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Terms and Conditions for the Provision of Niche Consultancy Services
NICHE Health and Social Care Consulting Ltd or “the Supplier” is a company registered in England and Wales with company number 08133492. The registered company address is 4th Floor, Trafford House, Chester Road, Manchester, M32 ORS
NICHE shall supply Services to the CLIENT, and the CLIENT shall receive and pay for, the Services on the terms of this Contract herewith.
This Contract is the entire agreement between us. Any changes to this agreement must be agreed inwriting by both parties. This agreement will not be taken to constitute a partnership, agency, employment, joint venture or fiduciary relationship between us.
NICHE is engaged as an Independent Contractor, neither has the authority to bind to the other.
Neither party may transfer, assign or novate this Contract without the prior written agreement of the other.
DEFINITIONS AND INTERPRETATION
Niche means the Company registered as Niche with Companies House.
Contract means the agreement between the Supplier and the client. The Letter of Engagement forms part of the contract.
Schedules form part of the contract or agreement
Client is the purchaser of the consultancy service.
Party means either Niche or the Client and “parties” shall mean both of them.
Services means the services to be provided under the relevant agreement and includes any documentation or deliverables.
We will provide the Services to you in accordance with this Contract and with the application of skill, care and professionalism. The Services we will provide to you will be recorded in writing in a Letter of Engagement and you will sign to say that you accept the scope and services being offered by us.
We shall not provide:
Each of us may request changes to the Services; this must be agreed in writing by a ‘Change Order’ as an addition to the Letter of Engagement.
This Contract shall commence on the date that you sign and return to us the “Letter of Engagement” or associated “Terms of Reference”. This Contract terminates when we have completed providing the services for you and you have paid us. The Term of this Contract may be extended provided that a change of scope order is provided.
3.SERVICES COMMENCEMENT DATE
3.1 The Services Commencement Date and the PROJECT END DATE shall be clearly described within the project plan and described within the overall Letter of Engagement. We will make all reasonable efforts to complete the Services within the agreed timeframe, however, this will be dependent on the CLIENT fulfilling certain responsibilities. These will be described clearly in the Letter of Engagement.
3.2 In the event of a Force Majuere which is beyond the reasonable control of either party to the engagement the contract period may reasonably be paused for the period of up to 12 months.
4.QUALITY ASSURANCE STANDARDS
The following quality assurance standards shall apply, as appropriate, to the provision of the Services: ISO:9001: 2015 and ISO 27001:2013.
5.1 Our work is for your exclusive use. It must only be used by you and only for the purpose described within the Letter of Engagement. No other party may place any reliance whatsoever upon our work as it has not been written in line with their purposes.
5.2 You may not be able to rely upon work which is in draft form or which is provided orally. Only the final, signed version of our work may be relied upon.
5.4 In undertaking our work we may be exposed to a third party who may want to make a claim against us. We are clear that we have no obligation towards them, and therefore no financial penalty can be applied, through the course of our work.
5.5 Unless agreed otherwise, we will retain the ownership of the intellectual property in our work. You agree we can use your logos on our work unless you tell us otherwise.
The CLIENT shall issue a Purchase Order to NICHE in respect of any Services to be supplied to the CLIENT under this Contract. NICHE shall comply with the terms of such Purchase Order as a term of this Contract. For the avoidance of doubt, any actions or work undertaken by NICHE under this Contract prior to the receipt of a Purchase Order covering the relevant Services shall be undertaken at the Supplier’s risk and expense and NICHE shall only be entitled to invoice for Services covered by a valid Purchase Order or Framework Terms and Conditions.
We will use all reasonable efforts to ensure that the Team named in the Letter of Engagement are the Tetam who will provide the Services. If we need to, we may reassign or replace any NICHE representative upon reasonable notice to you.
During the Term of this Contract and for a period of 6 months after it ends, we will not directly or indirectly solicit employees for employment. You will not directly or indirectly solicit employees from NICHE. Both parties may advertise to recruit generally in the media.
The payment profile for this Contract shall be as stated in the Letter of Engagement. NICHE will reserve the right to provide an earlier invoice if the supplied ‘Work in Progress’ precedes the agreed project milestones.
9.PRICE AND PAYMENT
The Contract Price shall be calculated as set out in the Letter of Engagement. Unless otherwise stated and agreed in the Letter of Engagement the Contract Price shall be payable from the Actual Services Commencement Date; shall remain fixed during the Term; and is the entire price payable by the CLIENT to NICHE in respect of the Services. Additional payments may be required by the Supplier for any royalties, licence fees, supplies and all consumables used by NICHE and travel costs and accommodation expenses.
