DialysisAway Terms of Service

Version 1, Effective from 9 November 2021

NOTE:  If you are a patient or individual who is employed or engaged by a dialysis centre operator that has registered to use our Platform, please see our Terms of Use instead.

1.

About us: DialysisAway is operated by Medicalisys Ltd, a limited company registered in England and Wales under company number 12186141 (we/us/our). Our registered office is located at 71-75 Shelton Street, Covent Garden, London WC2H 9JQ, United Kingdom

2.

Our contract with you: These terms, together with any other terms presented to you during the registration process, represent the agreement between us and the dialysis centre operator (you/your) that has subscribed to access and use the hosted renal care management platform provided by us (Platform). These terms apply to the exclusion of any other terms which are implied by law, or which could be implied based on our way of working together. You acknowledge that you have not relied on any statement or promise that is not set out in the agreement between us. By accepting these terms, you confirm that you have the necessary capacity and authority to do so on behalf of the organisation that employs or engages you. Reference in these terms to this agreement means the agreement between us as set out in these terms.

3.

Accounts and Centres: As a provider of renal care services, you may register a single administrative account (Account) to which you may add one or more dialysis clinics (Centres). Only those persons with administrative access to the Account (Account Administrators) may add, edit or delete Centres and add or remove other levels of users within the Platform. Where multiple Centres have been added to your Account, you will be responsible for the acts and omissions of any users that have been granted access to the Platform by you or by those persons with administrative access to a Centre (Centre Lead Coordinators). A Centre may request its own Account subject to completion of our registration process, in which case such Centre will be deemed to be our customer and will be solely responsible for its own acts and omissions under this agreement.

4.

Your contract with patients: You acknowledge that where a patient is booking treatments at one of your Centres using our Platform, we are acting as an intermediary between you and the patient. You agree that when a patient makes a booking through our Platform for one or more treatments at one of your centres, a contract will be created directly between you and the patient in respect of the renal care services provided by you (Services). We will have no obligation in respect of the provision of the Services by you to any patient.

5.

Non-commercial terms with patients: You may upload non-commercial terms that apply to the provision of your Services which may include: (a) details of how to find the clinic which the patient is due to attend; (b) arrival times; (c) health and safety requirements (including any policies relating to COVID-19 testing); (d) timescales for making refunds following the cancellation of any booking by you or a patient (in accordance with our Terms of Use); and (e) any other information relating to the patient’s treatment. Any commercial or legal terms which you may seek to impose on patients within such non-commercial terms will be invalid.

6.

Your access to our Platform: Subject to payment of our charges, we grant you (and through you, the Centres) a non-exclusive non-transferable right to access and use our Platform. This right may not be transferred to any other person, nor may it be sub-licensed to any other person except Centres that have been added to your Account.

7.

Authorised Users: You may grant rights to allow individuals employed or engaged by you (including Account Administrators) or any Centre (including Centre Lead Coordinators) in the provision or administration of renal care services (Authorised Users) to access and use the Platform in accordance with our Terms of Use. You will be responsible for the acts and omissions of Authorised Users as though they were your own.

8.

Our obligations: We warrant to you that the Platform will be provided using reasonable care and skill, however, we do not warrant or guarantee that the Platform will be available at any particular times or that your use of our Platform will achieve any given result. We will use reasonable endeavours to ensure that access to the Platform is available from 9am to 5pm on working days in the United Kingdom.

9.

Your obligations: You warrant that you:

(a)

hold all necessarily authorisations and licences in the countries or territories in which the Centres are based for the purposes of providing renal care services.

(b)

only employ or engage individuals with the necessary authorisation and licences in the countries or territories in which the Centres are based for the purposes of providing renal care services;

(c)

do not require the consent of any other person (including any governmental or regulatory authority) to register an Account with us and to accept bookings from patients via our Platform;

(d)

will comply at all times with the Terms of Use;

(e)

will co-operate with us in all matters relating to the Platform

(f)

will, in any communications with other users of our Platform, will be professional and courteous and will not use any language that might offend anyone

(g)

will maintain a valid business email address for your access to the Platform;

(h)

will not provide access to any part of your Account to a third party

(i)

will not use the Platform for deceitful, fraudulent or illegal purposes;

