HCML Supplier Terms and Conditions

1.1 These are the terms and conditions on which we, HCML, require our suppliers to provide services to our clients on a trial or short term basis.

1.2 “HCML” is the trading name of Health & Care Management Limited (Company Number 04702271) which is a company incorporated in England & Wales and whose registered office is Melrose House, 42 Dingwall Road, Croydon, CR0 2NE, UK.

1.3 Our suppliers are practitioners and treatment providers which have contracted with us pursuant to a formal letter of agreement signed by the supplier and HCML (“Letter of Agreement”) which expressly incorporates these Terms and Conditions (“T&Cs”).

1.4 The following definitions apply to these T&Cs:

1.4.1 “Affiliate” means in relation to each party, means and includes each holding company and each subsidiary of such holding company (excluding the party in question). In this definition “subsidiary” and “holding company” shall have the meanings given to them in section 1159 of the Companies Act 2006 (and for the purposes of the membership requirement in section 1159(1)(b) and section 1159(1)(c) a company shall be treated as a member of another company even if its shares in that other company are registered (i) in the name of its nominee, or (ii) in the name of a person (or the nominee of that person) who is holding the shares as security);

1.4.2 “Agreement” means the Letter of Agreement referred to in clause 1.3 together with these T&Cs, as amended from time to time in accordance with these T&Cs;

1.4.3 “Customer” means the organisation paying fees to HCML for services including those provided for HCML by the Supplier;

1.4.4 “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party;

1.4.5 “Data Controller, Data Processor, Personal Data and Special Category Data” shall have the meanings set out in the Data Protection Legislation;

1.4.6 “Disclosure and Barring Service” or “DBS” Means the body corporate to whom the Secretary of State has delegated his functions under Part V of the Police Act 1997 in relation to applications for criminal record certificates and enhanced criminal record certificates as established by section 87(1) of the Protection of Freedoms Act 2012;

1.4.7 “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable;

1.4.8 “Operational Information” means those details provided by the Supplier to HCML at the initial on-boarding or the last detailed audit and includes but is not limited to Clinician information, Clinic location, Clinical governance information, Corporate governance information and Health & Safety information;

1.4.9 “Patient” means the individual(s) referred to the Supplier by HCML for treatment, often referred to in day to day operations variously as the “rehabilitation client,” the “referral client,” the “client” or the “patient”;

1.4.10 “Supplier” means the supplier referred to clause 1.3 which has signed the Letter of Agreement;

1.4.11 “Supplier Portal” means HCML’s Supplier portal;

1.4.12 “Supplier Code of Conduct” means HCML’s supplier code of conduct, from time to time, available on HCML’s website at hcml.co.uk/policies-compliance/

1.4.13 “Treatment Services” means the treatment services provided by the Supplier as more particularly set out in the Letter of Agreement which may include physiotherapy, rehabilitation, psychotherapy or other treatment including assessments, diagnostics, therapies and self-management services.

1.5 In this Agreement the following rules of interpretation apply (except expressly stated otherwise):

1.5.1 a reference to persons includes individuals, corporations, and unincorporated bodies or associations that are recognised at law (whether or not having separate legal personality and irrespective of their jurisdiction of origin, incorporation or residence);

1.5.2 any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, consolidated or re-enacted;

1.5.3 ”Writing” includes emails. When we use the words “writing” or “written” in these terms, this includes letters and emails;

1.5.4 “working day” means a day when the clearing banks in the City of London are open for business;

1.5.5 “party” means HCML or the Supplier;

1.5.6 In the event of any conflict of terms between these T&Cs and the Letter of Agreement, the latter shall prevail and take precedence.

1.5.7 The expression “HCML”, when used in these terms and conditions, shall mean and include HCML as defined in clause 2.1 and all other Group Companies (meaning in relation to HCML, HCML itself, its subsidiaries, any holding company or parent company of HCML and any subsidiary of any such holding company or parent company as such terms are defined in section 1159 of the Companies Act 2006; (if any).

2.1 Upon execution of the Letter of Agreement, the Supplier is appointed as a non-exclusive provider of Treatment Services to HCML’s Patients.

2.2 HCML shall not be obliged to provide any minimum volumes of Patients to the Supplier and there shall be no minimum payment to the Supplier other than the fees as properly incurred in accordance with clause 6.

