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Terms and Conditions for the supply of Care workers and Nurses

  1. Interpretation
  • 1.1 The descriptions and rules of interpretation in this section apply to this agreement.

Agency Worker means any worker employed or subcontracted by the Supplier to work at the premises as part of the Supplier’s assignment and shall not be treated as an employee, worker or contractor of the Client but of the Supplier. The Agency Worker will fall within the definition given in Regulation 3 of the AWR 2010

Applicable Period means the period of 6 months from the supply of an Agency Worker by the Supplier to the Client

Assignment: the services agreed to be provided by the Supplier to the Client. AWR 2010: The Agency Workers Regulations 2010 (SI 2010/93).

Business Day: a day other than a Saturday, Sunday or public holiday when banks in London are open for business.

Conduct Regulations 2003: The Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319).

Engage: The employment of an Agency Worker or engagement directly or indirectly through any employment business other than through the Supplier (whether for a definite or unspecified period) and the terms Engaged, or Engagement shall be construed accordingly.

Extended Assignment: will have the meaning set out in clause 4.3.

Initiation Date: shall have the meaning set out in clause 7.

Introduction Charge: shall have the meaning set out in clause 4.1.

Relevant Period: shall have the significance set out in regulation 10(5) and (6) of the Conduct Regulations 2003.

Scale of Charges: the relevant scale of fees in respect of Agency Workers published by the Supplier from time to time.

Services: the provision of Agency Workers to the Client by the Supplier for the provision of care and ancillary functions to the Client’s customers, patients or clients

Service Charges: the fees payable by the Client to the Supplier in respect of the Agency Workers, calculated by reference to the Scale of Charges and in accordance with clause 6 hereof.

Terms and Conditions: these terms and conditions set out in clause 1 to clause 24 all- encompassing.

Worker: a nurse or care worker employed by the Supplier.

  • 1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and assigns.
  • 1.3 A reference to a company will involve any company, corporation or other body corporate, wherever and however incorporated or established.
  • 1.4 A reference to a statute or statutory provision is a reference to it as modified, extended or re-enacted from time to time and includes any subordinate legislation for the time being in force made under it.
  • 1.5 Any obligation on a party not to do something includes a responsibility not to allow that thing to be done.
  • 1.6 References to clauses are to the clauses of this agreement.
  • 1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Supplier’s obligations

  • 2.1. For the purposes of the Conduct Regulations 2003, the Supplier acts as an employment agency in relation to the Introduction and supply of Agency Workers pursuant to this agreement.
  • 2.2 The Supplier will perform the services using practical skill and care. It is the Supplier’s responsibility to ensure that all Agency Workers involved in the provision of the services are suitably trained, sufficiently skilled, experienced and competent.
  • 2.3 Previous to the beginning of an Assignment, the Supplier will send the Client written confirmation of:

(a) the Agency Worker’s experience, training, qualifications and authorisations necessary for the Assignment (If required).

(b) the identity of the Agency Worker

3. Client’s obligations

  • 3.1 When making a request of the Supplier for the provision of an Agency Worker to perform the Assignment”), the Client will give the Supplier details of:

(a) the date which the Client requires the Agency Worker to commence and the duration, of the work.

(b) the position which the Client requests to fill, including the type of work the Agency Worker in that position would be needed to do, the location at which, and the hours during which, the Agency Worker would be required to work. Any risk to the health or safety of the Agency Workers must be identified by the Client. The Client must specify what steps he, she, they or it has taken to avert or control any outlined risks. Any induction or initial assessment is to be the responsibility of the Client.

(c) the experience, training, qualifications and any authorisation which the Client deems are necessary and/or which are required by law, or by any certified body, for the Agency Worker to possess in order to work in the position. This shall be the responsibility of the Client.

(e) all information practically required by the Supplier in order for it to fulfil its obligations under the AWR 2010.