9.1 Unless stated otherwise in the Letter of Engagement: where the payment profile will usually be described, in all other cases payment for Services will be monthly in arrears. NICHE shall invoice the CLIENT, within fourteen (14) days of the end of each calendar month, for the Services provided in compliance with this Contract in the preceding calendar month; or NICHE shall invoice the CLIENT for Services at any time following completion of the provision of the Services in compliance with this Contract.
9.2 Each invoice shall contain such information and be addressed to the CLIENT under the terms of the Purchase Order.
9.3 The Contract Price is exclusive of VAT, which, if properly chargeable, the CLIENT shall pay at the prevailing rate subject to receipt from NICHE of a valid and accurate VAT invoice. Such VAT invoices shall show the VAT calculations as a separate line item.
9.4 The CLIENT shall pay each undisputed invoice within thirty (30) days of receipt of such invoice at the latest. However, the CLIENT shall use its reasonable endeavours to pay such undisputed invoices sooner in accordance with any applicable government prompt payment targets.
9.5 Where the CLIENT raises a query with respect to an invoice the Parties shall liaise with each other and agree a resolution to such query within fifteen (15) days of the query being raised.
9.6 If after the period of 45 days of non-payment of invoice and following the resolution of reasonable invoice queries NICHE may charge a daily levy of the bank of England Base rate plus 4% on top of the base invoice amount until final payment is received.
10.PRIOR TERMINATION OF THIS CONTRACT
The CLIENT may terminate this Contract forthwith in writing to NICHE prior to the commencement of Services. Should the CLIENT terminate this Contract within 1 month of the proposed start of the Services commencement date then the CLIENT shall pay NICHE the termination sum calculated in accordance with a percentage of the job fee (usually 10%). If the CLIENT terminates the work following commencement of the start date then the full project fee will be liable.
11.TERM AND TERMINATION
10.1This Contract shall commence on the Commencement Date and, unless terminated earlier in accordance with the terms of this Contract or the general law, shall continue until the end of the Term. This term will usually be specified in the Letter of Engagement.
10.2 The Client shall be entitled to extend the Term on one or more occasions by giving NICHE written notice no less than three (3) months prior to the date on which this Contract would otherwise have expired.
12.1 Niche shall only indemnify the Client under public liability where there is negligent action which is directly attributable to Niche. The extent of our Public Liability indemnity shall not exceed £5,000,000.
12.2 If there is an act, omission or negligent action on behalf of the Client where Niche are adversely impact with claims, liabilities, demands, proceedings, costs and expenses. Niche will reasonably seek remedy and restoration under the Clients indemnity.
13.1 Each party to this agreement will agree to make all reasonable endeavours to resolve any disputes by mediation before bringing a legal claim against the other.
13.2 In the case of a breach of any of the terms of this Contract by either Party that is capable of remedy, the non-breaching Party shall, without prejudice to its other rights and remedies under this Contract, issue notice of the breach and allow the Party in breach the opportunity to remedy such breach in the first instance via a remedial proposal put forward by the Party in breach (“Remedial Proposal”). This should take place before exercising any right to terminate this Contract. Such Remedial Proposal must be agreed with the non-breaching Party (such agreement not to be unreasonably withheld or delayed) and must be implemented by the Party in breach in accordance with the timescales referred to in the agreed Remedial Proposal. Once agreed, any changes to a Remedial Proposal must be approved by the Parties in writing.
13.3 Any failure by the Party in breach to put forward and agree a Remedial Proposal with the non-breaching Party in relation to the relevant default or breach within a period of ten (10) Business Days from written notification of the relevant default or breach from the non-breaching Party; shall be deemed, a material breach of this Agreement by the Party in breach not remedied in accordance with an agreed Remedial Proposal.
13.4 Either Party may terminate this Agreement forthwith by notice in writing to the other Party if such other Party: commits a material breach of any of the terms of this Agreement which is: not capable of remedy; or in the case of a breach capable of remedy, which is not remedied in accordance with a Remedial Proposal; or has been served with at least two (2) previous breach notices as a result of any material breaches which are capable of remedy within any twelve (12) month rolling period whether or not the Party in breach has remedied the breach in accordance with a Remedial Proposal. The twelve (12) months rolling period is the twelve (12) months immediately preceding the date of the third breach notice.
14.CONSEQUENCES OF EXPIRY OR EARLIER TERMINATION OF THIS CONTRACT
14.1Upon expiry or earlier termination of this Contract by mutual agreement (i.e. not because of a Breach), the Client agrees to pay NICHE for the Services which have been completed by NICHE in accordance with this Contract prior to expiry or earlier termination of this Contract. This will include time, materials and expenses and will may not be linked to any deliverable as part of the Services. In addition to this we reserve the right to charge an additional discretionary 10% of the overall cost of the Services.
