1          Interpretation

1.1      The definitions and rules of interpretation in this clause apply in the Agreement.

1.2      Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.

1.3      A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4      A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5      Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6      Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7      A reference to a statute or statutory provision is a reference to it as updated from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that legislation.

1.8      A reference to writing or written includes e-mail.

1.9      References to clauses and schedules are to the clauses and schedules of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.

1.10    A reference to a party is to a party to the Agreement.

1.11    In the event of any inconsistency between: (i) any provisions of the Order Form; and (ii) the provisions of these Terms and Conditions, the provisions of the Order Form shall prevail.

2          Prescription Fulfilment Service

2.1      The prescription fulfilment process and Order process is set out in more detail in the Order Form.

2.2      Subject to the Customer’s ongoing payment of the Price for the Products in accordance with clause 8.1, the  restrictions set out in this clause 2 and complying with the other terms and conditions of the Agreement, Healthera hereby grants to the Customer a non-exclusive, non-transferable, non-sub licensable right to permit the Authorised Users to use the Software and the Documentation during the Contract Term, solely for the Customer’s internal business operations, to place Orders.

2.3      Upon receipt of an Order from the Customer in accordance with this Agreement, Healthera shall connect the Customer to those Pharmacies which may be able to dispense the Product to the Patient. Healthera encourages all Pharmacies to accept all Orders and dispense the Products and to communicate any rejection promptly. Healthera will  use reasonable endeavours to reassign an Order  as soon as reasonably practicable if a Pharmacy rejects an Order. Healthera will notify the Customer if an Order cannot be fulfilled by any Pharmacy. Healthera does not guarantee that Pharmacies will accept and fulfil all Orders, and Pharmacies have the discretion to reject Orders.

2.4      Estimated times for deliveries and collections are provided by the Pharmacy and are only estimates. Healthera does not guarantee that Orders will be delivered or will be available for collection within the estimated times.

2.5      By using the Services and placing an Order for the Products, the Customer warrants that it has (through a Practitioner) performed a private medical consultation with the Patient and has, following such consultation, determined that it is appropriate to issue the Prescription for the Patient. 

2.6      The Customer acknowledges that Healthera is not legally permitted to dispense the Products to the Patient. Nothing in this Agreement shall act as a direct obligation on Healthera to dispense the Products.

2.7      The parties acknowledge that the legal contract for the dispensing, supply and purchase of products shall be between: (i) the Customer and the Patient; and (ii)  and the Pharmacy and the Patient. Risk and title in the Products shall not pass to Healthera at any time nor shall Healthera hold, store or transport and Products. Risk and Title in the Products shall pass as agreed between the Patient and the Pharmacy when the Products are dispensed and delivered to the Patient.

2.8      The Customer is responsible for ensuring that all Products Prescribed to Patients are suitable for the Patient’s purpose. Healthera does not give any undertaking that the Products will be of satisfactory quality or suitable for the Patient’s purpose and disclaims any such warranties.

2.9      This Agreement shall only cover Products being dispensed by Pharmacies in the United Kingdom.

2.10    For the avoidance of doubt, the Services are provided to the Customer on a non-exclusive basis. The Agreement shall not prevent Healthera from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

2.11    The Customer undertakes on behalf of itself and the Authorised Users that:

2.11.1        each Authorised User shall keep a secure password and/or API key for his use of the Services and Documentation, such password and/or API key shall be changed no less frequently than every six months and that each Authorised User shall keep his password and/or API key confidential;

2.11.2        it shall maintain a written, up to date list of current Authorised Users and provide such list to Healthera within five Business Days of Healthera’s written request at any time or times;

2.11.3        it shall permit Healthera to audit the Services in order to establish the name and password and/or API key of each Authorised User.  Such audit may be conducted no more than once per quarter, at Healthera’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not substantially to interfere with the Customer’s normal conduct of business;

2.11.4        if any of the audits referred to in clause 2.11.3 reveal that any password and/or API key has been provided to any individual who is not an Authorised User, then without prejudice to Healthera’s other rights, the Customer shall promptly disable such passwords and/or API keys and Healthera shall not issue any new passwords and/or API keys to any such individual; and

2.11.5        if any of the audits referred to in clause 2.11.3 reveal that the Customer has underpaid for any Products, then without prejudice to Healthera’s other rights, the Customer shall pay to Healthera an amount equal to such underpayment as calculated in accordance with the Price within ten Business Days of the date of the relevant audit.

