STANDARD TERMS AND CONDITIONS FOR GOODS AND SERVICES

1  Application of Terms and Conditions

1.1       The Supplier shall supply and the Customer shall purchase the Products and Data Analysis Services in accordance with the quotation which shall be subject to these Terms and Conditions; and

1.2       The Contract shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.

2  Definitions and Interpretation

2.1       In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

Business Day”  means any day other than a Saturday, Sunday or bank holiday;

Cardisio”  means Cardisio GmbH, Orber Strasse 5e, D-60386 Frankfurt am Main.

ConfidentiaInformation”  means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);

Contract”  means the contract for the purchase and sale of the Products and supply of the Services under these Terms and Conditions;

Contract Price”  means the price stated in the Contract payable for the Products and Services;

Customer”  means the person who accepts a quotation or offer of the Supplier for the sale of the Products and supply of the Services, or whose order for the Products and Services is accepted by the Supplier;

Data Protection Legislation” means 1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently 2) any legislation which succeeds the GDPR.

Delivery Date”   means the date on which the Products are to be delivered as stipulated under these Terms and Conditions and accepted by the Supplier;

Products”  means the goods (or any parts for them) which the Supplier is to supply in accordance with these Terms and Conditions;

Manufacturer”  means Cardisio GmbH the manufacturer of the Cardisiograph devices and provider of the Data Analysis Service;

Month”  means a calendar month;

Data Analysis Service”  means, the online service provided by the Manufacturer whereby data captured from a natural person using a suitable device is transmitted to the Manufacturers facility in Germany for analysis and subsequent reporting to the requester of the service; and

Supplier”  means Heart Screen UK Limited, a company, registered in England & Wales in accordance with the Companies Act under number 11788490. The registered office address of Heart Screen UK Limited is: 45 Pall Mall, London, SW1Y 5JG. Heart Screen UK Limited is a UK Distributor of the Cardisio range of products and services.

2.2       Unless the context otherwise requires, each reference in these Terms and Conditions to:

2.2.1     “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

2.2.2     a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

2.2.3     “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;

2.2.4     a Schedule is a schedule to these Terms and Conditions; and

2.2.5     a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.

2.2.6     a “Party” or the “Parties” refer to the parties to these Terms and Conditions.

2.3       The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.

2.4       Words imparting the singular number shall include the plural and vice versa.

2.5       References to any gender shall include the other gender.

3  Basis of Sale and Service

3.1       The Supplier’s employees or agents are not authorised to make any representations concerning the Products or Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

3.2       No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Distributor and the Supplier.

3.3       Sales literature, price lists and other documents issued by the Supplier in relation to the Products and Services are subject to alteration without notice and do not constitute offers to sell the Products which are capable of acceptance. No contract for the sale of the Products and Services shall be binding on the Supplier unless the Supplier has accepted an order and provided the Customer with an invoice and received cleared funds in full from the Customer.

3.4       Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

4  The Products

4.1       No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorised representative.

4.2       The specification for the Products shall be that set out in the Supplier’s sales documentation unless varied expressly in the Customer’s order (if such variation(s) is/are accepted by the Supplier). The Products will only be supplied in the minimum units thereof stated in the Supplier’s price list or in multiples of those units. Orders received for quantities other than these will be rejected accordingly

4.3       Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.

4.4       The Supplier reserves the right to make any changes in the specification of the Products which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Products are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.

4.5       No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation.

5  The Services

5.1       The Supplier, in consideration of the price being paid in accordance with Clauses 6 and 7 will facilitate the Data Analysis Service expressly identified in the accepted order.

5.2       The Supplier shall require the Manufacturer to use reasonable care and skill to perform the Services identified in the accepted order.

5.3       The Supplier shall use its reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of such obligations.

5.4       Additional services, including training and support are available, subject to specific quotes from the Supplier.

6  Data Processing

6.1       In this Clause 6 and in the Contract, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4, EU Regulation 2016/679 General Data Protection Regulation (“GDPR”).

6.2       Both Parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. This Clause 6 or the Contract shall not relieve either Party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations.

