The following definitions and rules of interpretation apply in these Conditions.
"Business Day" means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
"Client" means the person or firm who purchases Services from NEH;
"Client Data" has the meaning given to it in clause 12.1;
"Commencement Date" means has the meaning given in clause 3.2;
"Conditions" means these terms and conditions as amended from time to time in accordance with clause 18.4;
"Confidential Information" means any information provided or otherwise made available by either party (whether before, on or after the commencement of the Contract) to the other party and which is marked as "confidential", or is stated to be confidential, or is reasonably understood in the circumstances of disclosure to be confidential;
"Consumer" means an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession;
"Contract" means the contract between NEH and the Client for the supply of Services in accordance with these Conditions;
"Equine" for the purposes of these Conditions, means horses, ponies and donkeys;
"Expenses" means the expenses (if any) payable by the Client to NEH in relation to the Services as set out in the invoice which may include expenses reasonably incurred by the individuals whom NEH engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties required by NEH for the performance of the Services, and for the cost of any materials;
"Fees" means the fees payable to NEH by the Client in relation to the Services as set out in NEH's invoice;
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"NEH" means the supplier of the Services which is Newmarket Equine Hospital;
"NEH Materials" means all work, materials, software and access to software, and information provided or made available by NEH to the Client relating to the Services which existed prior to the Contract or which were created or arose independently of the Contract;
"Order" means the Client's written or verbal request for Services;
"Out of Hours" means any time other than 8am – 7pm, Monday – Friday;
"Parties" means both the Client and NEH and "party" shall be construed accordingly;
"Payment Schedule" means the schedule for the payment of Fees as set out in the Order;
"Records" means all records, images (including radiographs) and tissue samples acquired during the performance of the Services by NEH and/or its Representatives;
"Representatives" means the employees, agents, consultants and subcontractors of a party;
"Services" means any services, including the Records, supplied by NEH to the Client which may include investigative, routine and/or emergency treatment services for Equines; and
"Standing Fees" means the standard fee rates of NEH applicable to any NEH services and used to determine the Fees payable for the Services.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes email.
NEH is located at Newmarket Equine Hospital, Cambridge Road, Newmarket, Suffolk CB8 0FG and can be contacted by the Client by telephone at 01638 782000 or by writing to the address above or by email at email@example.com.
If NEH requires contact with the Client, it shall do so by telephone or by writing to any email address or postal address provided by the Client.
Basis of contract
The Order constitutes an offer by the Client to purchase Services from NEH in accordance with these Conditions.
NEH is under no obligation to accept an Order from the Client and an Order shall only be deemed to be accepted when NEH issues written acceptance of the Order or when NEH commences the Services (whichever is the earlier) at which point and on which date the Contract shall come into existence ("Commencement Date").
These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Supply of Services
NEH shall use all reasonable endeavours to meet any performance dates specified in the Order and/or any other dates for the provision of the Services which may be agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
NEH reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and NEH shall notify the Client in any such event.
NEH will provide the Services with reasonable care and skill.
The Client shall:
- ensure that the terms of the Order are complete and accurate;
- co-operate with NEH in all matters relating to the Services;
- provide NEH and its Representatives with access to the Client's premises and other facilities as reasonably required by NEH to supply the Services;
- provide NEH with such information and materials as NEH may reasonably require in order to supply the Services, and ensure that such information (including the Client Data) is complete and accurate in all material respects;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
- keep all materials, equipment, documents and other property of NEH ("NEH Materials") at the Client's premises in safe custody at its own risk, maintain NEH Materials in good condition until returned to NEH, and not dispose of or use NEH Materials other than in accordance with NEH's written instructions or authorisation.
The Client acknowledges that it is a legal requirement that all Equine (by the time they reach 12 months of age) must have a valid passport which must accompany the Equine during transport. NEH will request the passport at the commencement of any Services.
The Client is recommended to endorse the passport to confirm the Equine is not intended for human consumption and NEH reserves the right to sign the relevant section of the passport if it is presented to NEH unsigned. This allows NEH to treat the Equine according to its clinical needs.
In exceptional circumstances, where a passport is not available, a detailed record of medicinal products administered to the Client's Equine shall be retained by NEH of which the Client shall keep a record.
NEH strongly supports the principle of insuring Equines against unexpected illness, accident or injury and recommends that the Client does so. The Client can consult a broker for specialist advice on this subject.
