Terms and Conditions – Acurium NEW Health Services

Standard Terms and Conditions of Acurium Health Concierge Ltd

Acurium is the trading name of Acurium Health Concierge Ltd.

Correspondence Address: Linthorpe, Forest Road, Warfield, Berkshire, RG42 6AE.

Company Registered Office: 44-46 Old Steine, Brighton, BN1 1NH, United Kingdom.

Company Registered No: 13895820

1 Definitions

1.1 In these terms and conditions the following definitions apply:

‘Business Day’ – means a day other than Saturday, Sunday and public holidays when clearing banks generally are open for business in London;

‘Commencement Date’- means the date on which provision of the Services shall commence as specified in the Order;

‘Confidential Information’ – means any commercial, financial or technical information relating to the products, services, plans, know-how or trade secrets, which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;

‘Contract’ – means the agreement between the Supplier and the Customer for the supply and purchase of the Services incorporating these Terms and the Order;

‘Customer’ – means the customer whose details are set out in the Order;

‘Force Majeure’ – means an event or sequence of events beyond the Supplier’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service;

‘Intellectual Property Rights’ – means copyright, patents, know-how, trade secrets, trade-marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:

(a) whether registered or not;

(b) including any applications to protect or register such rights;

(d) whether vested, contingent or future;

(e) to which the Supplier is or may be entitled; and

(f) in whichever part of the world existing;

‘Order’ – means the Customer’s order for the Services from the Supplier as set out in the attached Schedule;

‘Services’ – means the concierge services to be supplied by the Supplier to the Customer details of which are set out in the Order;

‘Specification’ – means the description or specification for the Services set out in the Order;

‘Supplier’ – means the supplier whose details are set out in the Order;

‘Supply Location’ – means the address for provision of the Services (if any) as set out in the Order;

‘Terms’ – means the standard terms of business of the Supplier set out in this document;

‘Value Added Tax or VAT’ – means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the supply of the Services;

‘Year’ – means a period of 12 consecutive months from the Commencement Date, and each period of 12 consecutive months thereafter.

1.2 Unless the context otherwise requires:

1.2.1 references to the Contract includes the Terms and the Order;

1.2.2 references to persons include individuals, companies and corporations;

1.2.3 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

2 The Order and incorporation of the Terms

2.1 An Order will be deemed to be an offer to purchase Services from the Supplier on these Terms.

2.2 Orders are not binding until accepted by the Supplier in writing. The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.

2.3 Marketing and other descriptive matter relating to Services are illustrative only, and do not form part of the Contract. The Customer agrees that, in placing an Order, it has not relied on any representation or statement by the Supplier not set out in the Contract.

2.4 These Terms apply to and form part of the Contract for the supply of the Services by the Supplier to the Customer. They supersede any previously issued terms and conditions of supply.

2.5 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.

2.6 No variation of the Terms or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory of the Supplier.

2.7 A contract will be formed upon the earlier to occur of:

2.7.1 written acceptance by the Supplier of the Customer’s Order; or

2.7.2 the execution of a specific written agreement by both the Supplier and the Customer.

3 Price and payment

3.1 The price for the Services will be as set out in the Order or in default of such provision will be calculated in accordance with the Supplier’s standard scale of charges in force on the date of formation of the Contract.

3.2 The price is payable as set out in the Order.

3.3 Services are charged on a time and materials basis at the Supplier’s then-current daily rates. The rates are calculated on the basis of an [eight] hour day from [09.00 to 17.00] on a Business Day. [For Services provided outside those times, the Supplier’s overtime rates will apply or on the basis set out in the Order].

3.4 The Supplier may vary its rates and/or prices for Services from time to time. The Supplier will give the Customer not less than [30] days’ written notice of such variations which cannot apply retrospectively. Where a proposed increase is unacceptable to the Customer, it may terminate the Contract on [20] days’ written notice to the Supplier.

