Terms & Conditions
Whzan Terms and Conditions of Service V8 - September 2023
Solcom House 79 George Street Ryde Isle of Wight United Kingdom PO33 2JF
Tel +44 (0) 1983 817000 www.whzan.com
Whzan© Telehealth Terms and Conditions of Service
This document tells you the terms and conditions on which we will supply the Whzan services
to you. Please read these terms and conditions carefully. If you refuse to accept these terms
and conditions, you must not use the Whzan services.
1 INTERPRETATION
1.1. Definitions In these Terms and Conditions unless otherwise stated: -
• "Act" means the Telecommunications Act 1984;
• "Alarm" means notifications sent by the Service to the Customer based on
Customer set threshold values of measured parameters and "Alarms" shall
be construed accordingly;
• "Company" means Solcom Limited, a company registered in England and
Wales under number 3525534 whose registered office is currently situated
at Solcom Limited, Solcom House, 79 George Street, Ryde, Isle of Wight,
PO33 2JF, United Kingdom;
• "Commencement Date" means the date upon which the Contract is formed
in accordance with Clause 2;
• "Contract" means the contract between the Company and the Customer for
the supply of the services in accordance with these Terms and Conditions;
• "Customer" means the person or organisation who registers for the Service;
• "Data" refers to the health and personal data collected and stored by the
system;
• “The GDPR” means the EU General Data Protection Regulation 2016/679;
• “Data Controller” and “Data Processor” have the meanings as set out in
Article 4(7) and (8) respectively of the GDPR;
• "Force Majeure Event" has the meaning given to it in Clause 10.1;
• "Intellectual Property Rights" means all or any registered or unregistered
intellectual property rights in any part of the world, including but not
limited to patents, trademarks, design rights, copyrights, topographical
rights, know-how, rights in databases, rights in inventions and ideas and
rights to confidence together with any right to apply for any such
intellectual property rights and the benefit of any applications for any such
intellectual property rights and any similar intellectual property rights
anywhere in the world;
• "Service" and "services" means the provision of the Whzan© data collection,
data display and data storage services as applicable at any one time;
• "Service Package" means the services purchased by the Customer and
provided with the Service and can comprise of the collection of data from a
telehealth equipment and/or manual entry of health data, display of such
data with the help of the Service and the storage of historical values of the
data for which data is collected using the Service and/or provision of
Alarms;
• "Software" has the meaning given to it in Clause 4.6;
• "Termination Date" means the date of termination of the Contract;
• "Third party" means a party which is neither the Company nor the Customer;
• "Whzan" means the Whzan software and related hardware infrastructure
accessible via the www.Whzan.com website and the telehealth software
used on tablets, phones and other data collecting devices;
• "Working Day" means a day other than a Saturday or Sunday on which the
Clearing Banks in the United Kingdom are open to the public for the
transaction of business.
1.2. References In these Terms and Conditions,
• "Clauses" are references to clauses in these Terms and Conditions;
• "Persons" include a reference to anybody corporate, unincorporated
association or partnership; the singular shall include the plural and vice
versa; and references to a statute, statutory instrument, regulation, order
or licence is a reference to that statute, statutory instrument, regulation,
order or licence as substituted, varied or re-enacted from time to time,
unless the context otherwise requires;
• “Include” The words "include" and "including" are to be construed without
limitation;
• “Headings” The headings in these Terms and Conditions are for convenience
only and shall not affect the interpretation of these Terms and Conditions;
Whzan Terms and Conditions of Service V8 - September 2023
2 FORMATION OF CONTRACT AND ACCEPTANCE OF THE TERMS AND
CONDITIONS
2.1.1. The Company shall provide the services to the Customer in accordance with these
Terms and Conditions.
2.1.2. In the event that the Customer does not accept these Terms and Conditions the
Company shall not provide the services.
3 SUPPLY OF THE SERVICES
3.1. Timing
3.1.1. The Company shall supply the services to the Customer as soon as reasonably
practicable except in the case of non-payment of charges or additional charges by
the Customer or where the Company is prevented from providing the services by a
Force Majeure Event.
3.1.2. The Company shall inform the Customer of any delay in the delivery of the services
as soon as reasonably practicable.
3.2. Warranty
3.2.1. The Company warrants to the Customer that the services will be provided using
reasonable care and skill.
3.2.2. The Company provides no warranties in relation to:
a The suitability of the services for any particular purpose;
b The functionality of the software underlying the provision of the services;
c The functionality of any third-party software, components or hardware used
for the provision of the services including without limitation any provision of
broadband, computer clouds or mobile phone systems and computer or
mobile phone networks.
