THESE TERMS AND CONDITIONS apply in relation to any services provided by Network Locum Limited (Company No. 07529895) a company incorporated in England and Wales whose registered office is at [4th Floor,
15 Bonhill Street,
London, EC2A 4DN] (the "Network Locum") to you as a healthcare provider of Healthcare Professional services (the "Client"),.
The following terms and conditions apply to your use of the Network Locum Web Platform which is owned and maintained by Network Locum, and the services available from the Network Locum Web Platform (together, the "NL Service"). Please read these terms carefully. By using the Network Locum Web Platform and/or using the NL Service you as the Client agree that you have read, understood and agreed to these Terms (each as amended from time to time). If you do not agree to these Terms you must not use the Network Locum Web Platform or use the NL Service.
- Network Locum is in the business of providing a web-based platform to help healthcare professionals find healthcare providers who want to engage their services, and healthcare providers find healthcare professionals who want to provide services.
- Network Locum may, at the option of the healthcare provider and with the relevant healthcare professional's consent, provide a service which allows that healthcare provider to create a staff pool/bank of healthcare professionals.
- Network Locum may, at the option of multiple healthcare providers, set up a collaboration which allows such healthcare providers to create and access a shared staff pool/bank of healthcare professionals.
- Network Locum shall facilitate introductions to healthcare providers of healthcare professionals in accordance with the terms of this Agreement.
- Healthcare Professional Services under these General Terms and Conditions may, for reasons of convenience, be paid for via Network Locum, but the parties acknowledge and accept that any payment relating to Healthcare Professional Services shall be the ultimate responsibilities of the Client and paid under or in consequence of the agreement between the Healthcare professional and Client and not under any agreement between the Client and Network Locum.
- Where Healthcare Professional Services are provided by a Healthcare Professional who provides such services via a personal service company, it may be necessary for deductions to be made from the sums payable to the Healthcare Professional to account for PAYE and NICs. . These deductions relate to the Income Tax (Earnings and Pensions) Act 2003 Part 2 Chapter 10 as outlined in the Schedule 1 of the Finance (No.2) Bill 2017 and are intended to help all in the supply and payment chain avoid liability under such legislation and related legislation. It is acknowledged however that the making of such deductions (and the making of relevant payments to HMRC) does not necessarily constitute acceptance by Network Locum that, in its capacity of payment agent, it is the "fee payer" for the purposes of such legislation.
IT IS AGREED as follows:
Definitions and interpretation
- In this Agreement, unless the context otherwise requires, the following definitions shall apply:
"Agreement" means the agreement between Network Locum and the Client comprising the terms set out in this document and any Engagement Details relating to a relevant Engagement.
"Business Day" means any day (other than Saturday or Sunday) on which clearing banks are open for business in London.
"Client Assessment" has the meaning set out in clause 3.4.
"Client Services" means the services to be performed by the Client under this Agreement.
"Client's Group" means the Client, any body corporate of which the Client is a subsidiary (as defined in section 1159 of the Companies Act 2006), any other subsidiary of such body corporate and any subsidiary of the Client.
"Client Staff Bank" means the details of healthcare professionals known to the Client which have, with the healthcare professionals' consent, and subject to clause 2.2 of Schedule 2, been registered to the Client Staff Bank on the Network Locum Web Platform.
"Client Staff Bank Engagement" means the Client's engagement of a Healthcare Professional sourced from their Client Staff Bank on the terms set out in the Healthcare Professional Agreement.
"Collaboration" means an association of two or more healthcare providers (including the Client) who have consented to being associated together for the purposes of maintaining a Collaborative Bank.
"Collaborative Bank" means the details of healthcare professionals known to any healthcare provider within the Collaboration, which have, with the healthcare professionals' consent, and subject to clause 2.2 of Schedule 2, been registered to the Collaborative Bank on the Network Locum Web Platform, for the purposes of allowing each of the members of the Collaboration to access such details.
"Collaborative Bank Engagement" means the Client's engagement of a Healthcare Professional sourced from their Collaborative Bank on the terms set out in the Healthcare Professional Agreement.
"Commercial Agent" means an agent authorised to negotiate or conclude the sale or purchase of goods or services on behalf of the payer (being the Client) or the payee (being the Healthcare Professional).
"Commercial Agents Exemption" means the exemption outlined in the Payment Services Regulations 2009 for Commercial Agents.
"Conduct Regulations" means the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
"Data Protection Laws" means the Data Protection Act 1998, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data.
"Engagement" means a Marketplace Engagement or a Client Staff Bank Engagement, or a Collaborative Bank Engagement or an Instantly Bookable Engagement. "Engaged" and "Engage" shall be construed accordingly.
"Engagement Details" means any terms entered on the Network Locum Web Platform relevant to an Engagement or proposed Engagement and including the general requirements of a potential Vacancy posted by the Client on the Network Locum Web Platform, including start time, end time, type of work including the structure of the day (stating clearly if there are catch up slots for example and also rates of pay, if different, for non-patient facing time slots) and if there are any additional requirements including (without limitation) any form of standard agreement setting out the terms of a Healthcare Professional Agreement, home visits, administrative tasks, follow ups, telephone consultations, prescriptions, number of patients to be seen in the time, location, travel information to the practice, fee rate, and health and safety details and whether and on what basis employers’ pensions contributions will be paid to the Healthcare Professional in respect of the Engagement (provided that the Healthcare Professional does not contract through a PSC).
"Healthcare Professional" means the individual named in the relevant Engagement Details relating to the relevant Engagement.
"Healthcare Professional Agreement" means an agreement between the Client and the Healthcare Professional in the form set out in Schedule 4 or such other standard form (specific to that Client) as may be set out (or referred to or linked to) in the Engagement Details (and in either case incorporating relevant details from the Engagement Details).
