Locum Meds Introduction Services: Terms and Conditions – GP
Updated version: April 2017
YOUR ATTENTION IS DRAWN IN PARTICULAR TO THE INDEMNITY AT CLAUSE 3.12
1.1 – In these terms the following capitalised terms shall have the following meanings:
“Assignment” means any work which is agreed to be carried out by the Locum for the Client as may be set out in the Booking Form (including any extensions or continuations of it, whether or not recorded in a Booking Form). All Assignments are subject to these terms whether or not they are confirmed in writing or in a Booking Form. Any single shift or single day worked shall constitute the start of an Assignment. Where a Client allows a Locum to complete any work on any given date, this shall constitute an Assignment for the purposes of these terms;
“Booking Form” means a document, in any form, which sets out the Client’s request for the services of a Locum for any period of time (including any amendments or updates agreed by email);
“the Company” means Fievel Healthcare Ltd, Company number 09826783 whose registered office is 34 Clarendon Road, Watford, WD17 1JJ trading as “Locum Meds”;
“the Client” means the person; firm; corporate body or party together with any subsidiary or associated company as defined by the Companies Act 1985 contracting with the Company who has accepted these terms in writing or by some other means including email;
“Direct Engagement” and “Direct Engagement Fee” have the meaning set out in clause 7.1;
“Engagement” means any contract, employment, engagement, use or confirmation of use of the Locum by the Client whatsoever including (without limitation) any contract of service or for services, consultancy, self-employment, partnership or agency made between the Client and the Locum (or any person, firm, company or other entity associated or connected with either of them) whether made direct or via an agent and (and “Engage” or “Engages” shall be construed accordingly);
“Introduction” means the communicating by any means whatsoever by or on behalf of the Company of details or the identity of a Locum to the Client (and “Introduce” or “Introduced” shall be construed accordingly);
“Locum” means any individual clinician or medical support staff who is Introduced by the Company to the Client whether verbally, in writing or in person, and regardless of whether otherwise known to the Client. This term includes the individual locum and any personal service company set up by that individual;
“the Fee” means the fee payable by the Client to the Locum in respect of the medical services provided by the Locum (which shall be classified as a disbursement) or the fee payable by the Client to the Company in respect of the Introduction and booking services provided by the Company and where applicable both;
“Relevant Regulator” means in the case of Locums who are doctors, the General Medical Council and in the case of Locums who are nurses, the Nursing and Midwifery Council.
1.2 These terms set out the rights and obligations of the Company and the Client that will apply with effect from the date that the Client requests the Company to supply one or more Locums.
1.3 These terms will govern all Assignments until they are terminated or both parties agree otherwise. They apply to any Introductions made after the date these terms are agreed.
1.4 The Company is not an employment business nor an employment agent. The Company operates as a disclosed agent of the Client and the Client understands and agrees to this. In this capacity as disclosed Agent the Company makes bookings and negotiates rates with Independent Locums for the Client.
1.5 The Company provides introduction and booking Services relating to Locums who are either self- employed workers or provide their services through personal service companies. The Company also offers other ancillary services including but not limited to payroll services, screening and introductions services. Such services are provided at an additional cost.
1.6 If there is any conflict between these terms and the Booking Form, these terms shall prevail.
1.7 These terms set out the entire agreement between the parties and shall prevail over the Client’s terms of business or purchase conditions. These terms shall not change, alter or supersede any other agreement for any other services provided by the Company, which may be the subject of a separate agreement between the Company and the Client.
1.8 No variation of these Terms shall be valid unless approved by a director or senior manager of the Company in writing.
2 The Company’s obligations
2.1 The services to be provided by the Company shall be:
2.1.1 primarily the introduction by the Company of Locums to provide medical services to the Client as set out herein; and
2.1.2 consultancy on the Primary Care marketplace, rota and planning solution Consultancy and an outsourced booking service in relation to the Locums;
2.1.3 ancillary services where required, including but not limited to a payments service in respect of payments of the pay rates to Locums, evaluating Locums’ capabilities, and taking references. Such services may be provided subject to separate terms where required and an additional cost shall apply.
2.2 The Locums will be independent contractors who are not employed, supervised, directed or controlled by the Company, or by the Client. The Locums provide no services to the Company. Accordingly The Conduct of Employment Agencies and Employment Business Regulations 2003 do not apply and the Company is not obliged to prepare any due diligence on the Locums. The Client may request the Company to procure due diligence documents from particular Locums, but responsibility for checking such documents remains with the Client and the Company cannot warrant the accuracy or completeness of such information or documents. The Client acknowledges that all medical services will be provided by the Locum and not by the Company.
2.3 Each Assignment arranged by the company for the client is done so subject to these terms.
2.4 The Client accepts liability of payment to the Locums for the services supplied by the Locum to the Client. However the Client agrees that unless otherwise agreed the Company shall take payment from the Client in respect of the Assignments and shall pay the Locum on behalf of the Client in its capacity as the Client’s disclosed agent.