(j)

will not upload any content to our Platform which is illegal, obscene, pornographic, defamatory, discriminatory, hateful or otherwise objectionable;

(k)

will not violate our intellectual property rights or the intellectual property rights of any third party in your course of accessing and using the Platform;

(l)

will not use our Platform to spam or introduce anything onto the Platform that contains viruses, worms or any other harmful code;

(m)

will provide us with such information and materials we may reasonably require to provide the Platform, and ensure that such information is complete and accurate in all material respects;

(n)

will comply with all applicable laws and regulations in the countries or territories in which the Centres are based when accessing and using the Platform and providing renal care services to patients.

10.

Consent to provision of renal care services: You are responsible for obtaining consent to the provision of any medical treatment or other renal care services in accordance with applicable laws, regulations and best practice guidelines in the countries or territories in which the Centres are based. You will retain copies of and make available to patients or any other persons at a patient’s direction, any consents in accordance with such laws, regulations and guidelines.

11.

Bookings and provision of renal care services: You agree that you will not unreasonably refuse to accept any booking made via the Platform and that you will not unreasonably refuse to provide any renal care services for which you have accepted a booking. We regard as reasonable grounds for refusing to accept any booking or providing any renal care services: (a) the unavailability of consumables, dialysate fluid, equipment or staff to administer and manage renal care services to the necessary standards of care; or (b) the closure of a Centre to patients generally. If you are unable to provide renal care services for any reason, you will give the patient as much notice as reasonably possible so that they can make alternative arrangements and you further agree to provide the patient and their home centre with assistance in making alternative arrangements.

12.

Cancellation of bookings: You agree that patients may cancel a booking for renal care services at any time between confirmation of their booking and the time of their treatment without charge. You may not impose any other cancellation policy on patients or charge patients any cancellation fees. Where a patient cancels a booking, you will promptly refund the patient for any amounts they may have paid in relation to their booking in full.

13.

Changes to the Platform: You acknowledge that we provide the Platform to multiple customers through a single hosted environment. As such, we must be able to modify the Platform at any time. We will do so, without prior notice, where necessary to comply with any applicable law, regulation, court or governmental order or to maintain the security and stability of the Platform (for example, to patch any security vulnerability). Where any modification is likely to materially impair or reduce the functionality of the Platform, we will give you reasonable prior written notice.

14.

No endorsement: You acknowledge that we do not endorse, recommend or make any warranty about you or the renal care services provided by you or any of your Centres. You may copy and display any badges or other materials provided by us to indicate that you have registered an Account with us so that you can accept bookings via our Platform, but you must not suggest any endorsement or recommendation by us where none exists.

15.

Failures or delays caused by you: If our ability to provide the Platform is prevented or delayed by any failure by you or an Authorised User to fulfil any obligation set out in this agreement (Your Default): (a) we will be entitled to suspend performance of the Platform until you remedy Your Default, and to rely on Your Default to relieve us from the provision of the Platform to you, in each case to the extent Your Default prevents or delays performance of the Platform. Your Default may entitle us to terminate this agreement under clause 28 (Termination by us); (b) we will not be responsible for any costs or losses you or your Authorised Users incur directly or indirectly from our failure or delay in performing the Platform; and (c) you shall reimburse us on written demand for any costs or losses we incur directly or indirectly from Your Default.

16.

Duration: This agreement will begin on your acceptance of the terms of this agreement at the time of registering your Account. Unless otherwise specified at the time of registering your Account, this agreement will continue, unless terminated earlier in accordance with this agreement, for an initial term of 12 months from the date of your subscription (Initial Term). Thereafter, this agreement will continue for successive periods of 12 months (each a Renewal Term) unless either party gives 90 days’ written notice to the other prior to expiry of the Initial Term or then-current Renewal Term.

17.

Charges: There is no charge for registering an Account. Once you add one or more Centres to your Account, you will be required to pay the charges notified by us (Charges) within the time period notified to you at time of payment being requested.

