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Terms and conditions
These terms and conditions, based on the NHS Terms and Conditions for the Provision of Services (Contract Version) (January 2018) form, with the relevant Project Mandate, the terms and conditions on which ENABLE EAST (the Supplier) shall supply the services set out in the relevant Project Mandate to you (the Customer).
Key Provisions
Standard Key Provisions
1 Term
1.1 The Term of the contract is as set out in the Project Mandate
2 Contract Managers
2.1 The Contract Managers, where applicable, shall be set out in the Project Mandate.
3 Names and addresses for notices
3.1 Notices served under this Contract are to be delivered to the usual business address of the parties.
4 Management levels for escalation and dispute resolution
4.1 The management levels at which a Dispute may be dealt with as referred to as part of the Dispute Resolution Procedure are as follows
| Level | Enable East representative | Customer representative |
| 1 | Usual contract contact | Usual contract contact |
| 2 | Manager of Enable East/Executive from EPUT as appropriate | Such person as the customer may nominate |
5 Order of precedence
5.1 Subject always to Clause 1.10 of Schedule 3, should there be a conflict between any other parts of this Contract the order of priority for construction purposes shall be:
5.1.1 the Key Provisions;
5.1.2 General Terms and Conditions;
5.1.3 the Project Mandate;
5.1.4 Schedule 1: Information Governance Provisions;
5.1.5 Schedule 2: Definitions and Interpretations;
5.1.6 the order in which all subsequent schedules, if any, appear; and
5.1.7 any other documentation forming part of the Contract in the date order in which such documentation was created with the more recent documentation taking precedence over older documentation to the extent only of any conflict.
6 Induction training
6.1 The Customer shall be responsible for ensuring that all personnel provided under the Project Mandate receive any relevant induction training relating.
7 Insurance
7.1 The Supplier shall maintain adequate insurance or indemnity cover relating to the Services.
8 Intellectual Property Rights in deliverables, materials and outputs
8.1 The Supplier confirms and agrees that all Intellectual Property Rights in and to the deliverables, material and any other output developed by the Supplier as part of the Services in accordance with the Specification and Tender Response Document, shall be owned by the Customer.
9 Data Processing
9.1 The Parties acknowledge that the Customer is the Controller and the Supplier may be a the Processor in respect of Personal Data Processed under this Contract. Where acting as a Processor, the parties shall agree with a Data Protection Protocol whose terms must be complied with by the Parties as a term of this Contract.
10 Purchase Orders
10.1 The Customer shall issue a Purchase Order to the Supplier in respect of any Services to be supplied to the Customer under this Contract.
General Terms and Conditions
1 Provision of Services
1.1 The Customer appoints the Supplier and the Supplier agrees to provide the Services:
1.1.1 promptly and in any event within any time limits as may be set out in the Project Mandate;
1.1.2 in accordance with all other provisions of this Contract and Project Mandate;
1.1.3 with reasonable skill and care and in accordance ;
1.1.4 in accordance with the Law and with Guidance;
1.1.5 in accordance with Good Industry Practice;
1.1.6 in accordance with the Policies; and
1.1.7 in a professional and courteous manner.
In complying with its obligations under this Contract, the Supplier shall, and shall procure that all Supplier Personnel shall, act in accordance with the NHS values as set out in the NHS Constitution from time to time.
1.2 The Supplier shall commence delivery of the Services on the Services Commencement Date set out in the Project Mandate.
1.3 The Supplier shall ensure that all relevant consents, authorisations, licences and accreditations required to provide the Services are in place and are maintained throughout the Term.
1.4 If the Services, or any part of them, are regulated by any regulatory body, the Supplier shall ensure that at the Services Commencement Date it has in place all relevant registrations and shall maintain such registrations during the Term. The Supplier shall notify the Customer forthwith in writing of any changes to such registration or any other matter relating to its registration that would affect the delivery or the quality of Services.
1.5 The Supplier shall notify the Customer forthwith in writing:
1.5.1 of any pending inspection of the Services, or any part of them, by a regulatory body immediately upon the Supplier becoming aware of such inspection; and
1.5.2 of any failure of the Services, or any part of them, to meet the quality standards required by a regulatory body, promptly and in any event within two (2) Business Days of the Supplier becoming aware of any such failure. This shall include without limitation any informal feedback received during or following an inspection raising concerns of any nature regarding the provision of the Services.
1.6 Following any inspection of the Services, or any part of them, by a regulatory body, the Supplier shall provide the Customer with a copy of any report or other communication published or provided by the relevant regulatory body in relation to the provision of the Services.
1.1 Upon receipt of notice pursuant to Clause 1.5 of these General Terms and Conditions or any report or communication pursuant to Clause 1.6 of these General Terms and Conditions, the Customer shall be entitled to request further information from the Supplier and/or a meeting with the Supplier, and the Supplier shall cooperate fully with any such request.
1.2 Where applicable, the Supplier and personnel supplied under the Project Mandate shall implement and comply with the Policies on reporting and responding to all incidents and accidents, including serious incidents requiring investigation, shall complete the Customer’s incident and accident forms in accordance with the Policies and provide reasonable support and information as requested by the Customer to help the Customer deal with any incident or accident relevant to the Services. The Supplier shall ensure that its Contract Manager informs the Customer’s Contract Manager in writing forthwith upon (a) becoming aware that any serious incidents requiring investigation and/or notifiable accidents have occurred; or (b) the Supplier’s Contract Manager having reasonable cause to believe any serious incidents and/or notifiable accidents requiring investigation have occurred. The Supplier shall ensure that its Contract Manager informs the Customer’s Contract Manager in writing within forty eight (48) hours of all other incidents and/or accidents that have or may have an impact on the Services.
1.3 The Supplier shall be relieved from its obligations under this Contract to the extent that it is prevented from complying with any such obligations due to any acts, omissions or defaults of the Customer.
2 Premises, locations and access
2.1 The Services shall be provided at such Customer premises and at such locations within those premises, as may be set out in the Project Mandate or as otherwise agreed by the Parties in writing (“Premises and Locations”).
2.2 Subject to the Supplier and Supplier Personnel complying with all relevant Policies applicable to such Premises and Locations, the Customer shall grant reasonable access to the Supplier and Supplier Personnel to such Premises and Locations to enable the Supplier to provide the Services.
3 Cooperation with third parties
3.1 The Supplier shall, as reasonably required by the Customer, cooperate with any other service providers to the Customer and/or any other third parties as may be relevant in the provision of the Services.
4 Use of Customer equipment
4.1 Any equipment or other items provided by the Customer for use by the Supplier shall be fit for its intended use and must be returned to the Customer within any agreed timescales for such return or otherwise upon the request of the Customer.
5 Supplier Personnel
5.1 Subject to the requirements of this Contract and any Law, the Supplier shall be entirely responsible for engaging Supplier Personnel and for the conditions of service of Supplier Personnel. The Supplier shall ensure that such conditions of employment are consistent with its obligations under this Contract.
5.2 The Supplier shall ensure that all Supplier Personnel are aware of, and at all times comply with, the Policies.
5.3 The Supplier shall:
5.3.1 engage only those Supplier Personnel who are careful, skilled and experienced in the duties required of them;
5.3.2 ensure that every member of Supplier Personnel is properly and sufficiently trained and instructed;
5.3.3 ensure all Supplier Personnel have the qualifications to carry out their duties; and
5.3.4 ensure all Supplier Personnel comply with such registration, continuing professional development and training requirements or recommendations appropriate to their role.
