1.1 The definitions and rules of interpretation in this clause apply in this agreement.
|means those Clinical Administered Services and Non-Clinical Administered Services arranged by HCML to be supplied by Service Providers for THE CUSTOMER on an ‘at cost’ basis and charged as a disbursement to THE CUSTOMER;
|“Additional Commercial Terms”
|means the additional commercial terms agreed between the parties in writing;
|“Best Industry Practice”
|the exercise of such reasonable skill, care, prudence and diligence as would be expected from a suitable skilled, trained and experienced services provider engaged in performing Services similar to the Services within the same or similar circumstances;
|means a Monday to Friday between 9am and 5pm when clearing banks in the City of London are open for business, excluding UK wide bank and public holidays.
|means the Services provided by an HCML clinical professional and supporting administrative functions following an instruction from THE CUSTOMER;
|means any injured person who is covered by the Services and who receives (or agrees to receive) the benefit of the relevant Services from HCML, its Suppliers or Service Providers pursuant to any agreement or arrangement as is referred to in background;
|“Clinical Administered Services”
|means those Case Management, Treatment Services or other Specific Services arranged by HCML to be supplied by Service Providers for THE CUSTOMER;
|means the date on which THE CUSTOMER instructs HCML to perform any Services;
|“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;
|“Data Processor”, “Data Controller, Data Subject, Personal Data, Personal Data Breach and processing”
|Have the meanings set out in the Data Protection Legislation;
|has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;
|means those Case Management or Treatment Services and other services specified in the Service Menu set out in Schedule 1 of the HCML Rate Card (including any Specific Services set out in the Additional Commercial Terms) which are provided directly by HCML or by its Suppliers as sub-contractors on behalf of HCML;
|means in relation to each party, the party itself, its subsidiaries, any holding company or parent company of the party and any subsidiary of any such holding company or parent company as such terms are defined in section 1159 of the Companies Act 2006;
|means Health & Care Management Limited (company number: 04702271), whose registered address is Melrose House, 42 Dingwall Road, Croydon CR0 2NE
|“HCML Rate Card”
|means the rate card provided to THE CUSTOMER which contains the service menu and service level agreement provided by HCML to THE CUSTOMER;
|any and all intellectual property rights of any nature anywhere in the world, whether registered, registerable or otherwise, including patents, utility models, trade-marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites;
|“Non-Clinical Administered Services”
|means those non-clinical support services including taxi cabs, gardeners etc (or other Specific Services) arranged by HCML to be supplied by Service Providers for THE CUSTOMER;
|any employee of HCML or a subcontractor of HCML acting on behalf of HCML in the supply of the Delivered Services;
|means an either manual or electronic instruction made to HCML to provide the Services by either THE CUSTOMER or its authorised policy holder;
|means the Delivered Services and Administered Services;
|means a provider of Administered Services;
|means the standards of performance to be achieved by HCML in the provision of the Delivered Services, as set out in Schedule 2 of the HCML Rate Card. The Service Level consists of Key Performance Indicators (KPIs) which are reasonable standards of service which THE CUSTOMER and HCML believe to be achievable in the normal course of business;
|means any specific services to be provided or arranged by HCML as a Delivered Service or Administered Service, as set out in the Additional Commercial Terms in Schedule 1 of the HCML Rate Card;
|means a provider of Delivered Services as a sub-contractor of HCML;
|means any person, partnership or limited company who are instructing HCML to perform The Services (individually a “Party” and together with HCML, “The Parties”)
|means all or any of (a) Diagnostic services required to determine an ongoing rehabilitation plan or progress against a rehabilitation plan (b) Provision of treatment following either a triage, immediate medical assessment or initial needs assessment (c) Such ancillary treatment related services as many be deemed appropriate in the circumstances of the case.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other gender or genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking into account any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it.
1.8 A reference to writing or written includes e-mail unless stated otherwise.
1.9 Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
1.10 References to clauses and schedules are to clauses and schedules of this agreement and the HCML Rate Card. References to paragraphs are to paragraphs of the relevant schedule.
1.11 The expression “HCML“, when used in this Agreement, shall mean and include HCML as defined in the heading to this Agreement and all other Group Companies (if any)
- HCML’S OBLIGATIONS
2.1 HCML will provide all the Services from the Commencement Date until expiry or termination of this agreement for any reason.