2.3 The Supplier confirms it is not restricted in working with HCML and shall inform HCML if any restrictions or exclusive arrangements are implemented with other customers which would prevent HCML from referring Patients to the Supplier.

2.4 The Agreement will come into force in accordance with the terms of the Letter of Agreement (or, in the absence of such specific terms, the date of execution by both parties of the Letter of Agreement). The Agreement will thereafter continue in force until terminated in accordance with (i) the terms of the Letter of Agreement (or in the absence of such specific terms, the Agreement may be terminated by either party by giving 30 days’ written notice to the other party (subject to any minimum duration or trial period set out in the Letter of Agreement) or (ii) the terms below.

2.5 Without limiting its other rights or remedies, HCML may terminate this Agreement with immediate effect by giving written notice to the Supplier if:

2.5.1 the Supplier commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of the Supplier being notified in writing to do so;

2.5.2 the Supplier or any of its Affiliates 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), obtaining a moratorium, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

2.5.3 the Supplier or any of its Affiliates suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;

2.5.4 the Supplier or any of its Affiliates’ financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy; or

2.5.5 if a period of delay or non-performance as a result of a Force Majeure Event continues for 14 days or more.

2.6 Termination of the Agreement, however arising, 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 the Agreement which existed at or before the date of termination.

2.7 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.

2.8 Following any termination, unless expressly stated otherwise by HCML, the Supplier shall complete the provision of the Treatment Services to Patients referred prior to the date of termination. This period may be at least 12 weeks or as long as required to complete treatments (whichever is the longer), unless agreed by the mutual consent of both parties.

3.1 The Supplier shall provide the Treatment Services as follows:

3.1.1 using reasonable skill, care and diligence;

3.1.2 in accordance with evidence based practice;

3.1.3 using appropriately experienced, qualified and trained professional staff in the UK (“Practitioners”) who must be registered with the appropriate regulatory body set out in the Letter of Agreement (such as the Health and Care Professions Council (“HCPC”));

3.1.4 ensuring the availability of all the premises, facilities and equipment reasonably necessary to deliver the Treatment Services in accordance with evidence based practice;

3.1.5 subject to HCML’s Supplier Code of Conduct; and 

3.1.6 in compliance with all applicable laws and regulations.

3.2 The Supplier warrants and represents that the Operational Information provided to HCML during onboarding is true and accurate in all material respects.

3.3 The Supplier shall where applicable, upon request by HCML, provide a schedule setting out the name and qualifications of each Practitioner who will be delivering and administering Treatment Services and the details of each Practitioner’s insurance cover. The Supplier must notify HCML within one working day of any disciplinary proceedings, enforcement action or other investigatory action being initiated against any of its Practitioners.

3.4 The Supplier will for the duration of this Agreement conduct and maintain enhanced DBS checks for all clinical practitioners.

3.5 If at any time the Supplier fails to meet any of the requirements of this Agreement in relation to its Practitioners, the Supplier must notify HCML and shall ensure that such Practitioner is prohibited from providing any of the Treatment Services for any Patient. 

3.6 The Supplier agrees to the following Key Performance Indicators (“KPIs”) for the duration of this Agreement;

3.6.1 The Supplier shall offer an Initial Assessment (IA) which is to take place within the timescale set out in the Letter of Agreement;

3.6.2 The Supplier will return Initial reports within the timescale set out in the Letter of Agreement;

3.6.3 The Supplier will return discharge reports within the timescale set out in the Letter of Agreement;

3.6.4 The Supplier will provide HCML with updated Operational Information within the timescale set out in the Letter of Agreement in respect of any information changing and will do so in the format that was used to provide the information at on-boarding or at the last detailed audit (unless requested in an alternative format by HCML);

3.6.5 Treatment session numbers shall be contained within evidence-based best practice and to be in accordance with the HCML referral instructions.

3.7 The Supplier will not administer any:

3.7.1 additional Treatment Services outside of the original HCML referral instruction unless (i) it has been authorised in advance by the appropriate HCML case manager or other authorised member of HCML, such authorisation to be evidenced in writing or delivered via HCML’s Supplier Portal or (ii) it is clinically necessary and there is an urgent need to carry out a procedure and/or treatment different to the one that the Patient was referred for, and HCML was not available to provide its agreement to that procedure or treatment before such procedure or treatment was required (or it was not reasonably practicable to obtain such agreement due to clinical necessity), in which case the Supplier shall notify HCML as soon as reasonably practicable after the provision of the procedure. Funding of such different procedure and/or treatment is subject to clause 6.3.2;

3.7.2 treatments to the Patient for which the cost is different from those specified in the Letter of Agreement without the express prior written authorisation from HCML to proceed with that treatment.