5.4 The Supplier shall not deploy in the provision of the Services any person who has suffered from, has signs of, is under treatment for, or who is suffering from any medical condition which is known to, or does potentially, place the health and safety of the Customer’s staff, patients, service users or visitors at risk unless otherwise agreed in writing with the Customer.
5.5 The Supplier shall ensure that all potential Staff or persons performing any of the Services during the Term who may reasonably be expected in the course of performing any of the Services under this Contract to have access to or come into contact with children or other vulnerable persons and/or have access to or come into contact with persons receiving health care services:
5.5.1 are questioned concerning their Convictions; and
5.5.2 obtain appropriate disclosures from the Disclosure and Barring Service (or other appropriate body) as required by Law and/or the Policies before the Supplier engages the potential staff or persons in the provision of the Services.
5.6 The Supplier shall take all necessary steps to ensure that such potential staff or persons obtain standard and enhanced disclosures from the Disclosure and Barring Service (or other appropriate body) and shall ensure all such disclosures are kept up to date. The obtaining of such disclosures shall be at the Supplier’s cost and expense.
5.7 The Supplier shall ensure that appropriate pre-employment checks are carried out on the Supplier Personnel under the Project Mandate, and shall provide such information to the Customer as reasonably required about such individuals.
6 The Customer’s obligations
6.1 Subject to the Supplier providing the Services in accordance with this Contract, the Customer will pay the Supplier for the Services in accordance with the Project Mandate.
6.2 The Customer shall, as appropriate, provide copies of or give the Supplier access to such of the Policies that are relevant to the provision of the Services.
6.3 The Customer shall comply with the Customer’s Obligations, as may be referred to in the Key Provisions.
6.4 The Customer shall provide the Supplier with any reasonable and proportionate cooperation necessary to enable the Supplier to comply with its obligations under this Contract. The Supplier shall at all times provide reasonable advance written notification to the Customer of any such cooperation necessary in circumstances where such cooperation will require the Customer to plan for and/or allocate specific resources in order to provide such cooperation.
6.5 Except with the prior written consent of the Supplier, the Customer shall not directly or indirectly solicit for employment or similar engagement or entice away (or attempt to solicit or entice away) any party or person employed or engaged by the Customer and Introduced to the Customer for the provision of the Services or (in the Case of the Customer) for a further period of 6 months after the termination of any Project Mandate seek to employ or engage any Supplier Personnel supplied by the Supplier other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
6.6 If the Customer commits any breach of the clause 6.5 the Customer shall, on demand, pay to the Customer a sum equal to the loss of profits on the fee that would have been payable by the Customer to engage that employee, worker or independent contractor through the Supplier.
7 Contract management
7.1 Each Party shall appoint and retain a Contract Manager who shall be the primary point of contact for the other Party in relation to matters arising from this Contract. Any Contract Manager appointed shall be of sufficient seniority and experience to be able to make decisions on the day to day operation of the Contract. The Supplier confirms and agrees that it will be expected to work closely and cooperate fully with the Customer’s Contract Manager.
7.2 The parties shall reasonably cooperate in the management of the services provided under the Project Mandate.
8 Price and payment
8.1 The Contract Price shall be calculated as set out in the Project Mandate.
8.2 The Contract Price is exclusive of VAT, which, if properly chargeable, the Customer shall pay at the prevailing rate subject to receipt from the Supplier of a valid and accurate VAT invoice. Such VAT invoices shall show the VAT calculations as a separate line item.
8.3 The Customer shall verify and pay each valid and undisputed invoice received in accordance with Clause 9.3 of these General Terms and Conditions within thirty (30) days of receipt of such invoice at the latest. However, the Customer shall use its reasonable endeavours to pay such undisputed invoices sooner in accordance with any applicable government prompt payment targets.
8.4 Where the Customer raises a query with respect to an invoice the Parties shall liaise with each other and agree a resolution to such query within thirty (30) days of the query being raised. If the Parties are unable to agree a resolution within thirty (30) days the query shall be referred to dispute resolution in accordance with the Dispute Resolution Procedure.
8.5 If a Party fails to pay any undisputed sum properly due to the other Party under this Contract, the Party due such sum shall have the right to charge interest on the overdue amount at the applicable rate under the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment.
9 Warranties
9.1 The Supplier warrants and undertakes that:
9.1.1 it has, and shall ensure its Staff shall have, and shall maintain throughout the Term, all appropriate licences and registrations with the relevant bodies to fulfil its obligations under this Contract;
9.1.2 it has all rights, consents, authorisations, licences and accreditations required to provide the Services and shall maintain such consents, authorisations, licences and accreditations throughout the Term;
9.1.3 it has and shall maintain a properly documented system of quality controls and processes covering all aspects of its obligations under this Contract and/or under Law and/or Guidance and shall at all times comply with such quality controls and processes;
9.1.4 where any act of the Supplier requires the notification to and/or approval by any regulatory or other competent body in accordance with any Law and Guidance, the Supplier shall comply fully with such notification and/or approval requirements;
9.1.5 receipt of the Services by or on behalf of the Customer and use of the deliverables or of any other item or information supplied or made available to the Customer as part of the Services will not infringe any third party rights, to include without limitation any Intellectual Property Rights;
9.1.6 it will comply with all Law, Guidance, Policies and the Supplier Code of Conduct in so far as is relevant to the provision of the Services;
9.1.7 it will provide the Services using reasonable skill and care and in accordance with Good Industry Practice and shall fulfil all requirements of this Contract using appropriately skilled, trained and experienced staff;
9.1.8 it shall comply with all health and safety processes, requirements safeguards, controls, and training obligations in accordance with its own operational procedures, Law, Guidance, Policies, Good Industry Practice, and any notices or instructions given to the Supplier by the Customer and/or any competent body, as relevant to the provision of the Services and the Supplier’s access to the Premises and Locations in accordance with this Contract;
9.1.9 without prejudice to any specific notification requirements set out in this Contract, it will promptly notify the Customer of any health and safety hazard which has arisen, or the Supplier is aware may arise, in connection with the performance of the Services and take such steps as are reasonably necessary to ensure the health and safety of persons likely to be affected by such hazards;
9.1.10 any equipment it uses in the provision of the Services shall comply with all relevant Law and Guidance, be fit for its intended purpose and maintained fully in accordance with the manufacturer’s specification and shall remain the Supplier’s risk and responsibility at all times;
9.1.11 it shall use Good Industry Practice to ensure that any information and communications technology systems and/or related hardware and/or software it uses are free from corrupt data, viruses, worms and any other computer programs or code which might cause harm or disruption to the Customer’s information and communications technology systems;
9.1.12 it shall: (i) comply with all relevant Law and Guidance and shall use Good Industry Practice to ensure that there is no slavery or human trafficking in its supply chains; and (ii) notify the Customer immediately if it becomes aware of any actual or suspected incidents of slavery or human trafficking in its supply chains;
9.1.13 it shall at all times conduct its business in a manner that is consistent with any anti-slavery Policy of the Customer and shall provide to the Customer any reports or other information that the Customer may request as evidence of the Supplier’s compliance with this Clause 9.1.13 and/or as may be requested or otherwise required by the Customer in accordance with its anti-slavery Policy;
9.1.14 it will fully and promptly respond to all requests for information and/or requests for answers to questions regarding this Contract, the provision of the Services, any complaints and any Disputes at the frequency, in the timeframes and in the format as requested by the Customer from time to time (acting reasonably);
9.1.15 it has the right and Customer to enter into this Contract and that it has the capability and capacity to fulfil its obligations under this Contract;
9.1.16 it is a properly constituted entity and it is fully empowered by the terms of its constitutional documents to enter into and to carry out its obligations under this Contract and the documents referred to in this Contract;
9.1.17 all necessary actions to authorise the execution of and performance of its obligations under this Contract have been taken before such execution;
9.1.18 there are no material agreements existing to which the Supplier is a party which prevent the Supplier from entering into or complying with this Contract;
9.1.19 it has and will continue to have the capacity, funding and cash flow to meet all its obligations under this Contract; and
9.1.20 it has satisfied itself as to the nature and extent of the risks assumed by it under this Contract and has gathered all information necessary to perform its obligations under this Contract and all other obligations assumed by it.