2.2 In respect of all Services (Delivered Services and Administered Services), HCML shall comply with the following terms:
2.2.1 Upon receipt from THE CUSTOMER or its approved policy holder of information and instructions regarding an individual requiring, or potentially requiring, rehabilitation assistance, HCML will make contact with all relevant parties referred to it and undertake any Specific Services agreed in writing with THE CUSTOMER;
126.96.36.199 HCML shall not be required to carry out any further Services should the Client refuse or fail to give such consent to the provision of HCML’s Services nor shall HCML be in breach of this agreement in such circumstances;
2.3 In respect of the Delivered Services, HCML shall comply with the following terms:
2.3.1 HCML shall provide the Delivered Services in accordance with Best Industry Practice, using appropriately experienced, qualified and trained professional Personnel and shall cultivate and maintain good relations in its dealings with the instructing party and Client;
2.3.2 HCML undertakes to maintain for the duration of this agreement all necessary government, administrative, statutory and regulatory authorisations, licences, permits and consents to enter into and perform this agreement and to provide the Delivered Services.
2.4 Where HCML is arranging Administered Services, HCML is not responsible for the acts or omissions of the Service Provider (as a sub-contractor or otherwise). HCML shall arrange the provision of the Administered Services by the Service Provider to the Client and HCML’s obligations are limited exclusively to the following:
2.4.1 In respect of Clinical Administered Services, HCML shall undertake appropriate due diligence on the Service Provider including:
188.8.131.52 Ensuring that they have the necessary ability, resources, facilities, qualifications and integrity to carry out the Clinical Administered Services to professional standards required in their industry;
184.108.40.206 Ensuring that the Service Provider has appropriate policies and procedures in respect of data protection, information security, anti-bribery and corruption, modern slavery and vetting and screening;
220.127.116.11 Ensuring that the Service Provider holds appropriate professional indemnity insurance cover in place which covers the Clinical Administered Services and that they will deal with any complaints in accordance with their professional obligations;
18.104.22.168 Where, in the reasonable opinion of the Service Provider, it is clinically necessary and there is an urgent need to carry out a procedure and/or treatment different to the one that the Client was referred for, and THE CUSTOMER 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), HCML shall notify THE CUSTOMER as soon as reasonably practicable after the provision of the procedure and THE CUSTOMER agrees not to unreasonably withhold or delay its consent to the funding of such different procedure and/or treatment.
2.4.2 In respect of Non-Clinical Administered Services, HCML shall use reasonable endeavours to check the suitability of the Service Provider.
2.4.3 The parties acknowledge and accept that notwithstanding the Service Provider’s own contract terms:
22.214.171.124 A Service Provider is engaged by HCML to provide Administered Services for HCML directly to Clients;
126.96.36.199 In respect of Administered Services supplied by Service Providers, any professional and/or statutory duty of care to the Client is between the Service Provider and the Client;
188.8.131.52 Any Client who receives Administered Services from a Service Provider becomes a client of the Service Provider in the ordinary course. Accordingly, all applicable laws regarding the provider/client relationship shall apply as between that Service Provider and the Client.
3.1 The parties shall be insured at all times, throughout the term of this agreement and for a three year period following the termination or expiry of this agreement hold cover for at least £5,000,000 for each and every occurrence or a series or occurrences from one source for professional liability insurance, medical malpractice insurance and public liability insurance.
- THE CUSTOMER’S OBLIGATIONS
4.1 THE CUSTOMER will follow the Referral Process as agreed between the parties, and such other terms as may be appliable to its obligations agreed with HCML in writing.
4.2 On referral of a Client to HCML, THE CUSTOMER and / or its authorised Policy Holder will provide HCML with all relevant and necessary information available including all telephone contact numbers and an email address necessary for HCML to contact the Client and provide Services.
4.3 THE CUSTOMER undertakes to keep HCML informed in a timely manner of all information which comes into its possession in relation to all Clients referred to HCML by THE CUSTOMER. HCML shall be entitled to assume that all information supplied by THE CUSTOMER is accurate and up to date and shall not be liable to THE CUSTOMER should this not be the case.
