Commissioned and Staffing
Terms of Business and Charge Rates
The following defined terms are used in these Terms and Conditions:
“Agreement” means together, these Terms and Conditions (including the staffing terms in the Appendix 1 for Staffing Services, the Care Plan, the Rate Schedule, any requirements from the Client which the Service Provider confirms it can provide, and the Client Service Specification.
“Cancellation Fee” means the fee set out in the Rate Schedule payable by the Client to the Service Provider in the circumstances described in the Rate Schedule and/or in this Appendix.
“Care Package” means the package of Care Services for the Service User that the Service Provider has agreed to manage on the Client’s behalf incorporating the Client Service Specification.
“Care Plan” means a written description, prepared by the Service Provider or the Client, describing the nature and level of the Service User’s care needs and the Services the Service Provider will provide, as amended from time to time.
“Care Services” means the delivery of Commissioned Care to the Service User (as part of the Care Package) in accordance with the Client Service Specification.
“Client Service Specification” means the document outlining the accountability and responsibilities of both the Service Provider and the Client in respect of the Service.
“Commissioned Care” means the governance of the Care Package in accordance with the rules of the Statutory Regulator.
“Data Protection Laws” means (i) the UK Data Protection Act 2018; (ii) the General Data Protection Regulation (UK GDPR) as revised and superseded from time to time; (iii) Directive 2002/58/EC as updated by Directive 2009/136/EC (ePrivacy Directive); and (iv) any other laws and regulations (including any successor legislation) relating to the processing of personal data and privacy which apply to a party.
“Days/days” means calendar days.
“Employee liabilities” means liabilities including but is not limited to any claim for breach of contract, loss of office, unfair dismissal, redundancy, loss of earnings or otherwise, whether brought in an Employment Tribunal or Civil Court and all damages, penalties, awards, legal costs, expenses and any other liabilities incurred by the Service Provider.
“Engagement” means the employment, engagement or use of any of the Service Provider’s Personnel by the Client or any third party (including the Service User) (as applicable) on a permanent or temporary basis, whether under a contract of service or for services, under an agency, licence, franchise or partnership agreement or any other engagement, and whether directly or through a body corporate of which the relevant third party is a member, officer or employee, and “Engage” shall be construed accordingly.
“Fees” means the fees for the Service notified in the Rate Schedule and as amended in accordance with these Terms and Conditions from time to time.
“Home” means the Service User’s home address or any other accommodation in which the Service is provided.
“HMRC” means HM Revenue & Customs or their successors.
“Loss” means any loss, damage, liability, demand, claim, proceedings, judgement, settlement, fine, interest, penalty, award, order, cost and/or expense (including legal disbursements and costs of investigation, litigation, settlement, judgement, and other professional costs and expenses), and “Losses” shall be construed accordingly
“Permanent Engagement Fee” means the fee equal to 35% of the annual expected Fees for the Service Provider Personnel payable by the Client in accordance with clause 7.3.
“Personnel” mea ns the health professional engaged by the Service Provider to provide the relevant Care Service to the Service User in accordance with the Client Service Specification
“Rate Schedule” means the schedule setting out the Fees payable for the Services (as amended in accordance with the Client Service Specification and these Terms and Conditions from time to time).
“Restricted Period” means the term of the Agreement and a period of six (6) months after its completion, expiry or termination.
“Services” means either Staffing Services and/or Care Services
“Service User” means the individual who receives the Services.
“Staffing Services” means the provision of temporary agency Workers who will be under the Client’s supervision direction and control for the duration of the Staffing Services.
“Statutory Regulator” means the Care Quality Commission (CQC)) or any successor.
“Termination Fee” means the Fee payable by the Client in the event that less than twenty eight (28) days notice has been provided. For the avoidance of doubt this means that for every day less than the required twenty eight (28) days notice is provided to the Service Provider by the Client, Fees equivalent of one (1) day will be charged.
“TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006.
“Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care and attention and includes any person under the age of 18.
The Client’s attention is particularly drawn to any terms in bold
1. Agreement
1.1. The Agreement (as defined above) shall constitute the contract between the Service Provider and the Client for the supply of the Services and the Client’s acceptance to the Agreement shall be deemed to have occurred by virtue of the Client requesting and the Service Provider delivering the Services.
1.2. The Agreement constitutes the entire agreement between the Client and the Service Provider in connection with the subject matter described therein and supersedes and extinguishes all previous agreements and arrangements (whether written or oral) relating thereto.
1.3. Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
1.4. Any provisions of this Agreement which are intended (expressly or by implication) to survive termination shall continue in force after termination of this Agreement.
2. Services
2.1. If either:
the Client requests (and the Service Provider subsequently confirms in writing (including by email)); or
the Service Provider confirms to the Client in writing;
that the Service Provider Services will be Staffing Services, then the Client acknowledges and agrees from the point of confirmation that the Service Provider will not be providing Care Services and that the Client is fully responsible for the care delivered to the Service User (in accordance with the rules of the Statutory Regulator) including managing the Care Plan, the Home environment, any and all risk assessments and any gaps in staffing. The Client also acknowledges and confirms that it shall be responsible for the supervision, direction and control of the Worker(s) for the duration of the Staffing Services.
2.2. For Staffing Services the terms in the Appendix 1 shall apply and shall take precedence over any conflicting provision of these terms up to the start of the Care Services.
2.3. Subject to clauses 2.1 and 2.2 once this Agreement is in place the Service Provider will commence the provision of Care Services by deploying a suitable skilled team of Personnel within one (1) hour or as otherwise agreed by the parties.
2.4. The Service Provider will complete a clinical assessment of the Service User’s needs within fourteen (14) calendar days of the commencement of the provision of the Services and provide clinical oversight to support the delivery of the Care Services.
2.5. From this clinical assessment, the Service Provider will identify Personnel training needs, competencies required, equipment requirements and gather the necessary information to write a revised Care Plan, risk assessment and positive behavioural support plan.
Where any issues arise that affect the Service Provider’s delivery of the Services that are outside the Service Provider’s reasonable control (such as the Home environment or Service User family dynamics) the Client shall act reasonably and co-operatively in working with the Service Provider to resolve the issues promptly to allow the Service Provider to achieve a satisfactory position.
3. Assessment of the Service User’s care needs
3.1. The Service Provider will use the Service User’s clinical diagnosis and the Client own needs assessment to assess the delivery of the Service User’s care requirements. The Service Provider will work with the Client, the Service User, their family and any appropriate external social or healthcare professionals to assess and agree the appropriate level of service required for the Care Services.