9.2 The Supplier warrants and undertakes to the Customer that, as at the Commencement Date, it has notified the Customer in writing of any Occasions of Tax Non-Compliance or any litigation that it is involved in that is in connection with any Occasions of Tax Non-Compliance. If, at any point during the Term, an Occasion of Tax Non-Compliance occurs, the Supplier shall:
9.2.1 notify the Customer in writing of such fact within five (5) Business Days of its occurrence; and
9.2.2 promptly provide to the Customer:
(i) details of the steps which the Supplier is taking to address the Occasion of Tax Non-Compliance and to prevent the same from recurring, together with any mitigating factors that it considers relevant; and
(ii) such other information in relation to the Occasion of Tax Non-Compliance as the Customer may reasonably require.
9.3 Any warranties provided under this Contract are both independent and cumulative and may be enforced independently or collectively at the sole discretion of the enforcing Party.
10 Intellectual property
10.1 The Supplier warrants and undertakes to the Customer that either it owns or is entitled to use and will continue to own or be entitled to use all Intellectual Property Rights used in the development and provision of the Services and/or necessary to give effect to the Services and/or to use any deliverables, matter or any other output supplied to the Customer as part of the Services.
10.2
10.3 The Customer hereby grants to the Supplier, for the life of the use by the Customer, an irrevocable, royalty-free, non-exclusive licence to use, modify, adapt or enhance any deliverables, material or any other output supplied to the Customer in any format as part of the Services such items, in the course of the Customer’s normal business operations. The Customer shall have rights to commercially exploit (e.g. by selling to third parties) any deliverables, matter or any other output supplied to the Customer in any format as part of the Services save that Confidential information relating to the Customer shall not be disclosed to third parties other than in accordance with the terms of this Contract.
11 Indemnity
11.1 The Supplier shall be liable to the Customer for, and shall indemnify and keep the Customer indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings in respect of:
11.1.1 any injury or allegation of injury to any person, including injury resulting in death;
11.1.2 any loss of or damage to property (whether real or personal);
11.1.3 any breach of Clause 9.1.5 and/or Clause 10 of these General Terms and Conditions; and/or;
that arise or result from the Supplier’s negligent acts or omissions or breach of contract in connection with the performance of this Contract including the provision of the Services, except to the extent that such loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings have been caused by any act or omission by, or on behalf of, or in accordance with the instructions of, the Customer.
11.2 Liability under Clauses 11.1.1, and 16.13 of these General Terms and Conditions and Clause 2.6 of Schedule 1 shall be unlimited. Liability under Clauses 11.1.2 and 11.1.3 of these General Terms and Conditions shall be subject to the limitation of liability set out in Clause 12 of these General Terms and Conditions.
11.3 In relation to all third party claims against the Customer, which are the subject of any indemnity given by the Supplier under this Contract, the Customer shall use its reasonable endeavours, upon a written request from the Supplier, to transfer the conduct of such claims to the Supplier unless restricted from doing so. Such restrictions may include, without limitation, any restrictions:
11.3.1 relating to any legal, regulatory, governance, information governance, or confidentiality obligations on the Customer; and/or
11.3.2 relating to the Customer’s membership of any indemnity and/or risk pooling arrangements.
Such transfer shall be subject to the Parties agreeing appropriate terms for such conduct of the third party claim by the Supplier (to include, without limitation, the right of the Customer to be informed and consulted on the ongoing conduct of the claim following such transfer and any reasonable cooperation required by the Supplier from the Customer).
12 Limitation of liability
12.1 Nothing in this Contract shall exclude or restrict the liability of either Party:
12.1.1 for death or personal injury resulting from its negligence;
12.1.2 for fraud or fraudulent misrepresentation; or
12.1.3 in any other circumstances where liability may not be limited or excluded under any applicable law.
12.2 Subject to Clauses 11.2, 12.1, 12.3 and 12.5 of these General Terms and Conditions, the total liability of each Party to the other under or in connection with this Contract whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall be limited in aggregate to the greater of: (a) five million GBP (£5,000,000); or (b) one hundred and twenty five percent (125%) of the total Contract Price paid or payable by the Customer to the Supplier for the Services.
12.3 There shall be no right to claim losses, damages and/or other costs and expenses under or in connection with this Contract whether arising in contract (to include, without limitation, under any relevant indemnity), tort, negligence, breach of statutory duty or otherwise to the extent that any losses, damages and/or other costs and expenses claimed are in respect of loss of income, loss of production, loss of business opportunity or are in respect of indirect loss of any nature suffered or alleged. For the avoidance of doubt, without limitation, the Parties agree that for the purposes of this Contract the following costs, expenses and/or loss of income shall be direct recoverable losses (to include under any relevant indemnity) provided such costs, expenses and/or loss of income are properly evidenced by the claiming Party:
12.3.1 extra costs incurred purchasing replacement or alternative services;
12.3.2 costs associated with advising, screening, testing, treating, retreating or otherwise providing healthcare to patients; and/or
12.3.3 the costs of extra management time;
in each case to the extent to which such costs, expenses and/or loss of income arise or result from the other Party’s breach of contract, negligent act or omission, breach of statutory duty, and/or other liability under or in connection with this Contract.
12.4 Each Party shall at all times take all reasonable steps to minimise and mitigate any loss for which that Party is entitled to bring a claim against the other pursuant to this Contract.
12.5 Clause 12 of these General Terms and Conditions shall survive the expiry of or earlier termination of this Contract for any reason.
13 Insurance
13.1 Provided that the Supplier maintains all indemnity arrangements required by Law, the Supplier may self insure in order to meet other relevant requirements referred to at Clauses 14.1 and 14.2 of these General Terms and Conditions on condition that such self insurance arrangements offer the appropriate levels of protection and are approved by the Customer in writing prior to the Commencement Date.
13.2 The amount of any indemnity cover and/or self insurance arrangements shall not relieve the Supplier of any liabilities under this Contract. It shall be the responsibility of the Supplier to determine the amount of indemnity and/or self insurance cover that will be adequate to enable it to satisfy its potential liabilities under this Contract. Accordingly, the Supplier shall be liable to make good any deficiency if the proceeds of any indemnity cover and/or self insurance arrangement is insufficient to cover the settlement of any claim.
13.3 The Supplier warrants that it shall not take any action or fail to take any reasonable action or (in so far as it is reasonable and within its power) permit or allow others to take or fail to take any action, as a result of which its insurance cover may be rendered void, voidable, unenforceable, or be suspended or impaired in whole or in part, or which may otherwise render any sum paid out under such insurances repayable in whole or in part.
