VETSDIRECT – PetNurse – Terms and Conditions
Vetsdirect Limited (Company No. SC230445) of Registered Office: c/o Neill Clerk & Murray, 3 Ardgowan Square, Greenock, United Kingdom, PA16 8NW, (“Vetsdirect” or the “Supplier”) offer to veterinary industry participants veterinary triage services (“Services”), as defined in Schedule 1. These Terms and Conditions constitute a legally binding agreement (this “Agreement”) between Vetsdirect and the veterinary practice accepting this Agreement in the manner indicated below (“Customer”). This Agreement governs the Customer’s use of the Services.
By using the Services, the Customer accepts all the terms and conditions in this Agreement.
(A) The Customer intends to appoint the Supplier to provide the Services.
(B) The Supplier has expertise and experience in the provision of the Services and agrees to provide the Services on the terms of this Agreement.
- Definitions and Interpretation
As used herein, the following terms shall have the following meanings (unless the context otherwise requires):
Agreement: means the agreement between the Customer and the Supplier comprising this document including the clauses and the schedules.
Approved Sub-Contractors: means those sub-contractors to the Supplier which the Supplier has vetted and approved for suitability and who the Supplier may procure the Services from in accordance with this Agreement.
Authority: means any local, national, multinational, governmental or non-governmental authority, statutory undertaking or public or regulatory body or body corporate which has any jurisdiction, control or influence over the obligations of any Party or the performance thereof or any decision, consent or licence of which is required in order for any of the Parties to fulfil their obligations in accordance with and pursuant to this Agreement including but not limited to HM Revenue & Customs, the FCA, the Office of Information Commissioner and/or the Office of Fair Trading.
Clinical Protocol (s): means the design, development and any subsequent enhancement of the processes and procedures used by the Supplier in the provision of the Services set out in Schedule 1.
Commencement Date: means the date that the Services are first implemented.
Contract Charges: means all and any monies due to the Supplier and payable by the Customer for the provision of the Services under this Agreement.
Data Protection Legislation: means all data protection and/or privacy legislation, which includes the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, which applies where the Services are to be provided and/or to each of the parties’ obligations hereunder, including any sub-ordinate legislation, regulation or guidance issued by the relevant Authority responsible for data protection and/or privacy.
Default: means any breach by a Party of its obligations under this Agreement.
Force Majeure: means an occurrence beyond the control and without the fault or negligence of the Party affected and which the said Party is unable to prevent or provide against by the exercise of reasonable diligence including, but not limited to: acts of God, expropriation or confiscation of facilities, any form of Government intervention, war, hostilities, rebellion, terrorist activity, local or national emergency (including an emergency service to a hospital), sabotage or riots, and floods, fires, explosions or other catastrophes. Force Majeure does not include:
(a) failure by the Supplier adequately to test any equipment supplied by a Third Party or other service component prior to installation, or any consequence of any such failure; or
(b) strikes or other industrial action; or
(c) failure to secure materials or resources; or
(d) Any events which could be foreseen by a diligent Supplier having regard to the Supplier’s obligations under this Agreement.
Good Industry Practice: means the exercise of that degree of skill, care and diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced provider of services seeking in good faith to comply with its contractual obligations.
Customer Company Policies: means the standard company policies, procedures and compliance requirements of the Customer issued by the Customer and notified to the Supplier from to time to time.
Intellectual Property Rights: means any and all intellectual or industrial property rights of whatever description in any country (whether registered or registrable or not) including without limitation copyright (including but not limited to all rights in and to databases and data), moral rights design rights and registered designs, patents, patent applications and any rights to inventions, know-how, trade and business names, trade secrets, logos and devices, trade and service marks, Clinical Protocols and any applications therefore and all rights in confidential information, and any similar rights available throughout the world.
Regulations: means any law, legislation, instrument, rule, order, regulation, directive, bye-law or decision which applies to, concerns or otherwise affects any Party’s obligations under this Agreement as the same may be amended or varied from time to time including the rules, guidelines to include the regulations of any Authority and/or any Data Protection Legislation.
Services: means the services which are to be performed by the Supplier as described in Schedule 1 and any other services which may be agreed between the Parties pursuant to this Agreement and all other obligations of the Supplier under this Agreement.
Staff: means the staff (including directors, officers, employees as well as the agents and/or sub-contractors of any Party (together with the agents and sub-contractors of such Party’s agents and/or sub-contractors and further down any contractual chain)) engaged by any Party in connection with this Agreement and which, in the case of the Supplier only, shall include the Supplier Personnel.