3.2. The Service Provider will use its reasonable care and skill to devise the Care Package and will use its reasonable endeavours to ensure that it meets the Service User’s care requirements. The Service Provider will set out the Care Services in the Care Plan.
3.3. The Service Provider will use its reasonable endeavours to formally review the Care Plan:
3.3.1. four weeks after commencement of the Services;
3.3.2. on a yearly basis thereafter;
3.3.3. at the Client reasonable request; and
3.3.4. at any other time as the Service Provider considers appropriate or desirable.
3.4. If the Client has devised its own Care Package/Care Plan for the Service User the Service Provider will nevertheless assess how to meet the Service User’s care requirements in accordance with clause 3.1. If the Service Provider determines that the Care Plan/Care Package the Client has devised should be amended, the Service Provider will work with the Client to agree appropriate amendments. Any amendments the Client and the Service Provider agree will be detailed in the Client Service Specification.
3.5. If the Service User’s needs change or increase to a level which cannot be met by the Service Provider, the Service Provider will tell the Client without delay and will endeavour to discuss alternative arrangements and agree a mutually acceptable solution. The Client agrees to support the transition of the Care Services where no other solution can be identified. The Service Provider shall endeavour to continue to provide the Care Services during this period.
4. Fees
4.1. The Client shall pay the Service Provider’s Fees in accordance with the Client Service Specification and as set out in the Rate Schedule.
4.2. If the Service User is admitted to hospital or is otherwise absent from their Home the Client shall pay the Fees in respect of the temporary absence at the rates set out in the Rate Schedule.
4.3. The Service Provider will invoice the Client in arrears for the Services.
4.4. All Fees in relation to the Services are considered to be VAT exempt and as such no VAT will be charged on any invoices submitted by the Service Provider in relation to provision of the Services.
4.5. The Client shall pay each invoice submitted by the Service Provider, in full and in cleared funds within fourteen (14) days of the invoice date. All payments shall be made into the Service Provider’s nominated bank account.
4.6. The Client must raise any queries in relation to the Fees in writing within seven (7) days of receipt of each invoice.
4.7. Without prejudice to any other right or remedy that the Service Provider may have, if the Client fails to pay any sum due to the Service Provider on the due date the Service Provider may:-
4.7.1. charge interest at 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount; and, whether before or after any judgement and the Client shall pay the interest immediately on demand; and/or
4.7.2. suspend the Service until payment of the overdue amount has been made in full.
4.8. All sums payable to the Service Provider under the Agreement shall become due immediately on its termination, despite any other provision.
4.9. There are no rebates payable by the Service Provider in respect of the Fees.
4.10. The Service Provider will be entitled to review and increase the Fees on an annual basis and at any other interval if:
4.10.1. there is a change to the Service; or
4.10.2. The Service Provider determines in its absolute discretion that a change is necessary in order to comply with any applicable safety, regulatory or statutory requirements; and/or
4.10.3. The Service Provider determines in its absolute discretion that the cost of providing the Service will increase or has already increased.
4.11. Unless the increase in the Fees is because of a change to the Service the Service Provider will give the Client at least seven (7) days’ notice of any increase in the Fees. Any increase shall be effective from the date of the change to the Service, or when the requirements under clause 4.7 are imposed, or when the cost of providing the Service increases (as applicable).
5. Personnel
5.1. The Service Provider will exercise reasonable care and skill to meet the Service User’s needs as set out in the Care Plan and to provide suitably trained, sufficiently skilled, experienced and competent Personnel to provide Care Services.
5.2. The Service Provider will inform the Client of the identity, experience, training and qualifications of its Personnel assigned to provide the Care Services as well as any authorisation required by law or a professional body for the Personnel to provide the Care Services upon request.
5.3. In advance of the commencement of the Care Package by the Service Provider, the Service Provider will ensure that the appropriate employment checks are carried out and the Personnel assigned to provide the Care Services meet the requirements of the Statutory Regulator.
5.4. The Service Provider will use its reasonable endeavours to supply the same Personnel to the Client each time it provides the Services. However, annual leave, sickness, availability and unforeseen events may require the Service Provider to deploy alternative Personnel. The Service Provider will provide the Client with as much advance notice of the deployment of any alternative Personnel as circumstances allow
5.5. No money should be paid or agreed to be paid by the Client directly to the Service Provider’s Personnel. The Service Provider is responsible for their wages and where appropriate the deduction and payment of National Insurance contributions and PAYE.
5.6. For all complaints the Client should inform the Service Provider as soon as possible using the complaints procedure contained in the Service User Guide.
6. Cancellation/Ending a shift prematurely
6.1. The Client may wish to cancel a specific shift undertaken by the Service Provider’s Personnel in the performance of the Services without charge, subject to the Client serving at least seven (7) days’ notice on Ellea. Where less than seven (7) days’ notice is provided the Client shall submit payment of the standard Cancellation Fee of £100 for each shift notified. If any of the Service Provider’s Personnel are in transit at the time of the Client’s cancellation notification, or are turned away on arrival, the Client shall pay a standard Cancellation Fee equal to four hours of the Service Provider’s Personnel’s time (at the rate set out in the Rate Schedule) together with any expenses.
6.2. If it becomes necessary for the Client to prematurely end any specific shift prior to its agreed finish time, then:
6.2.1. if the Service Provider’s Personnel have worked for up to four hours on that shift, the Client will pay for four hours of the Service Provider’s Personnel’s time (at the rate set out in the Rate Schedule) plus expenses; or
6.2.2. if the Service Provider’s Personnel have worked for over four hours on that shift, the Client will pay for their full shift (at the rate set out in the Rate Schedule) plus expenses.
7. Non-Solicitation
7.1. In order to protect the Service Provider’s legitimate business interests, during the Restricted Period the Client shall not, either directly or indirectly, by themselves or through another party, whether for their own benefit or for the benefit of any other person or third party, solicit, entice or induce, or endeavour to solicit, entice or induce, any of the Service Provider’s Personnel with a view to employing them permanently or Engaging them on a temporary basis whether through themselves or any other third party, outside of this Agreement without the Service Provider’s prior written consent.
7.2. Notwithstanding clause 7.1 the Client may employ or Engage any individual who has responded directly to a bona fide recruitment advertisement either through a recruitment agency Engaged by the Client or via an advertisement placed publicly by the Client (either in the press, social media or online).