2.12    The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

2.12.1        is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.12.2        facilitates illegal activity;

2.12.3        depicts sexually explicit images;

2.12.4        promotes unlawful violence;

2.12.5        is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

2.12.6        in a manner that is otherwise illegal or causes damage or injury to any person or property,

and Healthera reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.13    The Customer shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Agreement:

2.13.1        attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;

2.13.2        attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

2.13.3        access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;

2.13.4        use the Services and/or Documentation to provide services to third parties;

2.13.5        license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

2.13.6        attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.

2.14    The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Healthera.

2.15    The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

3          Services

3.1      Healthera shall, during the Contract Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.

3.2      Healthera shall use commercially reasonable endeavours to make the Software available twenty-four hours a day, seven days a week, except for scheduled maintenance performed outside Normal Business Hours and any unscheduled maintenance, provided that Healthera has, where possible, used reasonable endeavours to give the Customer at least six Normal Business Hours’ notice in advance.

3.3      Healthera will, as part of the Services and at no additional cost to the Customer, provide the Customer with Healthera’s standard customer support services during Normal Business Hours in accordance with Healthera’s Support Services Policy in effect at the time that the Services are provided. Healthera may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Healthera’s then current rates.

4          Customer data

The Customer shall own all right, title and interest in and to all of the Customer Data uploaded into the Software and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5          Third party providers

5.1      The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.  Healthera makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Healthera.  Healthera recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Healthera does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

5.2      Healthera is entitled to determine at its sole discretion the content and functionality of the Software including third party content. Healthera may, without limitation to the generality of this clause 5.2, establish new limits on the Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Service, remove or restrict application programming interfaces or make alterations to data retention periods.

5.3      Healthera shall be entitled at anytime to modify the features and functionality of the Services (“New Features“). Healthera shall not be obliged to make such New Features available to the Customer.

6          Supplier’s obligations

6.1      Healthera undertakes that the Services will be performed substantially in accordance with the Documentation and Order Form and with reasonable skill and care.

6.2      The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Healthera’s instructions, or modification or alteration of the Services by any party other than Healthera or Healthera’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Healthera will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. 

6.3      Notwithstanding the foregoing, Healthera:

6.3.1          does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

6.3.2          is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.4      Healthera warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.

6.5      Healthera makes no representations or warranties of any kind, express or implied relating to the suitability of the Software and/or Services for any particular purpose, nor does Healthera guarantee any particular results or outcomes resulting from the use of the Software and/or Services.

6.6      Except as expressly and specifically provided in the Agreement:

6.6.1  the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Healthera by the Customer in connection with the Services, or any actions taken by Healthera at the           Customer’s direction;

6.6.2  the Services, Platform and the Documentation are provided to the Customer on an “as is” basis and

6.6.3  all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement.

7          Customer’s obligations

7.1      The Customer shall:

7.1.1          provide Healthera with:

(a)   all necessary co-operation in relation to the Agreement; and

(b)   all necessary access to such information as may be required by Healthera in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

7.1.2          comply with the Customer obligations contained in the Order Form;

7.1.3          comply with all applicable laws and regulations with respect to its activities under the Agreement;

7.1.4          comply with all reasonable instructions of Healthera relating to the use of the Software including as indicated from time to time in the Documentation;

7.1.5          carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Healthera may adjust any agreed timetable or delivery schedule as reasonably necessary;

7.1.6          ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;

7.1.7          obtain and shall maintain all necessary licences, consents, and permissions necessary for the Customer, Healthera, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;

7.1.8          be fully responsible for ensuring that its Practitioners undertake the private consultation with the Patient and issue the relevant Prescription as part of the Order;

7.1.9          ensure that the Practitioners shall make clinical decisions on any prescribing of Products:

(a)   in the best interests of the Patient and avoiding any conflicts of interest;

(b)   within their own area of expertise;

(c)   in accordance with relevant guidelines on prescribing of Products (including guidance issued by NICE);

(d)   in accordance with General Medical Council guidance on consultation and prescribing at a distance and on commercial dealings; and

(e)   in accordance with the Care Quality Commission guidance on remote prescribing;.