Once Step 8 (Outgoing Patient Checklist) for any booking on the Platform has been completed, all charges relating both to the booking itself and to all planned treatments within it will become payable. In the event that Step 8 (Outgoing Patient Checklist) is not completed in the platform, but the booking has not been cancelled before the first date of planned treatment, such Charges may still be deemed payable at our discretion. DialysisAway’s fee in relation to the facilitation of payments from patients for treatments (“Application Fee”) is applied to payments made by the patient to the Destination Operator and is deducted from the Stripe account of the Destination Operator.

Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of our 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. We may increase the Charges to take effect from the beginning of each Renewal Term in line with the increase (if any) in the Consumer Prices Index (All Items) (CPIH) index published by the UK Office for National Statistics (or any successor or replacement index or body). In respect of any recurring payments, you shall provide us with correct and up-to-date payment details and we may suspend or terminate your access to our Platform where we are unable to take payment of our Charges as a result of such details being incorrect.  You will pay all amounts due in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

18.

Late payment: If you fail to pay any Charges due to us by the due date shown on the invoice, then, without limiting any of our rights or remedies, we will be entitled to restrict your access to the Platform (in whole or in part) and you will have to 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 an annual rate of 4% over the applicable Bank of England base rate in force at any time, but at an annual rate of 4% for any period when that base rate is below 0%.

19.

Patient payments: When registering your Account, you will be asked to confirm whether you want to handle payments to and from patients through the third party payment service provider integrated with our Platform (Payment Function) or whether you wish to handle payments directly. Where payments are handled through the Payment Function, we do not have any access to the funds held in any account with which the Payment Function has been connected and will not be responsible for the processing of any payments made through the Payment Function. Payments will be processed by Stripe which is operated by Stripe Payments UK Ltd and its affiliates. Your use of the Payment Function may be subject to additional fees and charges by us or Stripe as well as terms and conditions which are binding as between you and Stripe. It is important that you provide correct and up-to-date payment details otherwise it may not be possible to process payments through the Payment Function.

20.

Ownership of intellectual property rights: Other than as set out below, all intellectual property rights in and to the Platform and in materials provided to, or accessed by, you or your Authorised Users through the use of the Platform (Our Intellectual Property Rights) are owned by us or our third party licensors and all rights in the Platform that are not expressly granted to you in this agreement are reserved by us (and the relevant third party licensors, where applicable). Our Intellectual Property Rights do not include intellectual property rights in materials, data or information provided by you or any Authorised Users through use of the Platform (Your Materials), which will be owned by you unless Your Materials relate to patients, in which case custody or ownership of such materials will be governed by applicable laws and regulations in the countries or territories in which the Centres are based.

21.

Intellectual property rights licence: You hereby grant us (in respect of your Account and on behalf of any Centres) a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use and display Your Materials on and for the purposes of providing the Platform.

22.

Indemnity by us: We will defend any claim that is made against you by any third party asserting that Our Intellectual Property Rights infringe their intellectual property rights and, subject to clause 24 (Indemnification procedure), we will indemnify you against all losses, liabilities, costs and expenses (including reasonable legal costs) arising directly from such claims.

23.

Indemnities by you: You will defend any claim that is made against us by any third party: (a) regarding the negligent provision of renal care services at any of your Centres, whether as a result of incorrect information being inputted into our Platform, or otherwise; (b) claiming that any sums paid by patients should be refunded to them by us following cancellation of a booking, or otherwise; or (c) asserting that Your Materials infringe their intellectual property rights. Subject to clause 24 (Indemnification procedure), you will indemnify us against all losses, liabilities, costs and expenses (including reasonable legal costs) arising directly from such claims.

24.

Indemnification procedure: In the event of any claim being made under the indemnities in clauses 22 (Indemnity by us) or 23 (Indemnities by you), the indemnified party will (a) not make any admission, compromise or settlement without the indemnifying party’s prior written consent (such consent not to be unreasonably withheld or delayed); (b) give the indemnifying party sole conduct of the defence and settlement of the claim; and (c) provide to the indemnifying party (at the indemnifying party’s expense) all reasonable assistance with the defence and settlement of the claim.

25.

Confidentiality: Each of us shall not, at any time during the term of this agreement and for a period of five years after its termination, disclose to any person any confidential information concerning the other’s business, affairs, customers, prospective customers, market opportunities, products, services or suppliers. However, each of us 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 this agreement (and will each ensure that they comply with this clause; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations and exercising our respective rights under this agreement.

