Your attention is particularly drawn to the provisions of clause 10 (Limitation of liability).
1. About us
1.1 Company details. Your Test Ltd (company number NI670154) (we and us) is a company registered in Northern Ireland and our registered office is at 51 Hill Street, Milford, Armagh, Northern Ireland, BT60 3NZ.
1.2 Contacting us. To contact us, telephone our customer service team at 07912272020 or email us at email@example.com. How to give us formal notice of any matter under the Contract is set out in clause 16.2.
2. Our contract with you
2.1 Our contract. These terms and conditions (Terms) apply to the order by you and supply of Services by us to you relating to Coronavirus Ag Rapid Test Cassette (Swab) testing (Contract). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. By agreeing to these Terms, you are providing us with consent to test all samples provided (either directly or indirectly) by you for the identification of Covid-19 antigens.
2.2 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.3 Language. These Terms and the Contract are made only in the English language.
3. Placing an order and its acceptance
3.1 Placing your order. Please follow the onscreen prompts to place your order and book your appointment. You may only submit an order using the method set out on the site. Each order is an offer by you to buy the services specified in the order (Services) subject to these Terms.
3.2 Correcting input errors. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate. Once you have submitted your order, an invoice will be generated which will contain a link to a pre-screen form which each individual being tested will need to complete before attending their appointment.
3.3 Acknowledging receipt of your order. After you place your order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.4.
3.4 Accepting your order. Our acceptance of your order takes place when we send an email to you to accept it (Order Confirmation), at which point and on which date
(Commencement Date) the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.
3.5 If we cannot accept your order. If we are unable to supply you with the Services for any reason, we will inform you of this by email and we will not process your order.
3.6 Following acceptance of your order. Each individual undergoing testing will receive an email and text approximately 24 hours prior to their appointment to remind them of their appointment and to confirm that they are not displaying any symptoms that are in any way associated (or potentially associated) with Covid-19. You shall be responsible for informing individuals displaying any symptoms (no matter how mild) that they must cancel their appointment and arrange an NHS swab test.
4. Our services
4.1 Descriptions and illustrations. Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
4.2 Compliance with specification. Subject to our right to amend the specification (see clause 4.3) we will supply the Services to you in accordance with the specification for the Services appearing on our website at the date of your order in all material respects.
4.3 Changes to specification. We reserve the right to amend the specification of the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services.
4.4 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.
4.5 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
4.6 Accuracy of testing. The test provided pursuant to the Services under these Terms detects specific proteins (antigens) situated on the cell membranes of the Covid-19 virus. When administered correctly by a healthcare professional (or suitably trained person), the antigen tests show the diagnostic sensitivity for Covid-19 antigens of approximately 96.3%. By entering into these Terms, you are confirming your understanding that the testing provided by us is not 100% accurate and that we shall not be responsible or liable in any way for any tests that are positive or negative for Covid-19 antigens that later turn out to be incorrect. The testing services provided by us are for information purposes only. However, should any individuals receive a positive result to our Coronavirus Ag Rapid Test Cassette (Swab) we strongly recommend that they:
4.6.1 arrange an NHS swab test;
4.6.2 follow (and ensure that those within their household and support bubble (as the case may be) follow) the latest government guidelines on quarantining and self-isolation which is available at https://www.gov.uk/coronavirus
5. Your obligations
5.1 It is your responsibility to ensure that:
5.1.1 the terms of your order are complete and accurate;
5.1.2 you cooperate with us in all matters relating to the Services;
5.1.3 where the Services are being provided at your premises, you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
5.1.4 you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
5.1.5 where relevant, you prepare your premises for the supply of the Services;
5.1.6 you 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;
5.1.7 you comply with all applicable laws, including health and safety laws;
5.1.8 you keep all of our materials, equipment, documents and other property (Our Materials) at your premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation;
5.1.9 you provide us with the email address and mobile phone number of each individual being tested as part of your order so that we may provide them with the pre-screen form as specified in clause 3.2;
5.1.10 you advise all of the individuals undergoing testing that the tests are not 100% accurate. You advise all of the individuals undergoing testing that the tests provided pursuant to these Terms are for information and risk management purposes only and that a negative test does not mean that they may stop self-isolating or stop adhering to government advice on social distancing and other measures (as the case may be) should they have symptoms that are in any way associated (or potentially associated) with Covid-19; and
5.1.11 you advise all individuals undergoing testing of the recommendations set out in clause 4.6.1 and 4.6.2, particularly if they test positive for the Covid-19 antigen.
5.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 5.1 (Your Default):
5.2.1 we will be entitled to suspend performance (or part performance (as the case may be) of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under clause 12 (Termination);
5.2.2 we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
5.2.3 it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
6. Services in NI and ROI only
6.1 Unfortunately, we are unable to perform the Services at addresses outside Northern Ireland and the Republic of Ireland.
6.2 You may place an order for the Services from an address outside of Northern Ireland or the Republic of Ireland, but the order must be for performance of the Services to an address in Northern Ireland or the Republic of Ireland (as the case may be).
7.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 7. 7.2 The Charges are the prices quoted on the invoice generated pursuant to clause 3.2.
7.3 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.
7.4 We take all reasonable care to ensure that the prices stated for the Services are correct at the time when the relevant information was entered into the system. However, please see clause 7.6 for what happens if we discover an error in the price of the Services you ordered.