7.3. In the event of a breach of clause 7.1 which results in any of the Service Provider’s Personnel leaving the Service Provider’s employment and being employed or Engaged by the Client, the Client shall pay to the Service Provider the amount set out in the Rates Schedule by way of a Permanent Engagement Fee.
8. The Client’s Obligations including in relation to the Service User’s Home as a workplace
8.1. The Client shall comply in all respects with all laws, statutes and regulations in relation to the Services.
8.2. The Client must provide the Service Provider with full details of the Client and the Service User’s requirements, and any requirements of law or any professional body relevant to the Service Provider Personnel as well as any risks to health and safety the Client is aware of and the steps the Client has taken to mitigate those risks.
8.3. The Client shall use all reasonable endeavours to ensure that the Home is a safe environment containing appropriate equipment to allow the Service Provider’s Personnel to carry out the Services. This shall include that the Client shall:
8.3.1. maintain a generally clean and safe environment free of risks and hazards;
8.3.2. maintain a safe route of access to and from the Home;
8.3.3. provide the correct equipment to deliver the Services;
8.3.4. ensure that any equipment supplied by the Client, the Service User or a third party to deliver the Services is fit for purpose and regularly maintained and inspected in accordance with all relevant safety requirements;
8.3.5. provide equipment such as lifting and transfer aids, wheelchairs and other mobility aids;
8.3.6. (if agreed) provide all domestic cleaning equipment such as vacuum cleaners, mops, irons etc;
8.3.7. inform the Service Provider of any communicable diseases in the Home; and
8.3.8. provide copies of any risk assessment carried out in respect of the Home.
8.4. The Client shall have suitable insurance cover, as required, to cover any potential liability to the Service Provider or any third parties in connection with the Services which is deemed to be the Service User’s responsibility.
9. Confidentiality
9.1. Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its Affiliates including, any details of its business, affairs, Clients, clients, suppliers, plans or strategy (“Confidential Information”) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 9.2.
9.2. A party may:
9.2.1. disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 9 as if it were a party;
9.2.2. disclose any Confidential Information as may be required by Law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
9.2.3. use Confidential Information only to perform any obligations under this Agreement.
9.3. Each party recognises that any breach or threatened breach of this clause 9 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
9.4. The terms under this clause 9 shall continue during the Term and for a period of 3 years following termination of this Agreement.
10. Data Protection
10.1. Each party shall comply with its respective obligations, and may exercise its respective rights and remedies, set out in Appendix 2.
11. Information and record-keeping
11.1. The Client warrants and represents that all information supplied to the Service Provider in respect of the Service User and the Client Service Specification including (but not limited to) their:
11.1.1. clinical history;
11.1.2. clinical diagnosis; and
11.1.3. clinical prognosis,
is true and accurate in all respects.
11.2. The Client shall indemnify the Service Provider and keep the Service Provider indemnified and defend the Service Provider at the Client’s own expense against any and all demands, proceedings, damages, costs, claims, liabilities, expenses and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) that the Service Provider may incur arising out of or in connection with any claim brought against the Service Provider by any party or incurred by the Service Provider or for which it may become liable as a result of any such information supplied being untrue, inaccurate or misleading.
11.3. The Service Provider shall ensure that a daily written record is kept of the care the Service User receives, any assistance with medication and any other significant information relating to the Service. Unless specified otherwise in the Care Plan these records will be kept at the Service User’s Home. The Service Provider is required by law to keep these records and they remain the Service Provider’s property.
12. Liability
12.1. Nothing in these Terms and Conditions limits or excludes the Service Provider’s liability:
12.1.1. for death or personal injury resulting from negligence;
12.1.2. for any damage or liability incurred as a result of fraud or fraudulent misrepresentation; or
12.1.3. to the extent such limitation or exclusion is not permitted or is unenforceable by law.
12.2. Subject to clause 12.1, the Service Provider shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
12.2.1. any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
12.2.2. any loss or corruption (whether direct or indirect) of data or information;
12.2.3. any loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time);
12.2.4. any loss or liability (whether direct or indirect) under or in relation to any other contract; or
12.2.5. any special, indirect, consequential loss, costs, damages, charges and expenses.
12.3. Clause 12.2 shall not prevent claims, subject to the limit set out in clause 12.4, for:
12.3.1. direct financial loss that are not excluded under any of the categories set out in clause 12.2.1 to 12.2.5; or
12.3.2. tangible property or physical damage.
12.4. Subject to clause 12.1, the Service Provider’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the Agreement and the Services shall be limited to the total Fees received by the Service Provider from the Client pursuant to the Agreement during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the date upon which the Agreement became binding upon the Client and the Service Provider, during that shorter period.
12.5. If clause 12.4 is held to be unenforceable or inapplicable for any reason whatsoever, then, subject to clause 12.1, the Service Provider’s aggregate liability in contract tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the Agreement and the Services shall be limited to £100,000.
12.6. The Client agrees to indemnify the Service Provider and keep the Service Provider indemnified and defend the Service Provider at the Client’s own expense against all demands, proceedings, damages, costs, claims, liabilities, expenses and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with any claim brought against the Service Provider by any party or incurred by the Service Provider or for which the Service Provider may become liable arising out of or in connection with:
12.6.1. any failure by the Client or the Client’s employees or agents to comply with any of its obligations under the Agreement (including the Data Protection Laws) or any other agreement or any statutory or regulatory provision; or
12.6.2. otherwise arising from the Client’s or the Client’s employees’ or agents’ negligence or dishonesty.
13. Withdrawal of the Service
13.1. Subject to clause 2.4, the Service Provider reserve the right to withdraw the Service Provider’s performance of the Services and/or to terminate the Agreement with immediate effect in circumstances which, in the Service Provider’s reasonable opinion, make the continued provision of the Service untenable. Such circumstances would include (but would not be limited to) failure by the Service User, or someone else at the Home, to provide a safe environment and/or appropriate equipment for the Services, sexual or racial harassment, extreme alcohol consumption, drug misuse, unreasonable behaviour or requests that any Service Provider Personnel undertake unreasonable or illegal activities.
14. Termination
14.1. During the provision of any Staffing Services or for the period of six (6) weeks from the commencement of Care Services (under clause 2.2), notwithstanding the Client’s liability to pay any Cancellation Fees, either party may terminate this Agreement immediately by giving notice in writing.
