These terms apply to your use of our second opinion Service. The Service is advisory in nature only and in no way constitutes a diagnosis or form of treatment. Your attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
1. About us
1.1 Our details. Alder Hey Children’s NHS Foundation Trust, of Eaton Road Liverpool, L12 2AP (we and us). We operate the website https://alderheyclone.frank-digital.co.uk.
1.2 Contacting us. To contact us, telephone 0151 228 4811 or email us at [email protected]. How to give us formal notice of any matter under the Contract is set out in clause 18.2.
1.3 Our regulator. We are authorised and regulated by the Care Quality Commission (“CQC”), which regulates the quality of healthcare provision in the United Kingdom. We are governed by the CQC fundamental standards of quality and safety, which can be accessed at https://www.cqc.org.uk/what-we-do/how-we-do-our-job/fundamental-standards.
1.4 Insurance. We confirm that we maintain appropriate insurance to cover our potential liabilities under our Contract with you.
2. About you
2.1 Your details. You are a clinician registered in any territory other than the United States of America or Canada, acting either as an independent practitioner or on behalf of a healthcare provider. If you are acting on behalf of a healthcare provider, you confirm that you are authorised to use this Service.
2.2 Information. You confirm that you will provide the information required by us as set out in these terms in order to use this Service.
3. Our contract with you
3.1 Our contract. These terms and conditions (Terms) apply to a request by you to use our Services and the supply of Services by us to you (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. If there is any inconsistency between the main body of these Terms, and the provisions of the Schedules, the provisions of the main body terms shall prevail.
3.2 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.
3.3 Language. These Terms and the Contract are made only in the English language.
3.4 Your copy. You should print off a copy of these Terms or save them to your computer for future reference.
4. Making a request for our Services and its acceptance
4.1 Submitting your request. Please follow the onscreen prompts to submit your request. You may only submit a request using the method set out on the site. Each request is an offer by you to buy the services specified in the order (Services) subject to these Terms. The full-service descriptions for each of the Services which are available to request are the descriptions quoted on our site at the time you submit your request.
4.2 Information required. The following information is required from you in order for us to enter into a Contract and provide the Services:
(a) details of patient to be referred;
(b) details of current diagnosis and treatment plan for patient;
(c) medical report and supporting diagnostic reports;
(d) key questions regarding the diagnosis;
(e) country of referral;
(f) confirmation of the need for an interpreter;
(g) your medical professional address and contact details including your email address; and
(h) your medical professional registration number (e.g., General Medical Council reference number) and relevant registration board details.
4.3 Correcting input errors. Our online request process allows you to check and amend any errors before submitting your request to us. Please check the request carefully before confirming it. You are responsible for ensuring that your request and any service description submitted by you is complete and accurate.
4.4 Acknowledging receipt of your request. After you submit your request, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your request has been accepted. Our acceptance of your request will take place as described in clause 4.5.
4.5 Accepting your order. Our acceptance of your request takes place when we send an email to you to accept it (Request 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 Request Confirmation.
4.6 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. If you have already paid for the Services, we will refund you the full amount.
5. Cancelling your request and obtaining a refund
5.1 You may cancel the Contract and receive:
(a) a full refund, if you notify us as set out in clause 5.3 before we have scheduled a consultation with you as part of our delivery of the Services; or
(b) a refund of 25% of the Charges if you notify us as set out in clause 5.3 after we have scheduled a consultation with you as part of our delivery of the Services .
5.2 You cannot cancel the Contract once we have completed the Services.
5.3 To cancel the Contract, you must email us at [email protected]. Please include details of your request to help us to identify it. If you send us your cancellation notice by email, then your cancellation is effective from the time you send us the email. For example, you will have given us notice in time as long as you email us before we have scheduled a consultation with you as part of our delivery of the Services. We will email you to confirm we have received your cancellation.
5.4 If you cancel the Contract, we will refund you as set out in clause 5.1, by the method you used for payment. Notwithstanding clause 5.1, we reserve the right to deduct from any refund an amount for the supply of the Services provided for the period up to the time when you gave notice of cancellation in accordance with clause 5.3, which will reflect the amount that has been supplied as a proportion of the entirety of the Contract.
6. Our services
6.1 Compliance with service description. Subject to our right to amend the service description (see clause 6.2) we will supply the Services to you in accordance with the description for the Services set out in Schedule 1 to these Terms in all material respects.
6.2 Changes to service description. We reserve the right to amend the description 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, and we will notify you in advance of any such amendment.
6.3 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.
6.4 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Request 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.
