charges for additional services requested by the Customer, which full outside the access and or support charges, such as but not limited to, form or report designing, data conversion, telephone or on site training, or bespoke development; or

(ii) any other charges that are agreed between the parties in writing.

4. TERMINATION

4.1 In addition to the provisions in clause 12 of the Conditions, the Customer and the Provider have a right to terminate Health-Port® Services giving 30 days written notice.

4.2 The Health-Port® Services have a continuous term, and as such can only be terminated by notice referred to in clause 4.1 above

4.3 The Customer acknowledges and accepts that any charges already made for the Health-Port® Services are non-refundable.

5. CONFIDENTIALITY

5.1 Files and images uploaded to the Health-Port® Platform shall not be shared with any third party except where the Provider needs to upgrade or apply fixes to the system

5.2 The Customer has the option of sharing access to their health records by completing the grant access fields. This feature is designed to allow the user to share his or her health records with other doctors or health care professionals, or other third parties. For the purpose of this clause 5.2 “Third Parties” shall be defined as doctors and or health care professionals. The Customer should note the following:

(a) The Customer can select the shortest duration for the Third Parties to have access;

(b) The Customer can delete the Third Parties’ access at any time;

(d) The Customer should, where possible, use the Third Parties’ NHS email address;

(e) The Customer acknowledges and accepts by using the grant access feature that they do so at their own risk, without any liability whatsoever to the Provider

6. SUPPORT SERVICES

6.1 The Provider will make available during Business Hours a telephone and email helpdesk facility for the purposes of:

(a) assisting the Customer with the configuration of the Platform;

(b) assisting the Customer with the proper use of the Platform; and or

6.2 The Customer must make all requests for Support Services by contacting the helpdesk by telephone or email

6.3 The Provider cannot provide the Support Services outside of Business Hours.

6.4 Response and Resolution Times

(a) The Provider will use reasonable endeavours to respond to requests for Support Services;

(b) The Provider will use reasonable endeavours to resolve issues raised by the Customer as quickly a possible;

6.5 All Support Services will be provided remotely unless expressly agreed

6.6 Limits on Support Services

(a) The Provider shall have no obligation under the Contract to provide Support Services in respect or any fault or error caused by:

(i) the improper use of the Platform; or

(ii) the use of the Platform, otherwise than in accordance with any documentation providing guidelines as to the use of the Platform.

(b) The Provider shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communication networks and facilities, including the internet, except to the extent that such delays, delivery failures, or any other loss or damage is caused as a result of the fraud, negligence or wilful default of the Provider, or the Provider’s sub-contractor, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communication facilities

6.7 Upgrades

(a) The Customer acknowledges and accepts that from time to time the Provider may apply upgrades to the Platform, and that such upgrades may, subject to 6.7(b) below, result in changes in the appearance and or functionality of the Platform;

(b) No upgrade shall disable, delete or significantly impair the core functionality of the Platform;

(c) The Provider will publish on their website details of any significant upgrades to the Platform. Such information shall include details of the specific changes to the functionality resulting from the application of the upgrade

6.8 Backup and Restorations

(a) The Provider will:

(i) make backups of the Customer Materials stored on the Platform on a daily basis, storing the most recent seven daily backups locally on the Platform; and

(ii) at least once every three days, the Provider will additionally arrange for the offsite storage of the latest backup of the Customer Materials stored on the Platform (which will be overwritten on the following off site backup date);

(b) In the event of the loss of or corruption of Customer Materials stored on the Platform, being notified by the Customer to the Provider, the Provider shall if so directed by the Customer use reasonable endeavours to promptly restore the Customer Materials from the most recently available backup.