"Healthcare Professional Invoice" has the meaning set out in clause 5.1.
"Healthcare Professional Services" means the services to be performed by a Healthcare Professional in relation to an Engagement.
"Inside IR35" means where the circumstances (under which the Healthcare Professional will provide the Healthcare Professional Services under the Engagement) are such that the requirements set out in s61M(1) of the Off Payroll IR35 Legislation are satisfied.
"Instantly Bookable Engagement" means an Engagement that is offered to Selected Healthcare professionals, via My Circle, that is entered into once accepted by the Selected Healthcare professional (as outlined in clause 4.6).
"Introduction" means the Client directly or indirectly receiving, viewing or having access to any Marketplace information via the Network Locum Web Platform which identifies or relates to a person who may act as a Healthcare Professional or Supplier. The date of Introduction shall be the date that the Client obtains any such information. "Introduces" and "Introduced" shall have the corresponding meanings.
"Late Payment Charge" has the meaning set out in clause 5.6.
"Loan" has the meaning set out in clause 5.4.
"Loss" means any demand, contribution, claim, action, proceeding, liability, loss, damage, costs, expenses, tax, national insurance contributions (to the extent permitted by law) and charges and any related penalties, fines or interest whatsoever whether founded in statute, contract, tort or otherwise made or brought against or incurred (including without limitation all losses, liabilities and costs incurred as a result of defending or settling any claims).
"Marketplace" means the healthcare professionals who have, independently of the Client, registered with the Network Locum Web Platform, or who have otherwise had their details added to the Network Locum Web Platform by someone other than the Client or a healthcare provider within Collaboration with the Client.
"Marketplace Engagement" means the Client's engagement of a Healthcare Professional, who has introduced him/herself to the Client via the Marketplace, on the terms set out in the Healthcare Professional Agreement.
"My Circle" means the Client's selection of preferred healthcare professionals whose details are designated as preferred by the Client on the Network Locum Web Platform.
"Network Locum Checks" means the checks as set out in Schedule 5.
"Network Locum Web Platform" means www.networklocum.com
"NL Service" has the meaning set out at the head of this Agreement.
"NL Service Fee" means the fee payable by the Client to Network Locum as set out in Schedule 1.
“Off-Payroll IR35 Legislation” means Income Tax (Earnings and Pensions) Act 2003 Part 2 Chapter 10 as outlined in the Schedule 1 of the Finance (No.2) Bill 2017).
"Off Platform Payment Charge” is the amount specified as such in Schedule 1 and payable in the circumstances set out in clause 5.
"Outside IR35" means where the circumstances (under which the Healthcare Professional will provide the Healthcare Professional Services under the Engagement) are such that the requirements set out in s61M(1) of the Off Payroll IR35 Legislation are not satisfied.
"Payment Services Regulations" means the Payment Services Regulations 2009.
“Personal Data” means all data supplied to the Client by or on behalf of Network Locum pursuant to this Agreement which is defined as personal data under the Data Protection Laws.
"PSC Contractor" means an individual who controls and directs a limited company through which they contract and offer their services on an independent business to business basis.
"PSC" means the limited company through which a PSC Contractor operates.
"Short Notice Cancellation Service Fee" means the fee payable by the Client to NL in respect of the cancellation of an Engagement which is cancelled at short notice on the basis set out in Schedule 1.
"Supplier" means (if applicable) an intermediary (including a PSC), via which the Healthcare Professional performs Healthcare Professional Services, and references to Healthcare Professional in this Agreement shall include references to any Supplier of that Healthcare Professional.
"Timesheet" means a record posted on the relevant part of the Network Locum Web Platform, or such other system as is used to record the time and attendance details of Healthcare Professionals on Engagements, from which electronic timesheets are generated.
"Vacancy" means the specific details of a potential vacancy at the Client (in respect of which the Client has issued a Vacancy Notification). "Vacancies" shall be construed accordingly.
"Vacancy Notification" means a notification by the Client to the Healthcare Professional through the Network Locum Web Platform of a vacancy to perform the Healthcare Professional Services in accordance with Engagement Details and these General Terms and Conditions.
- Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of this Agreement) and all subordinate legislation made (before or after the date of this Agreement) under it from time to time.
- Where the context permits, words denoting:
persons shall include bodies corporate and unincorporated associations of persons;
the singular include the plural and vice versa; and
one gender shall include any gender.
Network Locum's obligations
- Network Locum shall (subject to availability) provide systems:
which may facilitate the Introduction of a healthcare professional;
via which the Client can maintain, access and send Vacancy Notifications to their Client Staff Bank;
via which multiple healthcare providers can form a Collaboration;
via which each healthcare provider in a Collaboration can maintain, access and send Vacancy Notifications to their Collaborative Bank;
via which the Client can create, maintain, access and send Vacancy Notifications to their My Circle contacts; and
to fill a Vacancy and perform an Engagement in accordance with the terms of this Agreement, and in particular in accordance with clause 4 (Vacancy-Filling Process).Subject to Schedule 2, Clause 4, Network Locum will carry out Network Locum Checks.
- Network Locum will use its reasonable endeavours to carry out certain other checks (as may from time to time be specified by it on the Network Locum Web Platform) on Healthcare Professionals who register on the Marketplace, and in accordance with Schedule 2, Clause 4.
The Client's obligations
- The Client agrees that by submitting a Vacancy Notification on the Network Locum Web Platform the Client has given Network Locum authority to provide a system under which the Client may try to find a healthcare professional for that Vacancy.
- The provisions of Schedule 2 shall also apply to any Vacancy Notification(s) issued via a Client Staff Bank or Collaborative Bank in addition to the provisions set out in this Clause 3.
- The provisions of Schedule 3 shall also apply to any Vacancy Notification(s) issued via My Circle in addition to the provisions set out in this Clause 3.
