This Agreement sets out the basis upon which the
Customer has agreed to engage Medserv to provide
services and the basis upon which Medserv is agreeable
to provide those services.
1. INTERPRETATION
1.1 Definitions
In these Terms and Conditions unless the context requires otherwise:
“Agreement” means these Terms and Conditions and the Application Form;
“Application Form” means an application form in respect of the Services which has been executed on behalf of the Customer and in which the Customer has selected the Specified Services;
“Available Services” means medical billing services as described in this application, Medserv’s website and/or any Medserv documentation which are made available to the Customer, including an Information Pack;
“Customer” means the customer (individual or group / partnership) which has submitted an executed Application Form to Medserv;
“Data Protection Law” means all applicable data protection law including the General Data Protection Regulation (Regulation (EU) 2016/679) and the Data Protection Act 2018; and the terms “Personal Data”, “Controller”, “Processor” and “process” shall have the meanings given to them under Data Protection Law.
“Intellectual Property Rights” means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off;
“Medserv” means Medical Account Services Limited including it’s subsidiaries.
1.2 Further definitions
(a) A reference to a person (including a party to this Agreement) includes a reference to that person's legal personal representatives, successors and permitted assigns
1.3 Headings and captions
The section headings and captions to the clauses in this Agreement are inserted for convenience of reference only and shall not be considered a part of or affect the construction or interpretation of this Agreement.
2. SUPPLY OF SERVICES
2.1
In consideration of the payment by the Customer of the Charges in accordance with clause 6, Medserv agrees to provide the Medical Billing and/or Practice Administration Services to the Customer in accordance with the terms of this Agreement.
3. WARRANTIES AND REPRESENTATIONS
3.1
Medserv shall ensure that the Services shall be provided by appropriately experienced, qualified and trained personnel and shall be rendered with all due skill, care and diligence.
3.2
Each party warrants and represents to the other party that:
(a) it has full power and authority to execute and deliver this Agreement and to comply with the provisions of, and perform all its obligations and exercise all of its rights under, this Agreement; and
(b) it shall perform its obligations and exercise its rights under this Agreement in accordance with applicable laws.
3.3
Except as expressly set forth in this Agreement, all warranties, conditions, representations, statement, terms and provisions express or implied by statute, common law or otherwise are excluded to the greatest extent permitted by law.
4. LIMITATION OF LIABILITY
4.1
Save in respect of death or personal injury caused by the negligence of either party, (ii) breach of this Agreement by virtue of fraud or wilful default or breach of the Data protection Acts, 1988 and 2003, Medserv’s liability for any claim whether in contract, tort (including negligence) or otherwise, for any loss or damage, arising out of or in connection with this Agreement or otherwise shall in no case exceed the sums paid by the Customer to Medserv in the 12 months immediately preceding the event giving rise to the claim, loss or damage.
4.2
In no event shall Medserv be liable for special, incidental, indirect or consequential damages including damages or costs incurred as a result of loss of time, loss of savings or loss of profits.
5. CUSTOMER OBLIGATIONS AND RESPONSIBILITIES
5.1
The Customer shall provide Medserv with all necessary information, support and co-operation (including ensuring that employees and independent contractors of the Customer cooperate fully with Medserv) that may reasonably be required to enable Medserv to carry out its obligations under this Agreement.
5.2
The Customer shall be provided with access to Medserv’s website in connection with the Specified Services. On commencement of the Agreement, the Customer shall be allocated a password to facilitate access to private areas of the Medserv website. The Customer may amend this password at any time. The Customer is responsible for the safe keeping and use of the password and shall be responsible for any loss or damage to Medserv in circumstances where an unauthorised third party obtains access to such password. The Customer shall notify Medserv forthwith in circumstances where it becomes aware of possible unauthorised access to its password or the private area of the Medserv website. The Customer undertakes to co-operate with existing and future website security features implemented by Medserv.
5.3
The Customer is responsible for its own computer systems and facilities required to access the Medserv website.
5.4
The Customer is solely responsible for the content and accuracy of the data provided to Medserv in connection with the Specified Services.
5.5
When using Medserv’s website in connection with the use of the Specified Services, the Customer shall comply with this Agreement and the website Terms and Conditions and privacy Policy. A copy of the current website terms and conditions and privacy policy is attached to the Application Form, but these may be updated from time to time and will be displayed on Medserv’s website (www.medserv.ie).
6. CHARGES
6.1
The Charges payable by the Customer under this Agreement shall be paid by means of a commission based on Gross Amount of fees collected. The commission shall be exclusive of Value Added Tax or any other applicable sales taxes.
6.2
Charges shall be paid by direct debit not less than 14 days from the date of monthly invoice. Where a customer chooses not to pay by direct debit and/or engages medserv to distribute funds, Medserv will deduct charges at source.
6.3
Medserv shall have the right, on one month’s notice to the Customer, to amend the Charges payable by the Customer, including but not limited to the percentage commission which is payable, which amended Charges shall be effective one month after notice of same. If the Customer does not agree to the amended Charges, the Customer shall have the right to terminate this Agreement within one month after notification of the amended Charges.