7.1.10        ensure that all Prescriptions sent to Healthera for processing shall be valid prescriptions that comply with all applicable laws and regulations to permit Healthera to facilitate the dispensing of the relevant Products under the Prescription;

7.1.11        ensure that its network and systems comply with the relevant specifications provided by Healthera from time to time;

7.1.12        not carry out any Customer obligations outside of the United Kingdom or prescribe and Products (using the Services) to Patients outside of the United Kingdom; and

7.1.13        be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Healthera’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

8          Charges and payment

8.1      The Customer shall pay the Price for each Product to Healthera in accordance with this clause 8 and the Payment Terms.

8.2      If Healthera has not received payment by the due date, and without prejudice to any other rights and remedies of Healthera:

8.2.1  Healthera may, without liability to the Customer, disable the Customer’s password and/or API key, account and access to all or part of the Services and Healthera shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

8.2.2  interest shall accrue on a daily basis on such due amounts at an annual rate equal to four percent (4%) over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.3      All amounts and fees stated or referred to in the Agreement:

8.3.1          shall be payable in pounds sterling;

8.3.2          are non-cancellable and non-refundable; and

8.3.3          are exclusive of value added tax, which shall be added to Healthera’s invoice(s) at the appropriate rate.

8.4      Healthera shall be entitled to amend the Prices upon 30 days’ prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.

9          Proprietary rights

9.1      The Customer acknowledges and agrees that Healthera and/or its licensors own all Intellectual Property Rights in the Services, Software and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any Intellectual Property Rights to, or in, or any other rights or licences in respect of the Services or the Documentation.

9.2      Healthera confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.

9.3      In order to protect the legitimate interests of Healthera, the Customer covenants with Healthera that it shall not (and shall procure that no member of its group company shall) during the Contract Term, directly engage, solicit, or contact any Pharmacy in relation to the provision of the Services similar to those provided by Healthera or for the dispensing of products by the Pharmacy that are the same as or similar to the Products.

10       Data Protection

Each party shall comply with its obligations in the Data Protection Schedule.

11       Confidentiality

11.1    Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement.  A party’s Confidential Information shall not be deemed to include information that:

11.1.1        is or becomes publicly known other than through any act or omission of the receiving party;

11.1.2        was in the other party’s lawful possession before the disclosure;

11.1.3        is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

11.1.4        is independently developed by the receiving party, which independent development can be shown by written evidence;       or

11.1.5        is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2    Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.

11.3    Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

11.4    Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5    The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Healthera’s Confidential Information.

11.6    Healthera acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7    This clause 11 shall survive termination of the Agreement, however arising.

11.8    No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12       Indemnity

12.1    The Customer shall defend, indemnify and hold harmless Healthera against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) the Customer’s use of the Services and/or Documentation; (ii) the Customer’s breach or negligent performance or non-performance of this Agreement; (iii) any claims brough by a Patient against Healthera relating to the actions of the Customer (including its Practitioners), provided that:

12.1.1        the Customer is given prompt notice of any such claim;

12.1.2        Healthera provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

12.1.3        the Customer is given sole authority to defend or settle the claim.

12.2    Healthera shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Contract Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

12.2.1        Healthera is given prompt notice of any such claim;

12.2.2        the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

12.2.3        Healthera is given sole authority to defend or settle the claim.

12.3    In the defence or settlement of any claim, Healthera may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4    In no event shall Healthera, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

12.4.1        a modification of the Services or Documentation by anyone other than Healthera; or

12.4.2        the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Healthera; or

12.4.3        the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Healthera or any appropriate authority.