(c) The Customer accepts that in addition to backups made by the Provider the Customer is obliged to make their own regular backups of their own Customer Materials, the Customer should refer to clause 12.3 (b) of the Conditions, which limits any liability of the Provider

6.9 Scheduled Maintenance

(a) The Provider may suspend access to the Platform in order to carry out scheduled maintenance;

(b) Such maintenance will be carried out outside of Business Hours, and any suspension will not be for more than 5 hours in each calendar month;

(c) Platform downtime during scheduled maintenance carried out by the Provider in accordance with this clause shall not be counted as downtime for the purposes of clause 2 of this Schedule One

7. RECORDS OF DECEASED PERSONS

7.1 If you want to view the health records of the deceased person, under the Access to Health Records Act 1990 you can apply in writing to the record holder. Under this Act you can only access the deceased’s health records if you are either:

(a) a personal representative, an executor; or

(b) someone who has a claim resulting from the death (relative or another person)

7.2 The National Health Service (NHS) will hold a deceased person’s records for 10 years before they are destroyed. The Customer accepts and acknowledges that the Provider is merely providing an electronic file storage facility.

7.3 Upon receipt of notification that the account holder is deceased, the Provider can only hold the account open for 8 weeks and which point it is closed, and all files will be deleted. The Customer should notify relevant parties of this timeframe.

8. SCANNING OF HEALTH RECORDS

8.1 The Customer can upload their own records as a single PDF document when they are logged on to the system.

8.2 The Customer may utilise the Provider’s scanning service, by purchasing this within the system. The charge will be based on the number of documents.

8.3 All records must be posted by recorded post only to Xanda Limited Health-Port® Services 94-96 Great North Road, London, N2 0NL. Once records have been scanned and uploaded they will be returned by recorded post. The Customer must provide a valid UK return address with their records to ensure their safe return.

SCHEDULE TWO – SMaRT Absence Management®

THIS SCHEDULE FORMS PART OF THE HESSINGTON HEALTH TERMS AND CONDITIONS AND MUST BE READ IN CONJUCTION THOSE TERMS AND CONDITIONS

1. INTERPRETATION

1.1 Definitions. In this Schedule Two the following definitions apply:

Dr Call: means Occupational Health Physician assigned when HR report an employee sick day through the SMaRT Absence Management® application. The Physician will then make contact with the absent employee and then feedback to HR, the outcome of that consultation.

Minimum Term: means 12 months from the date of the Order

Platform: means the software platforms known as SMaRT Absence Management® that are owned and operated by the Provider, and that will be made available to the Customer as a Service via the internet

Support Services: means support and maintenance of the Services provided or to be provided by the Provider to the Customer in accordance with this Schedule Two

2. DELIVERY

The Provider shall make available to the Customer the SMaRT Absence Management® 99% of the time, barring when system upgrades occur.

3. SITE VISIT

3.1 The Customer subscribing to both SMaRT Absence Management® and Dr Call will receive one site visit per annum to discuss the Customer’s organisation sickness trends.

4. CHARGES AND PAYMENT

4.1 The Customer utilising SMaRT Absence Management® Services will pay a monthly subscription by standing order, which will be confirmed when the Order is made.

4.2 The Provider can adjust the charges quarterly, as a result of changes in the size of the workforce.

4.3 Access Charges and Support Charges

(a) The Customer will pay access charges, in respect of access to and use of Platform, and support charges, in respect of helpdesk support with the use of the Platform, which are paid as follows: –

(i) monthly in advance, by direct debit and standing order, or by debit or credit card, granting access to take the monthly instalment from the card

(ii) the Provider will raise invoices for the access and support charges, and these can be provided to the Customer on request.

4.4 Other Charges

(a) In addition to the charges detailed in clause 4 of this Schedule Two, the Provider will invoice the Customer for:

(i) charges for additional services requested by the Customer, which fall outside the access and or support charges, such as but not limited to, form or report designing, data conversion, telephone or on site training, or bespoke development; or

(ii) any other charges that are agreed between the parties in writing.

5. GENERAL

5.1 All clinical information on employees will be linked to an employee code, which is created by the system when an employee is added. The Customer undertakes to keep these codes offline and safe, as these are required when using the system.