3.5 The Supplier will invoice the Customer [monthly in advance].

3.6 The Customer will pay all invoices:

3.6.1 in full, without deduction or set-off other than as required by law, in cleared funds within [7] days of receipt of invoice; and

3.6.2 to the Supplier’s nominated bank account specified in the Order.

Time of payment is of the essence.

3.7 Where sums due hereunder are not paid in full by the due date:

3.7.1 the Supplier may, without limiting its other rights, charge interest on such sums at [5]% a year above the base rate of the Bank of England from time to time in force;

3.7.2 interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

3.8 VAT will be charged by the Supplier and paid by the Customer for Membership Services in the UK at the applicable rate.

4 Provision of services

4.1 The Supplier will provide the Services to the Customer in accordance with the Contract and the Specification.

4.2 The Services will begin on the Commencement Date and be performed for the period set out in the Order or until provision is complete or earlier termination of the Contract.

4.3 Whilst the Supplier will use reasonable endeavours to meet any deadlines set out in the Order, such dates are approximate only, and time of performance is not of the essence.

4.4 The Supplier will not be liable for any delay in or failure of performance of the Services (including any failure to achieve any milestone or other date) so far as caused by an event of Force Majeure or the Customer’s failure to perform its obligations under the Contract.

4.5 The Supplier may make any changes to the Services:

4.5.1 needed to comply with applicable law or safety requirements; or

4.5.2 which do not materially affect the nature or quality of the Services;

and will notify the Customer in advance of such changes.

5 Supplier’s obligations

5.1 The Supplier will:

5.1.1 perform the Services using reasonable care and skill;

5.1.2 use reasonable endeavours to obtain and maintain all licences, permits and other consents required for its performance of the Services;

5.1.3 use reasonable endeavours to observe all laws, rules and regulations notified to the Supplier by the Customer and in force at the Supply Location and any other Customer sites.

6 Customer’s obligations

6.1 The Customer will pay the price for the Services in accordance with the Contract.

6.2 The Customer will:

6.2.1 afford the Supplier access to the Supply Location and other Customer sites and prepare them for supply of the Services;

6.2.2 afford the Supplier reasonable access to the Customer personnel named in the Order and others; and

6.2.3 provide the Supplier such facilities, information and assistance (ensuring that information is complete and accurate);

in each case as reasonably required to allow the Supplier to perform the Services.

6.3 The Customer will also:

6.3.1 co-operate fully with the Supplier and follow the Supplier’s reasonable instructions in relation to the performance of the Services;

6.3.2 obtain and maintain all necessary licences and consents for the performance of the Services;

6.3.3 keep all documents, equipment, materials and other Supplier property (Supplier Materials) at the Supply Location or other Customer premises safely and at its own risk and in the same condition as they were in when supplied (fair wear and tear excepted); and

6.3.4 not dispose of or use any Supplier Materials without the Supplier’s prior written agreement.

6.4 The Services are provided at the Customer’s request and the Customer is responsible for verifying that the Services are suitable for its own needs.

7 Warranty

7.1 The Supplier gives no warranty in relation to the Services.

7.2 The terms implied by sections 13, 14 and 15 of the Supply of Goods and Services Act 1982 (as amended from time to time) are expressly excluded.

8 Failure of or delay in performance

8.1 If the Supplier is prevented or delayed in performing the Services by any cause attributable to the Customer, the Supplier (without prejudice to its other rights):

8.1.1 may suspend performance of the Services until the Customer remedies its default;

8.1.2 will not be liable for any costs or losses sustained by the Customer as a result of such suspension; and

8.1.3 may charge the Customer (and the Customer will pay in accordance with the Contract) costs or losses incurred by the Supplier arising from the Customer’s default, subject to clause 9.

9 Liability

9.1 The Supplier does not exclude its liability:

9.1.1 for death or personal injury caused by its negligence; or

9.1.2 for fraud or fraudulent misrepresentation;

9.2 The Supplier will not be liable to the Customer for:

9.2.1 loss, or use, of data (subject to the provisions of clause 11);

9.2.2 any form of indirect, consequential or special loss; or

9.2.3 any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect;

in each case, however arising.