4.1 The Supplier (and each Practitioner if not directly employed by the Supplier and covered under the Supplier’s insurance arrangements) engaged in providing Treatment Services shall be personally insured at all times for £5,000,000 (five million pounds) per event for public liability and £5,000,000 (five million pounds) per event for professional and medical malpractice liability.

4.2 Complaints received by HCML relating to the Treatment Services shall be managed by HCML. If complaints are received by the Supplier about the Treatment Services, the Supplier shall notify HCML’s complaints handler within 1 working day of receipt of the complaint and HCML shall take conduct of the handling of such complaint.

4.3 The Supplier will provide full assistance to HCML in the handling and resolution of all complaints. Where such assistance is required the Supplier will conduct an investigation into the complaint and the events surrounding it and provide a full written response to HCML within five (5) working days of the request for assistance. 

4.4 In addition the Supplier agrees to reimburse HCML within thirty (30) days of such payment being made to the Patient or the Customer for any goodwill or compensatory payments made by HCML where the complaint is due to the negligence or failure of the Supplier to provide the Treatment Services in accordance with this Agreement. HCML shall consult with and seek the consent of the Supplier in respect of any such proposed goodwill or compensatory payments, such consent not to be unreasonably withheld or delayed (without prejudice to the potential right to claim damages for a breach of contract).

5.1 Both parties acknowledge that the relationship between Data Processor and Data Controller in respect of Data Protection Legislation is determined by the factual relationship between them, however for the avoidance of doubt, it is the intent of the parties that each party shall be a separate Data Controller.

5.2 The parties undertake to each other that whenever processing (i) the other party’s Personal Data shared under this Agreement or (ii) its own Personal Data to be shared with the other party, each party will:

5.2.1 comply fully with the provisions of the Data Protection Legislation;

5.2.2 take all appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data, and against accidental loss or destruction of, or damage to, the same;

5.2.3 each identify one or more specified and lawful bases for processing data (and where such data is Special Category Data to ensure that one or more of the conditions in Article 9 of the UK GDPR are met), and will not process Personal Data shared under this Agreement in any matter incompatible with that purpose;

5.2.4 will not process Personal Data shared under this Agreement for marketing purposes;

5.2.5 not, by its acts or omissions, deliberately or negligently cause the other party to breach its respective obligations under the Data Protection Legislation;

5.2.6 ensure that Personal Data is adequate, relevant and not excessive in relation to the purpose or purposes for which it is processed;

5.2.7 ensure that Personal Data is accurate and up to date;

5.2.8 take every reasonable step to ensure inaccurate Personal Data or Special Category Data is rectified or erased;

5.2.9 notify the other party where it identifies that inaccurate Personal Data has been shared with the other party; and

5.2.10 comply with the rights of data subjects under the Data Protection Legislation and take reasonable steps to assist the other party in complying with those rights.

5.3 Where either party collects Personal Data or Special Category Data which it subsequently wishes to transfer to the other party it shall ensure all of the following prior to such transfer:

5.3.1 All fair processing or privacy notices have been given to the data subject;

5.3.2 Where required under Data Protection Legislation, valid consent has been obtained from the data subject, and such consent has not been withdrawn;

5.3.3 The data subject has not exercised their right to object to processing which would preclude such a transfer.

5.4 Each party undertakes not to transfer Personal Data shared under this Agreement outside of the UK except where under the circumstances permitted in the Data Protection Legislation (and the Supplier shall notify HCML in writing where it intends to do so).

5.5 Each party agrees to nominate a Data Sharing Contact who will be contacted in the event of any notification required under this Agreement.

5.6 In respect of Personal Data shared under this Agreement, each party agrees to:

5.6.1 notify the other party without undue delay and in any case within one working day of any actual or suspected Personal Data Breach involving, or suspected to involve, Personal Data shared under this Agreement; and to take any reasonable steps to assist in the investigation, limitation and resolution of any such Breach;

5.6.2 notify the other party without undue delay and in any case within one working day on receiving any Information Commissioner’s Office (or other Supervisory Agency) correspondence relating to Personal Data shared under this Agreement;

5.6.3 notify the other party without undue delay and in any case within one working day of receiving a request by any data subject to exercise their rights under the Data Protection Legislation with respect to Personal Data shared under this Agreement, or where such request might apply to Personal Data shared with or processed by the other party.

