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The definitions which shall apply to these Terms and Conditions are set out in paragraph 9.
1.1 TDL warrants to the Client that:-
1.1.1 its Services will be provided with reasonable skill and care and in accordance with applicable CPA/UKAS accreditation standards; and
1.1.2 the people providing the Services will be suitably skilled and experienced.
1.2 As part of its Services TDL will, on request, arrange for collection of Samples from locations within London (being for these purposes the area within the M25 motorway). Such collection service is included within the price of the Test unless otherwise notified. Collection of Samples from locations outside the M25 is by special arrangement, and may incur an additional charge. Where collection by TDL has not been requested and agreed, the Client will be responsible, at its own cost, for the transport of samples to TDL.
1.3 The Client acknowledges that, except as expressly provided in this Agreement, TDL gives no warranties or representations to the Client (whether express or implied) in respect of the Services. In particular, whilst every effort is made to achieve the turn-around times quoted by TDL for the conduct of Tests, no warranty or guarantee is given that such turn-around times will be achieved in any particular instance.
1.4 The Client shall notify TDL in writing of any clinical information relevant to the Services and provide TDL with such other information as TDL may reasonably be expected to require concerning the Samples supplied by the Client and the persons from whom they were taken to enable TDL to conduct the Tests and to report thereon. The Client shall ensure that all Samples and Pathology Request Forms are labelled with the patient’s given name, surname, date of birth, and date and time of collection, and that any high risk samples are clearly labelled and packed separately from other Samples.
1.5 TDL will accept no responsibility for any error or defect in a Test or the report thereon consequent upon any inaccuracies in or omissions from the information supplied by the Client nor for any consequences of such errors or defects, and the Client shall indemnify and hold harmless TDL and the members of its Group and their respective directors, officers, employees and agents, in respect of all liabilities, costs, claims, loss, damage, demands, action and expenses (to include any settlements or ex-gratia payments and reasonable legal and expert costs and expenses) arising directly or indirectly from any breach of paragraph 1.4.
1.6 Upon completion of a Test the Sample relating thereto may be destroyed or disposed of by TDL unless otherwise agreed.
2.1 The fees payable by the Client for the conduct of the Services shall, unless otherwise agreed, be the prices specified in TDL’s Laboratory Guide for the applicable Tests or other Services provided.
2.2 As at the date of these Terms and Conditions VAT is not payable on TDL’s Services. If the Services subsequently become subject to VAT, this will be charged in addition at the applicable rate.
2.3 Invoices are normally issued on a monthly basis, but TDL reserves the right to issue them more frequently. Invoices are payable within 30 days of issue. At TDL’s option interest may be charged on late payment at the statutory rate prescribed from time to time in the Late Payments of Commercial Debts (Interest) Act 1998. Invoices paid from outside the UK must be paid by either direct bank transfer or by cheque drawn on a UK branch. All payments shall be made in pounds sterling.
3.1 TDL agrees that it will hold and maintain the confidence of:
3.1.1 all information of a confidential nature which is received by TDL from the Client or its patients in connection with the Services; and
3.1.2 all Test results, invoices and other information of a confidential nature issued by TDL to the Client or its patients in connection with the Services, and, save with the Client’s consent, will not disclose such information other than to its professional staff, independent consultants and/or persons to whom it has delegated the performance of the Tests and who require the information for such purpose, and provided that where TDL has been provided with the details of a patient’s private medical insurance in connection with the Services, it shall be entitled to assume (and the Client so warrants) that both the Client and the patient consent to the disclosure of information relating to that patient to the insurer concerned.
3.2 The restrictions in paragraph 3.1 shall not apply to information which: (i) was in TDL’s possession prior to disclosure by the Client; or (ii) is now or hereafter comes into the public domain other than by default of TDL; or (iii) was lawfully received by TDL from a third party acting in good faith having a right of further disclosure; or (iv) is required by law to be disclosed by TDL; or (v) which is required by a regulatory or accreditation body to be disclosed to it for the purpose of regulating or accrediting TDL.
4.1 The Client warrants and covenants that it will:
4.1.1 comply with all relevant laws, regulations and guidelines applicable to the jurisdiction in which it is situated (including any applicable data protection laws) for the collection of the Samples being referred for Tests and their shipment to TDL (which may include conduct of the tests and shipment outside of the EEA);
4.1.2 obtain all consents and permissions required (whether by law (including under the data protection legislation), good medical practice or otherwise) in order to permit the conduct of the Tests on the Samples;
4.1.3 provide to TDL confirmation that it has complied with all relevant laws applicable to the jurisdiction in which it is situated (including any applicable data protection laws) for the collection of the Samples which they are referring for the Tests and their shipment to TDL and where necessary on to an overseas testing laboratory.
