TERMS OF SERVICE
1.1 These terms of service (Terms of Service) shall govern our appointment by the Customer. These Terms of Service apply to all services that we provide to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.2 In these Terms of Service “the Company”, “Accuro”, “we” or “our” refers to Accuro Transcription Solutions Limited, a limited liability company incorporated in England and Wales (with registered company number 7384107) with registered office address at Caledonian House, Tatton Street, Knutsford, Cheshire, WA16 6AG, and “Customer” refers to the person, firm or entity who or on whose behalf we provide services to.
1.3 We are registered with the Information Commissioner’s Office registered number Z2441285. Our VAT number is 100 4123 95.
2.1 Definitions. In these Terms of Service, the following definitions apply:
2.1.1 Business Day – a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business;
2.1.2 Charges – means the charges set out in the Quotation relating to the Services to be provided to the Customer by the Company or in the event that a Quotation has not been given, the Charges shall be those set out in the Company’s current price list from time to time;
2.1.3 Confidential Information – information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 6.1;
2.1.4 Contract – any contract between the Company and the Customer in respect of the provision of Services by the Company;
2.1.5 Customer – means person, firm or entity who purchases Services from Accuro;
2.1.6 Customer Output File – means the document produced from the Input Material which has undergone typing, transcription, translation or other similar services as specifically set out in the Quotation;
2.1.7 Input Material – means any and all information supplied by the Customer to the Company to enable the Company to supply the Services;
2.1.8 Intellectual Property Rights – all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
2.1.9 Quotation – means the estimate of Charges and timescales involved in providing the Services to the Customer based on the instructions received from the Customer and the Input Material provided, such Quotation being subject to amendment by the Company in the event that the scope of the Services required by the Customer changes;
2.1.10 Services – means the provision of typing, transcription, translation and other similar services as specifically set out in the Quotation.
2.2 Construction. In these Terms of Service, the following rules apply:
2.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
2.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
2.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
2.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
2.2.5 a reference to writing or written includes faxes and e-mails.
3. SUPPLY OF SERVICES
3.1 The Company shall supply the Services to the Customer subject to these conditions. Any changes or additions to the Services must be agreed in writing by the Company.
3.2 The Company shall supply the Services using all reasonable skill and care subject to the payment by the Customer of all Charges payable hereunder on the correct payment dates.
3.3 The Customer shall (at its own expense) supply to the Company all necessary Input Materials and any other information required by the Company for the provision of the Services in a timely manner in order to permit the Company to supply the Services as agreed. It is the sole responsibility of the Customer to ensure the accuracy of all Input Material and the Company accepts no liability whatsoever in respect of incorrect Input Material resulting in incorrect Services being supplied by the Company.
3.4 The Company shall use its reasonable endeavours to supply the Services in a timely manner but cannot guarantee to do so and the Company accepts no liability whatsoever for failing to meet any such date and as a result, time shall not be of the essence as regards the provision of the Services.
3.5 The Company may at its sole discretion and without notifying the Customer make any changes to the Services which are necessary to comply with any applicable statutory requirements, or which do not materially affect the quality or nature of the Services to be provided to the Customer.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer is solely responsible for:
4.1.1 undertaking the final proof-reading, checking, editing or formatting of a Customer Output File; and
4.1.2 checking a Customer Output File has been placed in the Customer’s case management system where applicable.
4.2 The Customer undertakes:
4.2.1 to 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;
4.2.2 to ensure that its computer system contains proper security and safety measures, including comprehensive virus and firewall protection in accordance with good computing practice;
4.2.3 to ensure that it, or its licensors, are the owner or licensee of any Intellectual Property Rights in the Input Material and that Accuro’s use of the Input Material for the purposes of the Services shall not infringe any third party Intellectual Property Rights;
4.2.4 to retain a copy of and appropriately safeguard all Input Material sent to Accuro for the purposes of the Services;
4.3 The Customer undertakes to Accuro not to:
4.3.1 transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any of Accuro’s computer software or hardware;
4.3.2 use the Services for unlawful purposes and in particular not to upload Input Material containing content which:
(a) contains any material which is obscene, offensive, hateful or inflammatory.