3.2.3. The Company shall not, if applicable, assign to the Customer the benefit of any
licence, warranty, guarantee or indemnity given by a third party supplying any
goods or services to the Company unless agreed with the Customer in writing and
with the third party's prior written consent.
3.2.4. The Company reserves the right to make any changes to the services which are
necessary to comply with any applicable law or safety requirement, or which do
not materially affect the nature or quality of the services, from time to time by
giving reasonable notice to the Customer.
3.2.5. The provision of the services will at all times be subject to any downtime and/or
interruptions caused by computer or software failure or routine or emergency
maintenance by the Company, the Customer or by third parties.
3.2.6. The standard warranty period on all hardware supplied is 12 months from date of
despatch.
3.3. Limitation of Liability
3.3.1. Nothing in these Terms and Conditions shall limit or exclude the Company's liability
for:
a Death or personal injury caused by its own negligence;
b Fraud or fraudulent misrepresentation;
c Any matter for which it would be illegal for the Company to exclude, or
attempt to exclude, its liability.
3.3.2. Subject to Clause 3.2.1, the Company shall not be liable to the Customer for:
a The loss of any material or data uploaded onto the Service and the servers
used to provide the services;
b The incompatibility of the Service with any of the Customer's equipment,
software or telecommunications links;
c Any technical problems including errors or interruptions of the services which
are outside of the Company's control;
d Any failure of third-party software including without limitation the Azure
product supplied by Microsoft, Inc.;
e Any failure of third-party hardware including platforms, computer cloud or
kit.
3.3.3. Subject to Clause 3.2.1, the Company's total liability to the Customer in respect of
all other losses arising under or in connection with the provision of the services,
whether in contract, tort (including negligence), breach of statutory duty, or
otherwise, is strictly limited to the total of one-month charges paid by the
Customer in the month prior to the breach and any losses which are a foreseeable
consequence of the Company breaking the Contract. Losses are foreseeable where
they could be contemplated by the Customer at the time the Contract is made.
3.3.4. The Company shall not be liable to the Customer or to any third party for any failure
by the Customer to comply with its obligations under these Terms and Conditions.
3.3.5. The Company’s liability for damages caused by a failure of the Guardian system
shall be limited to a maximum of £5 million.
4 CUSTOMER OBLIGATIONS
4.1. The Customer warrants that it has the capacity to adhere to these Terms and
Conditions.
4.2. The Customer warrants that they are at least eighteen (18) years old.
4.3. The Customer shall:
4.3.1. Be responsible for the security of his computer and telecommunications systems
and networks at all times including the transmission of any data across such
systems and networks;
4.3.2. Obtain the consent of individuals whose personal data are to be held on the user
registration pages or data history store of each Whzan account. The Customer must
promptly notify the Company of any changes to the Customer's registered details
including (but not limited to):
a Name and address of the Customer;
b Name, postal address, e-mail address, telephone number of the technical
contact and administrative contact and in any event, provide such
information within fifteen (15) Working Days of a request for such
information from the Company.
4.3.3. Notwithstanding Clause 15.5, keep confidential all passwords received from the
Company for the purpose of the services and notify the Company immediately
upon becoming aware that a password has become known to a third party;
4.3.4. Only make use of the services for a legitimate and lawful purpose;
4.3.5. Allow the Company to access the Customer's Whzan account and data contained
within for the purposes of essential technical support and for training with the
Customer;
4.3.6. Ensure that it/he complies at all times with all relevant laws and obligations
including but not limited to any licence under the Act which is applicable to the
Customer and all related laws in any territory in which the Customer is situated or
in which the Customer's data and mimics may be accessed or made available. The
Customer must also obtain any relevant consents and approvals for the installation
and use of the data collected by Whzan;
4.3.7. Ensure that all hardware, devices and equipment from which data is collected using
the Whzan or is used to connect to Whzan is:
a Correctly installed and connected according to the manufacturer's
instructions or as regulated by relevant laws of the territory where the
hardware, devices and equipment reside;
b Correctly maintained as recommended by its manufacturer or as regulated
by relevant laws of the territory where the hardware, devices and equipment
reside;
c Correctly, appropriately and adequately operated and monitored when in
use using appropriate skill and care in such operation and monitoring of the
hardware, devices and equipment and always according to manufacturer's
instructions and the laws of the territory where such operation and
monitoring takes place.