14.2 Immediately following expiry or earlier termination of this Contract: NICHE shall comply with its obligations under any agreed exit plan; and all data which we are Processing and not Controlling, including without limitation Personal Data, documents and records (whether stored electronically or otherwise) relating in whole or in part to the Services. Niche shall be allowed to keep one copy of all information to allow us to satisfy our professional obligations.
14.3 NICHE shall retain securely all data relating to the provision of the Services that are not transferred. NICHE shall cooperate fully with the Client or, as the case may be, any replacement supplier during any re-procurement and handover period prior to and following the expiry or earlier termination of this Contract.
14.4 Immediately upon expiry or earlier termination of this Contract any license or lease entered into in accordance with the Key Provisions shall automatically terminate.
14.5 The expiry or earlier termination of this Contract for whatever reason shall not affect any rights or obligations of either Party which accrued prior to such expiry or earlier termination.
14.6 The expiry or earlier termination of this Contract shall not affect any obligations which expressly or by implication are intended to come into or continue in force on or after such expiry or earlier termination.
15.1 We have relationships with many clients and we take all reasonable steps to ensure that Conflicts are identified, managed or avoided prior to the commencement of any agreement. There are occasions where we may identify a Conflict of Interest after the project commencement date. If this happens we will take all reasonable steps to ensure that conflicts are managed. If we cannot continue to provide you with the Services because of an unavoidable conflict we may need to terminate this agreement. NICHE will disclose to The Client full particulars of any such conflict of interest which may arise.
15.2 If NICHE fails to disclose a Conflict of Interest to a CLIENT, The Client reserves the right to terminate this Contract immediately by notice in writing and/or to take such other steps it deems necessary where, in the reasonable opinion of The Client, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of NICHE and the duties owed to The Client under the provisions of this Contract. The actions of The Client pursuant to this Clause shall not prejudice or affect any right of action or remedy which shall have accrued or shall subsequently accrue to The Client.
15.3 NICHE shall take all reasonable steps to prevent Fraud by Staff and NICHE (including its owners, members and directors). NICHE shall notify The Client immediately if it has reason to suspect that any Fraud has occurred or is occurring or is likely to occur.
15.4 If NICHE or its Staff commits Fraud The Client may terminate this Contract and recover from NICHE the amount of any direct loss suffered by The Client resulting from the termination.
15.1The implementation of the General Data Protection Regulations (GDPR) have introduced a clearer distinction between the respective roles and responsibilities of Data Controllers, and Data Processors – and the need for formal signing of data processing agreements, and data privacy impact assessments, whenever personal data is to be transferred to a third-party organisation. NICHE will sometimes act in the capacity of Data Processor and at other Data Controller.
16.2 Confidentiality – Each Party to this agreement undertakes to keep information supplied and received secret and strictly confidential and shall not disclose any such Confidential Information to any third party without the Discloser’s prior written consent. The information Recipient shall not be prevented from using any general knowledge, experience or skills which were in its possession prior to the Commencement Date; the provisions of this agreement shall not apply to any Confidential Information which is in or enters the public domain other than by breach of this Contract and where the Recipient can demonstrate was in its possession without any obligation of confidentiality prior to receipt of the Confidential Information.
16.3 Nothing in this Contract shall prevent the Recipient from disclosing Confidential Information where it is required to do so by judicial, administrative, governmental or regulatory process. The Supplier can apply certain exemptions under the Freedom of Information Act 2000 (“FOIA”), and must put forward these in writing prior to any request for disclosure from the Client.
16.4 The Client may disclose the Supplier’s Confidential Information: on a confidential basis, to any Contracting Authority (the Parties agree that all Contracting Authorities receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other Contracting Authorities); to any relevant party for the purpose of the examination and certification of The Client’s accounts; to any relevant party for any examination pursuant to section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which The Client has used its resources; to Parliament and Parliamentary Committees or if required by any Parliamentary reporting requirements. For the purposes of this Contract, references to disclosure “on a confidential basis” shall mean The Client making clear the confidential nature of such information and that it must not be further disclosed except in accordance with Law.