4.1.4 shall indemnify and hold harmless TDL and the members of its Group and their respective directors, officers, employees and agents, in respect of all liabilities, costs, claims, loss, damage, demands, action and expenses (to include any settlements or ex-gratia payments and reasonable legal and expert costs and expenses) arising directly or indirectly from any breach of this paragraph 4.1. Without prejudice to the obligations of the Client in the preceding sentence the Client agrees to use any specific consent forms specified by TDL.
4.2 Subject at all times to paragraph 4.4 and whether or not TDL has been advised of the possibility of such loss, TDL shall not be liable in respect of the Services in contract, tort (including negligence) or otherwise howsoever arising from any claim, damage, loss or costs in respect of: (i) any direct loss of profit; (ii) any direct loss of anticipated savings; or (iii) any indirect or consequential loss or damage howsoever caused including without limitation, any indirect loss of profit, loss of anticipated profit including loss of profit on contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation; and/or loss of data.
4.3 To the extent not covered by any other limitations the maximum liability of TDL to the Client under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall be £2,000,000 less any sums paid by TDL to any patient of the Client or other third party in satisfaction of a liability arising out of the same facts and circumstances.
4.4 The limitations in this paragraph 4 shall only apply where permitted under applicable law.
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement these Terms and Conditions are not intended to, and do not, give any person who is not a party to it any right to enforce any of the provisions, except that any sub-contractor of TDL and the servants and agents of TDL and any such sub-contractor are third parties to these Terms and Conditions within the meaning of that Act and shall be entitled to enforce these Terms and Conditions accordingly.
If the performance of this Agreement or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of that party obliged to perform it (including, without limitation, flood, fire, storm, strike, lockout, sabotage, terrorist act, civil commotion and government intervention), the party so affected shall (upon giving prompt notice thereof to the other party) be excused from performance to the extent only of the prevention, restriction or interference, provided always that the party so affected shall use all reasonable endeavours to avoid or remove the causes of non-performance and shall continue performance as expeditiously as possible as soon as such causes have been removed.
7.1 TDL is a data processor and the Client is the data controller of any personal data processed by TDL pursuant to this Agreement.
7.2 In this Clause, the terms data, personal data, data controller, data processor, data subject and sensitive personal data have the meanings given in the Data Protection Act 1998 (the Act) and processing, process and processed shall be construed accordingly. References in this clause to personal data are to personal data provided by the Client to TDL pursuant to this Agreement.
7.3 TDL shall:
7.3.1 identify an individual within TDL authorised to respond to enquiries from the Client or any other third party in relation to any personal data held by TDL acting on Client’s behalf. TDL shall deal with any such enquiries promptly;
7.3.2 promptly provide to the Client all information in its possession concerning any unauthorised or accidental disclosure or access made by an employee, director or agent, to any personal data held by it on Client’s behalf; and
7.3.3 if instructed to do so in writing, subject to clause 7.7 (below) comply with any relevant changes in the Act in respect of the personal data held by it on Client’s behalf.
7.4 TDL shall put in place:
7.4.1 appropriate technical and organisational measures against inappropriate processing of personal data and against unauthorised, accidental or unlawful access to the personal data (having regard to the state of technological development and the costs of implementing any such measures) as well as reasonable security programmes and procedures for the purpose of ensuring that only authorised personnel have access to the personal data processing equipment to be used to process the personal data, and that any persons whom it authorises to have access to the personal data shall respect and maintain all due confidentiality;
7.4.2 a level of security programmes and procedures which reflect:
(a) the level of damage that might be suffered by a data subject to whom the personal data relates as a result of unauthorised or unlawful possession of the personal data or the loss or destruction of or damage to the personal data; and
(b) the state of technological development and the costs of implementing such programmes and procedures; and
7.4.3 as required by the Act, such security programmes and procedures which specifically address the nature of any sensitive personal data.
7.5 TDL shall:
7.5.1 only process data as is necessary to perform its obligations under this Agreement and shall ensure that such personal data shall be held and processed only in accordance with the Act;
7.5.2 take all such actions as are necessary to ensure that it has fulfilled and shall continue to fulfil and observe the obligations in clause 7.3 and clause 7.4 in respect of the data, including for the avoidance of doubt, personal data;
7.5.3 process the personal data only for such purposes as are instructed by Client;
7.5.4 promptly comply with any change of instructions from the Client relating to:
(a) the personal data; and
(b) TDL’s role as a data processor in accordance with this Agreement and/or as otherwise required by changes or amendments to applicable Laws;
7.6 TDL shall only transfer the personal data in accordance with the eighth data protection principle under the Act, or as otherwise permitted by the Act.