- Where the Healthcare Professional is providing its Healthcare Professional Services to the Client on an Engagement via its PSC, the Client shall, prior to the Engagement start date, provide written notice to Network Locum confirming whether, in its reasonable opinion, the circumstances under which the Healthcare Professional will provide the Healthcare Professional Services under the Engagement fall Inside IR35 or Outside IR35 ("Client Assessment").
- The Client warrants, represents and undertakes that:
when submitting a Vacancy Notification or other records or details relating to an Engagement it will not breach or directly or indirectly cause Network Locum to breach any anti-discrimination laws or provide any information or make any requests that may bring Network Locum into disrepute;
it will not block a healthcare professional from work with the Client for any reason that is of an unlawfully discriminatory nature, or that may bring Network Locum into disrepute;
all information provided by the Client in the form of Engagement Details or otherwise for the purposes of the Engagement will be true and accurate and up to date;]
it will supply information to Network Locum via the Network Locum Web Platform confirming the performance of the Healthcare Professional Services by appropriate completion of the Timesheet; and
where the Healthcare Professional is providing its services to the Client on an Engagement via its PSC, it had in relation to the Engagement, all the information it needed to carry out the Client Assessment.
- Where the Healthcare Professional is providing its Healthcare Professional Services to the Client on an Engagement via its PSC, the Client hereby acknowledges, confirms and agrees that:
Network Locum shall be entitled to rely on the Client Assessment as evidence upon which to make a decision as to whether (as agent for the Client) to pay the Healthcare Professional gross or net of PAYE and Class 1 National Insurance Contributions (primary and secondary); and
Network Locum may, pursuant to section 61T(4) of the of the Off-Payroll IR35 Legislation, request the Client to provide reasons for the conclusion reached in the Client Assessment. If so requested, the Client shall, within 31 days of the date of such request, provide to the Company written confirmation of its reasons for reaching its Assessment.
- The Client agrees that it shall give to Network Locum in the Engagement Details and/or otherwise as requested by Network Locum information confirming:
the identity of the Client;
the date on which the Client requires provision of the Healthcare Professional Services to commence and the duration or likely duration of provision of the Healthcare Professional Services;
in the case of a Marketplace Engagement, the experience, training, qualifications and any authorisations which the Client considers are necessary, or which are required by law or by any professional body, in particular the General Medical Council and the Care Quality Commission for the Healthcare Professional to possess in order to provide the Healthcare Professional Services. For the avoidance of doubt Network Locum will not carry out checks in relation to these and it is agreed that (unless specifically agreed otherwise with Network Locum in writing) responsibility for such checks will rest with the Client;
what is needed by Network Locum to carry out the Network Locum Checks;
when the Client has Engaged a Healthcare Professional so that the appropriate NL Service Fee can be calculated and invoiced in respect of that Engagement; and
that they are a genuine healthcare provider of Healthcare Professional Services being a healthcare provider who supplies medical services and who does not on-supply such services to any third party such as a locum agency (whether as acting as an employment agency or employment business or otherwise).
- The Client shall:
(where it decides to engage a Healthcare Professional) engage each Healthcare Professional on the terms of a Healthcare Professional Agreement;
carry out risk assessments of the Healthcare Professional Services to be undertaken and notify the Healthcare Professional and immediately of any specific or potential hazards relating to the Engagement and any precautions the Healthcare Professional should take in relation to such risks;
not allow the Healthcare Professional to undertake any work that is hazardous without first undertaking a risk assessment and notifying the Healthcare Professional of any risks identified;
if applicable, make clear to the Healthcare Professional and any Supplier what rules (including but not limited to health and safety, site and security policies, procedures and regulations) apply in respect of the location(s);
ensure that any and all equipment, and protective clothing are in good order and are suitable, safe and comply with all relevant health & safety legislation;
check and sign or electronically verify timesheets Timesheet (in a form approved by Network Locum) verifying the number of hours worked by the Healthcare Professional which shall be deemed to be confirmation of satisfactory performance of the Healthcare Professional Services by the Healthcare Professional unless the Client expressly notifies Network Locum otherwise in writing;
notify Network Locum immediately if it is dissatisfied with the performance by the Healthcare Professional of the Healthcare Professional Services; and
(without limitation to the above) not commit any act or omission constituting unlawful discrimination against or harassment of any Healthcare Professional in connection with the performance of the Healthcare Professional Services.
If the Client fails (or would fail if it were deemed to be a "client" for the purposes of the Off-Payroll IR35 Legislation) to provide a Client Assessment within the time scales set out in section 61T(2) of the Off-Payroll IR35 Legislation, Network Locum [shall be entitled to] OR [reserves the right to] assume that the Healthcare Professional is to be treated as falling Outside IR35.] [Inside IR35] with the Client having the obligation to indemnify Network Locum in respect of any Loss it suffers as a result of treating the Healthcare Professional
The Company shall be entitled to terminate the Engagement by notice to the Client with immediate effect if:
it does not receive an Assessment from the Client pursuant to clause 3.4 above;
it has reasonable grounds to believe that the circumstances under which the Services are provided and/or the nature of the Assignment have changed and/or require re-assessment;
the Client provides a Client Assessment, but later changes this Client Assessment (so that a Client Assessment that previously stated that the Engagement was outside IR35, is changed to state that the Engagement is inside IR35); or
it receives a late Client Assessment which indicates that the Company's assumption (in the absence of a valid Client Assessment) about the IR35 status of the Consultant may no longer be valid.
The Client shall co-operate with Network Locum's reasonable requests for information in the event that HMRC and/or the Healthcare Professional challenge(s) the Client Assessment and/or Network Locum's decision to pay the Healthcare Professional net or gross of PAYE tax and National Insurance Contributions.