(b) promotes violence or sexually explicit material.
(c) promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
(d) infringes any copyright, database right or trademark of any other person.
(e) is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
(f) promotes any illegal activity.
(g) advocates, promotes or assists any unlawful act such as (by way of example only) copyright infringement or computer misuse.
4.4 The Customer shall indemnify and hold Accuro harmless from and against all and any losses, liabilities, demands, claims, costs and expenses (including legal costs and disbursements on an indemnity basis) and damages incurred or suffered by Accuro, and any damages awarded against Accuro, arising directly or indirectly as a result of or in connection with any claim that the Input Material infringe any Intellectual Property Rights of any third party or are libellous, defamatory or obscene.
5. CHARGES AND PAYMENT
5.1 The Customer shall pay the Charges as set out in the Quotation plus any additional sums for the provision of the Services which, at the Company’s sole discretion, are required to be paid by the Customer as a result of a lack of instructions or failure to clarify instructions, the inaccuracy of any Input Material or any other cause attributable to the Customer. The Company reserves the right to increase the Quotation and the amount of the Charges if, among other things, the Customer makes material amendments to their requirements or the provision of the Services during the continuance of the Contract.
5.2 The Company reserves the right to alter its Charges from time to time at is sole discretion by giving not less than 30 days’ notice to the Customer.
5.3 All Charges are exclusive of VAT and any other applicable taxes and duties. Any failure by the Customer to pay the Charges on the date specified shall be deemed to be a material breach of these conditions. Time for payment shall be of the essence.
5.4 All Charges shall be paid by the Customer within 14 days of the date of the Company’s invoice. The Company reserves the right to suspend the provision of the Services to the Customer in the event of a non-payment of any invoice.
5.5 No payment shall be deemed to have been received until the Company has received cleared funds.
5.6 If any payment of Charges is not made by the Customer on the due date, the Company shall be entitled, without limiting any other rights it may have:
5.6.1 to charge interest on the outstanding amount (both before and after any judgement) at a rate of 4% above the base rate from time to time of National Westminster plc from the due date until the outstanding amount is paid in full and the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or
5.6.2 to terminate, discontinue or suspend the provision of all of the Services to the Customer until payment of the Charges is received in full.
5.7 All Charges payable to the Company by the Customer shall become due immediately upon termination of the Contract despite any other provision.
5.8 The Customer shall make all payments of Charges without deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms of Service. A party’s Confidential Information shall not be deemed to include information that:
6.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
6.1.2 was in the other party’s lawful possession before the disclosure;
6.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
6.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
6.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
6.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than as provided by these Terms of Service.
6.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in breach of these Terms of Service.
6.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
6.5 This clause 6 shall survive termination of the agreement between the Customer and Accuro as created by these Terms of Service, however arising.
7. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 This clause 7 sets out the entire financial liability of Accuro (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
7.1.1 arising under or in connection with these Terms of Service;
7.1.2 in respect of any use made by the Customer of the Services, and
7.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Services.
7.2 Except as expressly and specifically provided in these Terms of Service:
7.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer. Accuro shall have no liability for:
(a) any damage caused by errors or omissions in any information, instructions or scripts provided to Accuro by the Customer in connection with the Services, or any actions taken by Accuro at the Customer’s direction;
(b) any inaccuracies in any Customer Output File as a result of any word, sentence or other request dictated or written (where applicable) by the Customer being unclear or illegible;
(c) a Customer Output File being replaced in the wrong place in the Customer’s case management system (where applicable); and
(d) an instruction sent by the Customer for the provision of the Services not being received by Accuro.
7.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from Accuro’s provision of the Services; and
7.2.3 the Services are provided to the Customer on an “as is” basis.
