Authorised User: any individual identified by the Customer and notified to the Supplier in writing from time to time as being entitled to receive the benefit of the Services.
Breach: a security breach that has resulted in the unauthorised disclosure of, or access to, Shared Personal Data.
Business Data: the confidential business and trading data and information of the Customer
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges (including expenses and disbursements) payable by the Customer for the supply of the Services by the Supplier, as set out in the Contract Details and Schedule 3.
Compliance Requirements: all relevant compliance laws, statutes, regulations, codes and standards appropriate for the Services including, without limitation, those relating to occupational health & safety, equality, diversity and data protection.
Conditions: these terms and conditions set out in clause 1 to clause 11 (inclusive).
Confidential Information: any information which is by its nature or is marked as confidential including, but not limited to the Personal Data and the Business Data.
Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with the Contract Details, these Conditions and any Schedules.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
“Data Controller”, “process” or “processing” each have the meaning as defined under Data Protection Laws.
Data Discloser: the party that discloses Shared Personal Data to the other party.
Data Receiver: the party that receives Shared Personal Data from the other party.
Data Subject: an identified or identifiable natural person as defined under Data Protection Laws.
Data Protection Laws: the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), the EU Data Protection Directive (Directive 95/46/EC), and any other applicable data protection and privacy laws and regulations in force from time to time.
Deliverables: all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts).
Intellectual Property Rights: all copyright and other intellectual property rights.
Personal Data: the personal data (as defined by the applicable Data Protection Laws) of all Authorised Users supplied to the Supplier in connection with the provision of the Services.
Services: the Retained Services to be provided by the Supplier pursuant to this Contract, as described in Part 1 of Schedule 2 and, at the option of the Customer, all or any of the Optional Services pursuant to this Contract, as described in Part 2 of Schedule 2.
Services Start Date: the day on which the Supplier is to start provision of the Services, as set out in the Contract Details.
Shared Personal Data: Personal Data exchanged between the parties under this Contract.
Supplier IPRs: all Intellectual Property Rights necessary or desirable to enable a Customer to receive and use the Services.
2. Commencement and term
2.1 This Contract shall commence on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives written notice to the other, not being less than any Minimum Notice Period specified in the Contract, expiring on or after any Minimum Service Period specified in the Contract.
2.2 Upon the commencement of the Contract, the parties shall agree a plan of action in order to regulate, monitor and evaluate the supply of the Services and to adjust and improve as necessary the supply of the Services from time to time.
3. Supply of services
3.1 The Supplier shall supply the Services to the Customer from the Services Start Date in the manner of and during the hours specified in accordance with this Contract.
3.2 In supplying the Services, the Supplier shall:
(a) perform the Services with reasonable care and skill and by using suitably and appropriately qualified practitioners;
(b) use reasonable endeavours to perform the Services in accordance with the service description set out in Schedule 2;
(c) ensure that all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
(d) ensure that all employees and other persons providing the Services will hold professional qualifications appropriate to their roles and job status and that the Supplier will provide sufficient insurance cover in respect of their conduct under the Services;
(e) comply with all applicable laws, statutes, regulations and codes from time to time in force, provided that the Supplier shall not be liable under this agreement if, as a result of such compliance, it is in breach of any of its obligations under this agreement.
(f) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to the Supplier, provided that the Supplier shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its other obligations under this Contract; and
(g) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of this Contract.
3.3 The Supplier shall not subcontract or outsource the Services to any party without having received the prior written consent of the Customer (which shall not be unreasonably withheld or delayed).
4. Customer’s obligations
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services including initially providing clear locations and parameters of the nature of the Services required;
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, suitable secure and confidential operational accommodation, data and other facilities as reasonably required by the Supplier;
(c) provide, in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate and comprehensive in all material respects; and
(d) comply with all Compliance Standards and inform the Supplier of such Compliance Standards as relate to the provision of the Services;
(e) liaise with all appropriate statutory bodies in connection with the application of the Compliance Standards in so far as they relate or may relate to the Authorised Users; and
(f) communicate and pass on to all Authorised Users any literature and forms pertaining to the Services supplied by the Supplier.
4.2 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Intellectual property
5.1 The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
5.2 The Supplier grants the Customer, or shall procure the direct grant to the Customer of a non-exclusive, royalty-free, licence to copy the Supplier IPRs for the purpose of receiving and using the Services in the Customer’s business during the term of the Contract.