The Client shall notify Network Locum without delay if it has reason to believe that the circumstances under which the Healthcare Professional Services under the Engagement are provided has or will change such that the outcome of the Client Assessment would be different to that previously notified to Network Locum.
The Client shall indemnify (and keep it indemnified fully on demand) and hold harmless Network Locum against any and all Losses suffered by Network Locum attributable to:
Network Locum relying, in good faith, on a Client Assessment which, was at the date of notification of such Client Assessment to Network Locum, incorrect, incomplete, out of date or misleading. For the avoidance of doubt, an Outside IR35 Client Assessment based on the outcome of a test run by the Client using HMRC's online tool shall not absolve the Client from liability under this clause if, in fact, the information inputted by the Client was incorrect, incomplete, out of date or misleading in any way or HMRC otherwise decides that the Outside IR35 Client Assessment is incorrect ; [note this indemnity is unlikely to be considered fair by a judge if you only rely on the Client's assessment.]
any act, omission, default, delay, negligence or breach of statutory duty by or on the part of the Client and suffered or incurred by Network Locum arising out of or in connection with any claim made against Network Locum by a third party arising out of or in connection with the Client's failure to comply with its obligations under section 61T of the Off-Payroll IR35 Legislation (or arising out of or in connection with the Client's failure to comply with such obligations if it were deemed to be a "client" for the purposes of the Off-Payroll IR35 Legislation);
any breach of the warranties contained in clause 3.
Nothing in clauses 3.4, 3.5, 3.6, 3.9 3.10, 3.11, 3.12 or 3.13 shall limit Network Locum's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under an indemnity.
It is acknowledged that the making of such deductions (and the making of relevant payments to HMRC) does not necessarily constitute acceptance by Network Locum that, in its capacity of payment agent for the Client, it is the "fee payer" for the purposes of the Off-Payroll IR35 Legislation. Where it is not the "fee payer" and pursuant to the above Network Locum pays the Healthcare Professional net of PAYE tax and National Insurance Contributions the Client hereby, if so required by Network Locum, and to the extent required by law, appoints Network Locum as its agent for the purposes of making payment on its behalf to HMRC of the relevant PAYE tax and National Insurance Contributions.
- Subject to the terms of this Agreement, the Client may use the Network Locum Web Platform to issue Vacancy Notifications and Timesheets.
- Network Locum shall operate the Network Locum Web Platform so that healthcare professionals are able to apply for Vacancies that the healthcare professionals state they are qualified to perform.
The provisions of Schedule 2 shall apply to any Vacancy Notifications issued via a Client Staff Bank or Collaborative Bank in addition to the provisions set out in this Clause 4.
The provisions of Schedule 3 shall apply to any Vacancy Notification issued via My Circle in addition to the provisions set out in this Clause 4.
With the exception of Instantly Bookable Engagements, a contract relating to an Engagement will be deemed to have been entered into between the Client and the Healthcare Professional (on the terms of the Healthcare Professional Agreement) when a Healthcare Professional offers via the Network Locum Web Platform to undertake the relevant Engagement and the Client accepts such offer via the Network Locum Web Platform.
An Instantly Bookable Engagement will be deemed to have been concluded between the Client and a Healthcare Professional (on the terms of the Healthcare Professional Agreement) upon a healthcare professional, whose details are held as part of My Circle, accepting via the Network Locum Web Platform the Client's offer of an Engagement.
- Where an Engagement is cancelled or terminated by the Client before the expected commencement of the Engagement, the Client shall pay (in such manner as may be notified by Network Locum from time to time):
the Short Notice Cancellation Fee (as defined in the form of agreement in Schedule 4) to the Healthcare Professional; and the Short Notice Cancellation Service Fee(calculated in accordance with Schedule 1) to Network Locum.
Payment of Fees
- Network Locum shall be entitled to issue consolidated statements to the Client on a monthly basis (or such other basis as may from time to time be expressly agreed with the Client in writing) which will be made up of the following:
sums due in respect of any Healthcare Professional invoice received by (or details of which are received by) Network Locum (as agent for the Client) and payable by the Client for any Engagement, including any Short Notice Cancellation Fees (the "Healthcare Professional Invoice");
sums due in respect of repayment to Network Locum of any outstanding Loan;
sums due in respect of any Network Locum invoice in respect of NL Service Fees (and NL Short Notice Cancellation Fees) payable by the Client;
sums due in respect of any Late Payment Charge;
any other sums from time to time payable by the Client in accordance with this Agreement and/or as specified in the Engagement Details and/or Network Locum Web Platform; and
VAT as applicable.
The Client shall pay to Network Locum such sums as are set out in a consolidated statement on the Network Locum Web Platform in cleared funds to be received by the next occurrence of the monthly payment date agreed between Network Locum and the Client (or in any event, no later than the date which is one month after the date of the statement). The payment date/regularity of the payment date may be varied on the Network Locum Web Platform.
Any payment by the Client before the relevant due date in respect of any Healthcare Professional Invoice shall be held, once received by Network Locum, on trust for the Client pending transfer to the Healthcare Professional. The Client hereby authorises Network Locum (as agent for the Client) to make such transfer, provided that Network Locum has reasonable grounds for believing that the relevant Healthcare Professional Services have been provided (including such evidence as may be derived from entries made in the Timesheet). Subject to receipt of the relevant payment Network Locum agrees to make such payment to the Healthcare Professional on such date.