14.2. After six (6) weeks from the commencement of Care Services (as outlined above) either the Client or the Service Provider may terminate the Agreement by giving at least 28 days’ notice in writing. If the Client provides less than twenty eight (28) days notice, without prejudice to any other right or remedy that the Service Provider may have , the Service Provider shall have the right to charge a Termination Fee as liquidated damages equivalent to one (1) day’s Fees for each day of the reduced notice period, as set out in the Rate Schedule. The Service Provider will use its best endeavours to facilitate any transition of the Care Package to any new care provider acting in the best interests of the Service User.
14.3. The Service Provider may terminate the Agreement by giving the Client twenty eight (28) days’ written notice for any reason.
14.4. The Service Provider may terminate the Agreement immediately (without liability to the Client) by giving notice to the Client if:
14.4.1. The Client fails to pay any amount due under the Agreement on the due date and the Client remains in default not less than seven (7) days after being notified in writing to make such payment;
14.4.2. The Client suspends, or threatens to suspend, payment of the Client debts or the Client is unable to pay the Client’s debts as they fall due or the Client admits inability to pay its debts or (being a company) the Client is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
14.4.3. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the Client winding up; or
14.4.4. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client.
14.5. The Agreement will terminate immediately in the event of the Service User’s death.
14.6. Should the termination go beyond the twenty eight (28) day notice period for any unforeseen circumstances any additional costs incurred shall be charged across in full in addition to a mark-up of 10%.
15. TUPE
15.1. If any employees transfer to the Service Provider pursuant to this Agreement and/or the TUPE Regulations:
15.1.1. the Client shall ensure full compliance with the TUPE Regulations as applicable to any transferring employee (whether or not the Client is the employer) including the provision of accurate and complete employee liability information as required by Regulation 11 of the TUPE Regulations; and
15.1.2. the Client shall be responsible for all and any remuneration, emoluments, claims, liabilities, losses and reasonably and properly incurred costs (including legal costs) arising in respect of employees transferring to the Service Provider, prior to and on their transfer.
15.2. The Client shall indemnify and keep indemnified the Service Provider, on demand, against any Employee Liabilities incurred by the Service Provider arising as a result of any negligence, default, act or omission by the Client and/or any incumbent Service Provider including but not limited to:
15.2.1. any failure by the Client or any incumbent Service Provider to comply with TUPE Regulations;
15.2.2. any Losses arising as a result of termination of this Agreement; and
15.2.3. any Losses relating to claims brought by any employees or by a Trade Union or other employee representative against the Service Provider in respect of or in any way relating to any period on or following the date of the employee transfer.
16. Third party rights
16.1. No person who is not a party to the Agreement is to have any right pursuant to the Contracts (Rights of Third Parties) Act 1999 to benefit from or to enforce any provision of the Agreement and the Client and the Service Provider may agree to cancel or vary the whole of any part of the Agreement without being required to seek or obtain the consent of any third party.
17. Force Majeure
17.1. Neither the Service Provider nor the Client shall have any liability to the extent that any delay in or failure to perform any of the respective obligations of the Client and the Service Provider under the Agreement is caused by any factor beyond the respective reasonable control of the Client or the Service Provider (which shall include (without limitation) any pandemic, any strike, lockout or other form of industrial action or trade dispute and any shortage of supply of labour).
18. Assignment
18.1. The Service Provider may transfer, assign, charge or deal in any other manner with all or any of the Service Provider rights under the Agreement or may sub-contract any or all of the Service Provider obligations under it. The Client may not transfer, assign, charge or deal in any other manner with all or any of the Client rights under the Agreement or sub-contract any or all of the Client obligations under it.
19. General
19.1. Both parties agree to commit to encouraging equality, diversity and inclusion and eliminating unlawful discrimination as per the Equality Act 2010.
19.2. If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision (or part-provision) shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement (and, as the case may be, the remainder of the relevant provision) shall not be affected. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum deletion necessary to make it legal, valid and enforceable.
19.3. No variation of the Agreement shall be effective unless it is agreed in writing by an authorised representative of each party.
19.4. No failure or delay by the Service Provider in exercising any right, power or privilege under the Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in the Agreement are cumulative and not exclusive of any rights and remedies provided by law.
19.5. The Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Client and the Service Provider other than the contractual relationship expressly provided for in the Agreement. Neither the Client nor the Service Provider shall have, nor represent that the Client or the Service Provider have, any authority to make any commitments on behalf of the other.
19.6. The Client acknowledges that it has not been induced to enter into the Agreement by any representation or promise that the Agreement does not expressly contain (but this clause 19.6 shall not exclude any liability for any representation made by the Service Provider that was made fraudulently).
19.7. Any notice required to be given to either the Client or the Service Provider by the other under the Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by courier or email in each case, to such address as the Client and the Service Provider shall have specified on the date the Agreement became binding upon the Client and the Service Provider (or such alternate address as either the Client or the Service Provider shall from time to time specify to the other in writing). Any notice shall be deemed to have been duly received:
19.7.1. if delivered personally, when left at the address.
19.7.2. if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day (being a day (other than a Saturday, Sunday or public holiday) when banks in the City of London are open for business) after posting; or
19.7.3. if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
19.7.4. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
19.8. A reference to a particular statute, statutory provision or subordinate legislation in the Agreement is a reference to it as it is in force at the date the Agreement became binding upon the Client and the Service Provider, taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it.
19.9. If any provision in the Rate Schedule or Client Service Specification conflicts with any provision of these Terms and Conditions, the Rate Schedule and/or Client Service Specification shall prevail as between the Client and the Service Provider.
19.10. The Agreement and any dispute or claim arising out of or in connection with its subject matter or formation (including non- contractual disputes or claims) is governed by and shall be construed in accordance with the laws of England.
19.11. The English courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes and claims).
Appendix 1
Staffing Services Terms:
1. Definitions
‘Assignment’ means the services performed by the Temporary Worker for a period of time during which the Temporary Worker is supplied by the Service Provider.
‘AWR’ means the Agency Workers Regulations 2010 and any amending or succeeding legislation.
‘AWR Claim’ means any complaint or claim to a tribunal or court made by or on behalf of the Worker against the Client and/or the Service Provider for any breach of the AWR.
“Engagement”. means the Client’s direct or indirect (via any third party) engagement or employment of:
the Temporary Worker;any individual Introduced by the Agency to the Client; orany individual, such as the Temporary Worker or their substitute; or
other arrangement for any of the persons above to provide services to the Client or any member of the Client’s Group or an end user; and ‘Engage’ and ‘Engaged’ shall be construed accordingly.