14 Term and termination
14.1 This Contract shall commence on the Commencement Date and, unless terminated earlier in accordance with the terms of this Contract or the general law, shall continue until the end of the Term.
14.2 The Customer may terminate this Contract forthwith by issuing a Termination Notice to the Supplier if:
14.2.1 the Supplier, or any third party guaranteeing the obligations of the Supplier under this Contract, ceases or threatens to cease carrying on its business; suspends making payments on any of its debts or announces an intention to do so; is, or is deemed for the purposes of any Law to be, unable to pay its debts as they fall due or insolvent; enters into or proposes any composition, assignment or arrangement with its creditors generally; takes any step or suffers any step to be taken in relation to its winding-up, dissolution, administration (whether out of court or otherwise) or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) otherwise than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation; has a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer appointed (in each case, whether out of court or otherwise) in respect of it or any of its assets; has any security over any of its assets enforced; or any analogous procedure or step is taken in any jurisdiction;
14.2.2 the warranty given by the Supplier pursuant to Clause 9.2 of these General Terms and Conditions is materially untrue, the Supplier commits a material breach of its obligation to notify the Customer of any Occasion of Tax Non-Compliance as required by Clause 9.2 of these General Terms and Conditions, or the Supplier fails to provide details of proposed mitigating factors as required by Clause 9.2 of these General Terms and Conditions that in the reasonable opinion of the Customer are acceptable;
14.2.3 The Supplier agrees to such termination.
15 Consequences of expiry or early termination of this Contract
15.1 Upon expiry or earlier termination of this Contract, the Customer agrees to pay the Supplier for the Services which have been completed by the Supplier in accordance with this Contract prior to expiry or earlier termination of this Contract.
15.2 Immediately following expiry or earlier termination of this Contract and/or in accordance with any timescales as set out in any agreed exit plan:
15.2.1 all data, excluding Personal Data, documents and records (whether stored electronically or otherwise) relating in whole or in part to the Services, including without limitation relating to patients or other service users, and all other items provided on loan or otherwise to the Supplier by the Customer shall be delivered by the Supplier to the Customer provided that the Supplier shall be entitled to keep copies to the extent that: (a) the content does not relate solely to the Services; (b) the Supplier is required by Law and/or Guidance to keep copies; or (c) the Supplier was in possession of such data, documents and records prior to the Commencement Date; and
15.2.2 any Personal Data relating to any patients Processed by the Supplier on behalf of the Customer shall be returned to the Customer or destroyed unless retained in accordance with Law.
15.3 The Supplier shall retain all data relating to the provision of the Services that are not transferred or destroyed pursuant to Clause 15.2 of these General Terms and Conditions for the period set out in Clause 23.1 of these General Terms and Conditions.
15.4 The Supplier shall cooperate fully with the Customer or, as the case may be, any replacement supplier during any re-procurement and handover period prior to and following the expiry or earlier termination of this Contract. This cooperation shall extend to providing access to all information relevant to the operation of this Contract, as reasonably required by the Customer to achieve a fair and transparent re-procurement and/or an effective transition without disruption to routine operational requirements.
15.5 The expiry or earlier termination of this Contract for whatever reason shall not affect any rights or obligations of either Party which accrued prior to such expiry or earlier termination.
15.6 The expiry or earlier termination of this Contract shall not affect any obligations which expressly or by implication are intended to come into or continue in force on or after such expiry or earlier termination.
16 Staff information and the application of TUPE at the end of the Contract
16.1 It is not anticipated that TUPE will apply in relation to the Services provided under the Project Mandate. In the event that TUPE does apply the standard terms applicable under the NHS Terms and Conditions for the Provision of Services (Contract Version) (January 2018) and relevant definitions shall apply and be incorporated into these terms and conditions.
17 Electronic services information
17.1 Where requested by the Customer, the Supplier shall provide the Customer the Services Information in such manner and upon such media as agreed between the Supplier and the Customer from time to time for the sole use by the Customer.
18 Change management
18.1 The Supplier acknowledges to the Customer that the Customer’s requirements for the Services may change during the Term.
18.2 Any change to the Services or other variation to this Contract shall only be binding once it has been agreed either in writing and signed by an authorised representative of both Parties.
19 Dispute resolution
19.1 During any Dispute, including a Dispute as to the validity of this Contract, it is agreed that the Supplier shall continue its performance of the provisions of the Contract (unless the Customer requests in writing that the Supplier does not do so).
19.2 In the case of a Dispute arising out of or in connection with this Contract the Supplier and the Customer shall make every reasonable effort to communicate and cooperate with each other with a view to resolving the Dispute and follow the procedure set out in Clause 19.3 of these General Terms and Conditions as the first stage in the Dispute Resolution Procedure.
19.3 If any Dispute arises out of the Contract either Party may serve a notice on the other Party to commence formal resolution of the Dispute. The Parties shall first seek to resolve the Dispute by escalation in accordance with the management levels as set out in the Key Provisions.
19.4 Nothing in this Contract shall prevent:
19.4.1 the Customer taking action in any court in relation to any death or personal injury arising or allegedly arising in connection with the provision of the Services; or
19.4.2 either Party seeking from any court any interim or provisional relief that may be necessary to protect the rights or property of that Party or that relates to the safety of patients and other service users or the security of Confidential Information, pending resolution of the relevant Dispute in accordance with the Dispute Resolution Procedure.
19.5 Clause 19 of these General Terms and Conditions shall survive the expiry of or earlier termination of this Contract for any reason.
20 Force majeure
20.1 Subject to Clause 20.2 of these General Terms and Conditions neither Party shall be liable to the other for any failure to perform all or any of its obligations under this Contract nor liable to the other Party for any loss or damage arising out of the failure to perform its obligations to the extent only that such performance is rendered impossible by a Force Majeure Event.
20.2 Where a Party is (or claims to be) affected by a Force Majeure Event it shall use reasonable endeavours to mitigate the consequences of such a Force Majeure Event upon the performance of its obligations under this Contract, and to resume the performance of its obligations affected by the Force Majeure Event as soon as practicable.
20.3 Where the Force Majeure Event affects the Supplier’s ability to perform part of its obligations under the Contract the Supplier shall fulfil all such contractual obligations that are not so affected and shall not be relieved from its liability to do so.
20.4 If either Party is prevented or delayed in the performance of its obligations under this Contract by a Force Majeure Event, that Party shall as soon as reasonably practicable serve notice in writing on the other Party specifying the nature and extent of the circumstances giving rise to its failure to perform or any anticipated delay in performance of its obligations.
20.5 Subject to service of such notice, the Party affected by such circumstances shall have no liability for its failure to perform or for any delay in performance of its obligations affected by the Force Majeure Event only for so long as such circumstances continue and for such time after they cease as is necessary for that Party, using its best endeavours, to recommence its affected operations in order for it to perform its obligations.
20.6 The Party claiming relief shall notify the other in writing as soon as the consequences of the Force Majeure Event have ceased and of when performance of its affected obligations can be resumed.
20.7 If the Supplier is prevented from performance of its obligations as a result of a Force Majeure Event, the Customer may at any time, if the Force Majeure Event subsists for thirty (30) days or more, terminate this Contract by issuing a Termination Notice to the Supplier.
20.8 Following such termination in accordance with Clause 20.7 of these General Terms and Conditions and subject to Clause 20.9 of this these General Terms and Conditions, neither Party shall have any liability to the other.
20.9 Any rights and liabilities of either Party which have accrued prior to such termination in accordance with Clause 20.7 of this these General Terms and Conditions shall continue in full force and effect unless otherwise specified in this Contract.
