PHF’s Bill-e Software Terms and Conditions
DEFINITIONS
Bill-e: the PHF e-billing software and service;
Bill-e On-line Application Form: the form for on-line application for a Customer or their employee to use the Services;
Bill-e Customer Software Application: a software application provided by PHF as part of the Services through which an Individual Customer or their employee can access the PHF e-billing Services;
Charges: the charges itemised in the Bill-e On-line Application Form submitted by the Individual Customer and subject to amendment in accordance with clauses 7.7 to 7.9;
Confidential Information: all confidential information (however recorded, preserved or disclosed) disclosed by a party or its employees, officers, representatives or advisers to the other party including but not limited to all software, system configurations, Individual guidance, training materials, proprietary data whose disclosure to third parties may be damaging and other similar information, and any software or materials which have been, or will be, supplied to the Individual Customer by PHF in connection with the Services but does not include the Individual Customer Data;
Contract: the contract entered into by the Customer with PHF by completing the Bill-e On-line Application Form;
Contract Period: The period of time in Months from the Start Date as dictated by the product choice of the Individual Customer;
Customer: a person who has submitted the Bill-e On-line Application Form and who has accepted the Bill-e Licence and whose payment has been accepted on-line by PHF;
Customer Data: any data inputted for storage on the PHF Platform as part of the Services by the Customer or their employee;
Emergency Maintenance: emergency or urgent maintenance work (including a suspected security breach or threat to the Services or the PHF Platform) that is required on the PHF Platform;
Employees: employees of the Customer whose duties require them to use the Services;
Intellectual Property Rights: all copyrights and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, design rights, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
Licence: a licence for a Customer or their employee to use the Services;
Patient Data: personal data (having the meaning ascribed under the Data Protection Act 1998) relating to the Customer’s patients uploaded to the PHF Platform by a Customer or their employee;
PHF: PHF Services Limited (incorporated in England and Wales registered number 4886252
PHF Content: Content provided by either PHF or its licensors and as modified by PHF from time to time;
PHF Platform: the hardware, software and infrastructure used by PHF and its suppliers to provide the Services
Planned Maintenance: any downtime up to 8 hours per calendar month during 0000 – 0400 hours for maintenance of the PHF Platform; or downtime pre-notified to the Individual Customer;
Services: the services itemised in the Bill-e On-line Application Form submitted by the Customer;
Start Date: the date for the Services to begin as indicated on the Bill-e On-line Application Form submitted by the Individual Customer;
Terms and Conditions: these terms and conditions as amended from time to time in accordance with clause 15.2
Unauthorised Person: any person who is not a Customer or an Employee;
1. PROVISION OF THE SERVICES
1.1 In consideration of the Customer paying the charges PHF shall provide the Services to the Customer on the Terms and Conditions.
2. LICENCE
2.1 Subject to payment of the Charges by the Customer PHF grants to the Customer a non-transferable licence
2.1.1 for the Customer to use the Services through the Bill-e Software Application
2.1.2 for its Employees to use the Services through the Bill-e Software Application as may be necessary for the performance of their duties on these terms and conditions.
2.2 The licence granted under clause 2.1 allows the Customer from the Start Date to make use of the Services for his or her personal use only. 2.3 PHF shall from the Start Date until the Contract is brought to an end:
2.3.1 provide the PHF Bill-e Software Application and the PHF Platform in order to make available the Services; and
2.3.2 make the Bill-e Software Application and the Services available to the Customer and Employees 24 hours a day seven days a week except as specified in clauses 2.4 and 2.5.
2.4 PHF may suspend access to the Services for Planned Maintenance or for Emergency Maintenance without compensation; if it does so PHF will give the Customer as much notice as reasonably possible.
2.5 PHF may suspend access to the Services at any time if PHF reasonably suspects a breach of these Terms and Conditions by the Customer or their Employee.
2.6 If the Customer breaches the terms of the Individual Licence, PHF may limit, suspend or terminate the access of that Customer and their Employees to the Services.
