Please read the following Terms and Conditions carefully. They contain important information about your rights and obligations. If you are obtaining these Terms and Conditions from our website, we recommend you print them by clicking on the print icon on your browser. In any event, we suggest you keep these Terms and Conditions for your future reference.
1 About us and these Terms and Conditions
1.1 "We" or "us" refers to Health E Systems Limited, a company registered in England with registered number 5754837, registered office is 6 Dalston Gardens, Stanmore, Middlesex, HA7 1BU. If you have any comments or suggestions, we would be pleased to receive them at our main address or by e-mailing us at info@healthecard.co.uk. Alternatively, you may fax us on 020 8206 3501. These Terms and Conditions govern the supply by us of any Health eCards ordered by you, whether on the web site ("the Site") or by any other means. The particular individual Health eCard product that you order at any one time from us is referred to in these Terms and Conditions as the "Health eCard". Further details of the Health eCard can be obtained by reviewing the Site and contacting us. By agreeing to order a Health eCard, you agree to be legally bound by these Terms and Conditions.
1.2 In these Terms and Conditions:
1.2.1 "Acceptance" means our acceptance of your Order in accordance with Clause 4.10 (and "Accept" has the meaning accordingly);
1.2.2 "Acknowledgement" means our acknowledgement of your Order;
1.2.3 "the Contract" means your Order of a Health eCard in accordance with these Terms and Conditions which we accept in accordance with Clause 4.10 below;
1.2.4 a "Health eCard" means a card which we supply to you which is designed for a patient to obtain and store his patient data from a surgery and view that data on other computers;
1.2.5 "Order" means the order submitted by you to us for obtaining a Health eCard from us (whether on the telephone, through posting an application form or on the Web Site);
1.2.6 "Patient Data" means your health records and medical history and conditions (including test results and surgery notes and correspondence about you involving medical practitioners and/or you);
1.2.7 "Software" means any software within the Health eCard;
1.2.8 "Surgery" means the medical general practice with which you are registered;
1.2.9 a "Voucher" means a voucher that we enclose with the Health eCard for you to give to the Surgery at the same time as your first use of the Health eCard at the Surgery;
1.2.10 a "Working Day" means a day which is neither (a) a Saturday or Sunday nor (b) a public holiday anywhere in the United Kingdom;
1.2.11 "you" means a patient of a surgery who orders a Health eCard from us;
1.2.12 references to "Clauses" are to clauses of these Terms and Conditions;
1.2.13 the headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
1.2.14 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.2.15 references to "includes" or "including" or like words or expressions shall mean without limitation; and
1.2.16 references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 10) includes in electronic form.
2 Effect
2.1 These Terms and Conditions shall apply to all Orders and Contracts made or accepted by us for the supply of Health eCards and provision of associated services. When you give any delivery instruction or accept delivery of the Health eCards, this shall in any event amount to your unqualified acceptance of these Terms and Conditions. Nothing in these Terms and Conditions affects your statutory rights (including the right to insist that goods you buy from businesses must correspond with their description, be fit for their purpose and be of satisfactory quality).
2.2 No other terms or conditions or changes to the Terms and Conditions shall be binding unless agreed in writing signed by us.
2.3 Without affecting your statutory rights, no statements made by our employees, contractors or agents or contained in any website, brochures, catalogues, sales literature or correspondence are intended to have any legal effect unless expressly agreed in writing by us or referred to in the Contract.
3 Use of the Health eCard
In general
3.1 You are fully responsible for using the Health eCard in accordance with our usage and storage instructions, advice and recommendations that we give you prior to, at the same time as, or after our supply of the Health eCard to you. If you do not do so, your use and storage of your Health eCard is entirely at your own risk and your ability to use and access your Health eCard may be affected or hindered or disabled altogether or made insecure and you may need to purchase the right to a replacement Health eCard from us.
3.2 You are responsible for ensuring that your use of the Health eCard complies at all times with all applicable laws, statutes, regulations, bye-laws and codes of practice.