21 Records retention and right of audit
21.1 Subject to any statutory requirement and Clause 21.2 of these General Terms and Conditions, the Supplier shall keep secure and maintain for the Term and six (6) years afterwards, or such longer period as may be agreed between the Parties, full and accurate records of all matters relating to this Contract.
21.2 Where any records could be relevant to a claim for personal injury such records shall be kept secure and maintained for a period of twenty one (21) years from the date of expiry or earlier termination of this Contract.
22 Conflicts of interest and the prevention of fraud
22.1 The Supplier shall take appropriate steps to ensure that neither the Supplier nor any Staff are placed in a position where, in the reasonable opinion of the Customer, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Supplier and the duties owed to the Customer under the provisions of this Contract. The Supplier will disclose to the Customer full particulars of any such conflict of interest which may arise.
22.2 The Supplier shall take all reasonable steps to prevent Fraud by Staff and the Supplier (including its owners, members and directors). The Supplier shall notify the Customer immediately if it has reason to suspect that any Fraud has occurred or is occurring or is likely to occur.
22.3 If the Supplier or its Staff commits Fraud the Customer may terminate this Contract and recover from the Supplier the amount of any direct loss suffered by the Customer resulting from the termination.
23 Equality and human rights
23.1 The Supplier shall:
23.1.1 ensure that (a) it does not, whether as employer or as provider of the Services, engage in any act or omission that would contravene the Equality Legislation, and (b) it complies with all its obligations as an employer or provider of the Services as set out in the Equality Legislation and take reasonable endeavours to ensure its Staff do not unlawfully discriminate within the meaning of the Equality Legislation;
23.1.2 in the management of its affairs and the development of its equality and diversity policies, cooperate with the Customer in light of the Customer’s obligations to comply with its statutory equality duties whether under the Equality Act 2010 or otherwise. The Supplier shall take such reasonable and proportionate steps as the Customer considers appropriate to promote equality and diversity, including race equality, equality of opportunity for disabled people, gender equality, and equality relating to religion and belief, sexual orientation and age; and
23.1.3 the Supplier shall impose on all its Sub-contractors and suppliers, obligations substantially similar to those imposed on the Supplier by Clause 26 of this these General Terms and Conditions.
23.2 The Supplier shall meet reasonable requests by the Customer for information evidencing the Supplier’s compliance with the provisions of Clause 26 of these General Terms and Conditions.
24 Notice
24.1 Any notice required to be given by either Party under this Contract shall be in writing and shall be delivered by hand or sent by prepaid first class recorded delivery or by email to the Contract Manager of the other party.
25 Assignment, novation and Sub-contracting
25.1 The Supplier may Sub-contract the performance of the services under the Project Mandate to Staff engaged for that purpose of its obligations under this Contract. Every act or omission of the Sub-contractor shall for the purposes of this Contract be deemed to be the act or omission of the Supplier and the Supplier shall be liable to the Customer as if such act or omission had been committed or omitted by the Supplier itself.
25.2 The Supplier shall pay any undisputed sums which are due from it to a Sub-contractor within thirty (30) days of verifying that the invoice is valid and undisputed. Where the Customer pays the Supplier’s valid and undisputed invoices earlier than thirty (30) days from verification in accordance with any applicable government prompt payment targets, the Supplier shall use its reasonable endeavours to pay its relevant Sub-contractors within a comparable timeframe from verifying that an invoice is valid and undisputed.
25.3 The Customer shall upon written request have the right to review any Sub-contract entered into by the Supplier in respect of the provision of the Services and the Supplier shall provide a certified copy of any Sub-contract within five (5) Business Days of the date of a written request from the Customer. For the avoidance of doubt, the Supplier shall have the right to redact any confidential pricing information in relation to such copies of Sub-contracts.
26 Prohibited Acts
26.1 The Supplier warrants and represents that:
26.1.1 it has not committed any offence under the Bribery Act 2010 or done any of the following (“Prohibited Acts”):
(i) offered, given or agreed to give any officer or employee of the Customer any gift or consideration of any kind as an inducement or reward for doing or not doing or for having done or not having done any act in relation to the obtaining or performance of this or any other agreement with the Customer or for showing or not showing favour or disfavour to any person in relation to this or any other agreement with the Customer; or
(ii) in connection with this Contract paid or agreed to pay any commission other than a payment, particulars of which (including the terms and conditions of the agreement for its payment) have been disclosed in writing to the Customer; and
26.1.2 it has in place adequate procedures to prevent bribery and corruption, as contemplated by section 7 of the Bribery Act 2010.
26.2 If the Supplier or its Staff (or anyone acting on its or their behalf) has done or does any of the Prohibited Acts or has committed or commits any offence under the Bribery Act 2010 with or without the knowledge of the Supplier in relation to this or any other agreement with the Customer:
26.2.1 the Customer shall be entitled:
(i) to terminate this Contract and recover from the Supplier the amount of any loss resulting from the termination;
(ii) to recover from the Supplier the amount or value of any gift, consideration or commission concerned; and
(iii) to recover from the Supplier any other loss or expense sustained in consequence of the carrying out of the Prohibited Act or the commission of the offence under the Bribery Act 2010;
26.2.2 any termination under Clause 26.2.1 of these General Terms and Conditions shall be without prejudice to any right or remedy that has already accrued, or subsequently accrues, to the Customer; and
26.2.3 notwithstanding the Dispute Resolution Procedure, any Dispute relating to:
(i) the interpretation of Clause 26 of these General Terms and Conditions; or
(ii) the amount or value of any gift, consideration or commission,
shall be determined by the Customer, acting reasonably, and the decision shall be final and conclusive.
27 General
27.1 Each of the Parties is independent of the other and nothing contained in this Contract shall be construed to imply that there is any relationship between the Parties of partnership or of principal/agent or of employer/employee nor are the Parties hereby engaging in a joint venture and accordingly neither of the Parties shall have any right or Customer to act on behalf of the other nor to bind the other by agreement or otherwise, unless expressly permitted by the terms of this Contract.
27.2 Failure or delay by either Party to exercise an option or right conferred by this Contract shall not of itself constitute a waiver of such option or right.
27.3 The delay or failure by either Party to insist upon the strict performance of any provision, term or condition of this Contract or to exercise any right or remedy consequent upon such breach shall not constitute a waiver of any such breach or any subsequent breach of such provision, term or condition.
27.4 Any provision of this Contract which is held to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions of this Contract and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
27.5 Each Party acknowledges and agrees that it has not relied on any representation, warranty or undertaking (whether written or oral) in relation to the subject matter of this Contract and therefore irrevocably and unconditionally waives any rights it may have to claim damages against the other Party for any misrepresentation or undertaking (whether made carelessly or not) or for breach of any warranty unless the representation, undertaking or warranty relied upon is set out in this Contract or unless such representation, undertaking or warranty was made fraudulently.
27.6 Each Party shall bear its own expenses in relation to the preparation and execution of this Contract including all costs, legal fees and other expenses so incurred.
27.7 The rights and remedies provided in this Contract are independent, cumulative and not exclusive of any rights or remedies provided by general law, any rights or remedies provided elsewhere under this Contract or by any other contract or document. In this Clause 27.7 of these General Terms and Conditions, right includes any power, privilege, remedy, or proprietary or security interest.