5.3 The Customer grants the Supplier a non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Contract for the purpose of providing the Services to the Customer in accordance with this Contract.
6. Charges and payment
6.1 In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this clause 6 and in Schedule 3.
6.2 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer monthly in arrears. Each invoice shall include all reasonable supporting information required by the Customer.
6.4 The Customer shall pay each invoice due and submitted to it by the Supplier as cleared funds, within 30 days of receipt, to a bank account nominated in writing by the Supplier.
6.5 If the Customer fails to make any payment due to the Supplier under this Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 9:
(a) the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
(b) the Supplier may suspend all Services until payment has been made in full.
6.6 All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.7 The Supplier shall be entitled to review the Charges annually and may vary the Charges at any time on giving at least 30 calendar days’ notice in writing (“Review Period”) of the increase to the Customer by way of providing a new price list. If the Customer does not agree to any price variation, it will have the right to terminate this Contract during the Review Period by providing the Supplier with at least seven days’ prior written notice. If the Customer does not serve a termination notice in accordance with this clause 6.7, it will be deemed to have accepted, and be bound by, the applicable price variation with effect from the end of the Review Period.
6.8 Without prejudice or limitation to its other rights and remedies under the Conditions, in the event that the Customer fails to pay the Charges on the due date, the Supplier shall be entitled without notice to suspend all the Services until all payments for such Charges have been received in full.
6.9 The Customer shall, in addition to the Charges, reimburse all and any expenses and disbursements incurred by the Supplier in connection with the Services, whether or not anticipated in the Contract Details, upon demand, including, but not limited to the payment for obtaining general practitioner or specialist medical reports and in giving professional witness evidence at court or tribunal.
6.10 Any Deposit paid under this Contract shall be held by the Supplier as a guarantee of performance by the Customer during the term of this Contract and any balance of the Deposit owing shall be paid to the Customer upon the termination of this Contract. The Supplier shall be entitled to utilise the Deposit towards the payment of any arrears owing under this Contract during the term of this Contract, in which case, the Customer shall make a further payment sufficient to make up the shortfall in the Deposit upon written demand by the Supplier.
7.1 In the event that any Services which have been booked by the Customer with the Supplier are cancelled by the Customer, the Customer shall remain liable and responsible for payment of the Charges relating to those Services, subject to clause 7.2.
7.2 If the minimum notice periods set out below of intended cancellation of Services are given in writing by the Customer to the Supplier, the Charges for the relevant Services shall be discounted as follows:
(a) 2 – 5 Business Days – 50% discount.
(b) 6 – 10 – Business Days – 75% discount.
(c) 11+ Business Days – 100% discount.
7.3 No refunds or discounts may be given due to the non-attendance of any Authorised User on the due date for any reason or for any cancellation or postponement of the provision of the Services or arising from any lack of cooperation from or disruption by any Authorised User.
8. Limitation of liability
8.1 Nothing in this Contract shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clauses 8.1 and 8.3, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and any indirect or consequential loss.
8.3 Subject to clauses 8.1 and 8.3, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to Fifty per cent (50%) of the average annual Charges (calculated by reference to the Charges in successive 12 month periods from the Services Start Date) paid by the Customer under this Contract.
8.4 Subject to clause 8.1, each party’s liability under the indemnity in clause 10.10 will be limited to an amount equal to £2 million per claim.
8.5 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
9.1 Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 Business Days after being notified in writing to do so;
(b) the other party, being a corporate entity, takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its 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 its assets or ceasing to carry on business;
(c) the other party, being an individual, takes any step or action in connection with personal bankruptcy proceedings, or any composition or arrangement with his or her creditors, having a receiver appointed to any of his or her assets or ceasing to carry on business;
(d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
9.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment.
9.3 On termination of this Contract for whatever reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
(c) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9.4 On termination of this Contract for whatever reason at the written request and at the cost to the Customer then prevailing, the Supplier shall transfer the Personal Data to another suitable health professional or health organisation.
10. Data Protection
10.1 Relationship and overview of use of shared personal data. This clause defines the principles and procedures that the parties will adhere to and the responsibilities the parties owe to each other and to Data Subjects in relation to the Services under this Contract. The parties acknowledge that as they are jointly determining the purposes and means of processing Personal Data (and are using the data for their own purposes), they will be joint Data Controllers under applicable Data Protection Laws.