3. CUSTOMER OBLIGATIONS
3.1 The Customer shall:
3.1.1 pay the Charges to PHF in accordance with these Terms and Conditions;
3.1.2 use the Services only in accordance with these Terms and Conditions;
3.1.3 use only the log-on and password issued to him or her; and be responsible for security and confidentiality of those password and log on details;
3.1.4 be responsible for security of Individual Customer Data and Individual Data and Individual Customer Content;
3.1.5 be responsible for ensuring his or her or their Employees connectivity to the Internet;
3.1.6 not use the Services to store, reproduce, transmit, communicate or knowingly receive any material which is offensive, racist, abusive, indecent, defamatory, obscene, threatening or menacing;
3.1.7 not breach any confidence, privacy, Intellectual Property Rights or other legal rights of any other party.
3.2 The Customer’s Employees shall:
3.2.1 use the Services only in accordance with these Terms and Conditions;
3.2.2 use only the log-on and password issued to him or her; and be responsible for security and confidentiality of those password and log on details;
3.2.3 be responsible for security of Individual Customer Data and Individual Data and Individual Customer Content;
3.2.4 not use the Services to store, reproduce, transmit, communicate or knowingly receive any material which is offensive, racist, abusive, indecent, defamatory, obscene, threatening or menacing; and
3.2.5 not breach any confidence, privacy, Intellectual Property Rights or other legal rights of any other party.
3.3 The Customer shall remain responsible for the acts or omissions of any person whom he or she allows to use the Services.
3.4 The Customer acknowledges that PHF will store and use the Customer’s personal details in accordance with clause 12.
3.5 The Customer shall be responsible for providing the Individual and their Employee’s details to PHF.
4. IPR OWNERSHIP
4.1 All Intellectual Property Rights and other rights in the Services, the PHF Bill-e Software Application and the PHF Platform belong to or are licensed to PHF.
4.2 All Intellectual Property Rights and other rights in Customer Data and Patient Data belong to the Customer.
4.3 The Individual Customer is responsible and liable for all Individual Customer Data uploaded to the Bill-e Software Application or otherwise distributed using the Services by the Customer or their Employees.
4.4 The Customer grants to PHF a licence to reproduce, modify, publish, and display any Customer Data uploaded via the Bill-e Software Application for the provision of the Services.
4.5 PHF and its licensors retain all Intellectual Property Rights, interests and title in and over their own products and systems (including, without limit, the PHF Bill-e Software Application and PHF Platform) and all trade secrets, copyright, patent rights, ideas and any other intellectual property rights in relation thereto remain the exclusive property of PHF or its licensors.
4.6 PHF shall defend or, at its option, settle any claim brought against the Customer that his or her normal use of the PHF Bill-e Software Application or the PHF Platform in the UK and in accordance with the Contract infringes any Intellectual Property Rights of any third party and shall pay any damages finally awarded against the Customer in respect of such claim and any reasonable costs and expenses incurred by the Customer provided that:
4.6.1 the Customer notifies PHF immediately of the alleged claim;
4.6.2 PHF is given immediate and complete control of such claim, all information and assistance as PHF reasonably requires at PHF’s cost,
4.6.3 the Customer does not prejudice the defence of such claim; and
4.6.4 the claim does not arise from a use by the Customer or their Employees not permitted by the Contract or use by any Unauthorised Person allowed by the Individual Customer or their Employees to access the Services.
5. SERVICE MANAGEMENT
5.1 PHF is not responsible for screening, advising on or otherwise controlling the Customer Data. PHF may move, suspend or refuse any Customer Data without notice, including without limitation, the right to remove any Customer Data that is objectionable or violates any terms of these Terms and Conditions or the Contract.
5.2 PHF may preserve or disclose the Customer Data or Patient Data:
5.2.1 for the purpose of providing the Services to the Customer in an efficient manner; or
5.2.2 if required to do so by law or administrative authority; or
5.2.3 to enforce the terms of the Contract; or
5.2.4 to respond to claims that the Customer Data or Patient Data violates the rights of any person.
5.3 PHF will be responsible for restoring Customer Data and Patient Data from the most recent successful backup if it is damaged destroyed or corrupted by anything for which PHF is responsible. PHF’s liability if the Services are not operational for more than 30 days shall be to provide the backup disc to the Individual Customer’s premises or to such other location as may be agreed.
5.4 PHF is not responsible for the condition in which Customer Data is provided or inputted by the Customer, and if it is necessary for PHF to correct any errors in the Customer Data to enable the Services to be provided it will not be responsible for any resulting impact on the integrity of the Customer Data.