Network Locum may from time to time agree (by appropriate endorsement of the Engagement Details and/or otherwise via the Network Locum Web Platform and/or otherwise) to lend to the Client an amount equivalent to the amount of any Healthcare Professional Invoice(s) that is outstanding. The purpose of this loan is to enable the Client to pay the Healthcare Professional(s) the sums due to the Healthcare Professional(s) in respect of the Healthcare Professional Invoice(s) (the "Loan") on the date specified in the relevant Engagement Details. Network Locum will apply any such Loan by making payment of the Healthcare Professional Invoice(s) to the Healthcare Professional on behalf of the Client. The Client shall repay such Loan as soon as practicable and in any event within 7 days of repayment being requested by Network Locum via the Network Locum Web Platform or otherwise in writing.
For regulatory reasons Network Locum is only able to make Loans to Clients who are either (i) companies or other corporate bodies or (ii) partnerships with more than three partners or (iii) public bodies (e.g. NHS inspection bodies). The Client warrants, represents and confirms that to the extent it receives a Loan it is and shall be for the entirety of that Loan arrangement such an entity.
- Where the Client receives a Loan, the Client shall pay a late payment charge. This charge will be such percentage of the Healthcare Professional Invoice as is specified in Schedule 1 ("Late Payment Charge") to reflect the cost to Network Locum of funding (by way of the Loan) prompt payments to the Healthcare Professional on behalf of the Client, the commitment to prompt payment making Engagements more attractive to Healthcare Professionals and as such being of indirect benefit to the Client in filling Vacancies.
Where a sum representing any of the amounts referred to in clause 5.1 is paid to Network Locum pursuant to clause 5.2, Network Locum shall be entitled to treat the sum:
as first discharging the NL Service Fee, any NL Short Notice Cancellation Service Fee, any Late Payment Charge, as payment of interest on any overdue amount due from the Client to Network Locum and payment of any other sum due from the Client to Network Locum, then
as repayment of any Loan, and then
as payment of any sums due from the Client to the Healthcare Professional.
For the avoidance of doubt Network Locum shall not (save in relation to the application of any Loan as payment of any Healthcare Professional Invoice(s)) be obliged to make any payment to a Healthcare Professional in respect of any sums due from the Client to the Healthcare Professional before it has received payment from the Client in respect of the same.
- The Client shall ensure that payment to the Healthcare Professional is made only as set out in this clause 5. Any action that involves complete or partial payment in any other way shall be a breach of this Agreement. The Client shall indemnify Network Locum in respect of any Loss suffered by Network Locum directly or indirectly arising as a result of such breach. Without prejudice to any other remedies available to Network Locum, the Client shall, if Network Locum reasonably considers such a breach to have occurred and notifies the Client accordingly, pay immediately to Network Locum the Off Platform Payment Charge, which the parties accept as a genuine pre-estimate of the minimum Loss Network Locum shall suffer in respect of such a breach.
- The Client shall immediately notify Network Locum if a Supplier or Healthcare Professional requests that the Client make a payment directly to it or through any channels other than those specified in this clause 5.
- For the avoidance of doubt, in the calculation of the sums due to Network Locum in relation to Healthcare Professional Services performed (including without limitation the NL Service Fees and Late Payment Charge), an entry in the Timesheet shall be conclusive evidence that the Healthcare Professional Services have been performed to the satisfaction of the Client at the times and for the total period of time set out in such Timesheet. Network Locum shall not be responsible for verifying statements or entries relating to hours worked or claims for payment submitted by or on behalf of a Healthcare Professional.
- If the Client disputes the hours claimed and the payments due (or not due) in respect of breaks or expenses or otherwise, it shall inform Network Locum of this within one Business Day and shall promptly provide all co-operation and information reasonably required by Network Locum to establish the hours actually worked and/or expenses incurred by the Healthcare Professional. Any failure so to inform Network Locum within one Business Day or co-operate shall entitle Network Locum to issue a consolidated statement based on such Timesheet and be paid in accordance with this clause 5.
- Unless otherwise agreed in writing by Network Locum, Network Locum will not be obliged to make any rebates or refunds of fees or other sums paid or payable to Network Locum or any Healthcare Professional by the Client.
- All amounts due under this Agreement (including any payments due to a Healthcare Professional) shall be paid in full to or via Network Locum without any deduction or withholding other than as required by law. The Client shall not be entitled to assert any credit, set-off or counterclaim against Network Locum in order to justify withholding payment of any such amount in whole or in part.
- Unless otherwise agreed by Network Locum, all payments to be made under this Agreement shall be paid via the Network Locum Web Platform, using the procedures and details which will be supplied to the Client.
Where Network Locum has not agreed to make a loan to the Client, pursuant to clause 5.4, Network Locum shall (without prejudice to any other remedy) apply and charge the Client interest on any overdue NL Service Fee or other sums payable to it under this Agreement at a rate of 2% per month (compounding with monthly stops) from the due date until the date of payment.
- This Agreement shall continue unless terminated:
by written notice with immediate effect by Network Locum if there is any breach of this Agreement by the Client; or
by 5 Business Days' written notice by Network Locum if there is any other serious or repeated breach of this Agreement by the Client, which is, in the reasonable opinion of Network Locum, capable of remedy and which is not remedied within 10 Business Days after an earlier notice requiring it to do so; or
by written notice with immediate effect by Network Locum and without liability for Network Locum or prejudice to any right for relief Network Locum may have if in good faith Network Locum considers for any reason that (i) the Client may not meet its obligations to Network Locum, or (ii) the Healthcare Professional may no longer be willing, or able or suitable to undertake the Healthcare Professional Services for the Client;
by written notice with immediate effect by either party for convenience; or
by written notice with immediate effect by either party if the other party shall become insolvent within the meaning of the Insolvency Act 1986, becomes bankrupt, applies for, or has made against it a receiving order, or makes any composition with its creditors or an administration order or if an order is made or resolution passed for the winding up of that party or that party passes a resolution to cease trading or actually ceases trading.
