PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. ALL SUPPLIERS MUST AGREE TO BE BOUND BY THESE TERMS BEFORE USING THE PHBCHOICES MARKETPLACE.
PLEASE NOTE IN PARTICULAR THAT A TRANSACTION FEE OF 2% IS CHARGED AND PAYABLE BY YOU ON ALL SALES MADE THROUGH THE PHBCHOICES SITE.
IN ACCEPTING THESE TERMS ON BEHALF OF THE SUPPLIER, THE INDIVIDUAL DOING SO IS REPRESENTING THAT HE OR SHE HAS THE AUTHORITY TO BIND THE SUPPLIER TO THESE TERMS.
Your use of, and supply of your products or services through, www.phbchoices.co.uk (the “Site”), is subject to the following terms and conditions (“Terms”) (together with the documents referred to in them). By registering with and using the Site you agree to be bound by these Terms and you will continue to be bound by these Terms until such time as you cease to promote goods or services on the Site. Some terms will continue to apply after such time, as detailed below.
By accepting these Terms you are entering into a contractual agreement with us (the “Contract”), commencing on the date that you confirm acceptance of these Terms online, for the use of the Site which Contract shall be on the basis of these Terms, to the exclusion of any other terms and conditions that you may have communicated to us verbally, in correspondence or otherwise.
If you do not agree to these Terms, you must not register with, or use, the Site.
In these Terms, references to “you” or “your” are to the supplier organisation registering on the Site and accepting these Terms.
A reference to a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision and is also a reference to that statute or statutory provision as amended, extended or re-enacted from time to time.
Information about us
The Site is operated by NHS Shared Business Services Limited ("we"; “us”; “our”). We are registered in England and Wales under company number 5260446 and have our registered office at Three Cherry Trees Lane, Hemel Hempstead, Herts, HP2 7AH.
Purpose of Site and Access
The purpose of the Site is to enable suppliers of relevant goods and services to connect directly with potential purchasers of those goods and services (“Customers”). The Customers will either pay for the goods or services directly (“Self-Funded Customers”) or will utilise their Personal Health Budget (“PHB”), each Customer utilising their PHB being a “PHB Holder”.
We do not guarantee that the Site, or any content on it, will always be available, uninterrupted or fault-free, and although we will use reasonable endeavours to maintain the availability of the Site for authorised users, we will have no liability to you for any unavailability or downtime of the Site or any other problems that interfere with the usage of the Site by you or Customers. We may suspend, withdraw, discontinue or change all or any part of the Site without notice.
You are responsible for making all arrangements necessary for you and your relevant employees to have access to the Site, and for the costs of such arrangements, including the provision of local network and internet access, providing and updating inventory and other content for the Site and any costs involved in integrating the Site with your existing systems.
You are also responsible for ensuring that all persons who access the Site through your internet connection are aware of these Terms, and that they comply with them.
Our Site is directed to people residing in the United Kingdom. We do not represent that content available on or through our Site is appropriate or available in other locations. We may block the availability of our Site or any service or product described on our Site to any person or geographic area at any time. If you or your employees choose to access our Site from outside the United Kingdom, you do so at your own risk.
Our position as platform provider
You acknowledge that our role is limited to providing a web-based platform through which suppliers and Customers can enter into contracts for the supply to the Customers of goods and/or services, and that we shall not be a party to any contracts entered into by Customers on the Site. Such contracts shall be on terms and conditions agreed between you and the Customer. You agree that we shall have no involvement in, or liability for, the performance of such contracts and any issues arising under the contracts must be resolved between you and the Customer directly.
Where a Customer purchases goods or services using their PHB, the supplier will ordinarily be paid for the supplied goods or services directly by the Clinical Commissioning Group (“CCG”) responsible for funding that Customer’s PHB. However, the Customer is primarily liable to pay for all goods and services purchased via the Site, and we do not accept any liability in the event that the CCG declines to pay for any goods or services ordered by a Customer for any reason.
We shall have no liability to you in respect of any failure by a Customer to pay you for any goods or services that you supply to Customers as a result of orders placed on the Site, and any issues related to payment or non-payment should be raised directly with the relevant Customer.
You acknowledge that in respect of the personal data that you collect from Customers, you shall be a data controller for the purposes of the Data Protection Act 1998.
Your account and password
You will be provided with a user log-in and password as part of our security procedures, and you must treat such information as confidential, only disclose it to such of your employees who require it to upload content to the Site and ensure that such employees also maintain the confidentiality of the information. You must not disclose it to any third party. If we introduce two-factor authentication or other requirements in order to strengthen the security of the Site, you will be required to adopt such additional security in order to continue using the Site.
We have the right to disable any user log-in or password, or any other access credentials, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms or if we otherwise reasonably consider that there is a risk to the security of the Site.