4.4. The Customer shall NOT:
4.4.1. Send, transmit, make available, copy, retransmit, broadcast or publish (whether
directly or indirectly) in whatever form any data, information or contractual rights,
material or statement which infringes the Intellectual Property Rights or
contractual or statutory rights or common law rights of any person or legal entity
or the laws or statutory regulations or common law rights relating to defamation,
contempt, blasphemy, infringement of privacy or personal data rights and any
equivalent or related laws in any territory in which they are or may be accessed or
made available;
4.4.2. Make use of the services to send or cause to be sent or forwarded electronic mail
without the express or assumed agreement of the respective recipient and the
consent of the owner of such mail or data contained in such mail.
4.4.3. Use the Whzan account to store data other than that collected within the terms of
the Service Package under these Terms and Conditions;
4.4.4. Use the services to obtain or offer or permit to be offered for profit or otherwise
any material, images, displays which are offensive, illegal or immoral or which are
in breach of any legal obligation;
4.4.5. Use the services in a manner which infringes a third party's copyright or other
Intellectual Property Rights;
4.4.6. Try to damage or enter the Service or servers used to provide the Service in any
manner which could be construed as "hacking" into the services, Whzan software
or servers used to provide the services.
4.5. Without prejudice to any other rights of the Company arising from these Terms and
Conditions or otherwise, the Customer will indemnify the Company against all
claims, losses, liabilities, expenses, fines and penalties of whatsoever nature made,
incurred or imposed as a result of a breach by the Customer of the terms of this
Clause 4.
4.6. Software ('Software') is provided for online use as part of the services, and the use
of such Software may be subject to Additional Charges in accordance with these
Terms and Conditions. The Customer shall not download, install, store or make any
copies of the Software for any other use, nor shall the Customer sublicense the
Software. The Customer shall not in any way translate, decompile, reverse
engineer, disassemble, modify, reproduce, rent, lease, lend, licence, distribute,
market or otherwise dispose of any portion of the Software or any copies thereof
and shall not assist any third party in doing so. The Software is designed to be used
through the Company's Whzan user interface and, as such, may be utilized by any
authorized user from any computer or workstation. This right is automatically
revoked upon termination of the services. The Company reserves the right to
modify or discontinue the Software at any time without notice.
5 TERMINATION
5.1. By the Company and the Customer
5.1.1. Without limiting its other rights or remedies, each of the Company and the
Customer may terminate the Contract with immediate effect by giving written
notice to the other party if:
a A petition is filed, a notice is given, a resolution is passed, or an order is made,
for or in connection with the winding up of that other party (being a
company) other than for the sole purpose of a scheme for solvent
amalgamation of that other party with one or more companies or the solvent
reconstruction of that other party;
b The other party (being an individual) is the subject of a bankruptcy petition
or order;
c An application is made to court, or an order is made, for the appointment of
an administrator over the other party (being a company);
d A person becomes entitled to appoint a receiver over the assets of the other
party or a receiver is appointed over the assets of the other party;
e Any event occurs or proceeding is taken with respect to the other party in
any jurisdiction to which it is subject that has an effect equivalent or similar
to any of the events listed in Clauses 5.1.1 (a) to (d) inclusive; or
f The other party suspends or ceases to carry on all or a substantial part of its
business.
5.1.2. Each of the Company and the Customer may terminate the Contract at their sole
discretion by giving the other not less than thirty (30) Working Days' written notice.
5.2. By the Customer
5.2.1. The Customer may terminate the Contract with immediate effect by giving written
notice to the Company in accordance with Clause 5.1.1.
5.3. By the Company
5.3.1. Without limiting its other rights or remedies, the Company may terminate the
Contract with immediate effect by giving written notice to the Customer in
accordance with Clause 5.1.1 and if:
a The Customer fails to pay the Charges and/or Additional Charges by the due
date for payment;
b The Customer is in breach of any of their obligations under Clause 4 and fails
to remedy such breach (where capable of remedy) within ten (10) Working
Days of being notified by the Company to do so;
c A Force Majeure Event prevents the Company from providing the services
for more than two (2) weeks in accordance with Clause 10.3.
6 EFFECT OF TERMINATION
6.1. Termination or expiry of the Contract for whatever reason shall not prejudice or
affect any right of action or remedy which shall have occurred or shall accrue
thereafter to either of the parties.