6.1 In consideration of the provision of the Treatment Services by the Supplier, HCML will pay the Supplier the fees as listed in the Letter of Agreement (“Fees”). The Fees are to be invoiced at the conclusion of Treatment Services (per case) unless otherwise agreed by HCML.

6.2 The Fees are inclusive of initial assessment, discharge or other reports, travel, mileage or other expenses. Subject to clause 6.3, no additional costs or expenses may be charged by the Supplier without the express prior written authority of HCML.

6.3 The following additional fees may apply:

6.3.1 If agreed in the Letter of Agreement, HCML will pay the Supplier a fee set out in the Letter of Agreement (and if no exact fee is prescribed but the principle is agreed, the fee shall be £15) for a session which the Patient did not attend (“DNA”) where they did not give notice at least 24 hours prior to the agreed appointment. Payment will only be made if the Supplier has notified HCML of the DNA or cancellation within 24 hours of it having taken place. If the Supplier has not notified HCML within 24 hours of the appointment time, no payment will be made for that appointment. 

6.3.2 HCML cannot guarantee payment in respect of any fees arising from additional treatment undertaken by the Supplier without HCML’s authorisation pursuant to clause 3.6.1(ii), but shall use reasonable endeavours to seek reimbursement from the relevant Customer subject to clause 3.6.1(ii).

6.4 The Fees set out in the Letter of Agreement exclude VAT. The parties acknowledge that the Treatment Services supplied within this Agreement are not currently subject to VAT. In the event that a change in the law or guidance from HMRC results in any of the Treatment Services under this Agreement being subject to VAT, past or present, both parties will co-operate fully with each other and HMRC as required so as to comply with any changes. The Supplier will pass on in full to HCML any changes in fees resulting from a variation to levels of VAT, but this change may not be applied retrospectively.

6.5 HCML (The self-biller) agrees that, where the Supplier uses HCML’s Supplier Portal:

6.5.1 To issue self-billed invoices for all undisputed sessions of treatment, DNAs and late cancellations administered by the Supplier until the date set out in the Letter of Agreement;

6.5.2 To complete self-billed invoices showing the Supplier’s name, address and VAT registration number, together with all the other details which constitute a full VAT invoice;

6.5.3 To make a new self-billing agreement in the event that their VAT registration number changes;

6.5.4 To inform the Supplier if the issue of self-billed invoices will be outsourced to a third party.

6.6 Where the Supplier uses HCML’s Supplier Portal, the Supplier agrees:

6.6.1 To accept invoices raised by the self-biller on their behalf until the date set out in the Letter of Agreement;

6.6.2 Not to raise sales invoices for the transactions covered by this Agreement;

6.6.3 To notify HCML immediately if it: (i) Changes its VAT registration number; or (ii) Ceases to be VAT registered; or (iii) Is subject to any change of control (e.g. sell its business or part of its business).

6.7 HCML will pay the Supplier within 60 days of generation of an invoice (or such other period as may be set out in the letter of Agreement) if no bona fide dispute is notified to the Supplier by HCML.

6.8 It is the Supplier that is responsible for generating the self-billing invoice on HCML’s Supplier Portal. HCML reserves the right not to settle any invoices generated more than ten (10) weeks after the date of the final treatment session.

7.1 HCML hereby grants the Supplier a revocable, non-exclusive, personal, non-transferable limited right to use the Supplier Portal for the purposes of communications between the Supplier and HCML regarding Treatment Services provided under this Agreement (the “Licence”).

7.2 The Supplier agrees that it shall use the Supplier Portal in accordance with this Agreement and shall not:

7.2.1 Decompile, reverse engineer, attempt to derive the source code of, or decrypt any component of the Supplier Portal;

7.2.2 Attempt to modify in anyway the Supplier Portal;

7.2.3 Violate any applicable laws or regulations in connection with the Supplier’s use of the Supplier Portal;

7.2.4 Use any proprietary information contained within the Supplier Portal for creating a product, service or software that is directly or indirectly competitive or in any way a substitute for this portal.

