Terms & Conditions
1. Definitions
1.1 In these Conditions:-
"Acceptance" means acceptance of the Contract by the Customer in accordance with Clause 5.1; "the Company" means Broomwell Healthwatch Limited (registered in England under number 5203203); "the Conditions" means the standard terms and conditions of sale set out herein and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Customer and the Company and specified herein or in the Registration Form; "the Contract" means the Registration Form and the Conditions set out in this document for the provision of Services; "the Customer" means the Person who accepts a quotation of the Company for the sale of the Monitoring Devices and/or the provision of Services; “Data Protection Legislation” means any legislation in force from time to time which is applicable to the sale of the Monitoring Devices and/or the provision of the Services pursuant to this Agreement; “Instructions Manual” means the manual of instructions to be provided by the Company to the Customer together with the Monitoring Devices; "Monitoring Devices" means the following pieces of equipment (as modified from time to time) which can be purchased by the Customer from the Company in order to assist in the monitoring and diagnosis of the Customer:- Gateway Call Centre; Mini Clinic; MiniGate (USB Transmitter) 12 lead ECG; Blood Pressure Monitor; Weight Control; and All-in-One Monitor; "Person" means an individual or a body corporate or unincorporate or a partnership and "Persons" shall be construed accordingly; "Price" means the price to be paid by the Customer to the Company for the Monitoring Devices and/or for the provision of the Services and as stated on the face hereof; "Registration Form" means the full health questionnaire and registration form which is set out within this document and forms part of the Contract pursuant to Clause 6.2; "Services" means the services as set out in clause 6.1; "Term" means the period of 12 months from the date hereof; "Website" means www.broomwellhealthwatch.com; "Writing" shall have the ordinary meaning ascribed to it, including type written documents or communications and shall include telex, cable, facsimile transmission, electronic mail and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 Except where the context otherwise requires words herein denoting the singular include the plural and vice versa; words denoting any one gender include all genders.
1.4 References to clauses are, unless the context otherwise permits, references to clauses of these Conditions.
1.5 Clause headings herein are for reference only and do not affect the construction of these Conditions or the Contract.
2. Parties
2.1 The parties to these Conditions are the Company and the Customer. All transactions as between the Company and the Customer are as between principal and principal and are subject to the following expressed conditions.
3. Variation
3.1 Subject to any variation under clause 3.2 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions) which the Customer purports to apply under any purchase order, confirmation of order, specification, correspondence or other document.
3.2 The Contract between the Company and the Customer cannot be varied, altered or excluded unless such variation, alteration or exclusion is agreed between the parties in Writing or between the authorised representatives of the Company and the Customer (being in the case of the Company a Director of the Company) and signed by the parties to be bound.
4. Waiver
4.1 Any concession, latitude or waiver allowed by the Company at any time shall only apply to the extent specifically covered by such concession, latitude or waiver and shall not prevent the Company otherwise exercising its full rights under the Contract and these Conditions.
5. Acceptance and Cancellation
5.1 All quotations or tenders made and price or product lists supplied by the Company shall be treated as invitations to treat only. The Contract shall be deemed accepted upon being completed by the Customer.
5.2 Once the Contract has been accepted by the Customer, the Customer shall have a further period of seven working days during which time the Customer shall have an unconditional right to cancel the Contract, in the manner set out in Clause 5.3 below. The seven working days shall commence from the day after the Customer receives the Monitoring Devices.
5.3 If the Customer wishes to cancel the Contract, the Customer must do so by notice in writing to the Company. The effective date of cancellation shall be the date upon which the notice is sent by the Customer to the Company.
5.4 In the event that the Customer cancels the Contract in accordance with this clause 5, the Customer shall be under a duty to return the Monitoring Devices to the Company upon cancellation and the costs of returning the Monitoring Devices shall be at the expense of the Customer.
5.5 Upon cancellation of the Contract by the Customer, in accordance with Clauses 5.2 to 5.4, the Company shall refund to the Customer the Price paid for the Monitoring Devices by the Customer within thirty days of the date the notice of cancellation is given.
6. Services
6.1 In carrying out its duties in the provision of the Services, the Company shall use reasonable endeavours to:-
6.1.1 provide a cardiac monitoring centre which is staffed 24 hours a day, 365 days a year;
6.1.2 provide qualified cardiac nurses;
6.1.3 offer cardiac Monitoring Devices in order to obtain information about the Customer over the telephone;
6.1.4 provide cardiac medical advice.
6.2 In respect of the Services the Customer agrees to:-
6.2.1 provide all information that is required and set out in the Registration Form;
6.2.2 notify the Company immediately of any changes in the medical information set out in the Registration Form;
6.2.3 carry out a test of the Monitoring Devices following receipt of the Monitoring Devices by contacting the Company within 7 working days of receipt;
6.2.4 change the battery on the Monitoring Devices as instructed, in accordance with the Instructions Manual;
6.2.5 comply with all the instructions set out in the Instructions Manual;
6.2.6 notify the Company of any change in address or phone number of the Customer or any change in any other details that are set out in the Registration Form; and the Customer hereby accepts that failure to comply with one or more of these obligations (either in whole or in part) shall operate to exclude any liability on the part of the Company and shall constitute grounds for termination by the Company under clause 11.3.3 of these Conditions.