10.2 Compliance with Data Protection Laws. Each party must ensure that they are compliant with Data Protection Laws at all times during the term of this Contract and any ongoing processing activities. Nothing in this Contract shall relieve either party of its own direct responsibilities and liabilities under Data Protection Laws.
10.3 Shared Personal Data. The Shared Personal Data must be appropriate and not be irrelevant or excessive. The Data Discloser shall ensure that its privacy notices are legally compliant, clear and provide sufficient information to the Data Subjects for them to understand what Personal Data the Data Discloser is sharing with the Data Receiver, the circumstances in which it will be shared, the purposes for the data sharing and either the identity of the Data Receiver or a description of the type of organisation that will receive the Personal Data.
10.4 Fair and lawful processing. Each party will ensure that it processes the Shared Personal Data fairly and lawfully in accordance with relevant Data Protection Laws. Each party shall ensure that it processes Shared Personal Data on the basis of one of the legal grounds available under applicable Data Protection Laws.
10.5 Data Subjects’ rights. Data Subjects may have the right to obtain certain information about the processing of their Personal Data through a subject access request, or may request rectification, erasure, porting or blocking of their personal data (“Subject Access Requests”). The parties agree to provide reasonable assistance to each other as is necessary to enable them to comply with Subject Access Requests and to respond to any other queries or complaints from Data Subjects.
10.6 Security. Each party agrees to implement administrative, technical and physical safeguards that are sufficient to ensure the security and confidentiality of any Shared Personal Data. Each party agrees not to make any changes to its security measures that would increase the risk of unauthorised access to, use of, or disclosure of, the Personal Data.
10.7 Breaches and reporting procedures. Having considered the applicable Data Protection Laws, the parties have in place their own guidance that must be followed in the event of a Breach. Each party must notify any Breach to the other party as soon as possible and, in any event, within 24 hours of identification of the Breach in order to resolve the issue in accordance with the applicable Data Protection Laws. After providing such notice, the breached party will investigate the Breach, take all necessary steps to eliminate or contain the exposures that led to such Breach, and keep the other party advised of the status of such Breach and all related matters. The parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Breach in an expeditious and legally compliant manner. Unless otherwise required by Data Protection Laws, prior to giving notice to any regulatory authority, any individual, or any third party of any actual or potential Breach, the breached party will consult with the other party.
10.8 Sub-contractors. Prior to disclosing any Shared Personal Data to any Data Receiver affiliates or to a sub-processor, the Data Receiver must have in place with such third party a written agreement that includes data processing terms that are at least as broad in scope and as restrictive as those in this Contract. The Data Receiver will remain directly accountable and liable to the Data Discloser for the acts and omissions of any affiliate or sub-processor at all times.
10.9 Transfer of Personal Data. The Data Receiver agrees not to transmit any Shared Personal Data to a country or territory outside the European Economic Area unless it can ensure that it has provided appropriate safeguards under Data Protection Laws in relation to the transfer and has implemented a lawful transfer mechanism.
10.10 Indemnity. Each party (“Indemnifying Party”) will on demand indemnify the other party in respect of any third party claims or fines for any type of liability, loss, damage, claims, fines, demands, actions, charges, costs (including legal fees) and expenses suffered or incurred by a party and/or its Affiliates arising out of or in connection with any Breach of Shared Personal Data by the Indemnifying Party and/or its affiliates and/or its sub-processors as a result of it failing to comply with the terms of this Contract.
10.11 Disputes with Data Subjects or supervisory authorities. In the event of a dispute or claim brought by a Data Subject or the relevant supervisory authority concerning the processing of Shared Personal Data against either or both parties, the parties will inform each other about any such disputes or claims and will cooperate with a view to resolving them in a timely fashion.
10.12 Data Sharing Purpose. Each party will, where applicable, provide the information to Data Subjects referred to in Articles 13 and 14 of the GDPR.
11.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the Supplier’s prior written consent.
(b) The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.
(a) Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s Confidential Information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under this Contract.
11.4 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
11.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Hours contracted for by the Supplier shall wherever possible be undertaken during the normal working day but both parties shall cooperate to provide flexibility in order to meet the needs of the Customer and reduction of hours in a single day or time period spent off site by the Supplier will be notified and agreed between the parties and alternative dates settled, wherever possible.
11.10 Third party rights. Unless otherwise expressly stated elsewhere in this agreement no one other than a party to this agreement shall have any right to enforce any of its terms.
11.11 Governing law. This Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
11.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.