12.5    The foregoing and clause 13.4 state the Customer’s sole and exclusive rights and remedies, and Healthera’s (including Healthera’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.

13       Limitation of liability

13.1    This clause 13 sets out the entire financial liability of Healthera (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

13.1.1        arising under or in connection with the Agreement;

13.1.2        in respect of any use made by the Customer of the Services and Documentation or any part of them; and

13.1.3        in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

13.2    Nothing in the Agreement excludes the liability of Healthera:

13.2.1        for death or personal injury caused by Healthera’s negligence;

13.2.2        for fraud or fraudulent misrepresentation; or

13.2.3        any other matter in respect of which liability cannot by applicable law be limited.

13.3    Subject to clause 13.2, neither Healthera, its licensors nor its suppliers shall be liable to the Customer whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:

13.3.1        any claims brought by the Patient against the Customer, including any claims relating to advice provided by the Customer (including the Practitioners) to the Patient, the actions of the Pharmacies and relating to the Products;

13.3.2        (whether caused directly or indirectly) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss; or

13.3.3        for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement;

13.4            Subject to clause 13.2, Healthera’s total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with this Agreement, in any 12 month period (calculated from the Contract Start Date) shall be limited to a sum not exceeding the greater of: (i) £1,000; or (ii) the total fees paid to Healthera by the Customer for the Products under this Agreement in such 12 month period.

14       Term and termination

14.1    The Agreement shall commence on the Contract Start Date and shall, unless otherwise terminated as provided in this clause 14, continue for the Contract Term and, thereafter, the Agreement shall be automatically renewed for successive Renewal Periods, unless either party notifies the other party of termination, in writing, at least 14 days before the end of the Contract Term or any Renewal Period (as applicable), in which case the Agreement shall terminate upon the expiry of the applicable Contract Term or Renewal Period. The Contract Term together with any subsequent Renewal Periods shall constitute the “Contract Term”.

14.2    Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

14.2.1        the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty days after being notified in writing to do so;

14.2.2        the other party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;

14.2.3        the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

14.2.4        the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

14.2.5        a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

14.2.6        an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

14.2.7        the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

14.2.8        a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

14.2.9        a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen days;

14.2.10      any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.3 to clause 14.2.9 (inclusive); or

14.2.11      the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.3    This Agreement shall terminate automatically if the Customer’s licence to carry out the activities under this Agreement (including prescribing) is terminated or suspended.

14.4    Healthera may terminate the Agreement at any time during the Contract Term by giving the Customer at least 30 days’ written notice of its intention to terminate the Agreement.

14.5    On termination of the Agreement for any reason:

14.5.1        all licences granted under the Agreement shall immediately terminate;

14.5.2        each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

14.5.3        Healthera may destroy or otherwise dispose of any of the Customer Data in its possession;

14.5.4        Customer shall immediately pay Healthera any outstanding payments  due under the Order Form; and

14.5.5        any rights, remedies, obligations or liabilities of the parties   that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced and shall not affect any provision of the Agreement that is expressly or by implication intended to continue beyond termination.

15       Force Majeure

Healthera shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Healthera or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16       Conflict

If there is an inconsistency between any of the provisions in the main body of the Agreement and the Schedules, the provisions in the main body of the Agreement shall prevail.

17       Variation to Terms and Conditions

Healthera may vary these Terms and Conditions from time to time by giving to the Customer at least one month’s notice in writing.  

18       Waiver

No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19       Rights and remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20       Severance

20.1    If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

20.2    If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

21       Entire agreement

21.1    The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

21.2    Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

22       Assignment

22.1    The Customer shall not, without the prior written consent of Healthera, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

22.2    Healthera may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

23       No partnership or agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

24       Third party rights

The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25       Notices

25.1    Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes.

25.2    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

26       Governing law

The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

27       Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).