16.5 NICHE may only disclose The Client’s Confidential Information, and any other information provided to NICHE by The Client in relation this Contract, to the Supplier’s Staff or professional advisors who are directly involved in the performance of or advising on the Supplier’s obligations under this Contract. NICHE shall ensure that such Staff or professional advisors are aware of and shall comply with the obligations in Clause 12 of this Contract and that all information, including Confidential Information, is held securely, protected against unauthorised use or loss and, at The Client’s written discretion, destroyed securely or returned to The Client when it is no longer required. NICHE shall not use any of The Client’s Confidential Information received otherwise than for the purposes of performing the Supplier’s obligations in this Contract.
16.6 NICHE shall, with the prior written consent of The Client (such consent not to be unreasonably withheld or delayed), may announce that it has been appointed as a Supplier to The Client for the purposes of marketing and describing their relevant client experience. NICHE may not, disclose any details about the client’s business or outcomes of the work unless this is done anonymously through a case study.
16.7 Clause 16.0 of this Schedule shall remain in force: without limit in time in respect of Confidential Information which comprises Personal Data, Sensitive Personal Data or which relates to national security; and for all other Confidential Information for a period of three (3) years after the expiry or earlier termination of this Contract unless otherwise agreed in writing by the Parties. This timescale may be extended under the relevant legislation or Framework Agreement.
17.1 The Parties acknowledge their respective duties under Data Protection Legislation and shall give each other all reasonable assistance as appropriate or necessary to enable each other to comply with those duties.
17.2 Where NICHE is Processing Personal Data under or in connection with this Contract, NICHE must, in particular, but without limitation: only Process such Personal Data as is necessary to perform its obligations under this Contract, and only in accordance with any instructions given by The Client under this Contract. Niche will put in place appropriate technical and organisational measures against any unauthorised or unlawful Processing of that Personal Data, and against the accidental loss or destruction of or damage to such Personal Data having regard to the specific requirements of this Contract. Niche will take reasonable steps to ensure the reliability of Staff who will have access to Personal Data, and ensure that those Staff are aware of and trained in the policies and procedures identified in Clause 12; and not cause or allow Personal Data to be transferred outside the European Economic Area without the prior consent of The Client.
17.3 NICHE and The Client shall ensure that Personal Data is safeguarded at all times in accordance with the Law, and this obligation will include (if transferred electronically) only transferring Personal Data (a) if essential, having regard to the purpose for which the transfer is conducted; and (b) that is encrypted in accordance with any international data encryption standards for healthcare, and as otherwise required by those standards applicable to The Client under any Law and Guidance (this includes, data transferred over wireless or wired networks, held on laptops, CDs, memory sticks and tapes).
17.4 Niche will provide to each client, where relevant under the terms of the engagement, a Data Sharing Agreement which will set out how data will be transferred, handled and stored.
17.5 Where, as a requirement of this Contract, NICHE is Processing Personal Data (to include, without limitation, Sensitive Personal Data) relating to patients and/or service users as part of the Services, NICHE shall: complete and publish an annual information governance assessment using the relevant information governance toolkit; achieve a minimum level 2 performance against all requirements in the relevant information governance toolkit.
17.6 Where any Personal Data is Processed by any subcontractor of NICHE in connection with this Contract, NICHE shall procure that such subcontractor shall comply with the relevant obligations set out in Clause 16. of this Schedule, as if such subcontractor were the Supplier.
17.7 NICHE shall indemnify and keep The Client indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings whatsoever or howsoever arising from the Supplier’s unlawful or unauthorised Processing, destruction and/or damage to Personal Data in connection with this Contract.
18.1 Without limitation to any other information governance requirements set out in this Schedule 3, NICHE shall: notify The Client forthwith of any information security breaches or near misses (including without limitation any potential or actual breaches of confidentiality or actual information security breaches) in line with The Client’s information governance Policies; and fully cooperate with any audits or investigations relating to information security and any privacy impact assessments undertaken by The Client and shall provide full information as may be reasonably requested by The Client in relation to such audits, investigations and assessments.
18.2 Where required in accordance with the Specification and Tender Response Document, NICHE will ensure that it puts in place and maintains an information security management plan appropriate to the Services and the obligations placed on NICHE under this Contract. NICHE shall ensure that such plan is consistent with any relevant Policies, Guidance, Good Industry Practice and with any relevant quality standards as may be set out in the Key Provisions and/or the Specification and Tender Response Document.
18.3 Where required in accordance with the Specification and Tender Response Document, NICHE shall obtain and maintain certification under the HM Government Cyber Essentials Scheme or equivalent at the level set out in the Specification and Tender Response Document.
The Supplier shall ensure that at all times is has in place a documented Business Continuity and Disaster Recovery Plan which addresses all relevant issues relating to business continuity and disaster recovery and ensures the continued performance of the Services to the same standard, functionality and operational resilience.