26.

Links to other websites: Where our Platform contains links to other websites, these links are provided for your information only. Such links should not be interpreted as approval by us of those websites or information you may obtain from them. We have no control over the content of those websites.

27.

Our liability to you:

27.1

Nothing in this agreement limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by a party’s negligence; (b) fraud or fraudulent misrepresentation; and (c) any other liability which cannot be excluded or limited by law.

27.2

Subject to clause 27.1, neither party will be liable to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for: (a) loss of profits; (b) loss of opportunity; (c) loss of sales or business; (d) loss of agreements or contracts; (e) loss of anticipated savings; (f) loss of use or corruption of software, data (except in relation to personal data, any loss of use or corruption of personal arising from any breach of our obligations under clause 33 (Data Protection)) or information; (g) loss of or damage to goodwill or reputation; and (h) any indirect or consequential loss.

27.3

Our liability to you under clause 22 and your liability to us under clause 23(c) will be limited to £500,000 (or the equivalent of such amount in your local currency) per claim or any series of claims relating to the same event. Your liability to us under clauses 23(a) and (b) will not be limited.

27.4

Subject to clauses 27.1 – 27.3, each party’s total liability to the other party arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 100% of the total Charges paid by you to us during the preceding twelve months (or such shorter period, if less than 12 months) from the date on which the breach giving rise to any claim arose.

27.5

This clause 27 will survive termination of this agreement.

28.

Termination by us: Without limiting any of our other rights or remedies, we may suspend your access to the Platform, or terminate this agreement with immediate effect by giving written notice to you if: (a) you fail to pay any amount on the due date for payment; (b) you materially breach any of the terms of this agreement (which will include any breach of clause 9 (Your obligations)) and you fail to remedy such breach within 28 days after we notify you to do so; (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), 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; or (d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business.

29.

Termination by you: Without limiting any of your other rights or remedies, you may terminate this agreement with immediate effect by giving written notice to us if: (a) we materially breach any of the terms of this agreement and we fail to remedy such breach within 28 days after you notify us to do so; (b) we take any step or action in connection with us entering administration, provisional liquidation or any composition or arrangement with our creditors (other than in relation to a solvent restructuring), 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 our 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; or (c) we suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of our business. 

30.

Consequences of termination: On the expiry or termination of this agreement, you will immediately pay all Charges that have been invoiced and that are outstanding, and we may invoice you for any Charges that have been incurred but not yet invoiced, which will also be payable immediately upon receipt. Termination of this agreement will not affect your or our rights and remedies that have accrued as at termination. Any provision of this agreement 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.

31.

Communications between us: When we refer to written or in writing in this agreement, this includes email and any other electronic method used by us. Any notice or other communication given under or in connection with our agreement must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, sent by airmail, or sent by email. 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 9am on the second working day after posting; (c) if sent by airmail, at 9am five working days after sending; or (d) if sent by email, at 9am the next working day after transmission. 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 address. References in this clause to a working day means a working day in the place of receipt. The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

32.

Publicity and marketing: You agree that we may publish your name, logo and any testimonials provided by you or your staff on our website or in any other marketing materials.

33.

Data protection:

33.1

To the extent that you disclose, or we process, any personal data when providing the Platform which is subject to Regulation (EU) 2016/679 (the General Data Protection Regulation) (GDPR) or any applicable data protection law in the country or territory in which you are incorporated and registered (Data Protection Laws), you acknowledge that you will be a (data) controller and we will be a (data) processor in relation to such . If you have registered an Account in connection with services that you are providing to a third party where such third party is a (data) controller and you are a (data) processor, you acknowledge that we will be a (data) sub-processor.

33.2

All data, including any personal data, inputted or uploaded into the Platform by you or your staff, will belong to you (to the extent such data is capable of being owned).

33.3

You warrant that you have provided all necessary notices to and obtained all necessary consents from patients in relation to the collection and use of their personal data in connection with the renal care services provided by you and the processing of patients’ personal data using our Platform.