9.3 Subject to the provisions of clause 9.1, the Supplier limits its liability (however arising) in respect of or in connection with the Services, and otherwise in connection with the Contract, to the total price paid for the Services by the Customer under the Contract.

10 Intellectual Property Rights

10.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in any documents, materials, data, proprietary software (and the media on which they are recorded) which are owned or created by the Supplier in connection with the Services and which are and shall remain vested in the Supplier.

11 Confidentiality

11.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:

11.1.1 any information which was in the public domain at the date of the Contract;

11.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

11.1.3 is independently developed by the other party without using information supplied by the first party; or

11.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

11.2 This clause 11 will remain in force after the date of termination of the Contract.

12 Termination

12.1 The Contract may be terminated forthwith at any time by either party on written notice to the other if:

12.1.1 the other commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within [30] days of written notice requiring that party to do so;

12.1.2 the other: (i) suspends or threatens to suspend payment of its debts, (ii) is unable to pay its debts as they fall due or (iii) is unable to pay its debts (being a company) within the meaning of s 123 of the Insolvency Act 1986 or (being an individual) within the meaning of s 268 of the Insolvency Act 1986 or (being a partnership) there is any partner to whom any of the foregoing applies;

12.1.3 the other (being a company) suspends trading, ceases to carry on business, or threatens to do either; or

12.1.4 the other (being an individual) dies or ceases to be capable of managing his own affairs.

12.2 In addition to its rights under clause 12.1, the Supplier may terminate the Contract at any time:

12.2.1 on [30] days’ written notice to the Customer;

12.2.2 immediately on written notice to the Customer if the Customer has failed to pay any amount due under the Contract within [3] Business Days of the due date.

12.3 On termination of the Contract for any reason:

12.3.1 the Customer will within [5] Business Days pay all invoices of the Supplier then outstanding;

12.3.2 the Supplier will, within [5] Business Days, invoice the Customer for all Services provided but not yet invoiced and the Customer will pay such invoice within a further [5] Business Days;

12.3.3 each party will within [5] Business Days return any materials of the other then in its possession or control; if it fails to do so, the other may enter onto any premises of the first party and take possession of them. Pending such return or taking possession, the first party will be responsible for such materials and will not use them for any purpose not connected with the Contract;

12.3.4 the accrued rights and liabilities of the parties will not be affected; and

12.3.5 clause which expressly or by implication are to survive termination will do so.

13 General

13.1 Time
Unless stated otherwise, time is not of the essence of any date or period specified in these Terms.

13.2 No set-off
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.

13.3 Relationship
The parties are independent businesses and not principal and agent, partners, or employer and employee.

13.4 Severability
If any part of these Terms are found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Terms and the remaining provisions of the Terms will otherwise remain in full force.

13.5 Notices
Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:

13.5.1 by first-class post: two Business Days after posting;

13.5.2 by airmail: seven Business Days after posting;

13.5.3 by hand: on delivery; and

13.5.4 by e-mail: on receipt of a delivery or read receipt mail from the correct address.

13.6 Waiver
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

13.7 Rights of Third Parties
The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

13.8 Priority and validity
[These Terms prevail over those of the Order]. These terms of business (including the Order) will apply if the Customer makes a verbal or written request to the Supplier to provide the Services whether or not the parties have signed the Contract.

13.9 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.

13.10 Assignment
The Customer may not assign the benefit of this agreement without the prior written consent of the Supplier. The Supplier may in its own discretion delegate, assign or licence the performance of any or all of the Services to any third party.

13.11 Governing Law and Jurisdiction

13.11.1 The Contract will be governed by the law of England and Wales.

13.11.2 Disputes will be submitted to the exclusive jurisdiction of the courts of England and Wales.

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