Acknowledgements and Liability
- The Client acknowledges that Network Locum does not supervise and/or control the actions of any Healthcare Professional. Nothing in this Agreement shall in any way constitute any Healthcare Professional as the employee or worker of Network Locum. Network Locum shall not be responsible for supervising, monitoring or directing the Healthcare Professional whilst working on an Engagement and that accordingly, only the Client is in a position to assess and insure against risks in respect of or during or arising out of the period for which the Healthcare Professional is performing the Healthcare Professional Services.
- The Client acknowledges that Network Locum is not an employment agency for the purposes of the Conduct Regulations and is instead a medium through which Healthcare Professionals find Engagements for themselves and Clients find Healthcare Professionals to work on Engagements.
- The Client acknowledges that there is no contract between Network Locum and a Healthcare Professional relating to the Healthcare Professional Services. Network Locum shall not be responsible for and shall have no involvement in any disputes between the Client and a Healthcare Professional and shall not be responsible for the quality of the Healthcare Professional Services provided by the Healthcare Professional or their activities while at the Client's location(s). The NL Service Fee reflects only those online services agreed to be supplied by Network Locum and do not indicate acceptance of any liability for the Healthcare Professional's acts or omissions.
- For the purposes of the Payment Services Regulations, Network Locum has the authority to act as an active Commercial Agent of the Client. In this role Network Locum will negotiate and conclude how payments are made to the Healthcare Professional on behalf of the Client. For the avoidance of any doubt, Network Locum is not an agent of the Client other than for the purposes of negotiating payment terms between the Client and the Healthcare Professional.
- Network Locum shall not be responsible for ensuring the suitability of any Healthcare Professional or for the accuracy or validity of any Network Locum Checks save to the extent set out in Schedule 5.
- Network Locum shall not be responsible for any Loss relating to any Supplier not complying with any legal or tax requirements when acting as an intermediary. Network Locum encourages the Client to carry out its own due diligence on any Supplier it contracts with. Any responsibility of the Client in respect of deductions for income tax and/or national insurance and accounting to HMRC for the same shall be discharged by the Client and the Client agrees to perform those responsibilities.
- The Client shall comply with Schedule 6 in relation to its usage of the Network Locum Web Platform.
- Subject to clause 7.11, Network Locum shall not be liable for any Losses arising from:
any failure to provide the services of the Healthcare Professional for all or part of the term of this Agreement;
the negligent, wrongful, dishonest or fraudulent acts or omissions or misrepresentations of the Healthcare Professional, including, without limitation, any lack of skill of any Healthcare Professional; or
the theft, destruction, deletion or damage of or to any data, computer systems or materials by any Healthcare Professional.
- Network Locum shall not be liable for any Losses arising out of:
any act or omission or misrepresentation (whether before or after the date of this Agreement) of any Healthcare Professional;
any special, indirect or consequential damages or loss; or
any loss of profit, business, revenue, goodwill, anticipated savings and/or any claims made under third party contracts, arising out of any failure by Network Locum to perform any obligations under this Agreement.
- Subject to clause 7.11 and without prejudice to the other provisions of this clause 7, Network Locum's liability in respect of any breach of this Agreement shall not exceed in respect of any Healthcare Professional or Introduction a sum equivalent to three times the NL Service Fee paid (or which would have been payable) in respect of such Introduction.
- Nothing in this Agreement shall operate to exclude or limit Network Locum's liability for:
death or personal injury caused by Network Locum's negligence;
its own fraudulent acts or omissions; or
any other liability which cannot by law be excluded.
- Any responsibilities to Healthcare Professionals under the Pensions Act, the Agency Workers Regulations 2010 or any employment law remain the sole responsibility of the Client and the Client agrees to perform those responsibilities.
- The Client shall indemnify and keep indemnified Network Locum against any Losses incurred by Network Locum arising out of any breach of this Agreement by the Client.
- In this clause 8, the terms "Data Controller", "Data Processor" "Data Subject", "Personal Data" and "Process" have the meanings given to them in the Data Protection Laws.
- Each party warrants to the other that, in relation to this Agreement, it shall comply strictly with all requirements of the Data Protection Laws.
Client Personal Data
- The Client shall act as the Data Controller and Network Locum shall act as the Data Processor in respect of the Personal Data relating to a Healthcare Professional supplied to Network Locum through the Client Staff Bank ("Client Personal Data"), provided that the relevant Healthcare Professional has not entered into the Marketplace or a Collaborative Bank.
- The Client warrants, undertakes and represents that it is authorised to transfer the Client Personal Data to Network Locum and specifically where required by the Data Protection Laws it shall obtain all necessary consents in order to (i) disclose the Client Personal Data to Network Locum and (ii) allow Network Locum to process the Client Personal Data for the purpose of providing the services under this Agreement.
- Network Locum shall:
only undertake processing of Client Personal Data to the extent reasonably required in connection with its obligations in this Agreement and in accordance with the Client's instructions and applicable law; and
have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Client Personal Data and against accidental loss or destruction of, or damage to, the Client Personal Data.
Shared Personal Data
- Network Locum shall act as the Data Controller of any Personal Data relating to a Healthcare Professional supplied to Network Locum in relation to the Marketplace or Collaborative Bank ("Shared Personal Data").
- The Shared Personal Data may be transferred to the Client during an Introduction. To the extent such transfer occurs, the Client will be a Data Controller in common with Network Locum in respect of such Shared Personal Data and accordingly the Client warrants, undertakes and represents that;
it shall only process such Shared Personal data in accordance with the Data Protection Laws;
it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such Shared Personal Data and against accidental loss or destruction of, or damage to, such Shared Personal Data;
it shall provide the Data Subject with a fair processing notice in accordance with its obligations as a Data Controller under the Data Protection Laws;
it shall not process such Shared Personal Data for any purposes that are incompatible with those to which the Data Subject consented when they submitted their Personal Data to Network Locum without the Data Subject's specific and informed consent to such additional processing.
it will co-operate with and assist Network Locum at no charge, in allowing Data Subjects to exercise their rights under the Data Protection Laws;
it will co-operate with Network Locum to enable Network Locum to take reasonable steps to monitor compliance by the Client with its obligations under this Agreement and under the Data Protection Laws; and
it will comply with any reasonable request made by Network Locum to ensure compliance with the measures mentioned in this clause 8.