‘Conduct Regulations’ means The Conduct of Employment Agencies and Employment Businesses Regulations 2003.
‘Extended Hire Period’ means an extended period of hire during which the Temporary Worker will be supplied to the Client by the Service Provider, upon no less favourable terms, the length of which is determined by the duration of the Agreement, and which will be calculated in accordance with clause 5 of this Appendix.
“Introduction Fee” means the Fee the Client shall pay to the Service Provider being equal to 35% of the annual expected Fees for the Temporary Worker
‘Qualifying Period’ means 12 continuous calendar weeks during the whole or part of which the Worker is supplied by one or more temporary work agencies to the relevant client to work temporarily for the relevant client in the same role, and as further defined in the AWR.
‘Relevant Period’ means any time during an Assignment, and 14 weeks from the commencement of the First Assignment of the Worker with the Client or 8 weeks from the day after the end of the last Assignment of the Worker with the Client, whichever is later.
“Timesheets” means the documents recording the time spent by the Temporary Worker providing the Service and signed by the Client (or any duly authorised person on the Client behalf) to confirm their accuracy.
“Temporary Worker” means any individual Introduced by the Service Provider to the Client and who shall be under the supervision, direction and control of the Client for the entire duration of any Assignment.
2. THE SERVICE PROVIDER OBLIGATIONS:
2.1. The Service Provider is appointed by the Temporary Worker to act as their agent for the purpose of securing on his/her behalf placements with clients and unless stated otherwise, all references in this Agreement to supplying a Temporary Worker for assignments with the Client shall be construed accordingly.
2.2. The Service Provider is not the employer of the Temporary Worker and does not supply them as principal to the Client. For the purposes of the Conduct Regulations, the Service Provider acts as an employment business in its dealings with the Client related to the Staffing Services.
2.3. The Service Provider shall endeavour to supply the Client with confirmation of:
2.3.1. the identity of the Temporary Worker;
2.3.2. that the Temporary Worker has the experience, training, qualifications and any authorisation which the Client considers necessary, or required by law or by any professional body, to perform the Staffing Services; and
2.3.3. that the Temporary Worker is willing to provide the Staffing Services.
2.4. The Service Provider will use all reasonable endeavours to procure that the Temporary Worker shall:
2.4.1. comply with the Client’s reasonable requirements as notified to the Service Provider from time to time;
2.4.2. comply with all the Client’s relevant regulations, policies and protocols as notified to the Service Provider including on health and safety and security.
2.5. The Service Provider will require the Temporary Worker to confirm that they:
2.5.1. have valid and subsisting leave to enter and remain in the United Kingdom for the duration of the relevant Assignment; and
2.5.2. are not (in relation to the above clause subject to any conditions which may preclude or have an adverse effect on any Assignments.
2.6. If the services of any Temporary Worker supplied by the Service Provider prove to be unsatisfactory to the Client, the Service Provider will use reasonable endeavours to find a replacement for the remainder of the Assignment but may charge the Client for the combined number of hours worked by the original and replacement Workers. The Service Provider reserves the right to refuse claims made by the Client after the end of the Assignment with regard to the correctness of the rate at which the services of the original worker should be charged.
2.7. Where the Temporary Worker is required by law or any professional body to have certain qualifications or authorisations to work on the Assignment, the Service Provider will obtain and offer to provide the Client copies of such.
2.8. The Service Provider may not always be able to meet the Client requirements or ensure the suitability of any Temporary Worker. In all cases, the final booking decision is the Clients own.
2.9. Under this Appendix, the Service Provider will provide Staffing Services only and will not be responsible for the management, formulation or delivery of any care package that the Temporary Worker is engaged in.
2.10. The Service Provider will be responsible for reporting any significant changes in the Service User’s conditions, environment or circumstances; reporting safeguarding issues; and/or reporting faults or concerns with supplied equipment.
3. THE CLIENT OBLIGATIONS:
3.1. The Client must provide the Service Provider with its exact requirements by providing full details of the Assignment and in particular:-
3.1.1. any special skills required for the Assignment,
3.1.2. the date on which the Client requires the Temporary Worker to commence work and the actual, or likely, duration of the Assignment,
3.1.3. the position the Client seek to fill including the type of work a Temporary Worker in that position would be required to do, the location at which and the hours during which the Temporary Worker would be required to work; any risks to health and safety known to the Client and the steps the Client has taken to prevent and control such risks and that the Service Provider are obliged to inform the Temporary Worker;
3.1.4. the experience, training, qualifications, or other requirements which the Client considers are necessary or are required for a Temporary Worker to possess in order to work in the position;
3.1.5. any expenses payable by or to the Temporary Worker, and,
3.1.6. If the Client require the Temporary Worker’s services for more than the usual number of working hours within its organisation in any given week and if the Client requires the Worker’s services for more than 37.5 hours per week, the Client must notify the Service Provider as soon as it is reasonably practicable and at least before that week begins.
3.2. The Client undertakes to comply with its obligations under Regulation 12 (Rights of access to collective facilities and amenities) and Regulation 13 (Rights of access to employment) of the AWR.
3.3. Before the Assignment begins, during it (if appropriate) and at any time the Service Provider requests it, the Client shall inform the Service Provider if since 1 October 2011:
3.3.1. the Temporary Worker has worked in the same or a similar role with the Client through the Service Provider or any third party before the Assignment started or during it and if so, the Client shall provide the Service Provider with full details thereof; and/or
3.3.2. before the Assignment started or during it, the Temporary Worker completed two (2) or more Assignments with the Client or completed an Assignment with the Client and another Assignment with one of the Client’s Group Companies, and/or worked in more than two (2) roles during an Assignment with the Client and at least two (2) occasions worked in a role that was not the same role as the previous one and if so, the Client shall provide the Service Provider with full details thereof.
3.4. If the Service Provider requests it for the purposes of the Service Provider complying with the AWR, the Client must
3.4.1. provide the Service Provider with written details of the basic working and employment conditions (including those set out in Regulation 6 (1) of the AWR) (“the Conditions”) that the Temporary Worker would be entitled to for doing the same job had the Client recruited them directly as an employee or worker at the time the Qualifying Period commenced, or those of a comparable employee (as defined in Regulation 5(4) of the AWR);
3.4.2. inform the Service Provider whether the details provided are those of a hypothetical directly recruited employee or of a comparable employee and if they are of the latter the Client must explain in writing why it considers that individual is comparable;
3.4.3. inform the Service Provider in writing of any variations in the Conditions made at any time during the Assignment after the Qualifying Period commenced except where the Temporary Worker will not complete the Qualifying Period during the term of the Assignment, provide the Service Provider with written details of the Client’s pay and benefit structures and appraisal processes and any variations of the same; and comply with any other requests for information or requirements from the Service Provider.