7.5 Our Charges may change from time to time, but changes will not affect any order you have already placed.
7.6 It is always possible that, despite our reasonable efforts, some of the Services on our site or invoice(s) (as the case may be) may be incorrectly priced. If the correct price for the Services is higher than the price stated on our site or on the invoice(s) (as the case may be), we will contact you as soon as is reasonably possible to inform you of this error and we will give you the option of continuing to purchase the Services at the correct price or cancelling your order. Where possible, we will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Services and refund you any sums you have paid.
8. How to pay
8.1 Payment for the Services is in advance of commencement of the Services. The due date for payment will be as set out on your invoice(s). The Services will not commence until payment is made in full (whether or not an appointment has been made).
8.2 You can pay for the Services using a valid debit card or credit card.
8.3 In the event that the Services have been performed in advance of pay
ment being made, and you fail to make a payment under the Contract by the due date as set out in your invoice(s), then, without limiting our remedies under clause 13 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.3 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.4 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. How we may use your personal information
9.1 We will use any personal information you provide to us to:
9.1.1 provide the Services;
9.1.2 process your payment for the Services; and
9.1.3 inform you about similar products or services that we provide, but you may stop receiving these at any time by contacting us
10. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
10.1.1 death or personal injury caused by negligence;
10.1.2 fraud or fraudulent misrepresentation; and
10.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession). 10.2 Subject to clause 10.1, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of agreements or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of use or corruption of software, data or information;
10.2.6 loss of or damage to goodwill; and
10.2.7 any indirect or consequential loss. 10.3 Subject to clause 10.1, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to £2,000,000.
10.4 We have given commitments as to compliance of the Services with the relevant specification in clause 4.2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.6 Whilst we will endeavour to provide the Services with reasonable care and skill, we do not guarantee that your use of our Services will be uninterrupted, timely, secure or error free and we do not warrant that the results obtained from the use of our Services will be reliable or accurate.
10.7 You expressly agree, upon entry into these Terms that your use of the Services is at your sole risk and the Services are provided to you without any representation, warranty or conditions of any kind, either express or implied relating to accuracy or reliability.
10.8 This clause 10 will survive termination of the Contract.
11.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 11.2.
11.2 We each may disclose the other’s confidential information:
11.2.1 to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising
our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 11;
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
11.2.3 as may be necessary in order to comply with public health requirements (as the case may be).
11.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.
13. Termination, consequences of termination and survival
13.1 Termination. Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:
13.1.1 you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 5 days of you being notified in writing to do so;
13.1.2 you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your 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 your 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
13.1.3 you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business.
13.2 Consequences of termination
13.2.1 On termination of the Contract you must return all of Our Materials and any deliverables specified in your order which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you will be solely responsible for their safe keeping and must not use them for any purpose unconnected with the Contract.
13.2.2 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
13.3 Survival. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
14. Events outside our control
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
14.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
14.2.1 we will contact you as soon as reasonably possible to notify you; and
14.2.2 our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
14.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.
You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Contract.
16. Communications between us
16.1 When we refer to “in writing” in these Terms, this includes email.
16.2 Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
16.3 A notice or other communication is deemed to have been received:
16.3.1 if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
16.3.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
16.3.3 if sent by email, at 9.00 am the next working day after transmission.
16.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
16.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
17.1 Assignment and transfer
17.1.1 We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing or by posting on this webpage if this happens.
17.1.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
17.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
17.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
17.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
17.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
17.6 Governing law and jurisdiction. The Contract is governed by Northern Irish law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the Northern Irish courts
Schedule 1 - Data Sharing Agreement
Agreed Purposes: the data is held for the purposes of confirming the outcome of Coronavirus Ag Rapid Test Cassette (Swab) by the Data Discloser, of specified people (the Test).
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the UK Data Protection Legislation in force at the time.
Data Discloser: a party that discloses Shared Personal Data to the other party.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement and any other party for whom the data subject has given specific consent to receive the data.
Shared Personal Data: the personal data to be shared between the parties under clause 1.1 of this agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject arising from carrying out the Test:
Contact Data; and
1. DATA PROTECTION
1.1 Shared Personal Data. This clause sets out the framework for the sharing of personal data between the parties as controlle
clause as the Data Discloser) will disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
1.2 Effect of non-compliance with UK Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation, and any material breach of the UK Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
1.3 Particular obligations relating to data sharing. Each party shall:
1.3.1 ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
1.3.2 give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
1.3.3 process the Shared Personal Data only for the Agreed Purposes;
1.3.4 not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
1.3.5 ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
1.3.6 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
1.3.7 not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
(a) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
(b) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
1.4 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the UK Data Protection Legislation. In particular, each party shall:
1.4.1 consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
1.4.2 promptly inform the other party about the receipt of any data subject access request;
1.4.3 provide the other party with reasonable assistance in complying with any data subject access request;
1.4.4 not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
1.4.5 assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the UK Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
1.4.6 notify the other party without undue delay on becoming aware of any breach of the UK Data Protection Legislation;
1.4.7 at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
1.4.8 use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
1.4.9 maintain complete and accurate records and information to demonstrate its compliance with this clause; and
1.4.10 provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the UK Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the UK Data Protection Legislation.
1.5 Indemnity. Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the UK Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of the indemnifying party under this clause shall be subject to the limits set out in clause 10 of the above Terms.