Supplier Personnel: means those Staff employed by the Supplier including but not limited to Veterinary Nurses and Vets and any Approved Sub-Contractors engaged by the Supplier in connection with the provision of the Services.
Term: means the period defined at clause 2.1
Third Party: means any party other than the Customer or the Supplier.
User: means a pet owner that accesses the Services through the Customer
Veterinary Nurse(s): means a person who is currently entered on the Royal College of Veterinary Surgeons (RCVS) list of Veterinary Nurses, and is qualified to VN or equivalent.
- a) program code, programming instruction or set of instructions intentionally constructed with the ability to damage, disable, interfere with or otherwise adversely affect computer programs, data files or operations; or
- b) Other program code typically designated to be a virus.
Working Day: means between the hours of 08:00 and 18:00 any day of the week except Saturday or Sunday and Public Holidays
1.1 As used herein (unless the context otherwise requires):
1.1.1 the singular includes the plural and vice versa;
1.1.2 the masculine includes the feminine and the neuter includes the masculine and the feminine.
1.2 References herein to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof.
1.3 References herein to a “person” include a partnership, corporation or association (whether incorporated or unincorporated), as well as a natural person.
1.4 The headings in this Agreement are for the convenience of the Parties only, and are in no way intended to affect, describe, interpret, define, or limit the scope, extent, intent or interpretation of this Agreement or any provision thereof.
1.5 References herein to clauses, schedules and appendices are to the clauses of schedules and appendices to this Agreement. In the event of any conflict or inconsistency between any provisions of the clauses and any provision of the schedules and the appendices, the clauses shall prevail, but only to the extent of the conflict or inconsistency.
1.6 The schedules and appendices form part of this Agreement and, subject to clause 1.5, they shall have the same force and effect as if expressly set out in the main body of this Agreement.
1.7 The words and phrases “other”, “including” and “in particular” do not limit the generality of any preceding words and words which follow them will not be construed as being limited in scope to these same class as the preceding words where a wider construction is possible.
1.8 In relation to all Services which are provided in the United Kingdom, the terms “data subject”, “data controller”, “data processor”, “personal data” and “sensitive personal data” have the meanings given under the Data Protection Act 1998 and any related Data Protection Legislation.
1.9 Insofar as this Agreement obliges any Party to negotiate, take action or to do something that Party shall conduct such negotiations, take such action or do such thing in good faith and using reasonable endeavours to achieve the result contemplated in this Agreement. There shall be a general obligation on the Parties to act in good faith in relation to the matters contemplated in this Agreement.
2.1 This Agreement shall commence on the Commencement Date and shall continue in force (subject to earlier termination as herein provided) for a period of 6 months. The Agreement will continue on a rolling basis thereafter unless and until terminated by either Party in accordance with Clause 10 (Termination).
- The Services
3.1 The Supplier shall perform the Services as noted in Schedule 1.
4.1 Each Party warrants and represents that:
4.1.1 it has taken all requisite corporate and other action to approve the execution, delivery and performance of this Agreement;
4.1.2 it has full capacity and authority to enter into this Agreement.
4.2 The Supplier warrants, represents and undertakes, throughout the Term of this Agreement:
4.2.1 the Services shall be performed in compliance with all applicable Regulations in force and binding upon the Customer and/or the Supplier;
4.2.2 the Services shall be of satisfactory quality and fit for any purpose held out by the Supplier or made known by the Customer to the Supplier in writing;
4.2.3 it shall obtain and maintain during the Term all licences, consents and permits required to perform the Services in compliance with all applicable Regulations,
4.2.4 it has not failed to disclose to the Customer any information known to the Supplier at or prior to the Commencement Date where the knowledge of such information by the Customer might reasonably be expected to affect the Customer’s decision to appoint the Supplier or the terms under which the Customer would have been prepared to make such appointment; and
4.2.5 it at all times be mindful of and take all reasonable steps not to act in a manner that, in the reasonable opinion of the Customer and the Supplier, does, or is likely to, significantly damage the reputation of the Customer.
- Contract Charges
5.1 The Contract Charges shall be as specified in Schedule 3.
5.2 Any overpayments by the Customer to the Supplier shall be recoverable from the Supplier and shall be repaid to the Customer forthwith upon the Supplier being informed with relevant details of the overpayment. Similarly, underpayments by the Customer to the Supplier shall be recoverable from the Customer and shall be paid to the Supplier forthwith upon the Customer being informed with relevant details of the underpayment.