Whether or not the Equine is insured, the Client acknowledges and accepts that payment for the Services is the responsibility of the Client. Any contract of insurance is a contract between the Client and the insurance company which may require the insurance company to reimburse the Client for the fees paid for veterinary treatment. Unless otherwise agreed in advance by NEH, the Fees for the Services must be paid by the Client to NEH in accordance with clause 8. NEH is not responsible for any unsuccessful insurance claims for any reason whatsoever and the Client shall be required to pay NEH whether or not an insurance company does or will reimburse the Client.
Fees and payment
In consideration for the Services to be provided by NEH, the Client shall pay the Fees and Expenses to NEH.
NEH shall invoice the Client for the:
- Fees at any time after acceptance of the Order or commencement of the Services (whichever is the earlier); and
- Expenses at any time after they are incurred by NEH.
The Client acknowledges that the Fees payable for the Services are determined by the time spent on the Services, the level of intensity of the investigation and treatment used, the expertise required and the technical equipment used and the costs of medicines, materials and consumables used, in the Services.
Where reasonably possible, NEH will provide a written estimate for any treatment at the Client's request. However, the Client acknowledges and accepts that such estimates are approximate only as variations and complications may arise during treatment and result in further costs incurred for which the Client shall be liable. The Client also accepts that Out of Hours calls and consultations will attract additional charges depending on the time of day/night.
NEH reserves the right to increase its fees. The Client is responsible for checking the applicable fees before submitting an Order to NEH.
New Clients may be required to pay in advance or at the time of visit for Services until an account with NEH has been opened and approved. NEH reserves the right to verify all new Clients' credit ratings with a credit reference agency. Certain procedures (including surgical procedures) may require payment in advance for existing clients.
The Client shall pay NEH's invoices in full, in pounds sterling and in cleared funds, within 30 days of the date of invoice, without any set-off, counterclaim, withholding or deduction. The following payment methods are acceptable: Cards (Mastercard and Visa), BACS or cheque and all cheques should be made payable to Newmarket Equine Hospital.
If the Client account becomes overdue, after due notice to the Client and in the absence of satisfactory repayment arrangements being agreed with NEH, NEH shall refer the Client account to NEH's debt collection agency or the County Court. This will incur further costs for which the Client will be liable. Any cheques issued which are returned unpaid, any credit card payment which is not honoured or any cash tendered which is found to be counterfeit will result in the Client account being restored to the original sum outstanding together with any fees incurred in the process. Persistent late payment will result in the need for all fees to be paid at the time of Services performance or may result in a refusal by NEH to perform further Services.
All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by NEH to the Client, the Client shall, on receipt of a valid VAT invoice from NEH, pay to NEH such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
If the Client fails to make a payment due to NEH under the Contract by the due date, then, without prejudice to any other right or remedy to which NEH may be entitled, the Client shall pay interest, at a rate of 4% a year above the Bank of England base rate from time to time, on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment and/or may suspend the Services until payment is made in full (in which case the Client shall be liable for any resultant costs and expenses incurred by NEH).
Ownership of NEH Materials and the Records
All Intellectual Property Rights and other rights in the NEH Materials shall (as between NEH and the Client) remain the property of NEH.
All Intellectual Property Rights and other rights in the Records and the NEH Confidential Information shall (as between NEH and the Client) be owned by NEH and shall vest in NEH upon creation.
The Records may be used by NEH for the purposes of clinical research and veterinary education, including publications and presentations at professional or lay persons meetings. NEH Materials used for such purposes will be completely anonymised such that no identifying data (Client or Equine names) will be apparent.
NEH hereby grants to the Client a non-exclusive, royalty free, non-sub-licensable and revocable licence to use the Records as far as is necessary to obtain the benefit of the Services. The Client shall not reproduce or publish the Records without the prior written consent of NEH.
In certain circumstances, NEH may receive instructions from the Client's Representatives (including liveries, stables and insurers). Unless NEH receives written notice from the Client to the contrary, NEH accepts that the Client's Representatives have the authority to act in the interests, and on behalf, of the Client.
Limitation of liability
This clause 11 sets out the entire financial liability of NEH (including any liability for the acts or omissions of its Representatives) to the Client under or in connection with the Contract, whether arising in contract, tort, negligence, breach of statutory duty or otherwise.