  • 3.2 The Client is accountable for providing a safe working environment and safe and appropriate equipment for the tasks to be fulfilled by the Agency Worker.
  • 3.3 The Client is accountable for ensuring that the Agency Worker is not exposed to discrimination by the Client’s employees, service users or any other third party during the course of an Assignment.
  • 3.4 Where the services require residence of an Agency Worker at the Client’s premises, the Client shall provide sufficient accommodation for rest or sleep and meals for the Agency Worker.
  • 3.5 The Client shall guarantee that the Agency Worker is able to take the same refreshment breaks, meals and facilities as the Client’s own Employees and in line with all relevant legislation and legal requirements.
  • 3.6 Any costs associated with refreshment breaks (which must be provided in accordance with applicable law), meals or any benefits in kind in accordance with sections 3.4 and 3.5 are not deductible from the Service Charges, unless otherwise approved in writing by the parties.
  • 3.7 A authorised employee/representative of the Client must be responsible for verifying the hours worked by the Agency Worker by signing a timesheet and it is the Client’s responsibility to the Supplier to ensure such verification takes place.

4. Engagement of an Agency Worker

  • 4.1 If, within six (6) months following the introduction of an Agency Worker by the Supplier to the Client where the Agency Worker has not then been supplied by the Supplier to the Client, the Client engages or contracts with the Agency Worker, the Client will pay the Supplier an introduction charge of £6,000 (where the Agency Worker is a nurse) or £3000 (where the Agency Worker is a care worker) (the “Introduction charge”).
  • 4.2 If, following the supply of an Agency Worker by the Supplier to the Client, the Client contracts with or engages the Agency Worker within the Applicable Period, the Client will pay the Supplier a transfer charge of £6,000 (where the Agency Worker is a nurse) or £3,000 (where the Agency Worker is a care worker) (the “Transfer Charge”).
  • 4.3 Introduction charge and/or Transfer charges will not be payable if the Client gives written notice to the Supplier of a minimum period of three months (i.e. 480 hours) that it intends to engage the Supplier to supply the services of the Agency Worker on a full time basis (i.e. 40 hours per week) (“Extended Assignment”) before it Engages the Agency Worker and the Client does in fact employ the Agency Worker for that Extended Assignment. The Service charges payable by the Client during the Assignment will be calculated at the appropriate rate.
  • 4.4 If, within 6 months from the introduction of an Agency Worker by the Supplier to the Client, where there has been no agreement between the parties hereto for the supply of an Agency Worker and the Client introduces the Agency Worker to a third party who then employs the Agency Worker, the Client will pay the Supplier a referral charge (the “Referral Charge”) of £6,000 (where the Agency Worker is a nurse) or £3,000 (where the Agency Worker is a care worker).
  • 4.5 If, following the assignment of an Agency Worker by the Supplier to the Client, the Client introduces the Agency Worker to a third party who then employs him or her within 6 months of such assignment, the Client will pay the Supplier a referral charge of £6,000 (where the Agency Worker is a nurse) or £3,000 (where the Agency Worker is a care worker).

5. Agency workers and Termination of Assignment

  • 5.1 The Client may notify the Supplier in writing prior to the Agency Worker arriving at the Client’s premises of its’ unwillingness to allow the Agency Worker concerned to be engaged to perform the services, but the Supplier may engage an alternative Agency Worker to perform such services in his or her stead.
  • 5.2 If either party believes that an Agency Worker is unfitting to perform the relevant Assignment once the Agency Worker has arrived at the Client’s premises and/or the provision of services by the Agency Worker has begun, then such party shall inform the other party in writing, giving the grounds for its dissatisfaction.
  • 5.3 Upon notification by either party in accordance with clause 5.2, the Supplier will use reasonable endeavours to replace the Agency Worker concerned with another Agency Worker as soon as is reasonably feasible. If the Supplier is unable to replace the Agency Worker concerned within 48 hours, the Client may terminate the Assignment immediately by notifying the Supplier in writing. The Client shall remain liable for payment of Service charges due and payable for services already performed if the circumstances in clause 5.2 and herein arise.
  • 5.4 If an Agency Worker is absent for any reason during an Assignment, the Supplier will use its practical attempts to provide another appropriately qualified Agency Worker to cover the absence. The Supplier will notify the Client if no appropriate replacement is available and shall have no liability to the Client in respect of the absence.
  • 5.5 The Client can terminate an Assignment at any time on giving 24 hours’ notice in writing to the Supplier.
  • 5.6 The Supplier can charge the full amount of any Service charges which would have become due in respect of any Assignment which is cancelled by the Client on less than 24 hours’ notice.

6. Charges

  • 6.1 The Client will pay the Supplier the Service Charges in respect of Agency Workers. 6.2 The Service Charges will:

(a) be calculated according to the amount of time worked by the Agency Worker (rounded up to the nearest 30 minutes)

(b) comprise the entire charge in respect of the Agency Worker.