7.7 TDL may appoint sub-processors of the personal data. If it does so TDL shall procure that its sub-processors shall comply with the obligations under clause 7.4, clause 7.5, and clause 7.6 to the extent that such sub-processor will be processing personal data.
7.8 If for any reason TDL is unable to comply with an instruction under clause 7.5 it shall inform the Client in writing and stop processing the personal data.
7.9 The Client instructs TDL to provide the personal data to regulators or accreditation bodies that require access to it for the purposes of exercising regulatory or accreditation functions relevant to the Services.
7.10 The Client warrants that the data subjects to whom the personal data relate have given all necessary consents required to permit the processing of their personal data pursuant to this Agreement.
8.1 Dispute resolution
(a) If any dispute arises relating to this Agreement or any breach or alleged breach of this Agreement, the parties shall make a good faith effort to resolve such dispute without recourse to legal proceedings. If, notwithstanding such good faith efforts, the dispute is not resolved either party may submit the dispute to the jurisdiction of the English Court.
(b) Except to the extent clearly prevented by the area of dispute, the parties will continue to perform their respective obligations under this Agreement while such dispute is being resolved.
Any amendments to this Agreement shall not be effective unless in writing and signed by an authorised signatory on behalf of each of the parties. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Act. The terms of this Agreement may be varied by agreement of the parties but without the consent of any third party whether or not the rights of such third party are affected by such variation.
8.3 Rights and waiver
All rights granted to either of the parties shall be cumulative and not exhaustive of any rights and remedies provided by law. The failure of either party to enforce (or delay in enforcing) at any time for any period any one or more of the terms of this Agreement shall not be a waiver of such term or of the right of such party at any time subsequently to enforce all the terms of this Agreement.
If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions will not be in any way affected.
TDL may assign or sub-contract the performance of this Agreement (in whole or in part) or any one or more of the Tests to be performed hereunder to suitably accredited laboratories including those listed in the Laboratory Guide. The Client may not assign this Agreement or any of its rights or obligations hereunder without the prior approval of TDL.
8.6 Relationship of the parties
It is acknowledged and agreed that TDL and the Client are independent contractors and nothing in this Agreement shall create or be construed as creating a partnership or a relationship of agent and principal between the parties. The Client acknowledges and agrees that, in requesting Services from TDL, it is not acting as agent for any patient or patients to which the Services relate.
All notices given under this Agreement shall be in writing and shall be delivered by hand or sent by prepaid first class post or by prepaid first class recorded delivery or by facsimile transmission, provided that a hard copy of any notice transmitted by facsimile is posted within 24 hours of such transmission. All notices shall be delivered at or sent, in the case of TDL, to 60 Whitfield Street, London W1T 4EU, fax number 020 7307 7374 and, in the case of the Client to the address and/ or fax number specified in the Pathology Request Form submitted by the Client (or such other address as that party shall notify in writing to the other for this purpose). A notice sent by post shall be deemed to be served at 9.00 am on the second business day following the date of posting; a notice sent by facsimile transmission shall (subject to posting of a hard copy as provided above) be deemed to have been served at the time it is transmitted if transmitted within business hours (9.00 am to 6.00 pm) on a business day or, if transmitted outside such business hours on a business day or on a day which is not a business day as soon thereafter as such business hours commence.
8.8 Entire agreement
These Terms and Conditions and the documents referred to in them contain the entire Agreement in respect of its subject matter. Each party acknowledges that it has not entered into the Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Terms and Conditions except in the case of fraudulent misrepresentation.
8.9 Governing law
This Agreement shall be governed by and construed in accordance with English law and each of the parties submits to the exclusive jurisdiction of the English Courts.
9.1 In these Terms and Conditions:-
‘this Agreement’ means the contract between TDL and the Client for the supply of the Services, incorporating these Terms and Conditions.
‘Client’ means the person or organisation requesting Services from TDL and for whom TDL has agreed to provide the Services.
‘Group’ in respect of any undertaking, means such undertaking and its group undertakings (“undertaking” and “group undertaking” having the meanings given in the Companies Act 2006).
‘Laboratory Guide’ means TDL’s Laboratory Guide current at the time the applicable Services are requested, as supplied to the Client or, if not so supplied, as available on TDL’s website, www.tdlpathology.com.
‘Sample’ means a sample provided by the Client to TDL for investigation.
‘Services’ means the conduct of the Tests specified in the Pathology Request Form submitted by the Client and accepted by TDL, and/or such other services as TDL has agreed to supply to the Client.
‘TDL’ means The Doctors Laboratory Limited or such other member of its Group as has agreed to provide the Services.
‘Test’ means a laboratory test agreed to be carried out by TDL on a Sample supplied by the Client.
9.2 References to the singular include the plural and vice versa.
9.3 Paragraph headings are for ease of reference only and are not part of these Terms and Conditions for the purpose of construction.