Health Family eCommercial System
Terms of Use
The Department of Health and Social Care (DHSC)
and some organisations across the health system (Health Family) use the Health Family eCommercial System to advertise and
manage procurement opportunities, manage contracts and manage supplier
interaction. The Terms of Use set the policy on content and functionality
of the system. Technical support and maintenance of the system is provided by
Atamis Ltd.
1. Acceptance of Terms of Use
1.1 These Terms of Use between DHSC and the
Supplier govern access and use of the Health Family eCommercial System (the System)
by Registered Users.
1.2 The access or use of the System by Registered Users,
in any way, shall be deemed to constitute acknowledgment, acceptance and
confirmation of the Terms of Use without further action.
1.3 The aim of the System is to provide Supplier information which
can then be accessed by members of the Health Family for the purposes of DHSC
and members of the Health Family to undertake:
a) procurement exercises;
b) market engagements;
c) activity relating to commercial
contracts; and
d) any supply chain management activity.
(together referred to as Services).
1.4 The
Registered Users shall only use the System to engage in the Services in
accordance with these Terms of Use and any further rules expressed and
presented in the System. In the event that there is any conflict between these
Terms of Use and any such further rules, then the provisions of such further
rules shall take precedence over these Terms of Use.
1.5 The
System enables the Supplier to complete and submit responses to a range of procurement
requirements and related information to help DHSC and members of the Health
Family with supply chain management including, but not limited to on sustainability,
information security/assurance, Supplier policies, SME supply chain spend,
contracts used, product and service standards as well as providing the Supplier
with the ability to create a Profile. The Profile will also be updated with
information taken from SQs.
1.5 DHSC and all members of the Health Family shall have access to
a Supplier's submitted Profile including all SQ information.
1.6 The System is provided by Atamis Ltd (referred to as Atamis) and licensed to DHSC and participating
members of the Health Family. These Terms of Use (amongst other matters) govern
access to and the use of the System by Registered Users. The Supplier acknowledges
that by accessing the System, the Supplier agrees to be bound by these Terms of
Use.
2. Access
2.1 DHSC grants to the Supplier, free of charge, access to the
System (via the Registered Users) for the purpose of providing organisational
information about the Supplier which will be uploaded stored and retrieved from
the System by DHSC and members of the Health Family (and their respective users)
and for engaging in the Services, in each case subject to these Terms of Use.
2.2 The level of access by a member of the Health Family (and its users)
to the System and the Supplier information contained in it may be varied from
time to time by DHSC in accordance with any other arrangements entered into
between DHSC and particular member of the Health Family.
2.3 DHSC in its absolute discretion reserves the right to suspend
or remove the Supplier or individual Registered Users access to the System
(and/or to block or remove access to some or all of the Supplier's details
contained in it) without notice for technical or legal reasons at any time.
3. Registration
Individual
Users
3.1 To be granted access to the System, the Supplier must register
each person which they wish to be a Registered User by providing the required
registration data.
3.2 Login and password are strictly personal to the Registered User and
non-transferable. Registered Users shall ensure they do not divulge or disclose
their password to third parties. In the event that the Supplier or any of its
Registered Users become aware that a password may have been divulged, disclosed
or discovered by any third party, they shall immediately notify the Atamis Helpdesk.
User
Manager
3.3 Each apply to be treated as a “User Manager and shall:
3.3.1 be responsible for the authorisation and acceptance of new users
to the organisation’s account; and
3.3.2 be responsible for the management of all Registered Users’ accounts
authorised by him/her. In the event that a Registered User leaves an organisation,
their account should be disabled within the system by a User Manager.
4. Invitation
to Participate and Involvement in Services
4.1 DHSC or a member of the Health Family shall
send, through the System, invitations to participate in specific procurement
exercises to appropriate suppliers that have registered and been activated on
the System as described in these Terms of Use. Data and information relating to
a specific procurement exercise shall be made available to invited suppliers.
4.2 DHSC or a member of the Health Family shall
configure the System as appropriate for each procurement exercise. The selected
configuration settings for a procurement exercise shall be displayed on the
System for invited Suppliers to view. The Supplier acknowledges participation
by one of its Registered Users in a procurement exercise on the System, constitutes
its agreement to be bound by those configuration settings. The Supplier
recognises that by one of its Registered Users participating in a procurement
exercise on the System, all other Registered Users within the Supplier account
will have access to the procurement exercise.
4.3 All material issued through the System in
connection with a procurement shall remain the property of DHSC or the relevant
member of the Health Family and shall be used only for the purpose of the procurement.
4.4 In addition to
procurement exercises, DHSC or a member of the Health Family may grant
permission to the Supplier to access the System for market engagements and
engage in activity relating to commercial contracts that have been awarded to the
Supplier.