6.2. On termination or expiry of the Contract for whatever reason:
a The licence to use any software product and thereby granted to the Customer
in respect of the Service by the Company shall be revoked with immediate
effect;
b The Customer shall pay immediately all Charges and/or Additional Charges
outstanding under these Terms and Conditions to the Company within
(fourteen) 14 Working Days;
7 LIMITATION OF SERVICE
7.1. From time to time, the volume of data transfer between the Customer's devices
and the services may be limited either because of any limitations placed on the
service capacity by third party suppliers. The Company reserves the right to limit
the data transfer volume thus available to the Customer according to any volume
limitations imposed by third party suppliers.
7.2. The Company shall be entitled to suspend access to the services if the Customer is
in breach of any of its obligations under Clause 4 and fails to remedy such breach
(where capable of remedy) within five (5) Working Days of being notified by the
Company to do so. This Clause shall not be construed in any way as limiting the
termination rights of the Company.
7.3. If access to the services is suspended as a result of downtime caused by routine or
emergency maintenance by the Company, the services shall be reconnected as
quickly as practicable after, in the opinion of the Company, such circumstances
giving rise to the need to suspend have ceased to exist.
7.4. The Customer may be required at the Company's discretion to remove all software
downloaded from the Whzan servers provided the Customer is not legally obliged
to keep the programs for a longer period. This Clause shall not prejudice or affect
any other right of action or remedy or obligation which shall have occurred or shall
accrue thereafter to either of the parties.
7.5. Any third-party Software is subject to separate terms and conditions of the supplier
of such third-party Software. The Customer is urged to carefully study such terms
and conditions.
8 INTELLECTUAL PROPERTY RIGHTS
8.1. All Intellectual Property Rights of the Company in any Service and ancillary
documentation including these Terms and Conditions shall at all times remain
vested in the Company.
8.2. In consideration of and subject to payment of the Charges by the Customer upon
the Commencement Date, and the compliance by the Customer with these Terms
and Conditions, the Company grants to the Customer on and from the
Commencement Date until the termination of the Contract in accordance with
Clause 5 of these Terms and Conditions, a revocable non-exclusive licence to use
the Service and ancillary documentation in accordance with this Clause 8.
8.3. Should the Customer be authorised by the Company to have the use of multiple
service accounts for Whzan, the following user conditions shall apply to each
account.
8.4. The Customer shall undertake to ensure that everyone who uses the Service shall
observe these Terms and Conditions.
8.5. The Customer may take such back-up copies of any software installations as is
necessary in accordance with best computing practice. Help pages from the Whzan
website may be printed out on paper for use in the Customer's security or quality
procedures only.
8.6. The Customer shall not be entitled to use, copy, process or transfer any part of
Whzan in a way other than that described herein to convert it into another form
(Reverse-Assemble-Reverse-Compile) or in any other way translate any part of
Whzan, if such conversion is not indispensably provided for by express legal
regulations. The Customer shall not be entitled to rent out or lease the Service or
assign or sub-licence the Service except as expressly agreed under these Terms and
Conditions.
9 DATA PROTECTION
9.1. All information, mail messages and other data stored on the Company's computer
systems or servers operated by the Company or caused to be operated by the
Company including any computer clouds which may be used to provide the Service
will be treated as private and solely the property of the Customer at all times. It
will be used as directed by the Data Controller solely for the purpose of providing
the service to the Customer. Data will not be duplicated, copied, reproduced or
viewed publicly in any way except where express permission of the Customer has
been obtained in advance.
9.2. The processor will only act on the controller’s documented instructions, unless
required by law to act without such instructions.
9.3. The processor will immediately inform the controller if, in its opinion, an instruction
is unlawful.
9.4. The processor will ensure that people processing the data are subject to a duty of
confidence.
9.5. The processor, taking into account the state of the art, will implement appropriate
technical and organisational measures to ensure a level of security appropriate to
the risk.
9.6. The processor will only engage a sub-processor with the controller’s prior
authorisation and under a written contract imposing the same data protection
obligations as set out in the contract or other legal act between the controller and
the processor.
9.7. The processor will take appropriate technical and organisational measures to help
the controller respond to requests from individuals to exercise their rights.
9.8. Taking into account the nature of processing and the information available, the
processor will assist the controller in meeting its GDPR obligations in relation to the
security of processing, the notification of personal data breaches and data
protection impact assessments.
9.9. The processor will delete or return all personal data to the controller (at the
controller’s choice) at the end of the contract, and the processor will also delete
existing personal data unless the law requires its storage.