27.8 Unless otherwise expressly stated in this Contract, a person who is not a party to this Contract shall have no right to enforce any terms of it which confer a benefit on such person except that a Successor and/or a Third Party may directly enforce any indemnities or other rights provided to it under this Contract. No such person shall be entitled to object to or be required to consent to any amendment to the provisions of this Contract.
27.9 This Contract, any variation in writing signed by an authorised representative of each Party and any document referred to (explicitly or by implication) in this Contract or any variation to this Contract, contain the entire understanding between the Supplier and the Customer relating to the Services to the exclusion of all previous agreements, confirmations and understandings and there are no promises, terms, conditions or obligations whether oral or written, express or implied other than those contained or referred to in this Contract. Nothing in this Contract seeks to exclude either Party’s liability for Fraud. Any tender conditions and/or disclaimers set out in the Customer’s procurement documentation leading to the award of this Contract shall form part of this Contract.
27.10 This Contract, and any Dispute or claim arising out of or in connection with it or its subject matter (including any non-contractual claims), shall be governed by, and construed in accordance with, the laws of England and Wales.
27.11 Subject to Clause 22 of these General Terms and Conditions, the Parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any Dispute or claim that arises out of or in connection with this Contract or its subject matter.
27.12 All written and oral communications and all written material referred to under this Contract shall be in English.
Schedule 1
Information and Data Provisions
1 Confidentiality
1.1 In respect of any Confidential Information it may receive directly or indirectly from the other Party (“Discloser”) and subject always to the remainder of Clause 1 of this Schedule 1 each Party (“Recipient”) undertakes to keep secret and strictly confidential and shall not disclose any such Confidential Information to any third party without the Discloser’s prior written consent provided that:
1.1.1 the Recipient shall not be prevented from using any general knowledge, experience or skills which were in its possession prior to the Commencement Date;
1.1.2 the provisions of Clause 1 of this Schedule shall not apply to any Confidential Information:
(i) which is in or enters the public domain other than by breach of this Contract or other act or omissions of the Recipient;
(ii) which is obtained from a third party who is lawfully authorised to disclose such information without any obligation of confidentiality;
(iii) which is authorised for disclosure by the prior written consent of the Discloser;
(iv) which the Recipient can demonstrate was in its possession without any obligation of confidentiality prior to receipt of the Confidential Information from the Discloser; or
(v) which the Recipient is required to disclose purely to the extent to comply with the requirements of any relevant stock exchange.
1.2 Nothing in Clause 1 of this Schedule shall prevent the Recipient from disclosing Confidential Information where it is required to do so by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by applicable Law, including the Freedom of Information Act 2000 (“FOIA”), Codes of Practice on Access to Government Information, on the Discharge of Public Authorities’ Functions or on the Management of Records (“Codes of Practice”) or the Environmental Information Regulations 2004 (“Environmental Regulations”).
1.3 The parties may disclose Confidential Information:
1.3.1 on a confidential basis, to any consultant, contractor or other person engaged by the Customer and/or the Contracting Customer receiving such information;
1.3.2 to any relevant party for the purpose of the examination and certification of the Customer’s accounts;
1.3.3 to any relevant party for any examination pursuant to section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Customer has used its resources;
1.3.4 to Parliament and Parliamentary Committees or if required by any Parliamentary reporting requirements; or
1.3.5 on a confidential basis to a proposed successor body in connection with any proposed or actual, assignment, novation or other disposal of rights, obligations, liabilities or property in connection with this Contract;
and for the purposes of this Contract, references to disclosure “on a confidential basis” shall mean the Customer making clear the confidential nature of such information and that it must not be further disclosed except in accordance with Law or this Clause 1.3 of this Schedule 1.
1.4 Clause 1 of this Schedule shall remain in force:
1.4.1 without limit in time in respect of Confidential Information which comprises Personal Data or which relates to national security; and
1.4.2 for all other Confidential Information for a period of three (3) years after the expiry or earlier termination of this Contract unless otherwise agreed in writing by the Parties.
2 Data protection
2.1 The Parties acknowledge their respective duties under Data Protection Legislation and shall give each other all reasonable assistance as appropriate or necessary to enable each other to comply with those duties. For the avoidance of doubt, the Supplier shall take reasonable steps to ensure it is familiar with the Data Protection Legislation and any obligations it may have under such Data Protection Legislation and shall comply with such obligations.
The Supplier and the Customer shall ensure that Personal Data is safeguarded at all times in accordance with the Law, and this obligation will include (if transferred electronically) only transferring Personal Data (a) if essential, having regard to the purpose for which the transfer is conducted; and (b) that is encrypted in accordance with any international data encryption standards for healthcare, and as otherwise required by those standards applicable to the Customer under any Law and Guidance (this includes, data transferred over wireless or wired networks, held on laptops, CDs, memory sticks and tapes).
2.2 Where, as a requirement of this Contract, the Supplier is Processing Personal Data relating to patients and/or service users as part of the Services, the Supplier shall:
2.2.1 complete and publish an annual information governance assessment using the NHS information governance toolkit;
2.2.2 report all incidents of data loss and breach of confidence in accordance with Department of Health and/or the NHS England and/or Health and Social Care Information Centre guidelines;
2.2.3 put in place and maintain policies that describe individual personal responsibilities for handling Personal Data and apply those policies vigorously;
2.2.4 put in place and maintain agreed protocols for the lawful sharing of Personal Data with other NHS organisations and (as appropriate) with non-NHS organisations in circumstances in which sharing of that data is required under this Contract;
2.2.5 where appropriate, have a system in place and a policy for the recording of any telephone calls in relation to the Services, including the retention and disposal of those recordings;
2.2.6 at all times comply with any information governance requirements and/or processes as may be set out in the Specification and Tender Response Document; and
2.2.7 comply with any new and/or updated requirements, Guidance and/or Policies notified to the Supplier by the Customer from time to time (acting reasonably) relating to the Processing and/or protection of Personal Data.
2.3 Where any Personal Data is Processed by any Sub-contractor of the Supplier in connection with this Contract, the Supplier shall procure that such Sub-contractor shall comply with the relevant obligations set out in Clause 2 of this Schedule, as if such Sub-contractor were the Supplier.
2.4 The Supplier shall indemnify and keep the Customer indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings whatsoever or howsoever arising from the Supplier’s unlawful or unauthorised Processing, destruction and/or damage to Personal Data in connection with this Contract.
3 Freedom of Information and Transparency
3.1 The Parties acknowledge the duties of pubic bodies under the FOIA, Codes of Practice and Environmental Regulations and shall give each other all reasonable assistance as appropriate or necessary to enable compliance with those duties.
3.2 The parties shall assist and cooperate with any disclosure obligations under the FOIA, Codes of Practice and Environmental Regulations which apply to them in respect of this Contract. The parties agree:
3.2.1 that this Contract and any recorded information held for the purposes of this Contract are subject to the obligations and commitments under the FOIA, Codes of Practice and Environmental Regulations;
3.2.2 that the decision on whether any exemption to the general obligations of public access to information applies to any request for information received under the FOIA, Codes of Practice and Environmental Regulations is a decision solely for the relevant party receiving any request;
3.2.3 that where either party receives a request for information under the FOIA, Codes of Practice and Environmental Regulations it will liaise with the other as to the contents of any response before a response to a request is issued and will promptly (and in any event within two (2) Business Days) provide a copy of the request and any response to the other.
3.3 The Parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the FOIA, Codes of Practice and Environmental Regulations, the content of this Contract is not Confidential Information.