6.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE CUSTOMER OR ANY OF THE COVERED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, AND COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, HOWSOEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM: (A) THE USE OF, OR THE INABILITY TO USE, THE SERVICES OR ANY INFORMATION CONTAINED THEREON, (B) THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, (C) RELIANCE ON THE SERVICES, OR (D) ANY OTHER MATTER RELATING TO THE SERVICES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT THE SUPPLIER HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 IN NO EVENT SHALL THE SUPPLIER’S LIABILITY OR THE LIABILITY OF ANY OTHER COVERED PARTY TO THE CUSTOMER EXCEED, IN THE AGGREGATE, THE AGGREGATE FEES RECEIVED BY THE SUPPLIER FROM THE CUSTOMER IN THE LAST 6 MONTHS FOR THE SERVICES IN CONNECTION WITH WHICH THE LIABILITY AROSE, LESS ANY REFUNDS OR CREDITS GIVEN BY THE SUPPLIER TO THE CUSTOMER IN CONNECTION WITH SUCH SERVICES.
7 Intellectual Property
7.1 Nothing in this Agreement shall have the effect of assigning to the Supplier any of the Customer’s Intellectual Property Rights nor is it intended to affect the Supplier’s ownership of (i) materials used or developed by the Supplier independently of the Services and (ii) the Supplier’s generic methodologies, tools, technology or processes which may be used by it (but, for the avoidance of doubt, not developed by it) in its performance of the Services (together “Pre-Existing Materials“).
7.2 Any Intellectual Property Rights arising or developed before or after the Commencement Date in relation to any improvements or enhancements to the delivery of the Services to include but not limited to Clinical Protocols shall be owned the Supplier.
7.3 Each Party warrants and represents that it has the right and power to license all Intellectual Property Rights granted pursuant to this Agreement and that the grant and terms of its respective licence so contemplated shall not infringe the Intellectual Property Rights of any Third Party.
8 Data Protection
8.1 In this Agreement, the Supplier is a data processor and the Customer is the data controller.
8.2 The Supplier shall, and shall procure that its Approved Sub-Contractors shall, assist the Customer to comply with any legislative or regulatory responsibilities or liabilities under the Data Protection Legislation that cannot be delegated by the Customer to the Supplier for discharge or fulfilment by the Supplier in the proper performance of its obligations under the Agreement.
8.3 In performing its obligations under this Agreement the Customer authorises the Supplier to access, use and process personal data belonging to the Customer’s Users. Data recorded may include, but is not limited to: User Name, User Telephone Number, User Email address, User Location, Pet Name, Pet Species, Pet Age and Reason for Contact. Data will be provided by the Users over the phone, through accessing the Customer’s systems or through the Customer providing it to the Supplier. The data will only be processed in connection with the Services. The data will be recorded in the Supplier’s database indefinitely and as a call recording which will be automatically deleted after 6 months.
8.4 In order to ensure compliance by the Customer with its obligations under the Data Protection Legislation, the Supplier undertakes:
8.4.1 to access, use and process all personal data only in accordance with Clause 8.3 and with the instructions given by the Customer from time to time;
8.4.2 to take reasonable steps to ensure the reliability of any of its employees, agents and Approved Sub-Contractors who have access to personal data;
8.4.3 not to disclose the personal data to any Third Party in any circumstances other than at the Customer’s specific written request or in compliance with a legal obligation.
8.5 The Supplier warrants that it has and shall use appropriate technical, security and organisational measures to prevent unauthorised or unlawful processing of personal data and against accidental loss, destruction, damage, theft, use or disclosure of the personal data. The level of technical, security and organisational measures shall reflect:
8.5.1 the level of damage that might be suffered by a data subject to whom the personal data relates as a result of unauthorised access and disclosure; and
8.5.2 as required by law, such security programmes and procedures which specifically address the nature of any sensitive personal data.
8.6 The Supplier shall promptly deliver and shall procure the prompt delivery of all personal data whether provided by the Customer or which are derived from personal data provided by the Customer together with all copies in any form and in any media in the Supplier’s power, possession or control to the Customer promptly upon request by the Customer.
