TERMS & CONDITIONS OF BUSINESS OF XANA MEDTEC LIMITED.
XM warrants to its clients that:
- its Services will be provided in accordance with the UKAS medical laboratory accreditation standard (ISO 15189), and the people providing the Services will be suitably skilled. Every care will be taken to ensure the best possible accuracy.
- On request, XM may arrange for the collection of Samples from locations within London (being for these purposes the area within the M25 motorway) at extra cost. Sample collection also has a separate fee stated on the website.
- The Client acknowledges that, except as expressly provided in this Agreement, XM 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 XM for the conduct of Tests are indicative and no warranty or guarantee is given that such turn-around times will be achieved in any particular instance.
- The Client shall notify XM in writing (or verbally if writing is not possible) of any clinical information relevant to the Services and provide XM with such other information as XM may reasonably be expected to require concerning the Samples supplied by the Client and the persons from whom they were taken to enable XM to conduct the Tests and to report thereon. The Client shall ensure that all Samples and Pathology Request Forms are labeled with the patient’s given name, surname, date of birth, and date and time of collection. High-risk samples must be clearly labeled and packed separately from other Samples.
- XM 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 XM 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 clause 1.4.
- Upon completion of a Test the Sample relating thereto may be stored for a few days to enable repeat testing for verification purposes and thereafter destroyed or disposed of by XM unless otherwise agreed
PRICE AND PAYMENT TERMS
- The fees payable by the Client for the conduct of the Services shall, unless otherwise formally agreed, be the prices specified in XM’s Laboratory Tests Guide for the applicable Tests or other Services at the time those Tests or Services are requested.
- As of the date of these Terms and Conditions VAT is not payable on XM’s Services. If the Services subsequently become subject to VAT, this will be charged in addition at the applicable rate.
- Invoices are normally issued on the day of the test for patients and on a monthly basis for referrers such as clinics, diagnostic centers, and practitioners, but XM reserves the right to issue them more frequently. Invoices to organizations (clinics, other laboratories, and healthcare providers) are payable within 30 days of issue unless otherwise agreed. At XM’s option interest may be charged on late payment at the statutory rate prescribed from time to time by regulations under 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 or pound sterling equivalent.
- XM agrees that it will hold and maintain the confidence of all information of a confidential nature that is received by XM from the Client or its patients in connection with the Services; and all Test results, invoices, and other information of a confidential nature issued by XM to the Client or its patients in connection with the Services. XM will save with the Client’s consent or as otherwise permitted under this Agreement, but 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 XM 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. faith having a right of further disclosure; or (iv) is required by law to be disclosed by XM; or (v) which is required by a regulatory or accreditation body to be disclosed to it for the purpose of regulating or accrediting XM.
LIABILITY AND INDEMNITY
- The Client warrants and represents that it will:
- 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 XM (which may include the conduct of the tests and shipment outside of the EEA);
- 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 and the use of the Protected Data as contemplated in these Terms and Conditions (provided that, without prejudice to the foregoing obligation, the Client agrees to use any consent forms specified by XM);
- provide XM 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 XM and where necessary on to an overseas testing laboratory;
- shall indemnify and hold harmless XM 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 clause 4.1.
- The subject at all times to clause 4.4 and whether or not XM has been advised of the possibility of such loss, XM shall not be liable in respect of the Services in contract, tort (including negligence) or otherwise howsoever arising for any claim, damage, loss or costs in respect of any direct loss of profit; any direct loss of anticipated savings; or 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.
- To the extent not covered by any other limitations the maximum liability of XM to the Client under or in connection with this Agreement, whether arising in the contract (including under any indemnity), tort (including negligence), breach of statutory duty, or otherwise, shall be £1,000,000 less any sums paid by XM to any patient of the Client or other third party in satisfaction of a liability arising out of the same facts and circumstances.
- The limitations and exclusions in these Terms and Conditions 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 XM and the servants and agents of XM 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(except for an obligation to pay) 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 endeavors 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.
DATA PROCESSOR AND DATA CONTROLLER
- Insofar as XM processes Protected Data in providing the Services the parties agree that:
- XM shall process Protected Data in compliance with:
- the obligations of Data Processors under Data Protection Laws; and
- the terms of clauses 7 to 18 (inclusive).
- The Client warrants, represents, and undertakes, that:
- in connection with the Protected Data it has complied and shall continue to comply in all respects with Data Protection Laws, including in terms of its collection, storage and processing (which shall include the Client providing all of the required fair processing information to, and obtaining all necessary consents from, Data Subjects); and
- all instructions given by it to XM in respect of Personal Data shall at all times be in accordance with Data Protection Laws.