3.5. For the purposes of awarding any bonus to which the Temporary Worker may be entitled under the AWR the Client must integrate the Temporary Worker into the Client’s relevant performance appraisal system; assess the Temporary Worker’s performance; provide the Service Provider with copies of all documentation relating to any appraisal of the Temporary Worker; and provide the Service Provider with all other assistance it may request in connection with the assessment of the Temporary Worker’s performance for the purpose of awarding any bonus.
3.6. The Client warrants that all the information and documentation supplied to the Service Provider under this clause is complete, accurate, and up-to- date and that the Client will immediately inform the Service Provider if, during the Assignment, there is any substantial change in the information or documentation provided.
3.7. The Client will conduct a thorough risk assessment study of the Home, equipment and working conditions prior to any of the Temporary Workers commencing work with the Client. The Client will forward a copy of this to the Service Provider upon request.
3.8. Without prejudice to any other clause of these terms, the Client shall (i) inform the Service Provider in writing and within seven ( 7) days of any complaint (written or oral) the Temporary Worker may make to the Client and which may be connected to rights under the AWR or any written request for information relating to the conditions that the Client receives from the Temporary Worker, and (ii) the Client shall provide the Service Provider with any assistance or information that the Service Provider may request in order to resolve the complaint or to provide the information in a written statement to the Temporary Worker within twenty eight (28) days of receipt of the request in accordance with Regulation 16 of the AWR and the Client shall provide the Service Provider with a copy of any such written statement.
3.9. The Client shall inform the Service Provider of any AWR Claim which comes to the Client’s attention, in writing, as soon as possible but no later than seven (7) calendar days from the day on which any such AWR Claim comes to the Client attention.
3.10. The Client undertakes that it knows of no reason why it would be detrimental to the interests of the Temporary Worker to perform the Assignment.
3.11. The Client will be responsible for the supervision, control and direction of a Temporary Worker during an Assignment and for all acts, errors or omissions of the Temporary Worker, whether wilful, negligent or otherwise.
3.12. The Client will ensure that where the Temporary Worker processes Personal Data during an Assignment, any such processing shall be undertaken in accordance with the Data Protection Laws and in accordance with the Client privacy policy.
3.13. The Client agrees that all changes in Assignments, any additional bookings, and any cancellations will be advised by the Client directly to the Service Provider and not via the Temporary Worker, otherwise the Service Provider reserve the right to charge the Client for any hours the Service Provider reasonably believe have been worked, as if the Client and Temporary Worker had signed and submitted a Timesheet in respect of those hours.
3.14. Should the Client experience any cause for concern or dissatisfaction with the performance of a Temporary Worker the Client shall notify the Service Provider immediately. If the Client requires it, the Service Provider will attempt to replace any Temporary Worker found to be unsuitable.
3.15. The Client will notify the Service Provider immediately if the Temporary Worker is involved in any serious incident or complaint.
3.16. All complaints involving the Temporary Worker (including any investigation statements the Temporary Worker is required to complete) will be undertaken by the Service Provider in co-ordination with the Client’s lead investigator.
3.17. The Client will notify the Service Provider immediately and within 24 hours if the Temporary Worker fails to attend work or notifies the Client that they are unable to attend work.
3.18. The Client shall comply with its obligations under the AWR in relation to allowing the Temporary Worker access to collective facilities and amenities and informing the Temporary Worker of any relevant vacant posts. After receipt of information from the Client relating to collective amenities and facilities and information on job vacancies, The Service Provider will provide this information to each Temporary Worker.
3.19. During every Assignment, the Client shall ensure that the Temporary Worker receives equal treatment under the AWR in respect of working time, night work, breaks and rest periods, annual leave and overtime.
3.20. The Client will, in regard to the Temporary Worker, comply in all respects with all statutes and regulations including the Working Time Regulations 1998, the AWR, Health and Safety at Work Act 1974, by-laws, codes of practice and legal requirements to which the Client is ordinarily subject in respect of its own staff (excluding the deduction and payment of National Insurance contributions and PAYE Income Tax) including, in particular, the provision of adequate employer’s and public liability insurance cover for any Temporary Worker supplied under this Agreement.
3.21. The Client shall inform the Service Provider in writing of any AWR Claim as soon as possible after such claim comes to the Client’s attention and give the Service Provider such information and assistance as the Service Provider may request.
3.22. The Client shall indemnify and keep the Service Provider indemnified, on demand, from and against any and all claims, losses and liabilities suffered or incurred by the Service Provider arising as a result of or in connection with any information that the Client has supplied to the Service Provider which is inaccurate, incomplete or misleading and/or any breach by the Client of its obligations under this Clause 3.
4. CHARGE RATES AND PAYMENT TERMS
4.1. The Staffing Services will be charged by reference to the Temporary Worker’s time spent providing the Service and will be recorded by way of timesheets.
4.2. The Temporary Worker will present a timesheet to the Client whether or not via the Service Provider’s timesheet approved portal or any other avenue provided by the Service Provider for authorisation. This will take place on a shift by shift basis (or at such other interval as the Service Provider may determine). The Client or any person duly authorised to act on its behalf (including the Service User or their representative) will sign the Timesheets to verify their accuracy and the Client’s satisfaction with the Service.
4.3. Failure to sign or authorise the timesheet does not alter the Client’s liability to pay for the hours worked and the Client will not be entitled to decline to sign a timesheet on the grounds that the Client is dissatisfied with the Temporary Worker. In cases of unsatisfactory work, the Client should notify the Agency in accordance with clause 3.14.