- The Client will notify Network Locum immediately of any correspondence it may receive from any local data protection regulator and any successor or replacement body relating to Personal Data or any complaint from an individual about the processing of Shared Personal Data in connection with this Agreement.
- The Client will not transfer any Shared Personal Data to any country outside of the European Economic Area without Network Locum’s prior written consent.
- If the Client becomes aware of the loss or compromise of, or any damage to, any Personal Data in connection with this Agreement it will:
immediately notify Network Locum of the details of the incident;
promptly initiate a full investigation into the circumstances surrounding the incident and make any reports of notes of the investigation available to Network Locum; and
fully co-operate, at its sole cost, with Network Locum’s investigation and provide any assistance requested by Network Locum in order for Network Locum to investigate the incident.
This Agreement, together with the Schedules shall form the entire agreement between the parties and supersedes all previous agreements and arrangement( if any) whether written, oral or implied between the parties relating to such matters contemplated by this agreement, and all such agreement still effective at the date of this Agreement (if any) shall be deemed to have been terminated by mutual consent with effect from 6th April 2017 but without prejudice to any rights which have arisen prior to such termination and so that nothing in this clause 9.1 shall operate to exclude or limit the liability of any party in respect of fraud. In the event of any conflict or inconsistency between the Schedules of this Agreement the applicable Schedules and the other terms of the Agreement the following order of precedence shall apply:
to the extent that a Client is using their Client Staff Bank or Collaborative Bank, Schedule 2 of this Agreement;
to the extent that a Client is using their My Circle, Schedule 3 of this Agreement;
the other terms of this Agreement;
all Schedules (other than Schedule 2 and 3) of this Agreement.
- The Client acknowledges that, in entering into this Agreement, it has not relied on any representations by Network Locum, made before the execution of this Agreement other than those expressly set out in this Agreement.
- This Agreement is personal to the Client and the Client shall not be entitled to assign or sub-contract its obligations or rights under this Agreement to any third party without the prior written consent of Network Locum. Network Locum shall however be entitled to assign this Agreement and, upon such Engagement, without prejudice to the assignor's rights in respect of matters arising prior to such Engagement, and all references to Network Locum shall be deemed to refer to the assignee.
- Time is of the essence for all times, dates and periods specified in this Agreement.
- No amendment to this Agreement is effective unless it is in writing and signed on behalf of each party by a person duly authorised by that party. For the avoidance of doubt, agreement to an amendment notified to the other party on the Network Locum Web Platform will constitute 'in writing' for these purposes and if the other party e-signs the amendment, this will constitute 'and signed' for these purposes.
- Any notice required to be given under this Agreement (including the delivery of any timesheet, Timesheet entries or invoice) shall be given in such manner as is expressly provided for on the Network Locum Web Platform or (where not so provided for) shall be given in writing signed by a person duly authorised by the sending party and delivered by hand, e-mail or prepaid first class post to the recipient at its address specified in this Agreement (or as otherwise notified from time to time to the sender by the recipient for the purposes of this Agreement).
- This Agreement shall be governed by and construed in all respects in accordance with English law and the Courts of England and Wales shall have exclusive jurisdiction.
- If any provision or any part of this Agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law:
such provision or part shall to that extent be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected;
to the extent permitted by law, Network Locum and the Client shall negotiate in good faith a replacement to any provision severed under clause 9.8(a) by a provision which is of similar effect but which is not illegal or unenforceable.
- None of the provisions of this Agreement is intended to be for the benefit of, or enforceable by, third parties (other than permitted assignees of Network Locum who shall be entitled to enforce the provisions of this Agreement as if original parties to it) and the operation of the Contracts (Rights of Third Parties) Act 1999 is (aside from such permitted assignees) excluded.
The Client Staff Bank and Collaborative Bank Services
- Network Locum allows healthcare providers to create a pool of healthcare professionals known to the healthcare provider. The Client has the option of setting up a Client Staff bank of healthcare professionals it knows independently of them being sourced via the Network Locum Web Platform. Once set up the Client can advertise job vacancies to healthcare professionals whose details are stored in its Client Staff Bank.
- Network Locum also allows healthcare providers who fulfill certain criteria to collaborate and share the details of healthcare professionals known to them with each other. Once Clients have formed a Collaboration, they can use the Network Locum Web Platform to store and access details of healthcare professionals known to any member of the Collaboration and each of the healthcare providers within the Collaboration can advertise job vacancies to healthcare professionals whose details are stored in the Collaborative Bank.
- Healthcare professionals who are registered to a Client Staff Bank and/or Collaborative Bank, may also register to the Marketplace, if they wish to offer their services for vacancies advertised by healthcare providers other than the Client or healthcare providers who are not in Collaboration with the Client, and be able to respond to Vacancies advertised on the Network Locum Web Platform.
"Registration Date" means the date on which the Client first submits details of locum healthcare professionals it would like to include in its Client Staff Bank and/or its Collaborative Bank.
"Registration Period" means the first 30 calendar days from (and including) the Registration Date.
"Referring Client" means the healthcare provider who has referred the particular healthcare professional into the Collaborative Bank.
Administration of Client Staff Bank
Where the Client has elected to set up a Client Staff Bank, the Client shall send Network Locum details of all the healthcare professionals it wishes to include in its Client Staff Bank ("Potential Client Staff Bank Healthcare Professional").