3.4 Notwithstanding any other term of this Contract, the Supplier consents to the publication of this Contract in its entirety (including variations), subject only to the redaction of information that is exempt from disclosure in accordance with the provisions of the FOIA, Codes of Practice and Environmental Regulations. This Contract, but not the Project Mandate, shall be published on the website of the Supplier.
3.5 Where any information is held by any Sub-contractor of the Supplier in connection with this Contract, the Supplier shall procure that such Sub-contractor shall comply with the relevant obligations set out in Clause 3 of this Schedule, as if such Sub-contractor were the Supplier.
4 Information Security
4.1 Without limitation to any other information governance requirements set out in this Schedule, the Supplier shall:
4.1.1 notify the Customer forthwith of any information security breaches or near misses (including without limitation any potential or actual breaches of confidentiality or actual information security breaches) in line with the Customer’s information governance Policies; and
4.1.2 fully cooperate with any audits or investigations relating to information security and any privacy impact assessments undertaken by the Customer and shall provide full information as may be reasonably requested by the Customer in relation to such audits, investigations and assessments.
4.2 Where required in accordance with the Specification and Tender Response Document, the Supplier will ensure that it puts in place and maintains an information security management plan appropriate to this Contract, the type of Services being provided and the obligations placed on the Supplier. The Supplier shall ensure that such plan is consistent with any relevant Policies, Guidance, Good Industry Practice and with any relevant quality standards as may be set out in the Key Provisions and/or the Specification and Tender Response Document.
Schedule 2
Definitions and Interpretations
1 Definitions
1.1 In this Contract the following words shall have the following meanings unless the context requires otherwise:
“Actual Services Commencement Date”
means the date the Supplier actually commences delivery of the Services;
“Customer”
means the Customer named on a Project Mandate;
“Customer’s Obligations”
means the Customer’s further obligations, if any, referred to in the Contract or Project Mandate;
“Business Day”
means any day other than Saturday, Sunday, Christmas Day, Good Friday or a statutory bank holiday in England and Wales;
“Codes of Practice”
shall have the meaning given to the term in Clause 1.2 of the General Terms and Conditions;
“Commencement Date”
means the date provided for in the Project Mandate;
“Confidential Information”
means information, data and material of any nature, which either Party may receive or obtain in connection with the conclusion and/or operation of the Contract including any procurement process which is:
(a) Personal Data including without limitation which relates to any patient or other service user or his or her treatment or clinical or care history;
(b) designated as confidential by either party or that ought reasonably to be considered as confidential (however it is conveyed or on whatever media it is stored); and/or
(c) Policies and such other documents which the Supplier may obtain or have access to through the Customer’s intranet;
“Contract”
means these terms and conditions together with the Project Mandate;
“Contract Manager”
means for the Customer and for the Supplier the individuals notified by a Party to the other Party from time to time in accordance with Clause 7.1 of the General Terms and Conditions;
“Contract Price”
means the price exclusive of VAT that is payable to the Supplier by the Customer under the Contract for the full and proper performance by the Supplier of its obligations under the Contract;
“Controller”
shall have the same meaning as set out in the GDPR;
“Convictions”
means, other than in relation to minor road traffic offences, any previous or pending prosecutions, convictions, cautions and binding-over orders (including any spent convictions as contemplated by section 1(1) of the Rehabilitation of Offenders Act 1974 or any replacement or amendment to that Act);
“Data Protection Legislation”
means (i) the Data Protection Act 2018 to the extent that it relates to processing of personal data and privacy; (ii) the GDPR, the Law Enforcement Directive (Directive (EU) 2016/680) and any applicable national implementing Law as amended from time to time; and (iii) all applicable Law about the processing of personal data and privacy;
“Data Protection Protocol”
means any document of that name as agreed where the Supplier is a Data Processor;
“Dispute(s)”
means any dispute, difference or question of interpretation or construction arising out of or in connection with this Contract, including any dispute, difference or question of interpretation relating to the Services, any matters of contractual construction and interpretation relating to the Contract, or any matter where this Contract directs the Parties to resolve an issue by reference to the Dispute Resolution Procedure;
“Dispute Notice”
means a written notice served by one Party to the other stating that the Party serving the notice believes there is a Dispute;
“Dispute Resolution Procedure”
means the process for resolving Disputes as set out in Clause 19 of the General Terms and Conditions;
“DOTAS”
means the Disclosure of Tax Avoidance Schemes rules which require a promoter of tax schemes to tell HM Revenue and Customs of any specified notifiable arrangements or proposals and to provide prescribed information on those arrangements or proposals within set time limits as contained in Part 7 of the Finance Act 2004 and in secondary legislation made under vires contained in Part 7 of the Finance Act 2004 and as extended to National Insurance Contributions by the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012, SI 2012/1868 made under s.132A Social Security Administration Act 1992;
“Enable East”
means the business unit known as ENABLE EAST of Severalls House, 2 Boxted Road, Colchester, Essex, CO4 5HG operating within EPUT Essex Partnership University NHS Foundation Trust (EPUT))
“Environmental Regulations”
shall have the meaning given to the term in Clause 1.2 of Schedule 1;
“Equality Legislation”
means any and all legislation, applicable guidance and statutory codes of practice relating to equality, diversity, non-discrimination and human rights as may be in force in England and Wales from time to time including, but not limited to, the Equality Act 2010, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) and the Human Rights Act 1998;
“FOIA”
shall have the meaning given to the term in Clause 1.2 of Schedule 1;
“Force Majeure Event”
means any event beyond the reasonable control of the Party in question to include, without limitation:
(a) war including civil war (whether declared or undeclared), riot, civil commotion or armed conflict materially affecting either Party’s ability to perform its obligations under this Contract;
(b) acts of terrorism;
(c) flood, storm or other natural disasters;
(d) fire;
(e) unavailability of public utilities and/or access to transport networks to the extent no diligent supplier could reasonably have planned for such unavailability as part of its business continuity planning;
(f) government requisition or impoundment to the extent such requisition or impoundment does not result from any failure by the Supplier to comply with any relevant regulations, laws or procedures (including such laws or regulations relating to the payment of any duties or taxes) and subject to the Supplier having used all reasonable legal means to resist such requisition or impoundment;
(g) compliance with any local law or governmental order, rule, regulation or direction applicable outside of England and Wales that could not have been reasonably foreseen;
(h) industrial action which affects the ability of the Supplier to provide the Services, but which is not confined to the workforce of the Supplier or the workforce of any Sub-contractor of the Supplier; and
(i) a failure in the Supplier’s and/or Customer’s supply chain to the extent that such failure is due to any event suffered by a member of such supply chain, which would also qualify as a Force Majeure Event in accordance with this definition had it been suffered by one of the Parties;
but excluding, for the avoidance of doubt, the withdrawal of the United Kingdom from the European Union and any related circumstances, events, changes or requirements;
“Fraud”
means any offence under any law in respect of fraud in relation to this Contract or defrauding or attempting to defraud or conspiring to defraud the government, parliament or any Contracting Customer;
“GDPR”
means the General Data Protection Regulation (Regulation (EU) 2016/679);
“General Anti-Abuse Rule”
means
(a) the legislation in Part 5 of the Finance Act 2013; and
(b) any future legislation introduced into parliament to counteract tax advantages arising from abusive arrangements to avoid national insurance contributions;
“Good Industry Practice”