6. WARRANTIES
6.1 The Services will operate and be available to the Customer on an ‘as is’ basis. It is for the Customer to satisfy himself or herself that the Services are appropriate for his or her use.
6.2 The Services are provided via the Internet and accordingly PHF cannot warrant that:
6.2.1 Customer Data and Patient Data will always be successfully uploaded or downloaded; or
6.2.2 the Services will be uninterrupted, secure or error-free.
7. PAYMENT
7.1 The Customer will pay to PHF the charges set out in the Bill-e On-line Application Form. Subject to clauses 7.6 - 7.9 future charges are fixed for the Contract Period.
7.2 All charges will be paid in advance by way of an on-line debit or credit card transaction.
7.3 If the Individual Customer fails to pay any money due to PHF when requested to on-line PHF may suspend access to the Services by the Customer or their Employees.
7.4 All prices referred to in the Contract are inclusive of Value Added Tax.
7.5 PHF reserves the right (in addition to any other remedies which may be available to it) to charge interest on overdue amounts (including VAT and disbursements) on a daily basis from the original due date at the rate of 4% per annum above the Bank of England base rate.
7.6 PHF may increase the charges during and after the Minimum Period to take into account third party costs over which PHF has no control and apply the increase to the Charges to match the increase applied by such third party. PHF may not apply such increase retrospectively and will not pass on such increase to the Individual Customer where the increase is less than 3% of the third party element. On request PHF shall provide evidence of such increase applied by the third party.
7.7 If the Customer requires additional Employees to access the Bill-e system, additional fees will be charged at such point in time as the new login details are requested.
7.8 If the Customer exceeds the allocated storage space specified in the Bill-e Licence PHF may increase the Charges as though the Individual Customer had requested the additional storage space.
7.9 The parties agree that if PHF provides any services over and above the Services the Customer shall be charged separately for the provision of such additional services at PHF’s then prevailing rates for such additional services.
8. INDEMNITY
8.1 The Customer is liable for all loss or damage arising from the unauthorised access or use of the Customer's own networks and systems. The Customer is responsible for implementing a security policy to prevent such unauthorised access or use.
8.2 The Customer indemnifies PHF against all costs, claims, damages and losses incurred by PHF as a result of:
8.2.1 a breach by the Customer of clauses 3.1.3 – 3.1.8;
8.2.2 a breach by their Employee of clauses 3.2.2 – 3.2.4;
8.2.3 unauthorised access or use under clause 8.1;
8.2.4 negligence or malicious acts by the Customer including any Unauthorised Person allowed by the Customer to access the Services.
8.3 The Customer will indemnify PHF against any claim by third parties that the Customer Data infringes their Intellectual Property Rights.
9. LIMITATION OF LIABILITY
9.1 Neither party excludes or limits liability to the other party for:
9.1.1 death or personal injury arising from its negligence; or
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 any matter which it would be illegal to exclude or to attempt to exclude its liability.
9.2 Each party's liability to the other in respect of any loss of, or damage to, physical property of the other whether in contract, tort (including negligence) or otherwise arising from, or in connection with, the Contract shall be limited to £1,000,000 in aggregate.
9.3 Except where liability arises under clauses 9.1 or 9.2 and subject to clause 9.4 PHF’s total aggregate liability in or for breach of contract, negligence (as defined in Section 1(1) Unfair Contract Terms Act 1977), misrepresentation (excluding fraudulent misrepresentation), tortious claim (including breach of statutory duty), restitution or any other cause of action whatsoever relating to or arising under or in connection with the Contract (including the provision, non-provision or partial provision of the Services), and including liability expressly provided for under the Contract shall not exceed the price paid or payable for the Services during the 12 months preceding the date on which the claim arose.
9.4 Notwithstanding anything to the contrary in these Terms and Conditions, but subject to clause 9.1, PHF shall not be liable to the Customer for any damage to or loss of Customer Data or Patient Data, for the poor performance (or lack of connectivity or lack of availability) of the Internet, or for any indirect, special or consequential loss or damage.