7.3 Nothing in these Terms of Service excludes the liability of Accuro:
7.3.1 for death or personal injury caused by the Accuro’s negligence; or
7.3.2 for fraud or fraudulent misrepresentation.
7.4 Subject to clause 7.2 and clause 7.3:
7.4.1 Accuro shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms of Service; and
7.4.2 Accuro’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services shall be limited to the lower of £2000 or the amount equal to the aggregate value of all Services provided to the Customer during the 12 months immediately preceding the date on which a claim arises.
7.5 This clause 7 shall survive termination of the agreement between the Customer and Accuro as created by these Terms of Service, however arising.
8.1. Without limitation to its rights or remedies each party may terminate these Terms of Service with immediate effect by giving written notice to the other party if:
8.1.1 the other party commits a material breach of its obligations under these Terms of Service and (if such breach is remediable) fails to remedy that breach within 10 Days after receipt of notice in writing of the breach;
8.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
8.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
8.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
8.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
8.1.8 a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
8.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
8.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 1.2 to clause 8.1.9 (inclusive);
8.1.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
8.1.12 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
8.2 Without limiting its other rights or remedies, Accuro may terminate the agreement between the Customer and Accuro as created by these Terms of Service:
8.2.1 by giving the Customer 1 month’s written notice;
8.2.2 with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under to Accuro on the due date for payment.
8.3 Without limiting Accuro’s other rights or remedies, Accuro shall have the right to suspend the supply of Services if:
8.3.1 the Customer fails to pay any amount due to Accuro on the due date for payment in accordance with the Quotation; or
8.3.2 the Customer becomes subject to any of the events listed in clause 1.2 to clause 8.1.12, or Accuro reasonably believe that the Customer is about to become subject to any of them.
9. CONSEQUENCES OF TERMINATION
9.1 On termination of these Terms of Service the Customer and Accuro as created by these Terms of Service for any reason:
9.1.1 All licences granted under these Terms of Service shall immediately terminate;
9.1.2 The Customer shall immediately pay to Accuro all of Accuro’s outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has yet been submitted, Accuro shall submit an invoice, which shall be payable by the Customer immediately on receipt;
9.1.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement between the Customer and Accuro as created by these Terms of Service which existed at or before the date of termination or expiry; and
9.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10.1 Force majeure:
10.1.1 For the purposes of these Terms of Service, Force Majeure Event means an event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
10.1.2 Accuro shall not be liable to the Customer as a result of any delay or failure to perform its obligations as a result of a Force Majeure Event.
10.2 Assignment and subcontracting:
10.2.1 Accuro may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under these Terms of Service and may subcontract or delegate in any manner any or all of its obligations under these Terms of Service to any third party.
10.2.2 The Customer shall not, without Accuro’s prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms of Service.
10.3.1 Any notice or other communication required to be given to a party under or in connection with these Terms of Service shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the other party’s email address set out on the Quotation.
10.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email before 15.00 on the same Business Day as sending or if sent by email after 15.00, then on the next Business Day after sending.
10.3.3 This clause 3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, notice given under these Terms of Service shall not be validly served if sent by e-mail.
10.4 Waiver and cumulative remedies:
10.4.1 A waiver of any right under these Terms of Service is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under any these Terms of Service or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.4.2 Unless specifically provided otherwise, rights arising under these Terms of Service are cumulative and to not exclude rights provided by law.
10.5.1 If a court or any other competent authority finds that any provision of these Terms of Service (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of these Terms of Service shall not be affected.
10.5.2 If any invalid, unenforceable or illegal provision of these Terms of Service would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.6 No partnership: Nothing in these Terms of Service 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.
10.7 Third parties: A person who is not a party to these Terms of Service shall not have any rights under or in connection with it.
10.8 Variation: Except as set out in these Terms of Service, any variation, including the introduction of any additional terms and conditions, to these Terms of Service shall only be binding when agreed in writing and signed by Accuro.
10.9 Governing law and jurisdiction: These Terms of Service, and any dispute or claim arising out of or in connection with either of them or their 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 and Wales.