If you know or suspect that anyone other than you knows your user log-in, password or any other access credentials for the Site, or if any of your registration details change, you must promptly notify us at [email protected]
Intellectual property rights
The Intellectual Property Rights in the design, pictures, logos, photographs and content of this Site, and in all source code and other components used to compile both client-side and server-side elements of the Site and whether included in the Site on the date of the Contract or subsequently added to or incorporated within the Site, are owned by or licensed to us. You may not copy, reproduce, modify, distribute, republish, display, adapt, reverse engineer, decompile, post or transmit any part of this Site. You may view or print individual pages only for your own internal use.
We hereby grant you a non-exclusive and revocable licence to use the Site and the content management system within the Site to which we grant you access to manage your inventory in object code form only, and any documentation that we provide to you, for the sole purpose of using the Site to supply goods and services to Customers.
For the purposes of these Terms, “Intellectual Property Rights” shall mean patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
No reliance on information
The content on the Site is provided for general information only. Although we make reasonable efforts to update the information on the Site, we make no representations, warranties or guarantees, whether express or implied, that the content on the Site is accurate, complete or up-to-date.
You represent and warrant that:
Fees and Payment
You agree to pay us a fee of 2% of the net sum that you charge for each transaction conducted on the Site (the “Fee”). For these purposes, “net sum” shall mean the total amount charged, or to be charged, by you for the goods or services to the PHB Holder or Self-Funded Customer in respect of each order placed on the Site, but excluding any VAT or other sales tax included in the amount charged.
At the end of each month, we will send a statement to you directly confirming the aggregate of the net sums in respect of all orders for goods and/or services placed with you on the Site during that month and the total Fees payable by you based on those orders. You must notify us in writing of any disputes regarding the accuracy of the statement within seven (7) days of the date of the statement, failing which you shall be deemed to have accepted the accuracy of the statement. In the event of a dispute regarding the calculation of the Fees, our records of the BACS payments made to you will prevail over your internal records of transactions made via the Site.
You shall pay Fees by Direct Debit to such bank account as we may nominate from time to time. Time for payment of the Fees shall be of the essence and no payment shall be deemed to have been made until we have received payment in cleared funds. The obligation to pay the Fees shall apply notwithstanding that you may not, by the due date for payment, have received payment of the sums due from the PHB Holder or the Self-Funded Customer in respect of the transaction or transactions to which the Fees relate save that if any elements of the statement remain disputed by you in good faith, the payment of the Fees in relation to the disputed elements may be withheld until the dispute is resolved.
For the avoidance of doubt, your obligation to pay the Fee in relation to a transaction on the Site shall continue to apply, and no refund of Fees paid shall be given, even if the transaction is subsequently cancelled by the Customer pursuant to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 or on any other basis, or if you subsequently refund some or all of the amount paid under an order to the Self-Funded Customer or to the PHB Holder.
If you fail to make a payment due to us by the due date then, without limiting our remedies including termination of the contract, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
Interest will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is 0% or below. In relation to payments disputed in good faith, interest is payable on the disputed payment only after the dispute is resolved and on sums found or agreed to be due, and from the due date until payment.
If VAT is payable on the Fees, it shall be added to our invoice and you shall pay the VAT no later than the due date for payment of the Fees.
Limitation of our liability
Nothing in these Terms excludes or limits either party’s liability for death or personal injury arising from that party’s negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot be excluded or limited by English law.
To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to the Site or your use of it, or which might otherwise arise under these Terms or the arrangement governed by these Terms, whether express or implied.
We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
We will not be liable to you for any loss or damage suffered or incurred by you as a result of any technical, factual, textual or typographical inaccuracies, errors or omissions on or relating to the Site or any information on the Site.
We will not be liable to you if for any reason our Site is unavailable or not operating correctly at any time for any period.
We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Site or to your downloading of any content on it, or on any website linked to it.
Without prejudice to the foregoing provisions, our total liability to you in respect of any claim arising under or in connection with this Contract, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise shall in all circumstances be limited to the amount paid by you in Fees in the six (6) months prior to the claim arising.
The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
You shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with:
At all times during the term of this Contract and for a period of six (6) years after its termination, you shall carry and keep in force a comprehensive general liability insurance policy, including product liability as well as blanket contractual liability and errors and omissions coverage. This insurance policy shall provide cover of an adequate amount reasonably satisfactory to cover your potential liabilities in relation to this Contract and your use of the Site and your supply of products and services through the Site. Upon request, you shall provide us with a certificate of insurance evidencing such coverage together with any document confirming payment of the current insurance premiums.
We do not guarantee that the Site will be secure or free from bugs or viruses.
You are responsible for configuring your information technology, computer programmes and platform in order to access the Site. You should use your own firewalls and virus protection software.
You must not, and must procure that your employees, agents and contractors do not, misuse the Site by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Site, the server on which the Site is stored or any server, computer or database connected to the Site. You must not attack the Site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Site will cease immediately.