7.3 The Supplier agrees that information put into the Supplier Portal by the Supplier including treatment history, locations and notes may be used by HCML for purposes including, but not limited to:

7.3.1 Facilitating the case management and treatment process, understanding the clinical efficacy and outcomes of the case and the recovery of the Patient;

7.3.2 Understanding the performance against KPIs and other metrics, the clinical efficacy and the customer satisfaction provided by Practitioners, clinics and organisations on HCML’s network and the network as a whole, including benchmarking;

7.3.3 Providing online services and information to HCML’s Patients and Customers such as online booking, location choice, ongoing case information, capturing reviews, feedback and customer satisfaction;

7.3.4 Analysing, understanding and communicating to HCML’s Customers the physical location and coverage of HCML’s physiotherapy network, including areas with little or no coverage;

7.3.5 Other purposes in line with HCML’s privacy policy described at https://hcml.co.uk/privacy-policy.

7.4 The Supplier agrees that:

7.4.1 As the facility becomes available, it shall keep the Supplier Portal updated with Practitioners working across its organisation;

7.4.2 It shall make Practitioners and users of the Suppler Portal aware that limited personal data including their name, email address, contact details, working locations, professional membership number (or any removal of professional membership), qualifications and years practicing shall be processed by HCML for the above purposes and that their sex may be shown on the Supplier Portal to Patients and Customers in order to facilitate cultural or other preferences when selecting clinics and Practitioners and approving appointments. The Supplier agrees to refer such Practitioners and users to HCML’s privacy policy at https://hcml.co.uk/privacy-policy.

7.5 It is a condition of this Agreement that the Supplier will ensure that:

7.5.1 User accounts for the Supplier Portal are never shared between users; and

7.5.2 HCML is made aware (either via built in functionality or by contacting HCML’s supplier administration team) of the Supplier’s users who leave or join the Supplier, or who move roles and no longer need access to the Supplier Portal; and

7.5.3 All users who are provided access to the Supplier Portal are:

7.5.3.1 Regularly provided training on Data Protection and Information Security;

7.5.3.2 Made aware of the obligation not to share user accounts or passwords with other individuals;

7.5.3.3 Screened in accordance with the Supplier’s pre-employment checks policy before being provided with an account.

7.5.3.4 In the event of a password or account being, or suspected of being, compromised, the Supplier shall inform HCML immediately.

7.6 HCML may, in its sole and absolute discretion, at any time, and for any reason, suspend or terminate this Licence and the rights afforded to the Supplier under the Licence, without prior notice. Following termination of this Licence, the Supplier will immediately cease use of the Supplier Portal.

7.7 The Supplier acknowledges and agrees that:

7.7.1 The Supplier Portal is provided on an “as is” and “as available” basis;

7.7.2 The Supplier’s use of the Supplier Portal is at the Supplier’s own risk and discretion and that HCML disclaims all warranties, representations or other assurances regarding the portal to the fullest extent permitted by law;

7.7.3 It is not possible to guarantee software is free from bugs, malicious software, vulnerabilities or viruses even though appropriate technical measures are in place to mitigate against any such malware or bugs;

7.7.4 HCML’s liability to the Supplier arising out of, or in connection with the Supplier’s access or use of, or any inability to access or use the Suppler Portal is subject to the limits and exclusions set out in clause 10 (Limitation of Liability).

8.1 Each party (the “First Party”) undertakes and warrants to the other party that:

8.1.1 It shall comply with all regulatory requirements, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Anti-Bribery Requirements”);

8.1.2 It shall not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

8.1.3 It shall have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Anti-Bribery Requirements and clause 8.1.2, and will enforce them where appropriate;

8.1.4 It is not nor has it (nor has any of its Affiliates or associated persons) currently or has been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any offence or alleged offence under the Bribery Act 2010, and no such investigation, inquiry or proceedings have been threatened or are pending and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings. 

8.2 For the purposes of this clause 8:

8.2.1 The meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5), 6(6) and 8 of that Act respectively; and

8.2.2 A person associated with a party includes but is not limited to any subcontractor of that party (and in the case of the Supplier includes its Practitioners).

9.1 In performing its obligations under the Agreement, the Supplier shall and shall ensure that each of its Practitioners shall:

9.1.1 comply with all applicable laws, statutes and regulations in force from time to time relating to anti-slavery including but not limited to the Modern Slavery Act 2015; and

9.1.2 take reasonable steps to ensure that there is no modern slavery or human trafficking in the Suppliers’ or Practitioners’ supply chains or in any part of their businesses.