4.4 THE CUSTOMER undertakes that for the duration of this agreement and for a period of 12 months after this agreement terminates, it shall not and shall procure that no subsidiary of holding company of it shall, either on its own behalf or on behalf of any person, firm or company solicit or endeavour to entice away from HCML any employee or officer of HCML; or seek to engage, instruct or employ any external service provider who has provided Services to a Client pursuant to this engagement agreement in the previous period of 12 months.
- FEES AND INVOICING
5.1 HCML’s will provide its fees on request by THE CUSTOMER and these will, unless otherwise stated, cover both Delivered Services and Clinical Administered Services. Fees in respect of Non-Clinical Administered Services, if not set out in such provision, will be agreed on a case by case basis. Fees in respect of Administered Services will be passed on an ‘at cost’ basis and charged as a disbursement to THE CUSTOMER.
5.2 THE CUSTOMER shall pay such fees within 30 days of receipt of HCML’s invoice. Late payments received after the 30 day period will accrue interest two per cent (2%) above the base lending rate of the National Westminster Bank plc. If THE CUSTOMER has a bona fide query on an invoice, it must raise that query within 30 days of receipt of such invoice.
5.3 The preferred method of payment is by BACS into the bank account detailed on the invoice.
5.4 HCML shall inform THE CUSTOMER immediately should it become likely that the fees incurred will exceed the agreed budget, including any costs incurred through external service providers.
5.5 All referrals that incur or are expected to incur costs, at any time, in excess of any agreed limit on the delegated authority set out in the Additional Commercial Terms should be referred to THE CUSTOMER for approval to proceed.
5.6 HCML shall be entitled to increase the Fees once in every successive period of 12 months during the term of this agreement. The increase shall not be less than the average of the previous 12 months’ inflation as measured based on the Retail Prices Index. HCML will inform THE CUSTOMER in writing of any increase in prices in accordance with this clause 5.6 and such increase will only take effect following the expiry of 28 days from the date such written notice has been received by THE CUSTOMER.
- INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property existing prior to the execution of this agreement will remain the property of the party that owned or created that Intellectual Property prior to the execution of the agreement.
6.2 Only distinct and severable Intellectual Property subsequently developed genuinely and exclusively under this agreement will belong jointly to the parties and in the event of termination of this agreement each party shall grant to the other a royalty free, irrevocable, perpetual, worldwide licence to the other to use such Intellectual Property.
- DATA SECURITY UNDERTAKINGS
7.1 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.
7.2 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 under this agreement, each Party will:
- comply fully and in all aspects with the provisions of the Data Protection Legislation;
- 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;
iii. 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; and will not process Personal Data shared under this agreement for marketing purposes;
- not, by its acts or omissions, deliberately or negligently cause the other Party to breach its respective obligations under the Data Protection Legislation;
- ensure that Personal Data is adequate, relevant and not excessive in relation to the purpose or purposes for which it is processed;
- ensure that Personal Data is accurate and up to date;
vii. take every reasonable step to ensure inaccurate personal or sensitive data is rectified or erased;
viii. notify the other Party where it identifies that inaccurate Personal Data has been shared with the other Party;
- comply with the rights of data subjects under the Data Protection Legislation; and to take reasonable steps to assist the other Party in complying with those rights.
7.3 Where either Party collects personal 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:
- all fair processing or privacy notices have been given to the data subject;
- where required under Data Protection Legislation, valid consent has been obtained from the data subject, and such consent has not been withdrawn;
iii. the subject has not exercised their right to object to processing which would preclude such a transfer.
7.4 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.
7.5 Each party agrees to nominate a Data Sharing Contact who will be contacted in the event of any notification required under this agreement
7.6 In respect of Personal Data shared under this agreement, each Party agrees to:
- notify the other party without undue delay and in any case within forty-eight (48) hours 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;
- notify the other party without undue delay and in any case within forty-eight (48) hours on receiving any Information Commissioner’s Office (or other Supervisory Agency) correspondence relating to Personal Data shared under this agreement;
iii. notify the other party without undue delay and in any case within forty-eight (48) hours 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, and where such request might apply to Personal Data shared with or processed by the other Party.