3.3 You need to promptly inform us and the Surgery as soon as you notice any error, fault or defect with using or accessing your Health eCard, whether at the Surgery or elsewhere.
3.4 The Health eCard contains a glossary of medical terms. This is for convenience and general information purposes only and we cannot guarantee that the terms are full, accurate or up-to-date. If you would like to obtain medical information on which you wish to rely, you should obtain the information from another reliable source.
Personal nature of Health eCard
3.5 Your Health eCard is issued to you for your own personal use and storage of data. You may show the data to your Surgery and any other medical practitioners including, but not limited to, A&E, hospital staff, consultants, health visitors etc. Aside from that, you must not let anyone else (including insurance companies and solicitors) see the Patient Data on your Health eCard or give anyone else (including insurance companies and solicitors) permission to use or see the Health eCard or your pass phrase.
3.6 You must at all times keep your pass phrase strictly confidential and secure. If you make your pass phrase accessible to anyone else, this is entirely at your risk.
3.7 You must choose a pass phrase which cannot be easily guessed.
3.8 If we are storing your pass phrase in case of emergency, you must notify us if you change your pass phrase.
3.9 You shall be responsible for all use and access of your Health eCard made after you have entered or given your pass phrase. Neither Health eSystems, nor your GP Practice nor any other provider of medical data nor medical practitioner nor any other individual will be liable if you leave your card with the pass phrase enabled, or tell someone else your pass phrase. We will not be liable if we release the pass phrase in case of emergency.
Obtaining Patient Data from the Surgery
3.10 The Surgery may refuse your further use of the Health eCard at any time if it suspects or becomes aware that the Health eCard has come into the wrong hands or been mislaid or stolen, in which case it may require you to take further steps to verify that you are the authorised user before your further use of the Card.
3.11 Each Health eCard is specific to a particular patient. You must not attempt to download or obtain or use any data about any other patients or use any other patients' Health eCards. We shall not be liable to you for your reliance on any inaccurate, out-of-date or incomplete data supplied by the Surgery or the Surgery's records. If the data on your Health eCard is inaccurate, out-of-date or incomplete or in respect of another patient, that is not our responsibility. You must inform the Surgery as soon as possible if you suspect or know that to be the case. We will not be liable if we decide to withhold the pass phrase if we believe the call might not be a genuine clinical emergency.
3.12 You acknowledge that the Surgery may be required by law or choose to withhold the download of some or all of your Patient Data for any reason (including if it refers to third parties or if the Surgery considers that your receipt of the relevant Patient Data may be damaging to your physical or mental health) and we are not responsible for the Surgery's decision to withhold or provide such Patient Data. In addition, you acknowledge that the Surgery may be unable to download certain Patient Data onto your Health eCard if the information it holds is not in the appropriate form for download.
3.13 You acknowledge that we are not responsible for whether the Surgery imposes any requirements, obstacles or constraints on your use of the Health eCard at the Surgery or suspends or stops altogether its provision of a service for downloading Patient Data onto Health eCards. We would appreciate you informing us if you have any grievance against the Surgery in this regard.
Viewing and Accessing Patient Data on your Health eCard
3.14 If six incorrect pass phrases in a row are input into your Health eCard, use of your Health eCard will be permanently blocked. If that happens, the way you can use your Health eCard again is by sending your Health eCard back to us and we will use our reasonable endeavours to reactivate it. We may charge a fee for reactivating your Health eCard. We cannot guarantee that we will be able to reactivate your Health eCard, in which case you will need to purchase the right to a new Health eCard from us if you want to continue using it. We will endeavour to reactivate and dispatch your Health eCard within five Working Days of our receipt of it. The Health eCard, including risk of loss, will be at your risk at all times.
4 Placing Orders of Health eCards on our website
4.1 Irrespective of any previous price you have seen or heard, once you select a Health eCard that you wish to Order, you will be informed or told of the charges you must pay for obtaining the right to use the Health eCard and receive any particular associated services including VAT, if applicable, and any applicable delivery charges. All charges are in the currency then in force in England. Subject to Clause 4.9 below, this is the total that you will pay for receipt of the ordered Health eCard, although there may be further charges for any additional parts of the service which we provide from time to time, in which case we shall inform you of any such additional cost in advance.