9.2 The Supplier represents and warrants that neither the Supplier (nor any of its officers or employees) or other persons associated with it (including its Practitioners):

9.2.1 has been convicted of any offence involving slavery and human trafficking; and

9.2.2 having made reasonable enquiries, to the best of its knowledge, has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking.

9.3 The Supplier shall implement due diligence procedures for its own suppliers, subcontractors and other participants to ensure that there is no slavery or human trafficking in its supply chains.

9.4 The Supplier shall notify HCML as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement.

9.5 The Supplier shall implement a reasonable system of training for its employees to ensure compliance with the principles of the Modern Slavery Act 2015 and the prevention of modern slavery or human trafficking.

9.6 The Supplier represents, warrants and undertakes that it conducts its business in a manner that is consistent with the principles of the Modern Slavery Act 2015.

10.1 Notwithstanding any other provision of this Agreement, nothing in this Agreement shall exclude or limit either party’s liability under or in connection with this Agreement for:

10.1.1 Fraud or fraudulent misrepresentation;

10.1.2 Death or personal injury resulting from the negligence of that party or its agents or sub-contractors;

10.1.3 Breach of its obligations of confidentiality under Clause 12 (Confidentiality);

10.1.4 Any claim under the indemnities in Clause 11; or

10.1.5 Any other matter in respect of which liability cannot by applicable law be limited or excluded.

10.2 Subject to clause 10.1, neither party shall be liable to the other party or its Affiliates for losses that are not reasonably foreseeable or for any loss of indirect 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 (other than personal data) and any other consequential or indirect losses or special damages suffered or incurred by the other party or any of its Affiliates whether in contract, negligence or any other tort, under statute or otherwise that arise under, or in connection with, this Agreement.

10.3 In the event of any negligence or breach of this Agreement by the Supplier which results in any loss being suffered by HCML, HCML shall be able to recover any loss from the Supplier subject to any limits on the Supplier’s liability contained in this Agreement. For this purpose, any loss suffered by HCML’s Affiliates shall not be treated as being indirect, special or consequential in terms of Clause 10.2 simply because it has been suffered by HCML’s Affiliates and not by HCML directly.

10.4 In the event of any negligence or breach of this Agreement by HCML which results in any loss being suffered by the Supplier, the Supplier shall be able to recover any loss from HCML subject to any limits on HCML’s liability contained in this Agreement. For this purpose, any loss suffered by the Supplier’s Affiliates shall not be treated as being indirect, special or consequential in terms of Clause 10.2 simply because it has been suffered by the Supplier ‘s Affiliates and not by the Supplier directly.

10.5 Subject to Clauses 10.1, 10.2 and 11, the Supplier’s liability to HCML in respect of all losses arising out of, or in connection with, this Agreement (including as a result of breach of contract, negligence or any other tort, under statute or otherwise) shall in each event not exceed five million pounds sterling (£5,000,000).

10.6 Subject to Clauses 10.1 and 10.2, HCML’s liability is limited as follows:

10.6.1 HCML’s liability to the Supplier in respect to all claims arising out of, or in connection with, this Agreement (including as a result of breach of contract, negligence or any other tort, under statute or otherwise but not relating to the liability to pay the actual fees due and payable by HCML to the Supplier under this Agreement) shall be limited to a sum equivalent to the fees paid or payable by HCML to the Supplier during the 12 month period prior to the event giving rise to the claim (the “primary cap”) which in any event shall be no higher than the “overall cap” (defined below). In the event of a claim within the first 12 months of this Agreement, the fees paid or payable by HCML to the Supplier under any previous agreement or agreements between the parties shall be taken into account for the purposes of determining the primary cap (subject also to the overall cap), and if no such agreement or agreements exist which cumulatively cover the relevant 12 month period (or if no fees have been paid or are payable by HCML to the Supplier during the relevant 12 month period), the primary cap shall be fixed at the level of the overall cap. The overall cap on liability for the purposes of this clause shall be £25,000;

10.6.2 HCML’s liability to the Supplier in respect of any loss of damage to tangible property of the Supplier shall not exceed £22,5000;

10.6.3 HCML has no liability to the Supplier’s Practitioners or other sub-contractors or agents.

11.1 The Supplier shall indemnify HCML and each HCML Affiliate on demand in respect of any:

11.1.1 Liabilities incurred by HCML or an HCML Affiliate in respect of any (i) breach of this Agreement (ii) breach of duty of care (iii) breach of confidentiality (iv) libel, slander or defamation or (v) infringement of copyright or any other intellectual property rights, in each case which is caused by (or contributed to by) anything which the Supplier does (or fails to do) in the performance of this Agreement; and