7. Your obligations
7.1 It is your responsibility to ensure that:
(a) the terms of your request are complete and accurate including in respect of the information you supply us with in accordance with clause 4.2;
(b) you cooperate with us in all matters relating to the Services; and
(c) you provide us with such information and materials we may reasonably require in request to supply the Services and ensure that such information is complete and accurate in all material respects.
7.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 7.1 (Your Default):
(a) we will be entitled to suspend performance 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 15 (Termination);
(b) 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
(c) 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.
8.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 8.
8.2 The Charges are the prices quoted on our site at the time you submit your request.
8.3 If you wish to change the scope of the Services after we accept your request, and we agree to such change, we will modify the Charges accordingly.
8.4 Our Charges may change from time to time, but changes will not affect any request you have already placed.
8.5 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
9. How to pay
9.1 Payment for the Services must be made in Sterling using only the payment methods set out on our site at the time you submit your request.
9.2 We will send you an electronic invoice in the month following payment.
9.3 We shall each 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).
If a problem arises or you are dissatisfied with the Services please follow our complaints procedure, which is set out here: https://alderheyclone.frank-digital.co.uk/parents-and-patients/feedback/complaints.
11. Intellectual property rights
11.1 Subject to the provisions of this clause 11 in relation to the Trademarks, all intellectual property rights in or arising out of or in connection with the Services, including in any deliverables specified in the service description, such as any report provided to you (the Deliverables) will be owned by you. You agree to grant us a fully paid-up, irrevocable, non-exclusive, royalty-free, non-transferable licence to copy and modify the Deliverables for clinical, research and teaching purposes.
11.2 You agree to grant to us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
11.3 In this clause 11 reference to Trademarks shall mean the trade mark registrations listed in Schedule 2 and any further trade marks that we may, by express notice in writing, permit, or procure permission for you to use in the territory specified in Schedule 2 in respect of the Deliverables.
11.4 The Deliverables shall contain the Alder Hey Children’s NHS Foundation Trust branding, including the Trademarks. You shall comply with all rules for the use of the Trademarks issued by us, and shall not, without the prior written consent of us:
(a) alter or make any addition to Deliverables displaying the Trademarks.
(b) make any addition or modifications to the Deliverables; or
(c) alter, deface, or remove any reference to the Trademarks, any reference to us or any other name attached or affixed to the Deliverables.
11.5 We make no representation or warranty as to the validity or enforceability of the Trademarks nor as to whether they infringe any intellectual property rights of third parties.
11.6 You shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Trademarks to any other party, except as otherwise expressly permitted under the Contract.
11.7 You shall not do, or omit to do, anything in your use of the Trademarks that could adversely affect their validity or reputation.
11.8 You shall immediately on request enter into any further agreements with us, in a form satisfactory to us, necessary for the recording, registration or safeguarding of the Trademark rights for the marketing of the Deliverables under the Trademarks.
11.9 Each party to this Contract shall promptly give notice in writing to the other if it becomes aware of:
(a) any infringement or suspected infringement of the Trademarks or any other intellectual property rights relating to the Deliverables; or
(b) any claim that any of the Deliverables, or the use of such, whether or not under the Trademarks, infringes the rights of any third party.
11.10 In respect of any matter that falls within Clause 11.9(a):
(a) we shall, in our absolute discretion, decide what action to take in respect of the matter (if any);
(b) we shall conduct and have sole control over any consequent action that we deem necessary; and
(c) the costs in relation to that action shall be shared equally between us and you, and we shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.
11.11 In respect of any matter that falls within Clause 11.9(b):
(a) the parties to this Contract shall agree:
(i) what steps to take to prevent or terminate the infringement; and
(ii) the proportions in which they shall share the cost of those steps and any damages and other sums that may be awarded to or against them;
(b) failing agreement between the parties to this Contract, either party may take any action as it considers necessary or appropriate, at its own expense, to defend the claim and shall be entitled to and responsible for all damages and other sums that may be recovered or awarded against it as a result of that action.
11.12 Each party to this Contract shall, at the request and expense of the other, provide any reasonable assistance to the other (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the other party under this Clause 11, provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.
11.13 We alone are responsible for the registration and maintenance of any marks or designs that relate to the Deliverables. You shall not obtain or try to obtain or register for yourself anywhere in the world any Trademarks or trade names the same as or similar to the Trademarks.
11.14 You shall not use the Trademarks as part of the name under which you conduct your business, or any connected business, or in any other way, except as expressly permitted under this Contract.
12. How we may use your personal information
12.1 We will use any personal information you provide to us to:
(a) provide the Services;
(b) process your payment for the Services; and
(c) inform you about similar services that we provide, but you may stop receiving these at any time by contacting us.