9.10. Upon reasonable request of the controller, the processor , and/or as appropriate its
sub-processors, will submit data processing facilities, data files and documentation
used for processing, reviewing, auditing and/or certifying by the controller (or any
independent or impartial inspection agents or auditors, selected by the controller
and not reasonably objected to by the processor) to ascertain compliance with the
warranties and undertakings in this Agreement, with reasonable notice and during
regular business hours. The request will be subject to any necessary consent or
approval from a regulatory or supervisory authority within the country of the
controller.
9.11. The personal data processed concerns the clients of the controller such as patients,
residents etc.
9.12. Data processed will include sensitive data including, but not limited to, name, date
of birth, health data and NHS number.
9.13. All data is stored on cloud servers within the UK and will only be transferred to
another country upon documented instructions of the data controller, unless
required by law to act without such instructions.
10 FORCE MAJEURE
10.1. For the purposes of these Terms and Conditions, "Force Majeure Event" means an
event beyond the reasonable control of the Company including but not limited to
strikes, lock-outs or other industrial disputes, failure of a utility service or transport
network, act of God, war, riot, civil commotion, malicious damage, compliance with
any law or governmental order, rule, regulation or direction, accident, fire, flood
or storm.
10.2. The Company shall not be liable to the Customer as a result of any delay failure in
performing its obligations under this Contract as a result of a Force Majeure Event.
The Company shall use its reasonable endeavours to bring the Force Majeure Event
to a close or to find a solution by which its obligations under the Contract may be
performed despite the Force Majeure Event.
10.3. If the Force Majeure Event prevents the Company from providing the services for
more than two (2) weeks, the Company shall, without limiting its other rights and
remedies, have the right to terminate this Contract immediately by giving written
notice to the Customer.
11 COMPLAINTS
11.1. The Customer should address any complaints concerning the provision of the
services to the Company via the support desk (support@solcom.com)
11.2. Support processes and escalation paths may be defined in a separate service level
agreement, if appropriate.
12 ASSIGNMENT
12.1. The Company may at any time assign, transfer, charge, subcontract or deal in any
other manner with all or any of its rights under the Contract and may subcontract
or delegate in any manner any or all of its obligations under the Contract to any
third party or agent.
12.2. The Customer shall not, without the prior written consent of the Company which
shall not be unreasonably withheld, assign, transfer, charge, subcontract or deal in
any other manner with all or any of its rights or obligations under the Contract.
13 THIRD PARTY RIGHTS
13.1. Nothing in these Terms and Conditions shall be taken as granting any rights
expressly or impliedly whether contractual or statutory to persons other than the
Company and the Customer, whether by virtue of the Contracts (Rights of third
parties) Act 1999 or otherwise.
14 OWNERSHIP
14.1. The www.Whzan.com website is owned and operated by Solcom Limited, a
company registered in England and Wales under company number 3525534,
whose registered office is situated at Solcom House, 79 George Street, Ryde, Isle
of Wight, PO33 2JF, United Kingdom. Our main trading address is Solcom House,
79 George Street, Ryde, Isle of Wight, PO33 2JF. Our VAT number is GB 717 5059
31. The Company may be contacted by post at its registered office address, through
the www.Whzan.com website, by email at one of the addresses set out in Clause
14.1 or by telephone on +44 (0) 1983 817000.
15 GENERAL
15.1. No delay, neglect or forbearance on the part of either party in enforcing against
the other party any of these Terms and Conditions shall either be or be deemed to
be a waiver in or in any way prejudice any right of that party under these Terms
and Conditions, unless such waiver shall be in writing.
15.2. If a court or any other competent authority finds that any provision of these Terms
and Conditions (or part of any provision) is invalid, illegal or unenforceable, that
provision or part-provision shall, to the extent required, be deemed deleted, and
the validity or enforceability of the other provisions of these Terms and Conditions
shall not be affected.
15.3. The Customer is the only person having the right to access the Whzan services and
is therefore considered to be the Data Controller.
15.4. This Contract, and any dispute or claim arising out of or in connection with it or its
subject matter or formation (including non-contractual disputes or claims), shall be
governed by, and construed in accordance with, English law, and the parties
irrevocably submit to the non-exclusive jurisdiction of the courts of England and
Wales.
15.5. Each party shall treat as confidential all information received by it from the other
party relating to the other party's business, customers, strategies and plans, and
such information may only be used for the purpose of these Terms and Conditions
and may only be disclosed in strict confidence to its professional advisers or any
person to whom disclosure is required by law, to its employees or subcontractors
where reasonably necessary for the purposes envisaged by these Terms and
Conditions, and where otherwise specifically permitted by these Terms and
Conditions.