5. Supplier's specific obligations on use
of the System
5.1 The
Supplier (through its Registered Users) shall ensure that it shall comply with
these Terms of Use (as updated from time to time on the Health Family eCommercial System website)
and any additional terms notified via the System. In the event that there is
any conflict between these Terms of Use and any such additional terms, then the
provisions of such additional terms shall take precedence over these Terms of
Use.
5.2 The
Supplier shall use all reasonable care and skill in performing its obligations
under these Terms of Use.
5.3 The
Supplier shall provide its Registered Users with the equipment and software
needed to access and use the System.
5.4 The
Supplier shall use best endeavours to protect the System from viruses introduced
as a result of access and use by its Registered Users.
5.5 The
Supplier shall use the System for lawful and proper purposes only and shall, in
any event, comply with all relevant laws, regulations and codes of practice
within the UK or other jurisdiction from which its Registered Users access the
System.
5.7 The Supplier agrees that its Registered Users shall
act as authorised agents for and on behalf of the Supplier in submitting and
updating organisation information and any response to any invitation to
participate in a procurement exercise on the System and/or other market
engagements, when engaging in activity relating to commercial contracts that
have been awarded to the Supplier and for any supply chain management actions
required by DHSC or a member of the Health Family.
5.8 The
Supplier shall be responsible for any unauthorised, false or fraudulent
information that is submitted or response to any invitation to participate in a
procurement that is submitted/or involvement in other activity relating to
marketing engagement/commercial contracts using one of its Registered Users
login and password.
5.9 The
Supplier represents and warrants that the information it provides under these
Terms of Use will be as accurate and complete as possible and shall accurately
represent the Supplier's capabilities. Where estimated or approximate data is
provided by the Supplier, the Supplier shall explain the nature of the data
provided as part of the data collection process if required by DHSC or a member
of the Health Family.
6. General
Provisions for the Submission of Responses
6.1 Suppliers are expected to examine all of
the file attachments published in the System, which indicate what information
must be provided. Suppliers must provide all of the items of information
requested in the procurement exercise. Incomplete submission of the information
requested including the submission of information in file attachments
containing viruses that have been advised by the System shall entitle DHSC or a
member of the Buyer Community to invalidate or reject the response to the procurement
exercise.
6.2 All responses to any invitation to
participate in a procurement exercise must be submitted through the System by
the closing date and time as specified on the System.
6.3 Responses may be submitted through the
System at any time up to the closing date and time as specified on the System.
6.4 The Supplier must submit responses in
accordance with the instructions in the invitation to tender and any
explanatory documentation or guidance.
6.5 Responses will be opened by DHSC or the
relevant member of the Health Family in accordance with the opening procedures
specified on the System for each procurement exercise.
7. Use
of Procurement Categories
7.1 The Supplier may choose to identify Procurement Categories in its
Profile within the System. These are a means by which the Supplier can identify
categories that it can provide business in.
7.2 DHSC and/or the members of the Health Family may use the Procurement
Categories to identify suppliers that might have an interest in a particular
requirement, and to alert them to any upcoming opportunities.
7.3 The Supplier acknowledges that DHSC and any member of the
Health Family does not guarantee that the Supplier will be specifically invited
to tender for each and every requirement related to a Supplier's Procurement
Categories. The Supplier acknowledges that it retains responsibility for
checking official e-Notification services such as the Contracts Finder and Find
a Tender services (and other such information sources, such as the Official
Journal of the European Union (if relevant)) and identifying upcoming
opportunities of interest for itself.
8. Intellectual
property rights
8.1 All Intellectual Property Rights in the System are owned by, or
are under licence to, DHSC, members of the Health Family and/or Atamis.
8.2 The Supplier and its Registered Users shall have no Intellectual
Property Rights in the System, nor shall it have any rights to copy, adapt,
modify or interfere with the System.
8.3 The System may include DHSC, members of the Health Family and/or
Atamis’ logos and/or trademarks. The Supplier acknowledges that it and
Registered Users may not copy or make other use of such logos and/or trademarks
without written prior consent.
9. Data
protection
9.1 In its use and access of the System, the
Supplier and Registered Users shall comply with the Data Protection Legislation
and all relevant regulations together with any codes of conduct and guidance
issued by the Information Commissioner from time to time and they shall not do
or cause or permit to be done anything which may cause or otherwise result in a
breach by DHSC, a member of the Health Family or Atamis of the same.
9.2 All personal data information provided from individual
Registered Users will be processed according to the Health
Family eCommercial System Privacy
Policy.