4.4. In the unlikely event that Timesheets are inaccurate, the Client must contact the Service Provider as soon as possible and no later than fourteen (14) days after the Timesheet has been produced for signature. In the event of any dispute about the hours worked and submitted on the timesheet the Client shall co-operate fully with the Service Provider to enable the Service Provider to establish what hours if any were worked by the Temporary Worker
4.5. The Service Provider’s charges shall include and may be amended from time to time on seven (7) days’ notice from the Service Provider to the Client to reflect what the Service Providers considers in its absolute discretion to be the impact of inflation on what the Service Provider pays the Temporary Worker together with the Service Provider’s margin and to be sufficient to cover changes in National Insurance Contributions rates and related or similar statutory charges. The parties acknowledge that for ease of administration (given that statutory charges such as Employers National Insurance may be levied on a sliding scale) from time to time charged for employer’s National Insurance Contributions by the Service Provider may be rounded up or down and may not be an exact reflection of the amount due in accordance with social security regulations;
sufficient (taking into account potential changes in the way holiday pay is calculated) to cover the cost of paid holiday leave to which the Temporary Worker is entitled under the Working Time Regulations 1998 and, where applicable, the AWR and which is accrued during the course of an Assignment;sufficient to cover the amount to which the Temporary Worker is entitled under the AWR, where applicable;
sufficient to cover any other payments we are obliged by Applicable Law to make to or in respect of the Temporary Worker.
4.6. In addition to the charges, the Client will pay the Service Provider an amount equal to any bonus that the Client awards a Temporary Worker immediately following any such award and the Service Provider will pay any such bonus to the Temporary Worker and, the Client will also pay any employer’s National Insurance contributions.
4.7. Deductions for breaks must be completed by the Worker on any timesheet and appropriately authorised by the Client but in circumstances where this has not been fully completed, breaks will be deducted at the following rate: For shifts up to 6 hours in length no break is deducted; for shifts of more than 6 hours but less than 6½hrs, 20 minutes will be deducted; for shifts of 6½-9hrs, 30 minutes will be deducted; for night duty, and day shifts of more than 9hrs in length, 1hr will be deducted. All calculations to the nearest 5 (five) minutes. For nursing care provided in the Home no breaks will be deducted if the nurse is in sole attendance.
4.8. Travel expenses plus bridge tolls, motorway tolls and congestion charges and/or the cost of reasonable accommodation will be charged. Travel will be charged at the rate per mile stated on Rate Schedule, or the cost of reasonable public transport. If any representative or employee of the Clients signs for any expenses, whether on a timesheet or otherwise, this expense payment will be paid to the Temporary Worker and charged to the Client.
5. TRANSFER AND INTRODUCTION FEES
5.1. Should the Client want:
5.1.1. to employ or engage a Temporary Worker; or
5.1.2. a Temporary Worker to continue to be supplied to the Client but through another employment business during the Relevant Period and the Service Provider Introduced that Temporary Worker to the Client, then the Client shall make an election from the options set out below and give the Service Provider seven (7) days written notice of the Client’s election. The Client may either:
5.1.2.1. pay the Service Provider a Transfer Fee equivalent to 17.5% of the Temporary Worker’s annual salary plus VAT (calculated by multiplying the Temporary Worker’s normal hourly charge rate by a standard 35 hours per week and finally by 52 weeks) (“Transfer Fee”), or
5.1.2.2. employ or directly engage the Temporary Worker after an Extended Hire Period. The length of such Extended Hire Period, unless agreed otherwise in writing by the Service Provider, shall be determined by the number of weeks the Temporary Worker has been supplied to the Client in accordance with the following:
| Length of Assignment | Extended hire period |
| Up to 6 weeks | 26 weeks |
| More than 6 weeks but less than 12 weeks | 20 weeks |
| 12 weeks or more | 14 weeks |
5.2. The terms of the Extended Hire Period will be no less favourable to the Client than those that had applied immediately prior to the Client giving the notice. At the end of the Extended Hire Period the Temporary Worker may transfer to the Client employ or direct engagement without the Client paying a Transfer Fee
5.3. The Client will use the information that the Service Provider provide about a Temporary Worker solely for the purposes of the Assignment. Such information is confidential. Should the Client pass this information to a third party without the Service Provider’s prior approval in writing then this shall constitute an introduction and the Service Provider will be entitled to charge the Client an Introduction Fee.
5.4. If the supply of the Temporary Worker to the Client ends before the Extended Hire Period is completed and the reason is not the Service Provider fault, then the Client must pay the Transfer Fee, which the Service Provider may reduce by the proportion of the Extended Hire Period the Temporary Worker has performed Services for the Client.
5.5. Should the Client introduce a Temporary Worker to a third party and the third party employs or directly or indirectly engages the Temporary Worker before the end of the Relevant Period, the Client must pay the Service Provider an Introduction Fee within seven (7) days of the Service Provider’s written request. The Introduction Fee is the same amount, calculated on the same basis, as the Transfer Fee referred to above. The Client agrees that it will be of no consequence that the Client may have had prior knowledge of that Temporary Worker from other means.
5.6. The Client accepts that requesting details of Temporary Workers to be supplied for consideration for bookings that the Client may place with the Service Provider constitutes an Introduction to those Temporary Workers and may, give rise to an Introduction Fee should the Client subsequently engage directly or employ any of those Temporary Workers or should the Client introduce them to any third party who subsequently engages directly or employs them.
5.7. If the Client causes or encourages the Temporary Worker to join or provide services via another employment business, employment agency or worker bank the Service Provider may charge an Introduction Fee in accordance with clause above.
Charge rates
| Grade | Description | Charge rate |
| AS | Basic | 52.3 |
| AS | P1 | 64.44 |
| AS | P2 | 72.67 |
| AU | Basic | 45.96 |
| AU | P1 | 55 |
| AU | P2 | 58.99 |
| GS | Basic | 101.45 |
| GS | P1 | 112.2 |
| GS | P2 | 116.39 |
| TR | Basic | 81.44 |
| TR | P1 | 90.22 |
| TR | P2 | 98.12 |
Appendix 2
Data Protection Schedule
Part A
Operative provisions
1. Definitions
1.1. In this Schedule:
Controller has the meaning given in applicable Data Protection Laws from time to time;
Data Protection Laws means, as binding on either party or the Services:
(a) the UK GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement or supplement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Subject has the meaning given in applicable Data Protection Laws from time to time;
UK GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part from time to time);
International Organisation has the meaning given in applicable Data Protection Laws from time to time;
Personal Data has the meaning given in applicable Data Protection Laws from time to time;
Personal Data Breach has the meaning given in applicable Data Protection Laws from time to time;
Processing has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed and processes shall be construed accordingly.
Processor Has the meaning given in the applicable Data Protection Laws from time to time;
Protected Data means Personal Data received from or on behalf of the Client in connection with the performance of the Service Provider’s obligations under this Agreement; and
Sub-Processor means any agent, sub-contractor or other third party (excluding its employees) engaged by the Service Provider for carrying out any processing activities on behalf of the Client in respect of the Protected Data.