7. INTELLECTUAL PROPERTY
7.1
Title and all Intellectual Property Rights in any papers, records or other documents, whether held in electronic or manual form (the “Records”) supplied by the Customer to Medserv under this Agreement shall remain vested in the Customer. During the term of this Agreement, the Customer grants a non-exclusive licence to Medserv to use such Records to the extent required for the performance of the Specified Services.
7.2
Title and all Intellectual Property Rights in Medserv’s website shall remain vested in Medserv. During the term of this Agreement, Medserv grants to the Customer a non-exclusive licence to the Customer to access the website in order to avail of the Specified Services.
8. TERM AND TERMINATION
8.1
This Agreement shall commence on the date set out in the Application Form and, subject to the provisions of this clause 8, shall continue in force until terminated by either party on one month’s notice in writing.
8.2
This Agreement may be terminated forthwith by either party on written notice if the other party is in material breach of the terms of the Agreement and, in the event of a breach capable of being remedied, fails to remedy the breach within fourteen (14) days of receipt of notice in writing of such breach.
8.3
Either party may terminate this Agreement forthwith on written notice if a receiver, examiner or administrator is appointed of the whole or any part of the other party’s assets or the other party is struck off the Register of Companies in the jurisdiction where it was incorporated or an order is made or a resolution passed for winding up the other party (unless such order or resolution is part of a voluntary scheme for the reconstruction or amalgamation of the party as a solvent corporation and the resulting corporation, if a different legal person, undertakes to be bound by this Agreement).
8.4
Termination of this Agreement shall not prejudice any rights of either party which may have arisen on or before the date of termination.
9. CONFIDENTIALITY
9.1
Medserv and the Customer shall keep confidential any information relating to the business, affairs, plans or products of the other party designated as “confidential” or which ought reasonably to be regarded as confidential which is obtained under or in connection with this Agreement and shall not divulge the same to any third party without the prior written consent of the other party.
9.2
The provisions of this clause shall not apply to:
(a) any information in the public domain otherwise than by breach of this Agreement;
(b) information in the possession of the receiving party before disclosure as aforesaid;
(c) information obtained from a third party who is free to divulge the same;
or
(d) information which is properly disclosed pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulatory authority.
9.3
The obligations of both parties as to disclosure and confidentiality shall continue in force notwithstanding the termination of this Agreement.
10. DATA PROTECTION
10.1
Medserv acknowledges that the provision of the Specified Services will involve the processing of Personal Data on behalf of the Customer. In such circumstances, Medserv acknowledges that the Customer is the Controller and Medserv is the Processor and Medserv agrees that:
(a) Medserv processes the Personal Data set out in Appendix 1 on behalf of the Customer in the context of providing the Specified Services for the duration of the term of the Agreement. The obligations and rights of the Customer shall be as set out in this Agreement;
(b) Medserv will only process the Personal Data in accordance with the documented instructions of the Customer, including with regard to transfers of Personal Data to a third country and solely as strictly necessary for the performance of its obligations under this Agreement;
(c) Medserv shall ensure that the persons authorised by Medserv to process the Personal Data are bound by appropriate confidentiality obligations;
(d) Medserv shall implement such technical and organisational security measures as are required to comply with the data security obligations under Data Protection Law;
(e) Medserv shall not engage any subprocessor without the prior general written authorisation of the Customer and where the Customer has provided a general authorisation to the appointment of sub-processors, Medserv shall inform the Customer if it intends to replace a sub-processor, and shall provide the Customer with an opportunity to object to such changes;
(f) where any sub-contractor of Medserv will be processing the Personal Data on behalf of the Customer, Medserv shall ensure that a written contract exists between Medserv and the subcontractor containing clauses equivalent to those imposed on Medserv in this clause 10. In the event that any sub-processor fails to meet its data protection obligations Medserv shall remain fully liable to the Customer for the performance of the subprocessor’s obligations;
(g) Medserv shall, taking into account the nature of the processing, assist the Customer by implementing appropriate technical and organisational measures (insofar as this is possible) to assist the Customer to comply with requests from data subjects to exercise their rights under Data Protection Law and any such assistance may be at the cost of the Customer
(h) Medserv shall assist the Customer in ensuring compliance with its obligations in respect of security of personal data, data protection impact assessments and prior consultation requirements under Data Protection Law [and any such assistance shall be at the cost of the Customer];
(i) Medserv shall: (i) at the choice of the Customer, delete or return the Personal Data to the Customer when Medserv ceases to provide services relating to data processing; and (ii) delete all existing copies of such personal data unless EU law or the laws of an EU Member State require storage of the personal data [and any such return or deletion of data shall be at the cost of the Customer];
(j) Medserv shall: (i) make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this clause 10; and (ii) allow for and assist with audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in order to ensure compliance with the obligations laid down in this clause 10 provided that, in connection with (i) [and (ii)] of (i) above, Medserv shall inform the Customer immediately if, in its opinion, it receives an instruction from the Customer which infringes Data Protection Law. For the purposes of demonstrating compliance with the data security obligations under Data Protection Law, the Customer agrees that it shall be sufficient for Medserv to provide evidence of adherence by Medserv to an approved code of conduct or an approved certification mechanism;
(k) taking into account the nature of the processing and the information available to Medserv, Medserv shall notify the Customer without undue delay after becoming aware of any personal data breach or breach of security leading to the accidental or unlawful destruction,loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed and provide the Customer with such reasonable co-operation and assistance as may be required to mitigate against the effects of, and comply with any reporting obligations which may apply in respect of, any such breach [and any such assistance shall be at the cost of the Customer]; and
(l) Personal Data may only be transferred outside of the European Economic Area by Medserv or any of its agents or sub-processors in circumstances were such transfers wereenvisaged by the nature of the Specified Services being provided by Medserv under this Agreement and such transfer is effected in accordance with a mechanism which is compliant with Data Protection Law, e.g. where the data importer enters into model clauses in the form approved by the European Commission and, where relevant, complies with the provisions regarding subprocessors contained in such model contracts of any sub processors.