7.1 The Price for the Monitoring Devices and the Services shall be the Price as set out in the Registration Form.
7.2 During the Term, the Company reserves the right to increase the Price on an annual basis in line with inflation or as a result of any UK or European statutory or other legislative ruling.
7.3 For the avoidance of doubt, upon expiry of the Term, the Company reserves the right to increase the Price of the Monitoring Devices and of the Services, at the Company’s sole discretion.
8. Payment
8.1 Upon Acceptance the Customer shall pay to the Company the Price. The Price for the Monitoring Devices shall be paid in full upon Acceptance and the Price for the Services shall be paid monthly, in advance, by standing order in accordance with the Registration Form.
8.2 Payment shall only be deemed to be made when cleared funds have been received by the Company and the Company's bank account credited.
8.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:-
8.3.1 cancel the Contract; and/or
8.3.2 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 4% per annum above National Westminster Bank plc base rate from time to time, with quarterly rests until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
8.4 The Customer shall not withhold or reduce or set-off any amount due on account of any complaint in relation to the Monitoring Devices and/or the Services.
9. Collection
9.1 If the recovery of any sums outstanding from the Customer to the Company is passed to a debt collection agency, the Customer shall pay the Company's costs incurred on an indemnity basis in instructing the said debt collection agency and all legal and other costs ancillary thereto.
10. Delivery
10.1 Unless expressly stated in Writing by the Company, all prices quoted exclude packaging and delivery charges.
10.2 Save where the Customer collects the Monitoring Devices from the Company’s premises (in which case delivery shall take place at the Company’s premises) delivery shall take place at the address of the Customer as set out in the Registration Form.
10.3 The Company will endeavour to deliver the Monitoring Devices on any delivery dates stipulated, but such dates are only estimated and the Company will not be liable to the Customer for any loss, damage, injury, penalty, claim or any other matter of whatsoever nature arising from any delay of 28 days or less in delivery.
10.4 The Customer shall, upon delivery, examine the Monitoring Devices and shall promptly (but in any event within seven working days of delivery) notify the Company in Writing of any apparent damage or defect in the Monitoring Devices. For these purposes, the Customer shall carry out the test of the Monitoring Devices in accordance with clause 6.2.3 of these conditions. These conditions shall not affect a Customer’s statutory rights in any way whatsoever.
10.5 In default of the written notification referred to in clause 10.4 above, the Company shall be deemed to have conclusively and properly performed its obligations to deliver the Monitoring Devices.
11. Limitation of Liability
11.1 Due to the nature of the Services, medical advice and recommendations are provided by the Company to the Customer without the benefit of a physical examination. The Company relies upon the information provided by the Customer on the Registration Form and if the Customer withholds any information whatsoever (including information relating to the personal medical history of the Customer or any family medical history of the Customer), or provides any incorrect or inaccurate information (knowingly or otherwise) the Company shall not be liable for any consequences of the advice or recommendations given.
11.2 In addition to the above, the Company relies upon the Customer’s correct and accurate use of the Monitoring Devices and the Company shall not be liable for any advice or recommendation given following any incorrect or inaccurate use of the Monitoring Devices by the Customer whatsoever.
11.3 The Monitoring Devices must be used, treated and stored by the Customer as outlined in the Instructions Manual. The Company shall not be liable to the Customer for any defect or damage brought about by the Customer using, storing or treating the Monitoring Devices in a manner other than as outlined in the Instructions Manual.
11.4 As the diagnosis is over the telephone, the diagnosis given is in no way comparable to a face-to-face diagnosis in a hospital or doctor’s surgery and, therefore, no promises or warranties are made or given or intended by the advice or recommendation given by the Company.
11.5 The Company is not responsible if a Customer takes undisclosed medication from another source (either before or after any advice or recommendation) or has a medical condition that has not been disclosed on the Registration Form and there follows an adverse reaction to the Company’s recommendation to take medication.
11.6 The Services set out in paragraph 6 of these Conditions are the only services to be provided by the Company to the Customer under the Contract and the Company shall not be under any duty to provide any further services to the Customer, other than the Services set out in paragraph 6.
11.7 No advice or information, whether oral or written, obtained by the Customer from the Company or through or from the Services shall create any warranty or other obligation if not otherwise expressly stated in these Conditions.
11.8 The Company shall not be responsible for any losses suffered by the Customer where the performance of the Contract by the Company is affected by any fault with British Telecom telephone lines, or any fault of an electrical nature whatsoever which is beyond the Company’s control.
12. Term and Termination
12.1 This Contract shall commence upon Acceptance in accordance with clause 5 or such other date as agreed in Writing between the parties and shall be for the period of the Term. The Customer shall have the right to renew the Contract thereafter on an annual basis.
12.2 During the Term, either party may terminate the Contract with the service of one months notice in Writing. If during the term the company terminates the contract, other than in accordance with clauses 12.3, 12.4 and 14.1, the company shall refund o the customer the pro rata cost of the monitoring devices by calculating such proportion of the term as the number of months the customer has had the services (including the 1 month notice period) bears to the whole period of the term.