4.2 You shall pay for the right to use the Health eCard and associated services in full at the time of ordering them (or in advance for on-going periodic services) by paying in the appropriate manner required by us. Unless otherwise agreed by us in writing, we shall not be bound to supply Health eCards or services before we have received cleared funds in full from you.
4.3 If you are asked for details of a payment card or a cheque, you must be fully entitled to use that card and account. The card and account must have sufficient funds to cover the proposed payment to us.
4.4 You shall ensure that all details you provide to us for the purpose of obtaining the right to use the Health eCard and associated services from us will be complete and accurate, that the credit or debit card, or other payment method, which you use is your own and that there are sufficient funds or credit facilities to cover the cost of the right to obtain and use the Health eCard and services. We reserve the right to obtain validation of your payment card details before providing you with the Health eCard or services.
4.5 When you submit an Order to us, you agree that you do so subject to these Terms and Conditions current at the date you submit your Order.
4.9 If you discover that you have made a mistake with your Order after you have submitted it to us, please contact us at the above email address immediately.
5 Delivery of the Health eCard
5.2 We aim to deliver the Health eCard and provide the services within the times indicated by us at the time of your Order but we cannot promise an exact date and timeframe at the time of your Order.
5.3 We shall aim to let you know if we expect that we are unable to meet our estimated dates, but, to the extent permitted by law, we shall not be liable to you (whether in contract, negligence, misrepresentation, tort, restitution or otherwise) for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery or performance.
5.4 We are unable to say at what time of day delivery of the Health eCard is likely to take place. If you have specific delivery requirements, please contact us and we will try to do what we reasonably can to help.
5.5 On delivery of the Health eCard, you may be required to sign for delivery. You need to keep receipt of the delivered Health eCard in case of future discussions with us about it.
5.7 If delivery of the Health eCard is delayed through your unreasonable refusal to accept delivery, then we may (without affecting any other right or remedy available to us) do either or both of the following:
5.7.1 charge you for our reasonable storage fee and other costs reasonably incurred by us; and
5.7.2 notify you that we are immediately cancelling the Contract, in which case we will refund to you or your credit or debit card company as applicable any money already paid to us under the Contract, less our reasonable charges for delivering and returning the Health eCard.
5.8 Subject to the rest of the Contract, you shall have a right and licence to use the Health eCard and the Software within the Health eCard from the time when we deliver it to you until such time as we require it to be returned to us, but ownership of the Health eCard itself and the Software shall remain with us or our licensors at all times.
5.9 You must take excellent care of the Health eCard at all times and keep it in excellent condition.
5.11 Since the Contract represents your right to use Software on a Health eCard, you will have no right to cancel the Contract without good reason. This does not affect or limit any non-excludable statutory rights that you may have (including under Clause 6).
6.2 To the fullest extent permitted by law, this Clause 6 sets out the entire liability of us to you in respect of lost, damaged or defective Health eCards and shall apply in lieu of all conditions, warranties, terms or obligations which would otherwise be implied by statute, common law or otherwise.
6.3 We warrant that:
6.3.1 the Health eCards will be delivered undamaged in the quantities ordered; and
6.3.2 the Health eCards will conform with our latest published instructions and specifications for the Health eCards as set out on the Site at the time you place your Order.
6.4 The Health eCards are intended to be used strictly in accordance with our latest published instructions as set out on the Site at the time of your Order or otherwise as described in these Terms and Conditions. It is your responsibility to use the Health eCard strictly in accordance with those instructions.
6.5 We try very hard to deliver Health eCards in excellent condition. However, if you tell us that any of the Health eCard is faulty, you agree to keep the Health eCard in its current condition available for us to inspect within a reasonable time.