11. FORCE MAJEURE
11.1
If and to the extent that either party (the “Affected Party”) is hindered or prevented by circumstances not within its reasonable ability to control, including, but not limited to, acts of God, inclement weather, flood, lightning, fire, trade disputes, strikes, lockouts, acts or omissions of Governments or other competent authority, acts of terrorism, war, military operations, acts or omissions of third parties for whom the Affected Party is not responsible (“Force Majeure”) from performing any of its obligations under this Agreement, the Affected Party shall be relieved of liability for failure to perform such obligations.
11.2
The Affected Party shall promptly notify the other party (the “Other Party”) of the estimated extent and duration of such inability to perform its obligations (the “Force Majeure Notification”).
11.3
Upon the cessation of the event of Force Majeure the Affected Party shall notify the Other Party of such cessation.
11.4
If, as a result of Force Majeure, the performance by the Affected Party of its obligations under this Agreement is only partially affected, the Affected Party shall subject to the provisions of clause 11.5 nevertheless remain liable for the performance of those obligations not affected by Force Majeure.
11.5
In the case a Force Majeure notification then:-
(a) any obligation outstanding shall be fulfilled by the Affected Party as soon as reasonably possible after the Force Majeure event has ended, save to the extent that such fulfilment isno longer possible or is not required by the Other Party;
(b) if the Force Majeure lasts for more than twenty one (21) days from the date of the Force Majeure notification and notice of cessation has not been given pursuant to clause 11.3 and such Force Majeure prevents the Affected Party from performing its obligations in whole or to a material extent during that period, the Other Party shall be entitled (but not obliged) to terminate this Agreement forthwith on notice to the Affected Party.
12. WAIVER
No delay, neglect, or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement.
13. AGENCY
13.1
The parties acknowledge that in performing its obligations under this Agreement, including processing personal data, dealing on behalf of the Customer with third parties etc, Medserv shall act as the agent of the Customer.
13.2
In connection with the performance of the Specified Services, the Customer acknowledges that Medserv shall be entitled to reproduce copy or electronic signatures on behalf of the Customer in executing any required forms, notices or claims on behalf of the Customer with third parties, e.g. VHI, Quinn Insurance etc.
14. NOTICES
Any notice served under this Agreement shall be sufficiently served if sent by post or fax to the usual or last known place of business of the addressee and proof of despatch in the case of a letter, and receipt of a successful transmission report in the case of a facsimile transmission, shall be conclusive evidence of receipt by the addressee in due course of transmission.
15. NO PARTNERSHIP, EMPLOYMENT RELATIONSHIP ETC.
Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of employer and employee between the parties.
16. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties with respect to its subject matter, supersedes all previous agreements and understandings between the parties with respect to its subject matter, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.
17. ASSIGNMENT AND SUB-CONTRACTING
17.1
The Customer shall not be entitled to assign or sub-contract any of its rights and/or obligations under this Agreement without the prior written consent of the other party.
17.2
Medserv shall be entitled to sub-contract any of its rights and/or obligations under this Agreement to a sub-contractor, provided that Medserv remains primarily responsible to the Customer for the performance of the Specified Services.
17.3
Medserv shall be entitled to assign its rights and obligations under this Agreement to any third party acquirer of all or a material part of the business of Medserv and the Customer undertakes to execute any necessary novations or assignments to reflect such transfer.
18. SEVERABILITY
In the event that any provision of this Agreement shall be determined to be partially void or unenforceable by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject or by virtue of any other reason whatsoever, it shall be void or unenforceable to that extent only and no further and the validity and enforceability of any of the other provisions of this Agreement shall not be affected.
19. VARIATION TO SPECIFIED SERVICES
If the Customer wishes to avail of any additional Available Services or to amend the Specified Services, then the Customer shall notify Medserv. Medserv shall revert as soon as reasonably practicable with a quote for the additional Available Services or amended Specified Services in a revised Application Form. If the Customer wishes to avail of the additional or amended services it may do so by signing the revised Application Form and submitting it to Medserv.
20. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Ireland and each of the parties submit to the jurisdiction of the Irish Courts for the resolution of disputes here.