  • 6.3 The Supplier will be entitled, at its sole discretion, to review and increase or decrease the fees set out in the Scale of Charges occasionally (and in any event every 4 months in respect of qualified nurses and care workers). The Supplier shall give the Client written notice of any fees to the Scale of Charges four weeks before they will take effect.
  • 6.4 The Supplier will submit its invoice to the Client in respect of the Charges weekly in arrears.
  • 6.5 The Supplier will submit invoices to the Client via email or post (as agreed between the parties).
  • 6.6 The Client shall pay each invoice submitted to it by the Supplier, in cleared funds, within 30 days of receipt, by BACS to a bank account chosen in writing by the Supplier or by cheque.
  • 6.7 If the Client fails to make any payment due to the Supplier under this agreement by the due date for payment, then the Client will pay interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time. This interest will accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgment. The Client will pay the interest together with the overdue amount.

7. Term

This Agreement shall begin on the Initiation Date and shall continue, unless terminated earlier in accordance with clauses 5 or 8, until either party gives to the other party 30 days’ written notice to terminate, expiring on or after the first anniversary of the Initiation Date.

8. Default and early termination

  • 8.1 The Supplier may withdraw Agency Workers in conditions, which, in the Supplier’s reasonable opinion, make the completion of an Assignment untenable. The circumstances would include (without limitation) failure by the Client to provide safe and appropriate equipment and a safe environment in accordance with clause 3.2, failure to pay an invoice in accordance with clause 9.2(a) or 3 occurrences of late payment of an invoice within a calendar year.
  • 8.2 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to Client if the Client:

(a) fails to pay any amount due under this Agreement on the due date and remains in default no less than 14 days after being notified in writing to make the payment.

(b) commits a material breach of any term of this Agreement and fails to remedy that breach within 14 days of receipt of notice in writing if the breach is correctable.

(c) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business.

9. Effect of early termination

  • 9.1 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
  • 9.2 Termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

10. Liability and insurance

  • 10.1 The Client shall at all times comply with its obligations under the AWR 2010, including but not limited to providing any Agency Workers with access to collective facilities and amenities and employment opportunities subject to and in accordance with regulations 12 and 13 of the AWR 2010.
  • 10.2 In the event that either party becomes aware of an allegation by any Agency Worker that there has been a breach of the AWR 2010 in relation to the supply of that person to the Client by the Supplier (whether that allegation has been made as a request for information under regulation 16 of the AWR 2010 or otherwise), it shall provide a copy of that allegation to the other party within seven days of receipt. The parties will co-operate with each other in relation to responding to that allegation, which shall include supplying any information which may be reasonably requested by the other party and complying with any practical requests relative to the contents of any response.
  • 10.3 The Client will uphold in force, with a reputable insurance company, and shall procure that the Agency Worker benefits from, adequate insurance cover for any loss, injury or damage caused by or to the Agency Worker during the development of an Assignment, including (without limitation) employers’ liability insurance in an amount not less than £10 million in respect of any one claim and public liability insurance (including malpractice cover for treatment risks, error and omissions) in an amount not less than £5 million in respect of any one claim.
  • 10.4 The Supplier will uphold, for the term of this agreement, employers’ liability insurance in an amount not less than £10 million in respect of any one claim and public liability insurance in an amount not less than £2 million in respect of any one claim; professional indemnity insurance not less than £2 million.
  • 10.5 The Client will be responsible for covering the full replacement value all personal furniture and belongings of individuals in their care and accepts that the Supplier shall not be responsible or have any liability for any loss of or damage to such persons’ personal items (including but not limited to cash, credit cards, cheques, certificates, documents or personal effects such as jewellery).
  • 10.6 Subject to section 10.8, the Supplier shall have no liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with this agreement and any claim in tort or contract the Client may have against the Supplier must be intimated in writing to the Supplier within 28 days of the Client becoming aware of such claim failing which no claim may be made against the Supplier, including indemnity for any claim made by any third party against the Client.
  • 10.7 Subject to clauses 10.6 and 10.8 hereof, the Supplier’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to an entitlement to recovery of the total of the Service Charges paid under this agreement in the event of such claim or claims being upheld in a court of law.
  • 10.8 Nothing in this agreement will limit or exclude either party’s liability for:

(a) death or personal injury caused by its negligence or the negligence of its employees, agents or sub-contractors.