Each party undertakes that it shall not at any time during this Contract, and for a period of five (5) years after its termination, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted below.
Each party may disclose the other party's confidential information:
Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
Third party links and resources on the Site
The Site may contain links to other websites not owned or operated by us. We make no representation or warranty as to the accuracy, completeness or authenticity of the information or opinions contained in these websites. Any link to another website shall in no way be construed as an endorsement of that website by us.
Linking to the Site
You may link to the home page (but no other page) of our Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
You must not frame or mirror any part of the Site without our express written consent.
We reserve the right to withdraw linking permission without notice.
You shall not, and shall procure that anyone accessing the Site under your authority does not, do anything in connection with the Site which:
You shall not attempt to obtain details of the Customers registered to use the Site or engage in direct marketing in respect of Customers, or instruct a third party to do so, without the express consent of such Customers having been obtained. You shall not pass the personal details of any Customers to any third party other than a contractor and only for the purpose of the contractor fulfilling an order placed by the Customer.
You shall not attempt to interfere with any user-generated content, including Customer reviews and ratings of your goods and/or services. If you reasonably consider that a Customer has uploaded content to the Site which is defamatory or otherwise unlawful, you should report this to us, and we will investigate and determine whether or not to take down the content in our sole discretion.
We may in our absolute discretion remove or require you to remove content from the Site and/or suspend you from activity on the Site with immediate effect and we shall have no liability to you in such circumstances. Without prejudice to the generality of the foregoing, we may take such actions where we reasonably consider content to be unacceptable or to be inconsistent with the aims of the Site.
You shall not include any provision in the Supplier Terms and Conditions that allows a Customer to pay for goods over a period of more than 12 months from the date of sale, or that commits the Customer to receiving services for a period of longer than 12 months.
We may require you to remove or amend terms in the Supplier Terms and Conditions where in our opinion they are unduly onerous or unfair to the Customer, or are in breach of Consumer Laws.
Once you have made contact with a Customer via the Site, unless the Customer otherwise requests, any transactions for goods or services between you and the Customer must be completed via the Site.
Submitting content to the Site
While we try to make sure that the Site is secure, we cannot guarantee the security of any information that you supply to us and therefore we cannot guarantee that it will be kept confidential.
Any content you upload to the Site will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, but you are required to grant us a limited licence to use, store and copy that content and to distribute and make it available to third parties.
We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to the Site constitutes a violation of their Intellectual Property Rights, or of their right to privacy.
We will not be responsible, or liable to any third party, for the content or accuracy of any content posted by you to the Site.
You are solely responsible for securing and backing up your content.
Termination and Suspension
Without prejudice to our right to suspend, withdraw, discontinue or change the Site, we shall have the right to terminate the Contract and your access to the Site with immediate effect on written notice to you if you are in material breach of these Terms and such breach, although remediable, has not been remedied by you within thirty (30) days of you having been notified of the breach.
In addition, we may suspend your access to the Site if we reasonably consider content to be unacceptable, or where you have failed to comply with a reasonable instruction from us, or where we have reason to believe that you will either fail to deliver goods or provide services to a Customer, or that you will fail to do so to a safe standard or at an acceptable level of quality.
Provided that you do not have any ongoing contracts with Customers, you may terminate the Contract by giving us 30 days’ written notice. In the event that you terminate the Contract, you will remain liable to pay any Fees on transactions entered into prior to the date of termination.
The provisions of these Terms relating to intellectual property, confidentiality, limitation of liability, indemnity, dispute resolution, and applicable law and jurisdiction shall survive termination of the Contract, as will your obligation to pay any Fees on transactions entered into up to the date of termination.
Changes to these Terms or the Site
We reserve the right to change this Site or these Terms at any time by amending the Site and/or these Terms. We will ensure that you are notified of any such changes via the e-mail address provided on registration, via a pop-up box on your next log-in to the Site after the change has come into effect or via an announcement on the Site. If you do not wish to accept the changes to these Terms, you should cease all use of the Site. You acknowledge that if you continue to use the Site after notification of such changes has been provided, you will be deemed to have indicated your agreement to the changes, and will be bound by the new terms.
This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
No partnership or agency
Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party.
Third Party Rights
Unless it expressly states otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 60 days, the party not affected may terminate this Contract by giving 30 days' written notice to the affected party. This clause shall not apply to your obligation to pay the Fees.
We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract, provided that we give prior written notice of such dealing to you.
You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of your rights and obligations under this Agreement.
If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (“Dispute”), then the parties shall follow the procedure set out in this term:
No party may commence any court proceedings in accordance with these Terms in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
Applicable law and jurisdiction
The Contract and your use of this Site are governed by and construed in accordance with the laws of England and Wales and, subject to the Dispute Resolution mechanism provided for by these Terms, any disputes shall be subject to the exclusive jurisdiction of the Courts of England and Wales.