3 The Client’s obligations
3.1 The Client shall take all reasonable steps to ensure it directs all communications via the Company.
3.2 The Client shall comply with all applicable statutes, byelaws, codes of practice and legal requirements in its treatment of the Locums.
3.3 The Client will provide proof of adequate insurance cover including employers’ liability, public liability, site/facility insurance during any period in which a Locum works for the Client but for the avoidance of doubt obtaining professional indemnity cover shall remain the Locum’s responsibility.
3.4 The Client will ensure that all Locums have been informed of and understand all health and safety policies in force at the Client’s premises and the Client will conduct and record any risk assessment that is deemed necessary.
3.5 The Client shall:
3.5.1 ensure that it does nothing to cause the Company to be in breach of applicable laws, acts and regulations;
3.5.2 provide full details of the nature of the work and any particular health and safety requirements to the Company prior to agreeing the Assignment, and any requirements not notified to the Company before the Booking Form is agreed shall not be binding;
3.5.3 inform the Company of any intention to increase the Locum’s working hours or any other change in the work pattern as described on the Booking Form;
3.5.4 ensure that the Locum receives adequate rest breaks in accordance with all relevant legislation, and such breaks shall form part of the Assignment;
3.5.5 inform the Company immediately if a) it is considering terminating its contract to provide medical services, or b) on becoming aware of any circumstances which could lead to the termination of such contract (including without limitation any remedial notices being served or any warnings from the CCG or CQC) and of the identity of a potential transferee if relevant.
3.6 The Locum will submit a timesheet to the Client at the end of the day, the end of the week or the end of the Assignment as appropriate. The Client shall promptly verify and sign the timesheet, and any signature by or on behalf of the Client shall constitute confirmation that the Locum has worked satisfactorily for the period indicated on the timesheet.
3.7 Failure to sign the timesheet will not alter the Client’s liability to pay for the period worked. If a timesheet is not returned promptly to the Company, the Company shall invoice on the basis of its own understanding of the time worked.
3.8 The Client shall be responsible for ensuring that only properly authorised individuals sign timesheets and deal with the Company. If a member of the Client’s staff signs a timesheet that shall be binding on the Client and the Client shall not be entitled to claim otherwise.
3.9 The Client acknowledges that the Company shall not be responsible for supervising, monitoring or directing the Locums and that accordingly, only the Client is in a position to assess and insure against risks arising in, or relating to the period in which the Locum worked for the Client (whether or not the Locum is a personal service company).
3.10 The Client acknowledges that they are the recipient of any and all services provided by the Locum or Locums.
3.11 The Booking form and specifically the Assignment Details contained therein shall form the basis of the agreement between the Client and the Locum, which the Client authorises the Company to generate and issue to both parties (for the avoidance of doubt ‘parties’ in this context refers to the Locum and the Client) on its behalf. For the further avoidance of doubt the Company shall not be a party to the agreement for the provision of services by the Locum to the Client.
3.12 The Client shall be responsible for ascertaining whether it is a public sector body for the purpose of IR35 and all related legislation. If the Client is a public sector body for the purposes of IR35, the Client shall take all reasonable steps to ensure that IR35 does not apply to the Assignment. The Client shall indemnify the Company, and keep it indemnified, against any costs, claims, damages or expenses which relate either to the Client being a public sector body, and/or to IR35 applying to the Assignment.
4 Misconduct and underperformance
4.1 Any act of misconduct or breach of the Relevant Regulator’s rules, policy, guidance or regulations by the Locum must be reported to the Company without delay.
4.2 If a Locum’s performance proves to be unsatisfactory the Client shall inform the Company immediately by telephone with confirmation in writing within 48 hours.
4.3 The Company shall notify the Client immediately if it discovers that the Locum is unqualified for the Assignment.
4.4 The Client shall not be entitled to decline to sign a timesheet on the basis that it is dissatisfied with the Locum’s work.
4.5 Whilst the Company will assist the Client as far as is reasonable and possible in instances of alleged underperformance the Client understands and accepts that resolution of any such issues with a Locum shall remain the responsibility of the Client.
4.6 The performance and/or conduct of the Locum shall have no effect on the Client’s obligation to pay to the Agency its fees for its services. Further the Client accepts that any dispute of fees payable to the Locum for services supplied by the Locum to the Client shall remain a matter between the Locum and the Client.
4.7 The Company makes no use of the services provided by the Locum and does not Engage the Locum but makes payments to the Locum on the Client’s behalf for services received by the Client from the Locum. Therefore where the Company has already paid a Locum on behalf of the Client in relation to an Assignment (whether fully or partially completed) and there is any dispute for any reason, the Client shall indemnify the Company, and keep it indemnified, against any costs, claims, damages or expenses arising from said dispute on the understanding that the Client’s dispute is with the Locum and not the Company.
5 Remedies (including early termination)
5.1 If the underperformance of the Locum is serious enough as to warrant a report being made by the Client to the Relevant Regulator under clause 4 and the Assignment is subsequently cancelled the Client shall be liable for the Company’s fees in relation to the Assignment prior to the report, but shall incur no further fees from the Company nor any cancellation fee from the Company. Otherwise, if no such report is made, any reduction or waiver of the Company’s Fee shall be at the Company’s discretion.