6.6 If you return the Health eCard, you must ensure that it is adequately packaged and carriage paid (which we shall refund to you if we find that the Health eCard was faulty as you claim). Returning the Health eCard is always at your risk. We shall not accept any responsibility for damage caused by inadequate packaging by you or if the Health eCard is damaged, stolen, broken or lost whilst being returned.
6.7 In order to provide you with any remedies under this Clause 6, we may need your assistance and prompt provision of certain information regarding the Health eCard, including:
6.7.2 you providing us with a delivery note number and such other information as we reasonably require.
6.8 You can choose whether you would like us to: We will either
6.8.1 repair or replace the affected Health eCard; or
6.8.2 provide a refund for the affected Health eCard.
6.9 If you would like us to repair, replace or provide a refund for the Health eCard where it did conform to the Contract, and find that the Health eCard has:
6.9.1 been misused, abused or subjected to neglect, improper or inadequate care, carelessness, damage or abnormal conditions; or
6.9.2 been involved in any accident or damage caused by an incorrect attempt at modification or repair; or
6.9.3 been dealt with or used contrary to our instructions for the Health eCards; or
6.9.4 deteriorated through normal wear and tear;
we may at our discretion decide not to repair, replace or refund you for the Health eCard and/or we may require you to pay all our reasonable costs and we may charge this to your credit or debit card, and, to the extent permitted by law, we shall not be liable to you for any losses, liabilities, costs, damages, charges or expenses as a result.
6.10 The warranty contained in this Clause 6 is specifically limited to you. No warranty is made to any other person.
7.1 You acknowledge that the intellectual property rights in any Software are and shall remain the property of us or our suppliers.
7.3 For the purposes of Clause 7.2, "use" of the Software by you shall be restricted to use in object code form only for accessing and viewing your Patient Data strictly for the purposes envisaged under the Contract, and for no other purpose.
7.4 You shall follow all our reasonable instructions from time to time with regard to the use of the Software.
7.5 If the Software that we provided to you does not work (other than where the Health eCard has been damaged, stolen, destroyed or lost), you shall request us to attempt to fix the Software and we shall use our reasonable endeavours promptly to provide a replacement or fixed Health eCard in accordance with Clause 6.
7.6 Except to the extent permitted by law or as otherwise expressly set out in this Agreement, you shall not without our prior written consent:
7.6.1 rent, lease, sub-license, loan, copy, modify, adapt, merge, translate, reverse engineer, decompile, disassemble or create derivative works of the Software; or
7.6.2 incorporate the Software in or combine or interface the Software with third party programs.
7.7 You may interface the Health eCard with such computers as are permitted by us in accordance with our published user instructions from time to time.
8 Circumstances beyond our control
8.1 We shall not be liable to you for any breach, hindrance or delay in the performance of the Contract attributable to any cause beyond our reasonable control, including without limitation any Act of God, actions of third parties (including hackers, suppliers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, national emergencies, terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, weather conditions, earthquake, natural disaster, accident, mechanical breakdown, third party software, failure or problems with public utility supplies (including electrical, telecoms or general Internet failure), shortage of or inability to obtain supplies, materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
8.2 The performance of our obligations shall be suspended during the period that the circumstances persist and we shall be granted an extension of time for performance equal to the period of the delay.
8.3 If any performance of obligations be delayed under this Clause 8, you shall nevertheless accept performance as and when we shall be able to perform.
8.4 If the Event of Force Majeure continues without a break for more than three months, either you or we may terminate the Contract forthwith by written notice to the other, in which event neither you nor we shall be liable to the other by reason of such termination.
8.5 If we have contracted to provide identical or similar Health eCards and services to more than one person and are prevented from fully meeting our obligations to you by reason of an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
9 Default, Winding Up
9.1.1 are in breach of any or your obligations under the Contract; or
9.1.2 are unable to pay your debts or have a petition for administration or winding up presented against you or commence winding up proceedings or have a receiver or manager appointed over any of your property or assets or are the subject of a bankruptcy petition or enter into any composition with creditors generally or take or suffer any steps preparatory thereto or if any distress or execution is levied or threatened to be levied on any of your property or assets;
we may terminate the Contract and/or the Emergency Access Service immediately on giving notice in writing and retain any advance payment and you shall indemnify us against all claims, losses, damages, liabilities, costs and expenses of whatsoever nature resulting from any such termination and all sums due to us from you shall become immediately payable.