9 Confidentiality and Publicity
9.1 Each Party undertakes to treat as confidential all information obtained by it during the course of tendering for, or performance of, this Agreement or which may come into its possession or the possession of its Staff or Approved Sub-Contractors as a result of or in connection with tendering for, or performance of, this Agreement including (without limitation) any information relating to the finances, Customers, suppliers, business plans or strategy of the Customer or any Associate of the Customer, whether or not such information is reduced to a tangible form or marked in writing as “confidential” (the “Confidential Information“).
9.2 Each Party undertakes to inform and procure that its Staff and Approved Sub-Contractors who have access to the Confidential Information of the confidential nature of such information and that failure to comply with the obligations of confidentiality imposed upon them hereunder may result in disciplinary and/or legal proceedings (as appropriate).
9.3 Except with the prior written consent of the other Party, neither Party shall disclose the Confidential Information of the other Party or any part thereof to nor permit the use of such information or any part thereof by any Third Party other than to an Approved Sub-Contractor of the Supplier and then only to the extent that such disclosure or use is necessary for the performance of the respective obligations under this Agreement.
9.4 The provisions of clause 9.1 shall not apply to any information which either Party can show by documentary evidence:
9.4.1 is in or enters into the public domain other than by breach of this Agreement or any obligation of confidence owed to the Customer; or
9.4.2 is in the possession of the Supplier without any obligations of confidence in relation to use or disclosure before the date of receipt pursuant to this Agreement; or
9.4.3 is authorised for release by the written consent of the Customer; or
9.4.4 is required to be disclosed by law.
9.5 Upon termination of this Agreement each Party shall, at the other Party’s sole discretion:
9.5.1 deliver to the other Party (in the manner specified by that other Party); or
9.5.2 permanently and securely destroy (except as part of company policy or for the purposes of archiving), and certify in writing to the other Party that destruction has been carried out,
all Confidential Information of the other Party in the possession, custody or control of that Party including, but not limited to, documents, papers, books, records, copies of any electronically stored Confidential Information, data or any materials from which any Confidential Information could be deduced or ascertained.
10.1 After the initial term as defined in Clause 2.1, this Agreement may be terminated by either party by giving 30 days written notice.
10.2 This Agreement may be terminated forthwith upon written notice for breach of this agreement by the Non-Defaulting Party in the event that the other Party fails to pay its debts as and when they fall due, offers to make any arrangement with or for the benefit of its creditors or commits any act of bankruptcy or insolvency or being a limited company shall have an administrator or receiver or administrative receiver appointed or an analogous appointment is made of or relation to the whole or any part of its undertaking or assets or any order is made or a resolution is passed or analogous proceedings are taken for the winding up of the other Party or such analogous events occur in the jurisdiction in which the Services are being provided unless such order or resolution is part of a scheme or reorganisation or amalgamation previously approved of in writing by the Supplier or the Customer (as the case may be);
10.3 The provisions of clauses 7 (Intellectual Property), 8 (Data Protection) and 19 (Law and Jurisdiction) shall survive termination of this Agreement.
11 Force Majeure
11.1 Neither Party will be liable for any default or delay in performance of its obligations under this Agreement if and to the extent the default or delay is caused, directly or indirectly, by a Force Majeure event.
11.2 When a Force Majeure event has occurred, the non performing Party will be excused from further performance of the obligations affected for as long as the circumstances prevail and the non performing Party continues to use all reasonable efforts to recommence performance whenever and to whatever extent reasonably possible without delay.
11.3 Any Party so delayed in its performance will immediately notify the Party to whom performance is due and describe at a reasonable level of detail the circumstances causing such delay.
11.4 The Customer shall not be obliged to pay any Contract Charges in respect of Services, in so far as the Supplier has been prevented from performing such Services as a result of a Force Majeure event affecting the Supplier or its Approved Sub Contractors and the same shall apply for as long as the relevant Force Majeure event subsists.
11.5 The failure of any of the Supplier’s Approved Sub-Contractors to perform any obligation owed to the Supplier will only constitute a Force Majeure event with respect to the Supplier’s performance of the Services if and to the extent that the failure by the Supplier’s Approved Sub-Contractor is itself caused by a Force Majeure event. In such circumstances, the Supplier shall be obliged to use an alternative Approved Sub-Contractor or Third Party if to do so would render the Services capable of being performed.
12 Severance and Costs
12.1 The Parties intend each provision of this Agreement to be severable and distinct from the others. If a provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, the Parties intend that the legality, validity and enforceability of the remainder of this Agreement will not be affected. In the event of such circumstances, the Parties shall meet to agree such alternative provisions to be substituted in place of the offending sections in accordance with clause 14 (Amendments).