12.3 The Company shall be entitled to terminate the Contract forthwith upon one or more of the following events occurring:-
12.3.1 in the event of a Force Majeure as set out in clause 18 of these Conditions;
12.3.2 payment under clause 8 remains outstanding for 10 days after the relevant due date; or
12.3.3 a breach by the Customer of any of its obligations under clauses 6.2, 14 and/or 145of these Conditions.
12.4 If the Company or the Customer shall not comply with any of their obligations hereunder, the other party shall have the right to terminate the Contract forthwith but without effecting any claim, right or remedy it may have hereunder against the other party.
13. Assignees and Sub-Contractors
13.1 The Customer agrees that the Company may assign or sub-contract the performance of any of the obligations of the Contract without giving notice.
14. Membership
14.1 In addition to the termination provisions set out in clause 12.3, the Customer’s annual membership will be terminated without reimbursement of fees if the Customers behaves in such a way that is deemed rude or aggressive to other customers of the Company, the Customer behaves in such a way that is deemed rude or aggressive to the nurses, non-payment of agreed fees, any attempted abuse of the Services or allowing others to use the Services in the Customer’s name.
14.2 The Customer hereby agrees not to use the Services:
14.2.1 in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation;
14.2.2 to invade the privacy of third parties;
14.2.3 to impersonate the Company’s personnel or other parties or entities;
14.2.4 to transmit unlawful, fraudulent, offensive, obscene, pornographic, defamatory, abusive, threatening or otherwise objectionable material;
14.2.5 to encourage conduct that would give rise to civil or criminal liability;
14.2.6 not to violate or assist in violating the security of the Company, whether intentionally negligently or otherwise;
14.2.7 not to attempt to utilise another Customer’s account and username, password, PIN and not to transmit by means of the Company any data or material that contains software viruses or any other malicious code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
15. PIN and Password
15.1 A Customer, may be issued with an identification code or PIN and a password (“Password”) that will be required to access the Customer’s details on the Website.
15.2 After the initial issuance by the Company, the Customer may change his/her individual Password and shall inform the Company immediately of such change. The Customer may access the Customer’s details only using his/her PIN and Password, and may not allow any other person to access the Customer’s details using the Customer’s PIN and Password.
15.3 The Customer agrees:-
15.3.1 not to disclose the Customer’s password to any other Person;
15.3.2 to make all reasonable efforts to keep the Customer’s Password secret and confidential;
15.3.3 to promptly notify the Company of any actual or suspected breach of security of the Company, such as loss, theft or unauthorised disclosure of the Customer’s PIN or Password;
15.3.4 not to hack into the computer system of the Company.
15.4 The Customer is solely responsible for maintaining the confidentiality of his/her Password, and is personally responsible for all use whether authorised or unauthorised of the Company’s Services under the Customer’s Password.
16. Data Protection
16.1 The Company confirms that it complies in all respects with the Data Protection Legislation and the Electronic Commerce (EC Directive Regulations 2002.
17. Complaints
17.1 Any complaint about the Company or medical advice or diagnosis provided by the Company’s nurses will be handled in Writing by the Company. If the matter is not solved then a face to face visit will be needed to resolve the problem. The Company will not be responsible for any fees for travel or lost time if they are incurred.
18. Force Majeure
18.1 Insofar as the performance of the Contract by the Company may be affected by any lack of available transport or materials, any restriction, regulation or decree by any local or municipal authority or government department or by any strike, commotion, riot, act of God, or for any other cause or reason of whatsoever nature beyond the Company's control (which shall be construed without the eiusdem generis rule) the Company may elect at its absolute discretion either:‑
18.1.1 to terminate the Contract; or
18.1.2 to proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances and with such reasonable variation as the circumstances shall prevail.
In either instance the Company shall not be liable to the Customer for any loss or damages or expenses whatsoever suffered or incurred by the Customer.
19. Severability
19.1 Should any of these Conditions be found by a court or other competent authority to be void or unenforceable such provision shall be deemed to be deleted from these Conditions and the remaining Conditions shall continue in full force and effect.
20. Notices
20.1 Save as hereinbefore otherwise provided, any notice required or permitted to be given by the Customer under these Conditions shall be in Writing, addressed to the Company at its trading address shown on the Contract. Any notice required or permitted to be given by the Company to the Customer under these Conditions shall be in Writing, addressed to the Customer at the address shown for the Customer herein.
21. Entire Agreement
21.1 The Company and the Customer acknowledge that in entering into this Contract, it does not rely on and shall have no remedy in respect of any written or oral statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether party to the contract or not) other than as expressly set out in this Contract. Any remedy available to each party for breach of any term or condition contained herein shall be for breach of contract unless otherwise expressly set out in this Contract. Nothing in this clause shall however operate to limit or exclude any liability for fraud.
22. Proper Law
22.1 These Conditions and the Contract shall be construed according to English Law and the parties hereto hereby submit to the exclusive jurisdiction of the Courts of the United Kingdom.