Except as expressly set out in the Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
Nothing in this Contract shall exclude or limit the liability of NEH for death (of a natural person) or personal injury (of a natural person) resulting from negligence, or for fraud or fraudulent misrepresentation, or for any other liability that cannot be excluded or limited by law.
Subject to clause 3:
NEH shall have no liability for any damage to or loss of property, loss of profits, loss of business, loss of reputation, loss of anticipated savings, loss of or corruption of data;
NEH shall have no liability for any special, indirect or consequential; and
unless specifically agreed otherwise in the Order, NEH's total liability for all other losses shall not exceed the total Fees payable by the Client to NEH under the Order in relation to which the cause of action arises.
Unless the Client is a Consumer, the Client shall indemnify NEH against any claims, losses, damages, costs (including all legal fees) and expenses incurred by or awarded against NEH arising out of or in connection with any use by the Client of the Records, except to the extent that the claims against NEH have arisen out of or in connection with any negligence or wilful default of NEH.
The Services are provided by NEH. The Client shall have no claim against any individual Representative of NEH in connection with the Services, whether arising in contract, tort, negligence, breach of statutory duty or otherwise.
This clause 11 shall survive termination of the Contract.
NEH recognises that Client confidentiality is of paramount importance and will only use the Client's personal identifiable details ("Client Data") for the purpose of its business. NEH will not intentionally pass the Client Data to a third party without the Client's prior consent, unless required to do so upon humane grounds for animal welfare or as otherwise legally required. In instructing NEH to perform the Services, the Client authorises NEH (and its Representatives) to use the Client Data in the provision of the Services and, from time to time, to send the Client details of NEH services which may be of interest. Where specifically required, NEH shall pass on Client Data (including the Records) to the Client's insurance company.
In the event that the Client is not satisfied with NEH for any reason, the Client may contact NEH in writing, directing its comments (in the first instance) to the Managing Partner.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
Each party may disclose the other party's confidential information:
- to its Representatives and professional advisors who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its Representatives and/or professional advisers to whom it discloses the other party's confidential information comply with this clause 14; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
Nothing in this clause shall limit or exclude any liability for fraud.
The Client may cancel any Order for Services at any time before the start date for the Services by contacting NEH. NEH will confirm the cancellation in writing.
If the Client cancels an Order in accordance with clause 1 and the Client has made any payment in advance for Services that have not been provided, NEH will refund these amounts to the Client.
Once NEH has begun to provide the Services, the Client may:
- may cancel the Contract on 30 days' written notice without cause; or
- may cancel the Contract with immediate effect by giving NEH written notice if:
- either of the events specified in clause 2.1 or clause 16.2.2 apply to NEH;
- these Conditions are changed pursuant to clause 4 to the Client's material disadvantage; or
- NEH is affected by a Force Majeure Event, and NEH will refund the Client in full for any Services which have been paid for in advance and have not been provided or have not been properly provided. The Client will be liable for all Fees and Expenses incurred in Services properly performed up until the date notice of cancellation is received by NEH.
Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 6 months' written notice.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, NEH may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to:
- pay any amount due under the Contract on the due date for payment;
- within a reasonable time of a request for it, provide NEH with information that is necessary for the provision of the Services; or
- within a reasonable time, provide NEH with access to the Client's premises, or any other location necessary, to enable NEH to provide the Services.
Without affecting any other right or remedy available to it, NEH may suspend the supply of Services under the Contract or any other contract between the Client and NEH if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 2.2, or NEH reasonably believes that the Client is about to become subject to any of them.
Consequences of termination
On termination of the Contract:
- the Client shall immediately pay to NEH all of NEH's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, NEH shall submit an invoice, which shall be payable by the Client immediately on receipt;
- the Client shall return any NEH Materials in its possession or control. If the Client fails to do so, then NEH may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
Termination of the Contract shall not affect 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 Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control ("Force Majeure Event").
NEH may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
NEH reserves the right to vary these Conditions from time to time. Whenever these Conditions are varied by NEH, NEH shall notify the Client of any proposed amendments to these Conditions at least 28 days in advance of such amended Conditions ("Amended Conditions") being published on the Company's websites ("Publication"). The Amended Conditions shall constitute the Conditions from the date of Publication provided that the Amended Conditions shall not apply to any Services instructed on or before the date of Publication.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.