12.3 We acknowledge our legal obligations arising under applicable UK data protection law and under the common law duty of confidentiality.
12.4 You acknowledge that any information uploaded via our site or provided electronically for the Services is done so at your own risk. Notwithstanding this fact, we acknowledge that our obligation is to keep information on our server secure.
12.5 If you are resident outside the European Economic Area, you agree to the delivery of the report to you as part of our performance of the Services and acknowledge that we do not have control over the safeguards in place in your country or territory in matters relating to data protection and confidentiality.
13. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1 We have obtained insurance cover in respect of our own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover we have been able to arrange, and you are responsible for making your own arrangements for the insurance of any excess loss.
13.2 In order to access the Services, you must obtain professional liability insurance covering medical malpractice in respect of your own legal liability up to £5,000,000 (five million pounds sterling).
13.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.4 Subject to clause 13.3, 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:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data, or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
13.5 Subject to clause 13.3, 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 100% of the total Charges paid under the Contract.
13.6 We have given commitments as to compliance of the Services with the relevant service description in clause 6.1. 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.
13.7 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 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.8 This clause 13 will survive termination of the Contract.
14.1 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 14.2.
14.2 We each may disclose the other’s confidential information:
(a) 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 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.
15. Termination, consequences of termination and survival
15.1 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:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 30 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
(d) you suspend, threaten to suspend, cease, or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
15.2 Consequences of termination. Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
15.3 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.
16. Events outside our control
16.1 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).
16.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) 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.
16.3 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 by us 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.
18. Communications between us
18.1 When we refer to “in writing” in these Terms, this includes email.
18.2 Any notice or other communication given by one of us to the other 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.
18.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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
(c) if sent by email, at 9.00 am the next working day after transmission.
18.4 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.
18.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
19.1 Assignment and transfer
(a) 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.
(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
19.2 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).
19.3 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.
19.4 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.
19.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
19.6 Governing law and jurisdiction. The Contract is governed by English 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 English courts.
Schedule 1 Services Description
Part 1 Available Services
Through our consultants, we will deliver provision of the second opinion services on a physician-to-physician basis as set out in more detail below. Consultations under the second opinion Services shall only be advisory in nature and shall not constitute a diagnosis nor form a substitute for treatment.
Through our consultants, we will form an opinion based on the information supplied by you, including any diagnostic investigations result and/or radiology imaging. We will where necessary will speak with the patient or their family as part of a multi-disciplinary team approach.
Second Opinion Services
The second opinion services we offer are those set out on our site at the time you submit your request.
The Administrative Services we provide to you are as follows:
• point of contact for submitting Requests for online physician-to-physician second opinion consultations (“SOC”) using the method set out on our site;
• a cost estimate that you will pay in full in advance of the SOC for the SOC;
• named consultant most suitable to carry out SOC, prior to the SOC being scheduled;
• secure data transfer of medical reports and clinical imaging to ensure data protection and confidentiality;
• full written medical report completed by our consultant, after the completion of the SOC; and
• invoice pertaining to each SOC and any related interpreter services.
Part 2 Timelines
We will endeavour to provide a response to a Request for the Services within 48 hours on any day excluding Saturday, Sunday, and or any public holiday in the United Kingdom (“Working Day”). Once we have received payment for the Services, a SOC will be conducted within:
• 2 Working Day days for Urgent Cases, and
• 7 Working Days for Non-Urgent Cases, or
• in line with the timeline requested by you and agreed by us. For the avoidance of doubt, unless otherwise agreed between you and us, the allocation of a case as “Urgent” or “Non-Urgent” shall be at our sole discretion.
Where you have requested a particular consultant, if for any reason the consultant requested is unavailable and the consultation is an Urgent Case, we will with your agreement offer to provide a consultant of the same calibre to carry out the consultation.
Part 3 Deliverables
We will provide to you with a full written medical report completed by our consultant, after the completion of the SOC.
We will provide monthly service reports and a monthly invoice. The report will contain the following information:
• date of request for Services;
• date Services delivered;
• consultant who delivered the Services;
• date of agreed completion of Services;
• cost of each individual Service;
• invoice for total fees due in relation to the SOC (which will have been paid in advance) and any related interpreter services (which will be payable upon receipt of our invoice).
Schedule 2 Trademark Registrations
Registration number: UK00003401255
Mark: ALDER HEY
Registration date: 22 May 2019
Class: 5, 9, 10, 16, 25, 40, 41, 44, 45
Registration number: 1483873
Mark: ALDER HEY
Registration date: 22 May 2019 (notification date 22 August 2019)
Class: 5, 9, 10, 16, 25, 40, 41, 44, 45