5.2 Visible information matched to an employees name will be contact details and job role.

5.3 The Customer accepts and acknowledges that it is their responsibility to notify their employees that they are using SMaRT Absence Management® to track system access.

5.4 If the Customer is using Dr Call, the employees will need to be notified that they will receive a call from a Doctor or Nurse on the day of their sickness.

5.5 The Customer must notify their own relevant human resources departments to update and or vary their employee’s contracts to notify them that they are using SMaRT Absence Management®and or Dr Call.

5.6 The Customer is referred to clause 12 of the Conditions, and should note that by subscribing to this service you accept that the Provider has no liabilities whatsoever in any of the Customer’s employment disputes.

6. TERMINATION

6.1 In addition to the provisions in clause 12 of the Conditions, the Customer has a right to terminate SMaRT Absence Management® Services giving 30 days written notice to terminate after the Minimum Term of the Contract expires. The Customer can give notice to terminate during the Minimum Term, but will be required to pay the full amount due for the entire Minimum Term, within 30 days.

6.2 In addition to the provisions in clause 12 of the Conditions, the Provider has a right to terminate SMaRT Absence Management® Services at any time, and a refund of one month’s subscription will be returned to the Customer.

6.3 The Customer acknowledges and accepts that any charges already made for the SMaRT Absence Management® Services are non-refundable.

7. CONFIDENTIALITY

7.1 Files and images uploaded to SMaRT Absence Management® belong to the Provider and the Provider reserves the right to share this data with third parties or other Affiliates.

8. SUPPORT SERVICES

8.1 The Provider will make available during Business Hours a telephone and email helpdesk facility for the purposes of:

(a) assisting the Customer with the configuration of the Platform;

(b) assisting the Customer with the proper use of the Platform; and or

8.2 The Customer must make all requests for Support Services by contacting the helpdesk by telephone or email

8.3 The Provider cannot provide the Support Services outside of Business Hours.

8.4 Response and Resolution Times

(a) The Provider will use reasonable endeavours to respond to requests for Support Services;

(b) The Provider will use reasonable endeavours to resolve issues raised by the Customer as quickly a possible;

8.5 All Support Services will be provided remotely unless expressly agreed

8.6 Limits on Support Services

(a) The Provider shall have no obligation under the Contract to provide Support Services in respect or any fault or error caused by:

(i) the improper use of the Platform; or

(ii) the use of the Platform, otherwise than in accordance with any documentation providing guidelines as to the use of the Platform.

8.7 Upgrades

(a) The Customer acknowledges and accepts that from time to time the Provider may apply upgrades to the Platform, and that such upgrades may, subject to 8.7(b) below, result in changes in the appearance and or functionality of the Platform;

(b) No upgrade shall disable, delete or significantly impair the core functionality of the Platform;

8.8 Backup and Restorations

(a) The Provider will:

(i) make backups of the Customer Materials stored on the Platform on a daily basis, storing the most recent seven daily backups locally on the Platform; and

8.9 Scheduled Maintenance

(a) The Provider may suspend access to the Platform in order to carry out scheduled maintenance;

(b) Such maintenance will be carried out outside of Business Hours, and any suspension will not be for more than 5 hours in each calendar month;

(c) Platform downtime during scheduled maintenance carried out by the Provider in accordance with this clause shall not be counted as downtime for the purposes of clause 2 of this Schedule Two.

Hessington Health Weight Management Service.

Obesity affects approximately 1 in 4 people in the UK and it responsible for a number of serious health problems such as, type 2 diabetes, heart disease, high blood pressure,

Occupational Health

We are passionate about Occupational Health and Corporate Health Screening. We are proud of the relationships we have developed with our clients nationally.

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If you would like to consult a private GP please contact us to book an appointment. You can see a private GP about any medical problem without a referral.

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