33.4

To the extent that we process any personal data on your behalf, we shall:

(a)

only process personal data in line with your documented instructions;

(b)

promptly notify you if we are required by any applicable law to process personal data otherwise than in line with your instructions (unless applicable law prohibits us from doing so);

(c)

immediately notify you if, in our opinion, any instruction given by you infringes the Data Protection Laws;

(d)

ensure that anyone with access to personal data is subject to binding confidentiality obligations;

(e)

considering the factors set out in the Data Protection Laws, implement appropriate technical and organisational measures to ensure an appropriate level of security when processing personal data;

(f)

considering the nature of the processing, assist you by appropriate technical and organisational measures, as far as possible, for the fulfilment of your obligation to respond to requests by data subjects to exercise their rights under data protection law;

(g)

considering the nature of the processing and information available to us, assist you in ensuring compliance with your obligations under data protection law;

(h)

at your choice, delete or return all personal data to you after we have ceased providing our Platform relating to the processing, and delete any existing copies (unless applicable law or our regulatory requirements prohibits us from doing so);

(i)

make available to you all information necessary to demonstrate compliance with our obligations as a processor and, subject to agreement on scope and timing, allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you (which will, unless any audit or inspection reveals that any material non-compliance by us with the terms of this clause, be at your sole cost); and

(j)

notify you without undue delay and within 48 hours if we become aware of a personal data breach.

33.5

You authorise us to appoint the following sub-processors in connection with the provision of our Platform (Approved Sub-processors):

Name of sub-processor Location Processing activities
Amazon Web Services, Inc.
AWS is based in the USA, but the Platform is hosted on servers located in the EU
Hosting infrastructure for the Platform
Stripe Payments UK Ltd
United Kingdom
Facilitating the processing of payments to and from payments if the Payment Function is used
Twilio
United States of America
Providing SMS-based two-factor authentication and alert functionality within the Platform

33.6

We will ensure that our contract with Approved Sub-processors contain terms substantially similar to, and not less onerous than, the terms set out in this clause 33 and remain liable to you for the acts and omissions of the Approved Sub-processors as though they were our own.

33.7

If we propose to appoint or replace any Approved Sub-processor, we will give you as much notice as reasonably possible. If you do not object to the appointment or replacement of any Approved Sub-processor by the date specified in such notice, you will be deemed to have given your consent. If you reasonably object to the appointment or replacement of any Approved Sub-processor, we will use our reasonable endeavours to resolve the grounds of your objection. If we are unable to resolve the grounds of your objection at all, or to your reasonable satisfaction, either party may terminate this agreement on 30 days’ written notice to the other party.

33.8

In this clause, the terms controller, processor, personal data, data subject, process (or any similar term) and personal data breach have the meanings set out in the Data Protection Laws.

34.

Anti-Bribery: You and we will (a) comply with the Bribery Act 2010 (Bribery Act); and (b) have and maintain throughout the term of this agreement our own policies and procedures, including adequate procedures to ensure compliance with the Bribery Act. For the purpose of this clause 34, the meaning of ‘adequate procedures’ will be determined in accordance with section 7(2) of the Bribery Act (and any guidance issued under section 9 of the Bribery Act).

35.

Compliance with Anti-Slavery and Human Trafficking Laws: In performing its obligations under the agreement each party shall: (a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including the Modern Slavery Act 2015 (Modern Slavery Act); (b) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act if such activity, practice or conduct were carried out in the United Kingdom; and (c) ensure that each of its suppliers shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act.

36.

Assignment and transfer: We may at any time assign, subcontract or transfer our rights and obligations under this agreement to any other person or entity without your consent but will remain liable to you for the acts and omissions of any subcontractors. You may not assign or transfer your rights or obligations under the agreement between us to any other person entity without our prior written consent (such consent not to be unreasonably withheld or delayed).

37.

Variation: No variation of this agreement will have any effect unless made in writing and signed by you and us (or our respective authorised representatives).

38.

Waiver: If we do not insist that you perform any of your obligations under this agreement, 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.

39.

Severance: Each paragraph of this agreement 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.

40.

Third party rights: This agreement is between you and us. No other person has any rights to enforce any of its terms.

41.

Governing law and jurisdiction: The agreement as set out in these terms is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with this agreement to the exclusive jurisdiction of the English courts (except that we may recover any amounts owed to us through the courts of any relevant jurisdiction).