10. Freedom of Information
10.1 Where
DHSC or a member of the Health Family may be obliged to respond to a request
for information or an apparent request for information under the Code of
Practice on Access to Government Information, the Freedom of Information Act
2000, the Environmental Information Regulations 2004, or similar regulations,
DHSC or a member of the Health Family shall be permitted to offer such
assistance to and disclose such information to the relevant authorities as they
advise DHSC or the relevant member of the Health Family as is required from
time to time.
10.2 Any personal data provided by individual Registered
Users will be processed according to the Health Family eCommercial
System Privacy
Policy.
11. Limitation
of liability
11.1 Nothing in these Terms of Use shall
be construed so as to exclude or limit liability for death or personal injury
or for fraud or fraudulent misrepresentation or for any other liability which
it would not be not lawful to so exclude or limit.
11.2 In no event shall the DHSC, a member of the Health Family, Atamis be
liable to any Supplier or to a Supplier’s User for any loss or damages incurred
by that person arising from the use of the System caused by:
11.2.1 an event of Force Majeure that affects the availability and/or
performance of the System;
11.2.2 incorrect use by Users of the System;
11.2.3 connectivity failures in respect of the equipment used by the Users;
11.2.4 breakdown of the System;
11.2.5 breach of these Terms of Use other than by DHSC, a member of the
Health Family or Atamis.
11.3 In no event shall DHSC, a member of the Health Family or Atamis
be liable to any Supplier or Supplier’s User for any indirect or consequential
loss (including without limitation reputational, contingent and/or speculative
losses of any kind).
11.4 In no event shall DHSC, a member of the Health Family or Atamis
be liable to the Supplier or a Registered User for any sum (in aggregate)
greater than the greatest sum paid by such person to DHSC, a member of the
Health Family, or Atamis under the provisions of these Terms of Use in any 12
month period of use of the System (and in the event such sum is zero or
otherwise less than 100 GBP then the maximum liability shall be 100 GBP).
11.5 The Supplier acknowledges and accepts that:
11.5.1 DHSC and/or Atamis reserve the right to interrupt and/or suspend
the availability of the System and/or revoke access at any time without
incurring any liability;
11.5.2 DHSC and/or Atamis provide the System on an 'as is' basis and
'as available' basis without any warranty of any kind; and
11.5.3 DHSC and/or Atamis do not accept any liability for any
information or links on the System that may refer Users to external sources.
11.6 The Supplier agrees to indemnify DHSC, members of the Health
Family and Atamis in full against all claims, demands, actions or proceedings
(including legal and other professional adviser fees) made by any third party
arising out of or in relation to breach of its obligations under these Terms of
Use.
11.7 DHSC does not warrant that the functions contained in the
material held in the System will be uninterrupted or error free, that defects
will be corrected, or that the System or the server that makes it available are
free of viruses or bugs or represents the full functionality, accuracy,
reliability of the materials.
12. Rights
of third parties
These Terms of Use
shall not create any rights that shall be enforceable by anyone other than DHSC,
relevant members of the Health Family and the Supplier, except that terms 1, 2,
4, 5, 8, 9, 11 and 12 may be enforced directly by Atamis.
13. Amendments
to this agreement
13.1 The Supplier acknowledges that DHSC reserves
the right to vary or amend these Terms of Use by publication of an updated
version of these Terms of Use or notification or message on the System or
through an email or letter to the Supplier, using the email address or postal
address provided on their Profile.
13.2 The amendments shall be deemed to have been accepted unless DHSC receives,
within seven (7) days of the date of the publication or notice under clause 13.1,
a written communication from the Supplier expressing refusal of the amendments
and its intention to cease further use of the System within the following thirty
(30) days (in which case the agreement for the use of the System between DHSC and
the Supplier shall terminate without further liability on either side upon such
cessation (other than for breaches prior to the date of such termination)).
13.3 In any case, the Supplier’s continued or recommenced use of the
System after such a thirty (30) day period shall represent its unconditional
acceptance of the amendments in its entirety (notwithstanding any expressed
refusal of the amendments and intention to withdraw).
14. General
14.1 The waiver by either party of any breach of
these Terms of Use shall not prevent the subsequent enforcement of that
provision and shall not be deemed to be a waiver of any subsequent breach of
that or any other provision.
14.2 If at any time any part of these Terms of
Use is held to be or becomes void or otherwise unenforceable for any reason
under any applicable law, the same shall be deemed omitted from these Terms of
Use and the validity and/or enforceability of the remaining provisions of these
Terms of Use shall not in any way be affected or impaired as a result of that
omission.