5.2 If the Client notifies the Company prior to the beginning of an Assignment that it wishes to cancel it then:
5.2.1 If the notification is received 5 full business days or less before the beginning of the Assignment, the Client shall pay the Company the full Fee payable for the Assignment Form;
5.2.2 If the notification is 6 business days or more before the beginning of the Assignment, the Client shall pay the Company 50% of the Fee payable for the Assignment Form.
5.3 If the Client notifies the Company during an Assignment that it wishes to cancel then the Client shall pay the Company the greater of:
5.3.1 the amount of the Fee that would otherwise have been paid for the Assignment in any given 4-week period; and
5.3.2 5 times the relevant daily rate for the Locum(s) as specified on the Booking Form (and for the avoidance of doubt if an hourly rate is specified then it shall be multiplied by 8 to define the daily rate).
6 Fees and payment terms
6.1 The Company will agree the Fee with the Client in advance (in the Booking Form or otherwise). The Fee will be invoiced weekly.
6.2 The Fee shall be due when the Client receives the invoice. Prompt payment of the fees shall be of the essence. If any payment is overdue by more than 30 days the Company shall be entitled to charge on an indemnity basis for all collection costs incurred as a result of instructing a solicitor or collection agency to recover the overdue payment.
6.3 The Client acknowledges that the Company will issue payment to the Locum on behalf of the Client as a disbursement. The Client authorises this.
6.4 For the avoidance of doubt the Fees invoiced to the Client will cover the fee paid to the Locum as well as the services provided by the Company.
6.5 The Client accepts that it shall be responsible for paying the Locum the pay rate negotiated on its behalf by the Company and as set out on the Booking form sent to the Locum. The Client further accepts that it shall be responsible for paying the Company its fees for the services provided by the company as set out on the invoice separately to the Locum’s disbursement.
7 Direct engagement
7.1 If the Client Engages a Locum who was Introduced by the Company, without reference to the Company either:
7.1.1 within 6 months of the Introduction; and/or
7.1.2 during an Assignment or within 6 months after an Assignment
then the Company must notify the Client in advance in writing (which includes email), and shall pay the Company a “Direct Engagement Fee”.
7.2 Where there has been an Introduction but no Assignment, the Direct Engagement Fee shall be 20% of the mean average annual fee payable for the three best-paid equivalent jobs on offer within 15 miles of the Client’s location on https://www.jobs.nhs.uk/ Where bandings are advertised, the
calculation shall be based on the upper limit of those bandings. Where there are no jobs advertised within 15 miles, the one job closest to the Client’s location shall be used. The relevant time for the calculation shall be at the time the Company becomes aware of the Engagement.
7.3 Where an Assignment has been agreed, the Direct Engagement Fee shall be 20% of the Fee that would have been payable if the Engagement had been arranged between the Client and the Company, on the terms of the most recent Booking Form but on a full time work basis, for a term of 12 months. If a Locum which the Company Introduced to the Client is subsequently introduced by the Client to a third party who engages the Locum (on any basis) within the periods referred to in clauses 7.1.1 and/or 7.1.2, the Client will be liable to pay a Direct Engagement Fee calculated on the basis set out in clause 7.2.
8 Limitation of liability
8.1 Nothing in these terms shall have the effect of limiting or excluding any liability for personal injury or death arising out of negligence, or for fraud, or for anything else which cannot by law be limited or excluded.
8.2 Subject always to clause 8.1, the Company shall not be liable for any loss, expense, damage or delay arising from:
8.2.1 any failure of a Locum to provide their services for all or part of the Assignment. As the Locum is self-employed the Company is unable exercise control and so gives no warranty as to the Locum’s attendance. The Client’s sole remedy in such circumstances is to be released from its obligation to pay for any time not worked by the Locum.
8.2.2 the negligent, wrongful, dishonest or fraudulent acts or omissions or misrepresentations of the Locum including, without limitation, any lack of skill of the Locum.
9 Value Added Tax
9.1 VAT will be charged where appropriate at the rate prevailing at the time of supply.
10.1 Each party undertakes that it shall not at any time during the application of these terms, and for a period of five years after termination, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
10.2 Each party may disclose the other party’s confidential information:
10.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations hereunder. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations hereunder.
11.1 Law and jurisdiction – these terms are governed by the Laws of England and W ales and subject to the exclusive jurisdiction of the English Courts.
11.2 Severance – If at any time any provision in this contract is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be impaired.
11.3 Third parties – no one other than a party to these terms, their successors and permitted assignees, shall have any right to enforce any of these terms.
11.4 No partnership or agency – Nothing in these terms is intended to, or shall be deemed to, establish any partnership or joint venture between 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. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
11.5 Assignment – the Client shall not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under these terms without the Company’s prior written consent.
I confirm that I accept these terms and conditions on behalf of the Client and I warrant that I am authorised to do so.