8.1 No party shall be liable to any other for any losses that are not reasonably foreseeable, or for any indirect or consequential loss or special damages of any kind whatsoever, whether in contract, tort or otherwise, that arise under, or in connection with, this agreement and no party shall be liable to the other for loss of profit, loss of revenue, loss of anticipated savings, loss of business, loss of contract or loss of goodwill.
8.2 Each party’s liability to the other 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 THE CUSTOMER to HCML under this agreement) shall be limited to a sum equivalent to the fees paid by THE CUSTOMER to HCML 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 by THE CUSTOMER to HCML 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 by THE CUSTOMER to HCML 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.
8.3 Nothing in the agreement shall exclude, limit or restrict a party’s liability for:
8.3.1 Death or personal injury caused by the negligence of that party or its employees, officers, agents or sub-contractors (as applicable);
8.3.2 Fraud or fraudulent misrepresentation;
8.3.3 Any matter in respect of which liability cannot be excluded by law.
8.4 The parties shall not be liable for any losses arising from any damage or corruption to data, provided that it has acted reasonably in relation to its management (including daily off-site back-ups) of the data (save that this clause 11.4 shall not apply to Personal Data).
8.5 Each party shall, in relation to any losses that may give rise to a claim under this agreement against another party, take all reasonable steps to avoid or mitigate those losses, including by pursuing any relevant third party, or claiming under any relevant insurance policy or bond in respect of the losses.
8.6 HCML is not responsible for the acts or omissions of Service Providers in respect of Administered Services, save to the extent that HCML has breached its own obligations in respect of Administered Services set out in clause 2.4.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not include information that:
9.1.1 Is or becomes publicly known other than through any act or omission of the receiving party;
9.1.2 Was in the other party’s lawful possession before the disclosure;
9.1.3 Is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
9.1.4 Is independently developed by the receiving party, which independent development can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each party shall keep the other’s Confidential Information secure and hold it in confidence and, unless required by law, shall not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
9.3 THE CUSTOMER acknowledges that HCML’s Confidential Information includes any designs, plans, software or other materials created by HCML in connection with the Services and THE CUSTOMER agrees not to make use of any such material for any purpose other than the receipt of the Services from HCML.
9.4 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed to or distributed by its employees or agents in violation of the terms of this agreement.
- FORCE MAJEURE
10.1 Each party shall have no liability to the other party under this agreement if it is prevented from, or delayed in, preforming its obligations under this agreement, or from carrying on its business, by acts, event, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, pandemic, epidemic, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, or default of suppliers which are not subcontractors or otherwise under direct contract with the affected party, (a “Force Majeure Event”).
10.2 If by reason of a Force Majeure event, either party’s performance of this agreement or any obligation under it is prevented, restricted or interfered with, the party, upon giving prompt notice to the other party in writing, shall be excused from performance to the extent of the prevention, restriction of interference. The parties shall use reasonable endeavours to avoid or remove such causes of non-performance and shall continue performance under this agreement without delay as soon as these causes are removed or diminished.
11.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
12. ENTIRE AGREEMENT
12.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
12.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
13.1 If any provision of this agreement is found by any Court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
13.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14. ASSIGNMENT AND SUBCONTRACTING
14.1 Subject to clause 14.2, neither 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 18, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
14.2 Nothing in this clause 14 shall prevent either party from appointing appropriate medical experts / practitioners (either directly or through their trading or employing corporate bodies) on a sub-contracted or other basis in the course of the provision of the Services.
15. NO PARTNERSHIP OR AGENCY
15.1 Nothing in this agreement is intended to, or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name of or on behalf of, or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16. THIRD PARTY RIGHTS
16.1 This agreement is made for the benefit of the parties to it and (where applicable) their permitted assigns, and is not intended to benefit or be enforceable by anyone else.
17.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by electronic mail (“email”) to an email address designated by the receiving party as appropriate for receiving formal notices.
17.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of sending (provided this is during normal business hours of 9.00am – 6.00pm, and that no failure delivery message has been issued and the sender has received a read receipt).
18. GOVERNING LAW AND JURISDICTION
18.1 This agreement and any disputes or claims arising out of or in connection with this subject matter are governed by and constructed in accordance with the law of England.
18.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement.