1. Definitions

In this Agreement, the following words shall have the following meanings:
‘the Termination Period’
have the meanings set out overleaf.
‘the Reports’
means all letters, reports, documentation, presentations, software or drawing in whatever format the Consultant shall or may create or deliver to the Client as part of the Services provided by the Consultant.
‘the Specification Document’
has the meanings given in Clause 2.1 and the document attached to this Agreement as Schedule 1

2. Services

2.1 At the commencement of the Services, the Consultant shall submit to the Client a specification for the Services. The specification shall specify the Services to be undertaken, the time estimates for the provision of the Services and the fees payable (‘the Specification Document’).
2.2 On receipt of the Specification Document the Client will sign a copy and return that copy to the Consultant to signify the Client’s agreement as to the Services to be provided and the fees payable to the Consultant. The Client acknowledges and agrees that no Services (other than the preparation of the Specification Document) will be provided until the Client has returned a signed copy of these Terms to the Consultant and the Client has received the signed copy of the Specification Document.
2.3 The Specification Document may be varied or added to from time to time in writing and signed by both Parties. The changes shall be clearly identified, together with the additional or different level of fees to be paid by the Client.

3 Calculation of time

3.1 For fees calculated on a daily rate: A ‘day’ shall mean a period of 7 hours. Time spent in excess of a 7 hour period shall be charged at the pro-rated rate for a day.
3.2 For fees calculated by reference to an hourly rate: For time spent which is less than a complete hour, the Client shall be charged on a pro-rated basis.

4 Performance of the Services

4.1 The Parties shall agree the time and place (if not specified in the Specification Document) when the Services shall be performed, subject to the availability of the Consultant’s staff and agents.
4.2 The Consultant shall use reasonable endeavours to complete the Services by the Completion Date or meet such other dates as agreed by the Parties.
4.3 Time shall not be of the essence:
4.3.1 for any times for when the Services are to be performed, whether given or agreed to by the Consultant; or
4.3.2 for the length of time that any of the Services are to take, whether specified in the Specification Document or otherwise; or
4.3.3 for the Completion Date or such other date as agreed by the Parties.
4.4 The Services shall be originally be carried out by the Named Consultant. If the Named Consultant is unable to carry out the services for any reason, the Consultant reserves the right to provide a substitute Consultant to perform the services in place of the Named Consultant. The Consultant will bear all the costs involved in providing such a replacement Consultant.

5 Fee and payment

5.1 In consideration of the Services to be provided by the Consultant to the Client, the Client shall pay the Fee as set out in Clause J overleaf (and if selected, the Expenses) to the Consultant and in accordance with the Payment Period set out in Clause K overleaf.
5.2 All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Client.
5.3 If payment of the Fee is not received by any due date, the Consultant shall be entitled (without prejudice to any other right or remedy):
5.3.1 to charge interest on the outstanding amount at the rate of 8% per annum above the base lending rate of Barclays Bank plc, accruing daily;
5.3.2 to require that the Client make a payment in advance of any Services or part of the Services not yet supplied;
5.3.3 to not provide any further Services or part of the Services; or
5.3.4 to not provide any Reports due on completion of the Services (until such payment is made)
5.4 All payments shall quote the Consultant’s invoice number and other reference numbers including (where applicable) the Specification Document reference number.

6 The Client’s obligations

6.1 The Client acknowledges and agrees that for the Supplier to be able to provide the Services the Client shall:
6.1.1 co-operate with the Consultant as the Consultant reasonably requires;
6.1.2 provide to the Consultant such information and documentation as the Consultant reasonably requires;
6.1.3 make available to the Consultant the facilities, resources, working space and staff as specified in the Specification Document and/or as the Consultant reasonably requires from time-to-time; and
6.1.4 instruct the Client’s staff and agents to co-operate and assist the Consultant.
6.2 The Consultant may charge the Client for any additional reasonable costs and expenses incurred by the Consultant caused by the Client’s instructions, failure to provide instructions, or failure to comply with Clause 6.1.

7 Reporting requirements

7.1 The Specification Document shall specify the Reports that are to be produced during or on completion of the Services (‘the Reports’).
7.2 Where required in the Specification Document to provide Reports, the Consultant shall supply one copy of the Reports to the Client. The Consultant grants to the Client a non-exclusive licence (without the right to sub-license) to use the Reports. The Consultant shall own all copyright, database and other intellectual property rights in the Reports.
7.3 The Consultant cannot and will not make any judgment or comment on clinical issues and the Reports cannot and will not contain any judgment or comment on such issues.

8 Protection of confidential information

8.1 Each Party (‘the Receiving Party’) shall keep the confidential information of the other Party (‘the Supplying Party’) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of and for performing the Receiving Party’s obligations under the Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this Clause 8, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
8.2 The obligations of Clause 8.1 shall not apply to any information which:
8.2.1 was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
8.2.2 is, or becomes, publicly available through no fault of the Receiving Party;
8.2.3 is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
8.2.4 was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
8.2.5 is required to be disclosed by a court order of competent jurisdiction.
8.3 This Clause 8 shall survive termination of this Agreement for a period of 6 years.

9 Warranties, liability and indemnities

9.1 The Consultant warrants that it will use reasonable care and skill in performing the Services.
9.2 If any part of the Services is performed negligently or in breach of the provisions of this Agreement then, at the request of the Client (if the request is given within 6 months of the Completion Date), the Consultant will re-perform the relevant part of the Services at their own cost, always subject to Clauses 9.5 and 9.7 below.
9.3 The Consultant expressly does not warrant that any result or objective whether stated in this Agreement or not shall be achieved, be achievable or be attained at all or by a given Completion Date or any other date.
9.4 Except in the case of death or personal injury caused by the Consultant’s negligence, the Consultant’s liability under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Fee paid to the Consultant under this Agreement. The provisions of this Clause 9.4 shall not apply to Clause 9.6.
9.5 Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this Clause 9.5 shall not apply to Clause 9.6.
9.6 The Client shall indemnify and hold harmless the Consultant from and against all Claims and Losses arising from loss, damage, liability, injury to the Consultant employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by the Consultant, its employees or consultants, or supplied to the Consultant by the Client within or without the scope of this Agreement. ‘Claims’ shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
9.7 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.

10 Termination

10.1 This Agreement shall commence on the Commencement Date as set out in Clause G overleaf
[10.2 Either Party may terminate this Agreement immediately in writing to the other Party if the Named Consultant becomes unavailable to carry out the Services and the Parties cannot agree on a mutually agreeable replacement.
10.3 Either Party may terminate this Agreement in writing, within the Termination Period specified in Clause M overleaf.
10.4 Without prejudice to other remedies or rights, either Party may terminate this Agreement at any time by written notice to the other Party (‘the Other Party’), the notice taking effect as specified in the notice:
10.4.1 if the Other Party is in material breach of its obligations under this Agreement, and where a breach is capable of remedy within 14 days, the breach is not remedied within 14 days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or
10.4.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.

11 General

11.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.
11.2 Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
11.3 Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
11.4 Entire Agreement
This Agreement contains the whole agreement between the Parties in relation to the matters and Services to be provided as set out herein and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
11.5 Waiver
No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
11.6 Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
11.7 Further assurance
Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
11.8 Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
11.9 Announcements
No Party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
11.10 Interpretation
In this Agreement unless the context otherwise requires:
11.10.1 words importing any gender include every gender;
11.10.2 words importing the singular number include the plural number and vice versa;
11.10.3 words importing persons include firms, companies and corporations and vice versa;
11.10.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
11.10.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
11.10.6 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
11.10.7 the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
11.10.8 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
11.10.9 where the word ‘including’ is used in this Agreement, it shall be understood as meaning ‘including without limitation’.
11.11 Notices
11.11.1 Any notice to be given under this Agreement shall be in writing and shall be delivered by hand or sent by first class mail or commercial courier to the address of the relevant Party set out at the head of this Agreement, or such other address as that Party may from time to time notify to the other Party in accordance with this clause 11.11.
11.11.2 Notices sent as above shall be deemed to have been received if delivered by hand on signature of a delivery receipt, if delivered by first class mail three working days after the day of posting, if delivered by commercial courier on the day of delivery and on signature of a delivery receipt.
11.11.3 To prove notice was given it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted,.
11.12 Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
11.13 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
11.14 Control and Supervision
11.14.1 The Client shall have no right to, nor shall seek to, exercise any direction, control, or supervision over the Consultant in the provision of the services. The Consultant shall endeavour to co-operate with the Client’s reasonable requests within the scope of the services, however it is acknowledged that the Consultant shall have autonomy over their working methods.
11.14.2 The Client is under no obligation to offer further contracts or services to the Consultant nor is the Consultant under obligation to accept such contracts or services if offered. The Consultant is not obliged to make its services available except for the performance of its obligations under this Agreement. Both parties agree and intend that there be no mutuality of obligations either during or following the agreement, whatsoever.
11.14.3 The Consultant is entitled to seek, apply for and accept contracts to supply goods and services to other parties during the currency of the agreement provided always that there is no material diminution in the standard of performance of the Services and provided that the Consultant does not breach any of the terms of this Agreement in so doing.

Schedule 1

Specification Document

To provide an NHS complaints consultancy service to the Client, including Quality Assurance service to ensure that final responses to complainants are of a high standard and advising investigating officers and Trust staff in relation to Regulations. This from XXX 2015 until XXX 2015. Progress reports will be provided by the Consultant upon request
The Named Consultant or agreed substitute will attend the Client’s offices when deemed necessary by the Consultant. Mileage travel will be invoiced at a rate of 0.45p per mile and parking charges will also be invoiced accordingly. Invoices will be provided weekly.

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