2. Compliance with data protection laws
2.1. The parties agree that in relation to the Care Services the Client is a Controller and the Service Provider is both a Processor for the purposes of processing Protected Data pursuant to this Agreement and a Controller in relation to the processing of Personal Data relating to Temporary Workers in accordance with paragraph 2.3 below. The Client shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Client shall ensure all instructions given by it to the Service Provider in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with all Data Protection Laws. Nothing in this Agreement relieves the Client of any responsibilities or liabilities under any Data Protection Laws.
2.2. The Service Provider shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
2.3. The Service Provider acts as an independent Controller when sourcing, vetting and recruiting Temporary Workers in relation to the Staffing Services for the Client in accordance with Appendix 1.
2.4. Each party agrees that, with the exception of paragraph 2.3, the Client is a Controllers and the Service Provider is a Processor of any Personal Data.
3. Indemnity
3.1. The Client shall indemnify and keep indemnified the Service Provider against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Client of its obligations under this Schedule.
4. Instructions
4.1. The Service Provider shall only process (and shall ensure Service Provider Personnel only process) the Protected Data in accordance with Part B of this Schedule and this Agreement (including when making any transfer to which paragraph 9 relates), except to the extent:
4.1.1. that alternative processing instructions are agreed between the parties in writing; or
4.1.2. otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
4.2. Without prejudice to paragraph 2 of this Part A, if the Service Provider believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws it shall promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing. The charges payable to the Service Provider shall not be discounted or set-off as a result of any delay or non-performance of any obligation in accordance with this paragraph 4.2.
5. Security
5.1. Taking into account the state of technical development and the nature of processing, the Service Provider shall implement and maintain the technical and organisational measures set out in Part B of this Schedule to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
6. Sub-processing and personnel
6.1. The Service Provider shall:
6.1.1. not permit any processing of Protected Data by any agent, sub-contractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without prior written authorisation to the Client and to allow a reasonable period of time for any objections to be notified to the Service Provider by the Client;
6.1.2. prior to any Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint such Sub-Processor under a written contract containing materially the same obligations as under this Schedule (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by the Service Provider and ensure such Sub-Processor complies with all such obligations;
6.1.3. remain fully liable to the Client under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
6.1.4. ensure that all persons authorised by the Service Provider or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
7. List of authorised sub-processors
7.1. The Client authorises the appointment of any Sub-Processors listed below: [insert]
8. Assistance
8.1. The Service Provider shall (at the Client’s cost) assist the Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the UK GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Service Provider.
8.2. The Service Provider shall (at the Client’s cost) taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the UK GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
9. International transfers
9.1. The Service Provider shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Client.
10. Audits and processing
10.1. The Service Provider shall, in accordance with Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate the Service Provider’s compliance with the obligations placed on it under this Schedule and to demonstrate compliance with the obligations on each party imposed by Article 28 of the UK GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose (subject to a maximum of [one] audit request in any 12 month period under this paragraph 10.1).
11. Breach
11.1. The Service Provider shall notify the Client without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
12. Deletion/return and survival
12.1. On the end of the provision of the Services relating to the processing of Protected Data, at the Client’s cost and the Client’s option, the Service Provider shall either return all of the Protected Data to the Client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Service Provider to store such Protected Data. This Schedule shall survive termination or expiry of this Agreement indefinitely in the case of paragraphs 3 and 12 of this Part A and until [12 months] following the earlier of the termination or expiry of this Agreement in the case of all other paragraphs and provisions of this Schedule.
Part B
Data processing and security details
Section 1—Data processing details
Processing of the Protected Data by the Service Provider under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this [Section 1 of this Part B.
1 Subject-matter of processing:
The processing of patient data for the provision of vulnerable adults supported living services commissioned by the Client.
2 Duration of the processing:
For the duration of the Agreement.
3 Nature and purpose of the processing:
The nature of processing means any operation such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, restriction, erasure or destruction of Date in order to:
• Enable the Service Provider to provide the Services commissioned by the Client
• Ensure that the Service is provided in accordance with the Contract and Specification
• Ensure that all parties are able to meet individual responsibilities in line with Legislation
• To enable the Service Provider to contact, communicate and manage the relationship with the Service User
• To ensure that the Service Provider can undertake a full clinical assessment
• To communicate directly in the event of an urgent or emergency finding
• To ensure the Service Provider are able to compile a comprehensive Care Plan to deliver safe and effective care in the community setting.
The purpose of the data we hold is to allow health professionals and admin staff, who have the appropriate controls and access to rights to update, add, amend, and view electronic health records to support patients within our care.
4 Type of Personal Data:
Personal data we obtain includes basic contact details (such as full name, details of a nominated person who we can communicate with on your behalf, telephone number, email address, and postal address), NHS Number, date of birth, preferred language, weight and height measurements, session dates and attendance information, details of clinical condition and medical history, demographic data (such as ethnicity, gender and religion), GP practice, details of any court orders that will impact delivery of care and support, details of previous and current medication and equipment, car insurance information and MOT, opinions and evaluations of the service that we have provided, communication records.
5 Categories of Data Subjects:
Patient, next of kin, other named relatives/representatives, the Service Provider Assessor, GP, therapists and care providers, co-ordinating Client staff (ICB)
6 Specific processing instructions:
[Insert]]
7. Plan for return and destruction of the data once the processing is complete UNLESS requirement under UK law to preserve that type of data.
Data will be retained in line with the Records Management Code of Practice for Health and Social Care 2021 retention and disposal requirements
Section 2—Minimum technical and organisational security measures
- The Service Provider shall implement and maintain technical and organisational security measures to protect the Protected Data under the following criteria:
In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Service Provider shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the UK GDPR.
| Asset management |
| Access Control |
| Password policy |
| Clear desk policy |
| Information security policy |
| Suite of IG policies |
| Role based restricted access |
| Secure disposal |
| BCP and DR |
| Training and awareness |
| Regular patch management of servers |
| Regular updates to EUC devices (laptops/desktops) |
| Centrally managed firewalls |
| Centrally managed anti-virus and firewall end point software on EUC devices |
| Use of infrastructure SIEM solution |
| MDM solution for corporate mobiles/tablets |
| ISO 27001 certified at Group level |
| Acacium Group is certified with Cyber Essentials and Cyber Essentials + |
| Security assessment of all third-party providers |