means the exercise of that degree of skill, diligence, prudence, risk management, quality management and foresight which would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in the provision of services similar to the Services under the same or similar circumstances as those applicable to this Contract, including in accordance with any codes of practice published by relevant trade associations;
“Guidance”
means any applicable guidance, direction or determination and any policies, advice or industry alerts which apply to the Services, to the extent that the same are published and publicly available or the existence or contents of them have been notified to the Supplier by the Customer and/or have been published and/or notified to the Supplier by the Department of Health, Monitor, NHS England, the Medicines and Healthcare Products Regulatory Agency, the European Medicine Agency, the European Commission, the Care Quality Commission and/or any other regulator or competent body;
“Halifax Abuse Principle”
means the principle explained in the CJEU Case C-255/02 Halifax and others;
“HM Government Cyber Essentials Scheme”
means the HM Government Cyber Essentials Scheme as further defined in the documents relating to this scheme published at: https://www.gov.uk/government/publications/cyber-essentials-scheme-overview;
“Implementation Plan”
means the implementation plan, if any, referred to in the Key Provisions;
“Intellectual Property Rights”
means all patents, copyright, design rights, registered designs, trade marks, know-how, database rights, confidential formulae and any other intellectual property rights and the rights to apply for patents and trade marks and registered designs;
“Key Provisions”
means the key provisions;
“Law”
means any applicable legal requirements including, without limitation,:
(a) any applicable statute or proclamation, delegated or subordinate legislation, bye-law, order, regulation or instrument as applicable in England and Wales;
(b) any applicable European Union obligation, directive, regulation, decision, law or right (including any such obligations, directives, regulations, decisions, laws or rights that are incorporated into the law of England and Wales or given effect in England and Wales by any applicable statute, proclamation, delegated or subordinate legislation, bye-law, order, regulation or instrument);
(c) any enforceable community right within the meaning of section 2(1) European Communities Act 1972;
(d) any applicable judgment of a relevant court of law which is a binding precedent in England and Wales;
(e) requirements set by any regulatory body as applicable in England and Wales;
(f) any relevant code of practice as applicable in England and Wales; and
(g) any relevant collective agreement and/or international law provisions (to include, without limitation, as referred to in (a) to (f) above);
“Losses”
all damage, loss, liabilities, claims, actions, costs, expenses (including the cost of legal and/or professional services) proceedings, demands and charges whether arising under statute, contract or at common law;
“NHS”
means the National Health Service;
“NHS Body”
has the meaning given to it in section 275 of the National Health Service Act 2006 as amended by section 138(2)(c) of Schedule 4 to the Health and Social Care Act 2012;
“Occasion of Tax Non-Compliance”
means:
(a) any tax return of the Supplier submitted to a Relevant Tax Authority on or after 1 October 2012 is found on or after 1 April 2013 to be incorrect as a result of:
(i) a Relevant Tax Authority successfully challenging the Supplier under the General Anti-Abuse Rule or the Halifax Abuse Principle or under any tax rules or legislation that have an effect equivalent or similar to the General Anti-Abuse Rule or the Halifax Abuse Principle;
(ii) the failure of an avoidance scheme which the Supplier was involved in, and which was, or should have been, notified to a Relevant Tax Authority under the DOTAS or any equivalent or similar regime; and/or
(b) any tax return of the Supplier submitted to a Relevant Tax Authority on or after 1 October 2012 gives rise, on or after 1 April 2013, to a criminal conviction in any jurisdiction for tax related offences which is not spent at the Effective Date or to a civil penalty for fraud or evasion;
“Party”
means the Customer or the Supplier as appropriate and Parties means both the Customer and the Supplier;
“Personal Data”
shall have the same meaning as set out in the GDPR;
“Policies”
means the policies, rules and procedures of the Customer as notified to the Supplier from time to time;
“Premises and Locations”
has the meaning given under Clause 2.1 of the General Terms and Conditions
“Process”
shall have the same meaning as set out in the GDPR. Processing and Processed shall be construed accordingly;
“Processor”
shall have the same meaning as set out in the GDPR;
“Purchase Order”
means a purchase order as referred to in the Key Provisions;
“Relevant Tax Authority”
means HM Revenue and Customs, or, if applicable, a tax Customer in the jurisdiction in which the Supplier is established;
“Services”
means the services set out in the Project Mandate ;
“Services Commencement Date”
means the date delivery of the Services shall commence as specified in the Project Mandate or as agreed by the Parties;
“Services Information”
means information concerning the Services as may be reasonably requested by the Customer and supplied by the Supplier to the Customer from time to time;
“Staff”
means all persons employed or engaged by the Supplier to perform its obligations under this Contract including any Sub-contractors and person employed or engaged by such Sub-contractors;
“Sub-contract”
means a contract between two or more suppliers, at any stage of remoteness from the Supplier in a sub-contracting chain, made wholly or substantially for the purpose of performing (or contributing to the performance of) the whole or any part of this Contract;
“Sub-contractor”
means a party to a Sub-contract other than the Supplier;
“Successor”
means any third party who provides services fundamentally the same as the Services (either in whole or in part) in immediate or subsequent succession to the Supplier upon the expiry or earlier termination of this Contract;
“Supplier”
means Enable East;
“Supplier Code of Conduct”
means the code of that name published by the Government Commercial Function originally dated September 2017, as may be amended, restated, updated, re-issued or re-named from time to time;
“Supplier Personnel”
means any employee, agent, consultant and/or contractor of the Supplier or Sub-contractor who is either partially or fully engaged in the performance of the Services;
“Term”
means the term as set out in the Project Mandate;
“Termination Notice”
means a written notice of termination given by one Party to the other notifying the Party receiving the notice of the intention of the Party giving the notice to terminate this Contract on a specified date and setting out the grounds for termination;
“TUPE”
means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (2006/246) and/or any other regulations or other legislation enacted for the purpose of implementing or transposing the Acquired Rights Directive (77/187/EEC, as amended by Directive 98/50 EC and consolidated in 2001/23/EC) into English law; and
“VAT”
means value added tax chargeable under the Value Added Tax Act 1994 or any similar, replacement or extra tax.
1.2 References to any Law shall be deemed to include a reference to that Law as amended, extended, consolidated, re-enacted, restated, implemented or transposed from time to time.
1.3 References to any legal entity shall include any body that takes over responsibility for the functions of such entity.
1.4 References in this Contract to a “Schedule”, “Appendix”, “Paragraph” or to a “Clause” are to schedules, appendices, paragraphs and clauses of this Contract.
1.5 References in this Contract to a day or to the calculation of time frames are references to a calendar day unless expressly specified as a Business Day.
1.6 Unless set out in the Commercial Schedule as a chargeable item and subject to Clause 27.6 of the General Terms and Conditions, the Supplier shall bear the cost of complying with its obligations under this Contract.
1.7 The headings are for convenience only and shall not affect the interpretation of this Contract.
1.8 Words denoting the singular shall include the plural and vice versa.
1.9 Where a term of this Contract provides for a list of one or more items following the word “including” or “includes” then such list is not to be interpreted as an exhaustive list. Any such list shall not be treated as excluding any item that might have been included in such list having regard to the context of the contractual term in question. General words are not to be given a restrictive meaning where they are followed by examples intended to be included within the general words.
1.10 Where a document is required under this Contract, the Parties may agree in writing that this shall be in electronic format only.
1.11 Where there is an obligation on the Customer to procure any course of action from any third party, this shall mean that the Customer shall use its reasonable endeavours to procure such course of action from that third party.
1.12 Any terms defined as part of a Schedule or other document forming part of this Contract shall have the meaning as defined in such Schedule or document.