10. TERM
10.1 Unless terminated in accordance with clause 11 the Contract shall continue for the Minimum Period and thereafter until it is terminated (i) on 90 days written notice at any time by the Individual Customer or PHF; or (ii) on there being no credits available for the customer and they have not opted to top up their i-credit account; or (iii) otherwise in accordance with these Terms and Conditions.
11. TERMINATION
11.1 Either party may, without prejudice to any other remedies it may have, terminate the Contract forthwith at any time by giving notice in writing to the other party:
11.1.1 if the other party commits any material breach of the Contract provided that if the breach is remediable then the notice of termination shall not be effective unless the party in breach fails within thirty (30) days of the date of such notice to remedy the breach complained of; or
11.1.2 if one party suffers for a period of 30 consecutive days or more a force majeure event described in clause 15.7; or
11.1.3 if the other goes into liquidation, either compulsory or voluntary, or if a receiver, administrative receiver or administrator is appointed in respect of the whole or any part of its assets, or any similar event.
11.2 PHF will not be obliged to destroy any Customer Data or Patient Data following the termination of the Contract.
11.3 The rights and remedies of the parties that have already arisen at the date of termination shall not be affected. Clauses of these terms and conditions which expressly or by implication have effect after termination shall continue in full force and effect.
12. DATA PROTECTION
12.1 Each party shall ensure that in the performance of its obligations under the Contract it complies at all times with the Data Protection Act 1998 as amended from time to time ("DP Act").
12.2 The parties acknowledge and accept that for the purposes of the DP Act PHF is processing the Data as a service provider and data processor and that the Customer is the data controller in relation to the Data.
12.3 PHF may make information about the Customer Data available to third parties in accordance with the provisions of the Individual Licence. 12.4 The Customer authorises PHF to process any Customer Data (including any personal data as defined in the DP Act) to the extent necessary to provide the Services.
13. STATUTORY AND OTHER REGULATIONS
13.1 PHF shall in all matters arising in the performance of the Contract conform with all Acts of Parliament and with all orders, regulations, and byelaws made with statutory authority by Government Departments or by local or other authorities that shall be applicable to the Contract.
13.2 If the cost to PHF of the performance of the Contract shall be increased or reduced by reason of the making, after the Minimum Period of the Contract, of any law or any order, regulation or bye-law having the force of law that shall be applicable to the Contract (other than any tax upon profits or revenue), the amount of such increase or reduction shall be added to or deducted from the Charges.
14. CONFIDENTIAL INFORMATION
14.1 Each party shall keep the other party's Confidential Information confidential and unless it has the prior written consent of the other shall:
14.1.1 not use or exploit the Confidential Information in any way except for carrying out its obligations under the Contract;
14.1.2 not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by the Contract; and
14.1.3 not copy, reduce to writing or otherwise record the Confidential Information except as necessary for the Contract.
14.2 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of this disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 14.2 it takes into account the reasonable requests of the other party in relation to the content of this disclosure.
14.3 PHF will not be liable for any breach of confidentiality by reason of the Customer making his or her logon or password available to an Unauthorised Person.
15. GENERAL
15.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
15.2 These Terms and Conditions may be varied by PHF from time to time by notice to the Customer.
15.3 Neither party may assign the benefit of the Contract nor any interest in the Contract without the prior written consent of the other, except that PHF may assign the Contract at any time to any member of any group of companies of which PHF forms part.
15.4 No failure or delay in exercising any remedy or right under the Contract will operate as a waiver of it, nor will any single or partial exercise of it preclude any further exercise or the exercise of any remedy or right under the Contract or otherwise.
15.5 The provisions of the Contract shall be severable if any of its provisions are held by a court of competent jurisdiction or other applicable authority to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. However, if the severed provision is essential and material to the rights or benefits received by either party, the parties shall use their best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly affects their intent in entering into the Contract.
15.6 The Contracts (Rights of Third Parties) Act 1999 is excluded, by the agreement of all the parties to the Contract, from applying to the Contract to the maximum extent permitted by law. No term of the Contract is enforceable by any person who is not a party to it, whether in accordance with such Act or otherwise. This clause shall prevail in the event of any conflict between it and anything else in the Contract.
15.7 Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent PHF from providing the Services for more than 4 weeks, either party shall have the right, without limiting its other rights or remedies, to terminate the Contract with immediate effect by giving written notice to the other.
15.8 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.9 The Contract 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 English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.