INSTRUCTIONS AND DETAILS OF PROCESSING
- Insofar as XM processes Protected Data on behalf of the Client, XM:
- unless required to do otherwise by Applicable Law, shall (and shall take steps to ensure each person acting under its authority shall) process the Protected Data only on and in accordance with the Client’s documented instructions as set out in the request for Services pursuant to the Terms & Conditions.
- if Applicable Law requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Client of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest); and
- shall promptly inform the Client if XM becomes aware of a Processing Instruction that, in XM’s opinion, infringes Data Protection Laws, provided that, to the maximum extent permitted by Applicable Law, XM shall have no liability howsoever arising (whether in contract (including any indemnity), tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities (including any Data Protection Losses) arising from or in connection with any processing in accordance with the Client’s Processing Instructions following the Client’s receipt of any notice pursuant to this clause 8.1.3.
TECHNICAL AND ORGANISATIONAL MEASURES
- In relation to the processing of the Protected Data, XM shall implement and maintain, at its cost and expense, the Technical and Organisational Measures.
- Any additional technical and organizational measures shall be at the Client’s cost and expense.
- This cancellation right does not apply if:
USING STAFF AND OTHER PROCESSORS
- XM shall not engage any Sub-Processor for carrying out any processing activities in respect of the Protected Data that XM processes on behalf of the Client without the Client’s written authorization of that specific Sub-Processor (such authorization not to be unreasonably withheld, conditioned, or delayed) provided that the Client hereby authorizes the appointment of the Authorised Sub-Processors.
- XM shall:
- prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as clauses 7 to 18 (inclusive), that is enforceable by XM;
- ensure each such Sub-Processor complies with all such obligations; and
- remain fully liable for all the acts and omissions of each Sub-Processor as if they were its own.
- XM shall ensure that all persons authorized by it (or by any Sub-Processor) to process Protected Data are subject to a binding obligation to keep the Protected Data confidential (except where disclosure is required in accordance with Applicable Law, in which case XM shall, where practicable and not prohibited by Applicable Law, notify the Client of any such requirement before such disclosure).
ASSISTANCE WITH THE CLIENT’S COMPLIANCE AND DATA SUBJECT RIGHTS
- Taking into account the nature of the processing XM shall maintain reasonable measures to assist the Client to respond to the Data Subject Requests relating to the Protected Data.
- XM shall refer all Data Subject Requests it receives to the Client promptly, and in any event within five Business Days of receipt of the request.
- XM shall provide such reasonable assistance as the Client reasonably requires (taking into account the nature of processing and the information available to XM) to the Client in ensuring compliance with the Client’s obligations under Data Protection Laws with respect to:
security of processing, notifications to the Supervisory Authority, and/or communications to Data Subjects by the Client in response to any Personal Data Breach, provided the Client shall pay XM’s charges for providing the assistance in this clause, such charges to be calculated on a time and materials basis at XM’s applicable daily or hourly rates in force from time to time.
RECORDS, INFORMATION, AND AUDIT
- XM shall maintain, in accordance with Data Protection Laws binding on XM, electronic records of all categories of processing activities carried out on behalf of the Client.
- XM shall, in accordance with Data Protection Laws, make available to the Client such information as is reasonably necessary to demonstrate XM’s compliance with its obligations under Article 28 of the GDPR (and under any Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose, subject to the Client:
- giving XM reasonable prior notice of such information request, audit, and/or inspection being required by the Client; ensuring that all information obtained or generated by the Client or its auditor(s) in connection with such information requests, inspections, and audits is kept strictly confidential (save for disclosure to the Supervisory Authority or as otherwise required by Applicable Law) and ensuring that such audits or inspections are undertaken during normal business hours, with minimal disruption to XM’s business, the Sub-Processors’ business and the business of other customers of XM; and will cover the costs XM will incur during these inspections.
In respect of any Personal Data Breach involving Protected Data that XM processes on behalf of the Client, XM shall, without undue delay notify the Client of the Personal Data Breach; and provide the Client with details of the Personal Data Breach.
DELETION OR RETURN OF PROTECTED DATA AND COPIES
XM shall, at the Client’s written request, either delete or return all the Protected Data to the Client in such form as the Client reasonably requests within a reasonable time after the end of the provision of the relevant Services related to processing; and deleting existing copies.