12.2 The Parties agree to bear their own legal and other costs and expenses of, and incidental to, the preparation, negotiation and execution of this Agreement and of any related documentation.
13.1 The failure of either Party to seek redress for violations, or to insist upon strict performance of any term, condition or provision of this Agreement or the failure of either Party to exercise any right or remedy to which it is entitled hereunder, shall not constitute a waiver thereof and shall not cause a diminution of the obligations established by this Agreement. A waiver of any default shall not constitute a waiver of any subsequent default. No waiver of any of the terms, conditions or provisions of the Agreement shall be effective unless it is agreed in writing and communicated to the other Party in accordance with clause 20 (Notices) of this Agreement and refers to this clause 13.
14.1 Save as expressly provided in this Agreement no amendment or variation to the terms of this Agreement shall be valid unless made in writing and signed by a duly authorised representative of each of the Parties hereto.
15 No Partnership or Agency
15.1 Nothing in this Agreement:
15.1.1 shall be construed as establishing or implying any partnership between the Parties;
15.2.2 shall be deemed to constitute either of the Parties as agent of the other;
15.2.3 shall authorise either Party without in each case obtaining the prior written consent of the other to incur any expenses on behalf of the other or to commit the other in any way whatsoever including (without limitation) pledging or purporting to pledge its credit or otherwise bind it for any purpose whatsoever.
16 Assignment and Subcontracting
16.1 This Agreement is personal to the Supplier. The Supplier shall not sell, assign, novate, sub-license or otherwise dispose of this Agreement or any of its rights or obligations under this Agreement (in whole or in part) without the prior written consent of the Customer.
16.2 For the avoidance of doubt the Customer shall not be liable for any debts or liability owed by the Supplier to any of the Approved Sub-Contractors or its Staff.
17 Entire Agreement
17.1 This Agreement constitutes the entire agreement and understanding between the Parties in respect of the Services with within it and supersedes any previous agreement between the Parties relating to such Services.
17.2 Subject to clause 17.3, in entering into this Agreement, and the documents referred to in it, each Party agrees that it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person other than as expressly set out in this Agreement.
17.3 This clause 17.3 shall not exclude liability which any Party would have to the other Party in respect of any statements made fraudulently by the other Party prior to the execution of this Agreement or any rights which either of them may have in respect of fraudulent concealment by the other.
18 Law and Jurisdiction
18.1 This Agreement, including all Schedules, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario of or any other jurisdiction).
19.1 This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts, each of which when so executed and delivered shall be an original and which together shall constitute one instrument.
20.1 Any notice required to be given under this Agreement shall be in writing and shall be sufficiently served if sent to the other at the address specified below:
20.1.1 by hand;
20.1.2 or by registered first class post or recorded delivery to the other at the address specified below; or
20.1.3 as a pdf attachment to an e-mail to the Customer.
Notices sent by hand shall be deemed to be served on the day when they are actually received. Notices sent by registered first class post or recorded delivery shall be deemed to be served seven (7) Working Days following the day of posting.
Vetsdirect will provide a triage, support and advice Out of Hours helpline for the Customer
Out of Hours is defined as any time that the Customer’s business premises is closed.
All calls will be handled by RCVS registered Veterinary Nurses.
When a User contacts Vetsdirect out of hours, with a pet health issue, the Veterinary Nurse will use Vetsdirect’s Clinical Protocols to triage the issue and provide clear advice to the User on what to do next.
Possible outcomes of the consultations are as follows:
- Advice Only
- Contact Vet Urgently – in which case Vetsdirect will direct the User to the Customer’s preferred emergency hospital
- Contact Vet in the Normal Working Hours – tell the customer to expect a call from the practice the following morning to book an appointment
Where we are asked about non pet health issues, the Supplier will use an FAQ document supplied by the Customer to provide answers
- Provide a phone number for the Customer to direct their telephone lines to out of hours
- All calls to be handled by RCVS registered veterinary nurses;
- Make nurses available in sufficient numbers to answer calls from Users;
- To build a call guide to provide the services as described in Schedule 1; and
- To provide management information monthly, where required
- Send details of the callers to the practice automatically by email
The Customer’s responsibilities:
- Help Vetsdirect refine the call guide by providing the relevant information (e.g.: name of service, opening times and frequently asked questions and answers);
- Ensure your telephony provider switches your phone lines to Vetsdirect when the practice is closed