14.3 DHSC and
the Supplier acknowledge that, for the entire duration of a procurement
exercise (and for the purposes of any procurement exercises undertaken by
members of the Health Family), any dates and times shall be those displayed on
the System and any other Helpdesk recording and telecommunications equipment,
and such recordings shall represent a full account of the actual facts and
circumstances.
14.4 The
Supplier acknowledges that the System will not allow it to view the identity of
the other suppliers during and after a procurement exercise and similar
restrictions may also apply to market engagements and other actions under the
System.
15. Law and jurisdiction
These Terms of Use
and any dispute or claim arising out of or in connection with them shall be
governed by, and construed in accordance with, the laws of England and Wales
and shall be subject to the exclusive jurisdiction of the Courts of England and
Wales to which the parties irrevocably submit.
16. Interpretations
16.1 The headings to clauses are inserted for
convenience only and shall not affect the interpretation or construction of
these Terms of Use.
16.2 Words imparting the singular shall include the plural and vice
versa. Words imparting a gender include every gender and references to persons
include an individual, company, corporation, firm or partnership.
16.3 The words and phrases "other", "including"
and "in particular" shall not limit the generality of any preceding
words or be construed as being limited to the same class as any preceding words
where a wider construction is possible.
16.4 References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any
provision which it has modified or re-enacted (whether with or without
modification), and (iii) any provision which subsequently supersedes it or
re-enacts it (whether with or without modification).
16.5 All references in these Terms of Use to Clauses are to the
clauses to these Terms of Use and references to Sections are to sections of
these Terms of Use unless otherwise stated.
17. Definitions
For the
purposes of these Terms of Use the following definitions shall apply:
'Confidential Information' means secret, confidential,
commercial, financial, marketing, technical or other information, knowhow,
trade secrets and other information in any form or medium whether disclosed
orally or in writing before or after the date of these Terms of Use, together
with any reproductions of such information in any form or medium or any parties
of this information.
'Data Protection Legislation' means:
i) all applicable law about the processing
of personal data and privacy; and
ii) The Data Protection Act 2018, the General Data Protection
Regulation (Regulation 2016/679), the Telecommunications (Lawful Business
Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the
Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and
Electronic Communications (EC Directive) Regulations 2003 including if
applicable legally binding guidance and codes of practice issued by the
Information Commissioner; and
iii) to the extent that it relates to processing of personal data
and privacy, any laws that come into force which amend, supersede or replace
existing laws including the General Data Protection Regulation, the Law
Enforcement Directive (Directive (EU) 2016/680) and any applicable national
implementing Laws as amended from time to time including the Data Protection Aact 2018.
'Force Majeure' means any cause affecting the
performance by either DHSC, a member of the Health Family or Atamis of its
obligations arising from acts, events, omissions, happenings or non-happenings
beyond its reasonable control including (but without limiting the generality
thereof), endemic, pandemic, governmental regulations, fire, flood, or any
disaster or an industrial dispute affecting a third party for which a
substitute third party is not reasonably available. Any act, event, omission,
happening or non-happening will only be considered Force Majeure if it is not
attributable to the wilful act, neglect or failure to take reasonable
precautions of the affected party, its agents or employees or the failure of
either DHSC or Atamis to perform its obligations under these Terms of Use;
'Intellectual Property' means any patent, copyright,
database right, moral right, design right (whether registered or unregistered),
trademark, service mark, domain name, know-how, utility model, unregistered
design or, where relevant, any application for any such right, or other
industrial or intellectual property right.
'Health Family” means all the buyer organisations
consisting of DHSC companies, arms’ length bodies and NHS organisations whose
organisations are indicated within the landing page of the System, who have
registered with the DHSC to use the System; and “member of the Health Family” shall be construed accordingly;
‘Helpdesk’ means the facility provided by Atamis Ltd to handle
support queries and issues raised by Users;
'Procurement Categories' shall mean those categories of
goods and/or services which the Supplier has identified in the Supplier's Profile
in the System as being goods and/or services that Supplier would be interested
in supplying;
'Profile' consists of basic information
about a Supplier organisation including Procurement Categories information,
delivery locations, financials including accounts or statements of turnover and
insurance certificates and other relevant information that the System allows to
be included from completed SQs of the Supplier;
‘Services’ has the meaning as given under clause 1.3;
'SQ' means the selection
questionnaire available through the System, based on the Crown Commercial
Service’s standard selection questionnaire, and that has been adapted by DHSC
or a member of the Health Family for use through the System;
'Supplier' means an organisation that has
indicated its acceptance to be bound by these Terms of Use;
'System' has the meaning given under
clause 1.1;
'Registered User' or ‘User’ means an individual who has registered for and on behalf of
the Supplier to access the System and has agreed to be bound by these Terms of
Use;