During the Registration Period, the Client will be entitled to submit details of all healthcare professionals it knows, regardless of whether or not the healthcare professionals' details are already registered on the Marketplace, for inclusion in its Client Staff Bank and/or Collaborative Bank. For the avoidance of doubt, after the Registration Period, the Client shall not be entitled to submit details of healthcare professionals to its Client Staff Bank and/or Collaborative Bank, if the details of the healthcare professional are already registered on the Marketplace.
Network Locum shall use its reasonable endeavours to verify the relevant consents of the Potential Client Staff Bank Healthcare Professional to be included in the Client Staff Bank.
Where the Potential Client Staff Bank Healthcare Professional consents to being included in the Client Staff Bank, the Healthcare Professional shall provide the additional details required to become a Client Staff Bank Healthcare Professional. Where the Potential Client Staff Bank Healthcare Professional fails to upload the required information, they will not be included in the Client Staff Bank
Network Locum will administer and maintain the Client Staff Bank for the Client in accordance with this Schedule 2.
Network Locum will not undertake Network Locum Checks in relation to Client Staff Bank healthcare professionals.
Administration of Collaborative Bank
A Collaborative Bank may be set up if a healthcare provider/the Client informs Network Locum that they wish to form a Collaboration with other healthcare providers and Network Locum consents to such Collaboration.
All healthcare providers who agree to become part of a Collaboration shall consent to the Network Locum Terms and Conditions
Once healthcare providers are part of a Collaboration they are able to access and add details of healthcare professionals to the Collaborative Bank.
Where the Client has elected to set up or join a Collaborative Bank, the Client shall send Network Locum details of all the healthcare professionals it wishes to include in its Collaborative Bank ("Potential Collaborative Bank Healthcare Professionals").
Each respective healthcare provider who adds details of healthcare professionals shall use its reasonable endeavours to obtain the required consents of the Potential Collaborative Bank Healthcare Professionals to be included in the Collaborative Bank.
Where the Potential Collaborative Bank Healthcare Professional consents to being included in the Collaborative Bank, Network Locum will:
obtain any additional information required to register the Potential Collaborative Bank Healthcare Professional as a Collaborative Bank healthcare professional; and
upload the details provided in relation to Collaborative Bank healthcare professionals onto the Client Staff Bank.
Subject to clause 2.2 of Schedule 2, healthcare professionals who are already registered with the Marketplace prior to submission to the Collaborative Bank shall not qualify to be included in the Collaborative Bank and any such healthcare professionals shall remain a Marketplace healthcare professional.
Network Locum Checks
For the avoidance of doubt, Network Locum will not undertake Network Locum checks in relation to:
a Client Staff Bank Engagement;
a Collaborative Bank Engagement where the Healthcare Professional is engaged by the Referring Client.
Before a healthcare professional, whose details are registered in a Collaborative Bank, can enter a Collaborative Bank Engagement with a healthcare provider other than the Referring Client, the Network Locum Checks will be performed. The Network Locum Checks will be performed as soon as the healthcare professional applies for a Vacancy advertised by any healthcare provider within the Collaboration other than the Referring Client. The Collaborative Bank Engagement shall not commence until the healthcare professional has uploaded the Network Locum Checks.
For the avoidance of doubt, Network Locum shall not be responsible for ensuring the suitability of any healthcare professional or for the accuracy or validity of any Network Locum Checks save to the extent set out in Schedule 5.
Where a Client has elected to use its Client Staff Bank any Vacancy Notifications will first be made available to the healthcare professionals in the Client Staff Bank. If the Vacancy is not filled by a healthcare professional within the Client Staff Bank, the Client can opt for the Vacancy Notification to be made available to all healthcare professionals in the Marketplace.
The provisions of Schedule 1 and the main agreement shall apply.
- Network Locum allows healthcare providers to create a pool of healthcare professionals which the healthcare provider designates as preferred suppliers of healthcare professional services to the healthcare provider. Once set up the Client can manage its relationships with its preferred healthcare professionals, whose details are listed and managed in the Client's My Circle.
- For the avoidance of doubt, My Circle can be used by the Client in conjunction with either a Client Staff Bank and/or a Collaborative Bank as an additional tool to manage relationships with its preferred healthcare professionals.
- The Client can select certain healthcare professionals from within My Circle, or all of its healthcare professionals from within My Circle, to be eligible to instantly book certain jobs the Client decides are 'instantly bookable'. Where a Client offers an engagement to a preferred healthcare professional, the Engagement is instantly formed upon the healthcare professional's acceptance of such offer.
Administration of My Circle
Where the Client has elected to set up My Circle, the Client shall enter the details of any healthcare professionals it wishes to include in its My Circle onto the designated area of the Network Locum Web Platform. Such details may include healthcare professionals from the Client's Staff Bank, Collaborative Bank, the Marketplace or elsewhere.
Network Locum Checks
Network Locum will carry out the Network Locum checks in accordance with clause 2.2 (subject to Schedule 2, clause 4).
Where a Client has elected to use its My Circle any Vacancy Notifications will first be made available to the healthcare professionals in My Circle. If the Vacancy is not filled by a healthcare professional within My Circle, the Client can opt for the Vacancy Notification to be made available to all healthcare professionals in its Client Staff Bank or Collaborative Bank (if the Client has either of these) or on the Marketplace
Instant Booking Process
The Client can make Instantly Bookable Engagements.
In the instance of an Instantly Bookable Engagement, for the avoidance of doubt, the provisions of Clause 4.6 of the main agreement apply.
The provisions of Schedule 1 and the main agreement shall apply.
For the avoidance of doubt, the NL Service Fee will be chargeable in relation to any Instantly Bookable Engagement if the Healthcare professional was, subject to clause 2.2. of Schedule 2, sourced via the Marketplace.