6.3       For the purposes of the Data Protection Legislation and for this Clause 6 and the Contract, the Customer is the “Data Controller” and Cardisio GmbH, the Manufacturer is the “Data Processor”.

6.4       The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing shall be set out in Schedule 1.

6.5       The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in these Terms and Conditions.

6.6       The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under these Terms and Conditions:

6.6.1     Process the personal data only on the instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.

6.6.2     Ensure that it has in place suitable technical and organisational measures to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor and set out in Schedule 1.

6.6.3     Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and

6.6.4     Not transfer any personal data outside of the European Economic Area without the prior written consent of the Data Controller and only if the following conditions are satisfied:

6.6.4.1      The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;

6.6.4.2      Affected data subjects have enforceable rights and effective legal remedies;

6.6.4.3      The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and

6.6.4.4      The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.

6.6.5     Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);

6.6.6     Notify the Data Controller without undue delay of a personal data breach;

6.6.7     Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 6.

6.7       The Data Processor shall not sub-contract any of its obligations with respect to the processing of personal data under this Clause 6.

7  Price

7.1       The price of the Products and Services shall be the price listed in the Supplier’s price list current at the date of acceptance of the Customer’s order or such other price as may be agreed in writing by the Supplier and the Customer.

7.2       Where the Supplier has quoted a price for the Products other than in accordance with the Supplier’s published price list the price quoted shall be valid for fourteen (14) days only or such lesser time as the Supplier may specify.

7.3       The Supplier reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the price of the Products and/or Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Products and services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.

7.4       Except as otherwise stated under the terms of any accepted or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are exclusive of the Supplier’s charges for packaging and transport.

7.5       The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Products and Services, which the Customer shall be additionally liable to pay.

8  Payment

8.1       Supplier shall invoice the Customer for the price of the Products and Services on receiving a confirmed order.

8.2       The Customer shall pay the price of the Products within five (5) Business Days of the date of the Supplier’s invoice or otherwise the order shall be deemed cancelled without further reference to the Customer. Payment shall be made by electronic transfer and Customer shall be responsible for all fees associated with said transfer. For the avoidance of doubt, when using the SWIFT banking system to transfer the funds, the Customer is required to pay the sender and recipients fee. Should the Customer fail to pay the correct amount, the Supplier shall hold the order until the correct amount has been paid in full.

9  Delivery and Performance

9.1       Customer acknowledges that certain Products are made to order, and anticipated availability is subject to production constraints by the Manufacturer.

9.2       Products shall be made available by the Manufacturer on an ex-works basis. The Customer shall collect or arrange for the collection the Products at the Manufacturers premises at any time after the Supplier has notified the Customer that the Products are ready for collection.

9.3       The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing.

10  Risk and Retention of Title

10.1     Risk of damage to or loss of the Products shall pass to the Customer at the time when the Supplier notifies the Customer that the Products are available for collection from the Manufacturer.

10.2     Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Terms and Conditions, legal and beneficial title to the Products shall not pass to the Customer until the Supplier has received in cleared funds payment in full of the price of the Products.

10.3     The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.

11  Assignment

11.1     The Supplier may assign the Contract or any part of it to any person, firm or company without the prior consent of the Customer.

11.2     The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.

12  Defective Products

12.1     If on delivery any of the Products are defective in any material respect and either the Customer lawfully refuses delivery of the defective Products or, if they are signed for on delivery as “condition and contents unknown” the Customer gives written notice of such defect to the Supplier within seven (7) Business Days of such delivery, the Supplier shall at its option:

12.1.1 replace the defective Products within forty-five (45) Business Days of receiving the Customer’s notice; or

12.1.2 refund to the Customer the price for those Products (or parts thereof, as appropriate) which are defective; but the Supplier shall have no further liability to the Customer in respect thereof and the Customer may not reject the Products if delivery is not refused or notice given by the Customer as set out above.

12.2     No Products may be returned to the Manufacturer without the prior agreement in writing of the Manufacturer. Subject thereto any Products returned which the Manufacturer is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Supplier’s sole discretion the Supplier shall refund or credit to the Customer the price of such defective Products but the Manufacturer shall have no further liability to the Customer.