(b) fraud or fraudulent misrepresentation provides that the Supplier shall not be liable for the fraud or misrepresentation of its Agency Workers

11. Confidentiality

  • 11.1 Each party accepts that it shall not at any time disclose to any person any private and confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.
  • 11.2 Each party may disclose the other party’s private and confidential information:

(a) to its employees, officers, representatives or advisers who need to know such information for the reasons of carrying out the party’s duties under this agreement. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s private and confidential information comply with this clause 11; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

  • 11.3 No party will use any other party’s private and confidential information for any purpose other than to perform its obligations under this agreement.

12. Warranty

Each party warrants that it has full capacity and authority to enter into and accomplish this agreement.

13. Non-solicitation

Subject to clause 4, the Client agrees that it will not, either on its own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of six months from, the end of the term of this agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the Supplier who has worked on the services provided under this agreement at any time during the term of this agreement.

14. Variation

Subject to clause 6.3, no variation of this agreement will be effective unless it is in writing and signed by the parties.

15. Assignment and other dealings

Neither party will assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

16. No partnership or agency

16.1 Nothing in this agreement is intended to, or will be deemed to, establish any partnership or joint venture amongst any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

  • 16.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

17. Entire agreement

  • 17.1 This agreement establishes the entire agreement between the parties and replaces and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • 17.2 Each party accepts that in entering into this agreement, it does not rely on, and will 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.
  • 17.3 Nothing in this clause 17 will limit or eliminate any liability for fraud.

18. Third-party rights

No one other than a party to this agreement, their successors and permitted assignees will have any right to impose any of its terms.

19. Notices

  • 19.1 Any notice given to a party under or in connection with this contract will be in writing and will be delivered by hand or by post at its registered office (if a company) or its principal place of business (in any other case).
  • 19.2 Any notice shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt.

(b) if sent by pre-paid first-class post or other next working day delivery service on the second Business Day after posting.

  • 19.3 This section 20 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” will not include e-mail.

20. Disputes

  • 20.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (“Dispute”), then except as expressly provided in this agreement, the parties will follow the procedure set out in accordance with the Supplier’s written Complaints Procedure that shall be available upon request and in accordance with this clause:

(a) either party will give to the other written notice of the Dispute, setting out its nature and full particulars, and the parties attempt in good faith to resolve the Dispute within 28 Days, or such other period which can be agreed between the parties.

(b) where such dispute cannot be resolved, the parties will attempt, acting in good faith, to settle it by mediation under the help of a dispute resolution service provider.

(c) the parties will agree upon the conduct of the mediation and in default of agreement, the mediator (if he has been appointed) will consult with the parties and determine the issue.

  • 20.2 If the dispute is not resolved in accordance with clause 21.1 within 60 days of referral for mediation, either party can refer the dispute to the English Courts for determination.
  • 20.3 Nothing in clause 20.1 will restrict the Supplier from pursuing its outstanding invoices through the English Courts or from seeking injunctive relief.
  • 20.4 In the event of there being a dispute and the Supplier’s case is upheld by a court or arbitrator, the Supplier will be able to recover its legal costs in pursuing any issue on an indemnity basis.

21. Governing law

This agreement and any dispute or claim occurring out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and Wales.

22. Jurisdiction

Subject to section 21, each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

23. Force majeure

Neither party will be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement, including payment, if such delay or failure result from incidents, circumstances or causes beyond its reasonable control. In such conditions the affected party shall be permitted to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 days, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.

24. Severance

  • 24.1 If any provision or part-provision of this agreement is or becomes invalid, unlawful or unenforceable, it will be believed modified to the minimum extent necessary to make it valid, lawful and enforceable. If such adjustment is not possible, the relevant provision or part-provision will be deemed deleted. Any adjustment to or deletion of a provision or part- provision under this section 25 shall not affect the validity and enforceability of the rest of this agreement.
  • 24.2 If any provision or part-provision of this agreement is invalid, unlawful or unenforceable, the parties will negotiate in good faith to adjust such provision so that, as amended, it is lawful, valid and enforceable, and, to the greatest extent possible, achieves the proposed viable result of the original provision.