PROTECTED DATA THAT XM PROCESSES AS A DATA CONTROLLER
- XM may retain and submit to Public Health England or another Health Authority in the United Kingdom such extracts from the Protected Data as are required for the purposes of a Public Health Programme operated by that Health Authority (Public Health Data).
- XM may retain such copies of the Protected Data and such records of processing in connection with the Services (the Processing Records) as XM requires to maintain its accreditation with UKAS and as required by the Royal College of Pathologists (in accordance with its retention and storage of pathological records and specimens’ guidelines).
- XM shall ensure that its processing of the Processing Records and the Public Health Data is in accordance with the Data Protection Laws subject to the terms of this Agreement.
LIABILITY, INDEMNITIES, AND COMPENSATION CLAIMS
- XM shall indemnify and keep indemnified the Client in respect of all Data Protection Losses suffered or incurred by, or awarded against the Client arising from or in connection with any; non-compliance by XM with the Data Protection Laws (in so far as these impose obligations on Data Processors); any processing of Protected Data carried out by XM outside the Processing Instructions; breach by XM of any of its obligations under clauses 7 to 18 (inclusive),
- The Client shall indemnify and keep indemnified XM in respect of all Data Protection Losses suffered or incurred by, or awarded against, XM and any Sub-Processor arising from or in connection with any; non-compliance by the Client with the Data Protection Laws; processing carried out by XM or any Sub-Processor pursuant to any Processing Instruction that infringes any Data Protection Law; or breach by the Client of any of its obligations under clauses 7 to 18 (inclusive), except to the extent set out in clause 16.3.
- A party shall not be liable for Data Protection Losses (howsoever arising, whether in the contract (including any indemnity), tort (including negligence) or otherwise) to the extent that such Data Protection Losses (or the circumstances giving rise to them) are contributed to or caused by any breach of clauses 7 to 18 (inclusive) by the other party.
- If a party receives a compensation claim from a person relating to the processing of Protected Data, it shall promptly provide the other party with notice and full details of such claim. The party with conduct of the action shall:
- make no admission of liability nor agree to any settlement or compromise of the relevant claim without the prior written consent of the other party (which shall not be unreasonably withheld or delayed); and
- consult fully with the other party in relation to any such action, but the terms of any settlement or compromise of the claim will be exclusively the decision of the party that is responsible for paying the compensation.
- The parties agree that the Client shall not be entitled to claim back from XM any part of any compensation paid by the Client in respect of such damage to the extent that the Client is liable to indemnify XM in accordance with clause 16.2.
- This clause 16 is intended to apply to the allocation of liability for Data Protection Losses as between the parties, including with respect to compensation to Data Subjects, notwithstanding any provisions under Data Protection Laws to the contrary, except: to the extent not permitted by Applicable Law (including Data Protection Laws); and that it does not affect the liability of either party to any Data Subject.
LIABILITY, INDEMNITIES, AND COMPENSATION CLAIMS
- This clause and clauses 7 to 17 (inclusive) shall survive termination (for any reason) or expiry of the Services and continue:
- indefinitely in the case of clauses 15 and 16 and until 2 months following the earlier of the termination or expiry of the Services in the case clauses 7 to 16 (inclusive),provided always that any termination or expiry of clauses 7 to 16 (inclusive) shall be without prejudice to any accrued rights or remedies of either party under any such clauses at the time of such termination or expiry
- Dispute resolution
- 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 the such dispute without recourse to legal proceedings. If, notwithstanding such good faith efforts, the dispute has not been resolved either party may submit the dispute to the jurisdiction of the English Court.
- Except to the extent clearly prevented by the area of dispute, the parties will continue to perform their respective obligations under this Agreement while the such dispute is being resolved.
Any amendments to this Agreement shall not be effective unless in writing and signed by an authorized signatory on behalf of each of the parties. 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 a such third party are affected by such variation. The Client shall not unreasonably withhold, delay or condition its agreement to any variation to this Agreement requested by XM in order to ensure the Services and XM (and each Sub-Processor) can comply with any change in Applicable Laws.
- 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.
XM 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 XM.
- Relationship of the parties
It is acknowledged and agreed that XM 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.
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. All notices shall be delivered at or sent, in the case of XANA MEDTEC LTD, UNIVERSAL SQUARE BUSINESS CENTRE, DEVONSHIRE ST NORTH, M12 6JH, MANCHESTER, and, in the case of the Client to the address 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 electronic mail 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.
- 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.
- Governing law
This Agreement and any dispute arising out of or in connection with it (including non-contractual disputes and claims) 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.
Contact us at firstname.lastname@example.org for questions related to refunds and returns.