12.3     The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Supplier’s instructions (whether given orally or in writing), misuse or alteration of the Products without the Supplier’s prior approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.

12.4     Products, other than defective Products returned under sub-Clauses 12.1 or

12.2, returned by the Customer and accepted by the Manufacturer may be credited to the Customer at the Supplier’s sole discretion and without any obligation on the part of the Supplier.

12.5 Subject as expressly provided in these Terms and Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

12.6     The Customer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Products are contained in the packaging or labelling of the Products, any use or sale of the Products by the Customer is in compliance with all applicable statutory requirements and that handling and sale of the Products by the Customer is carried out in accordance with directions given by the Manufacturer or any competent governmental or regulatory authority and the Customer will indemnify the Supplier against any liability loss or damage which the Supplier might suffer as a result of the Customer’s failure to comply with this condition.

13  Customer’s Default

13.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:

13.1.1 cancel the order or suspend any further deliveries or provision of Products and Services to the Customer;

13.1.2 appropriate any payment made by the Customer to such of the Products and/or Services (or the goods and/or services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and

13.1.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 2% per annum above Metro Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

13.2 This condition applies if:

13.2.1 the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;

13.2.2 the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;

13.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;

13.2.4 the Customer ceases, or threatens to cease, to carry on business; or

13.2.5 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

13.3     If sub-Clause 13.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

14  Liability

14.1     The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of the Contract (or these Terms and Conditions), be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of the Products and Services.

14.2     All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Products Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

14.3     The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Customer, its agents or employees.

14.4     Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them.  All obligations on the part of such a Customer shall be joint and several obligations of such persons.

14.5     The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.

14.6     Nothing in these Terms and Conditions excludes or limits the liability of the Supplier:

14.6.1     for death or personal injury caused by the Supplier’s negligence;

14.6.2    for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or

14.6.3 for fraud or fraudulent misrepresentation.

14.7     Subject to the remaining provisions of this Clause 14:

14.7.1 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and

14.7.2 the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

15  Confidentiality

15.1     Each Party undertakes that, except as provided by sub-Clause 15.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Contract and five (5) years after its termination:

15.1.1 keep confidential all Confidential Information;

15.1.2 not disclose any Confidential Information to any other person;

15.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to these Terms and Conditions and the Contract;

15.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and

15.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 15.1.1 to 15.1.4 above.

15.2     Either Party may:

15.2.1 disclose any Confidential Information to:

15.2.1.1 any sub-contractor or supplier of that Party;

15.2.1.2 any governmental or other authority or regulatory body; or

15.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by these Terms and Conditions and the Contract, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 15.2.1.2 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 15, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

15.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.

15.3     The provisions of this Clause 15 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.

16  Communications

16.1     All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

16.2     Notices shall be deemed to have been duly given:

16.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or

16.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

16.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

16.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.

16.3     All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

17  Force Majeure

Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

18  Waiver

The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

19  Severance

The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.

20  Third Party Rights

A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.

21  Law and Jurisdiction

21.1     These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

21.2     Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.

SCHEDULE 1

1. Data Processing

Scope

Cardisio shall only process Personal Data to the extent necessary to provide the Data Analysis Services in accordance with these Terms and Conditions.

Nature

Cardisio shall analyse electronic heart activity tracker (EHAT) data along with Personal Data.

Purpose

Cardisio has agreed to provide the Services to the Customer in accordance with these Terms and Conditions. In providing the Services, Cardisio shall process Customer Data on your behalf includes Personal Data. Cardisio will process and protect such Personal Data in accordance with the Terms and Conditions.

Duration

Cardisio will provide the Services to the Customer for so long as you remain a Customer.

2. Types of Personal Data

Name (may be anonymised), Date of Birth, Gender, Height, Weight, Ethnicity, EHAT data.

3. Categories of Data Subject

Data subjects may be Customers, Application End-users or Patients.

4. Organisational and Technical Data Protection Measures

Refer to IONOS document.

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