11.1.2 Fines or penalties levied upon HCML or an HCML Affiliate by a Regulator as a result of a breach of this Agreement by the Supplier or the fraud or negligence of the Supplier’s personnel (including its Practitioners); and

11.1.3 Losses incurred by any Customer and in respect of any claim made by a Customer against HCML or any HCML Affiliate as a result of a breach of this Agreement by the Supplier or the fraud or negligence of the Supplier‘s personnel and sub-contractors (including its Practitioners).

12.1 HCML and the Supplier will keep confidential, both before and after the expiry or termination of this Agreement, all information of the other party obtained under or in connection with this Agreement (the “Confidential Information”) and will not (except as provided for in Clause 12.2 below) disclose any of that information to any third party without the prior written consent of the other.

12.2 Each party will be entitled, but only to the extent reasonably necessary, to disclose the Confidential Information or any part of it:

12.2.1 To its officers, employees, sub-contractors, agents, insurers or professional advisers to the extent necessary to enable it to perform (or to cause to be performed) or to enforce any of its rights or obligations under this Agreement subject in each case to the party making the disclosure ensuring that the person(s) in question keep the Confidential Information confidential and do not use it except for the purposes for which the disclosure is made; or

12.2.2 To the extent it is required to do so by law or by any public, quasi-governmental, supervisory or regulatory authority or any court or tribunal; or

12.2.3 To the extent that the Confidential Information has, except because of breach of this Agreement or other duty of confidence, become publicly available or generally known to the public at the time of the disclosure; or

12.2.4 To the extent that it has obtained the Confidential Information from a third party who is not in breach of any obligation or confidentiality to the other party.

13.1 The parties agree that the Supplier is a sub-contractor of HCML. Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture between the parties, or constitute any party the agent of another party, or authorise any party to make or enter into any commitments for on behalf of the other party.

13.2 The Supplier is permitted to engage and instruct Practitioners relating to the provision of Treatment Services (as a sub-contractor, agent or arms’ length contractor) save that the Supplier shall remain solely responsible and liable to HCML for the acts and omissions of such Practitioners and for ensuring that the Practitioners carry out the Treatment Services in accordance with the terms of this Agreement. The Supplier may not otherwise sell, assign, sub-licence, delegate, transfer or otherwise dispose of, whether directly or indirectly, any of its rights or obligations under this Agreement without the prior written consent of HCML.

13.3 Subject to clause 10.2, no party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity or in an acquisition of all or substantially all its assets. No assignment becomes effective unless and until the assignee agrees in writing to be bound by all the assigning party’s obligations in this Agreement. Except to the extent forbidden in this Section 13.3, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

13.4 If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, that shall not affect or impair the legality, validity or enforceability of any other provision of this Agreement.

13.5 No waiver by any party of any breach or non-fulfilment by another party of any provision of this Agreement shall be deemed to be a waiver of any subsequent or other breach of that or any other provision of this Agreement and no failure to exercise or delay in exercising any right or remedy under this Agreement shall constitute a waiver thereof. No single or partial exercise of any right or remedy under this Agreement shall preclude or restrict the further exercise of any such right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

13.6 If any illegal, invalid or unenforceable provision of this Agreement would be legal, valid or enforceable if some part or parts of it were deleted, such provision shall apply with the minimum deletion(s) necessary to make it legal, valid or enforceable.

13.7 The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

13.8 This Agreement constitutes the entire agreement between the parties, and supersedes all previous promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

13.9 This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner unless the same has been recorded in writing and signed by a duly authorised signatory of each party.

13.10 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Letter of Agreement. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

13.11 Any notice or communication shall be deemed to have been received (i) if delivered by hand, on signature of a delivery receipt; (ii) if sent by pre-paid first-class post or other next working day delivery service, at the time recorded by the delivery service; (iii) if sent by email, at the time of transmission (provided no failure delivery notice is issued), or, if this time falls outside business hours in the place of receipt, when business hours resume. ‘Business hours’ means 9.00am to 5.00pm on a working day.

13.12 This Agreement, any non-contractual obligations arising out of or in connection with this Agreement and the relationship between the parties, shall be governed by and interpreted in accordance with the laws of England and Wales; and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.