9.2 Termination of the Contract shall be without prejudice to any accrued rights or remedies of either you or us.
9.3 Irrespective of any other rights that we may have, termination of the Contract shall in any event terminate your right to use the Health eCard (including the Software) and you shall return it to us or make it available to us as set out in Clause 5.10.
10.1 Subject to the rest of these Terms and Conditions, any notice or other communication required or authorised to be given under the Contract shall be in writing and may be served by personal delivery or by pre-paid or recorded delivery letter or by facsimile addressed to the relevant party at the address or facsimile number of the relevant party last known to the other.
10.2 Subject to the rest of these Terms and Conditions, any notice given by post shall be deemed to have been served two Working Days after the same has been posted and any notice given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, posted as a prepaid or recorded delivery letter or despatched or an answerback signal received.
11 General
11.1 We shall keep a record of your order and these Terms and Conditions until six years after we have Accepted your Order. However, for your future reference, we advise you to print and keep a copy of these Terms and Conditions, your Order and the Acknowledgement.
11.2 No failure or delay by either party in exercising any right under the Contract shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish your or our rights under the Contract.
11.3 If any Clause in these Terms and Conditions shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or part of any Clause, all of which shall remain in full force and effect, so long as the Terms and Conditions shall be capable of continuing in effect without the unenforceable term.
11.4 You shall not assign or transfer or purport to transfer or assign the Contract or your Health eCard or your right to use the Health eCard to any other person.
11.5 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 in respect of the Contract.
11.6 The Contract shall be governed by English law and you hereby submit to the exclusive jurisdiction of the English courts. All dealings, correspondence and contacts between us shall be made or conducted in the English language.
12 Liability
12.1.1 our fraud; or
12.1.2 death or personal injury caused by our negligence; or
12.1.3 any other liability which cannot be excluded or limited by applicable law (including as to your statutory rights).
12.2 Subject to the rest of Clause 12.1, our total aggregate liability (whether in contract, negligence, misrepresentation, tort, restitution or otherwise) arising out of or in connection with all claims made in respect of the Contract shall be limited to the greater of: (a) £100; or (b) the total sums paid and total other sums payable (in aggregate) to us under this Agreement, within the twelve months preceding the date on which the claim first arose.
13 Privacy Information
13.1 You agree that we may obtain data about you as a living individual in the course of supplying the Health eCard to you and providing services to you, including your name, date of birth, address, telephone number, email address, other contact details, age, gender, payment card details, your Surgery, NHS number and any other unique identification number related to your Surgery's practice management system. We may use that data in order to go ahead with supplying the Health eCard to you, providing services to you, to update and improve the software, in case we have any queries and to detect misuse of the Health eCard. We may also use your contact details to inform you of further information about our products and services (although you can opt-out of receiving that information by emailing us or writing to us with your clear request to the email address stated in our Terms and Conditions).
13.2 We may disclose some or all of that data to the Surgery and other medical practitioners in the manner envisaged in our Terms and Conditions. We may also need to disclose that data to third parties:
13.2.1 who help us to perform our obligations to you; or
13.2.2 for the purposes of fraud protection; or
13.2.3 if our business (or part of it) is being purchased; or
13.2.4 if we are required to do so by law or regulatory authority.
13.3 However, unless you give us the information yourself, we will not obtain your health records or medical history or conditions (including test results and surgery notes and correspondence about you involving medical practitioners and/or you).
13.4 By agreeing to proceed with obtaining a Health eCard and/or a service from us, you explicitly agree to our use and disclosure of your data in the ways described in our Terms and Conditions.