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Terms and Conditions for the Provision of Niche Consultancy Services
0.0 This Contract is made on the date set out above subject to the terms set out in the schedules listed below (“Schedules”). The CLIENT and NICHE (“the Supplier”) undertake to comply with the provisions of the Schedules in the performance of this Contract.
NICHE shall supply to the CLIENT, and the CLIENT shall receive and pay for, the Services on the terms of this Contract herewith.
This Contract shall commence on the Commencement Date and the Term of this Contract shall expire 1 year from the Actual Services Commencement Date. The Term may be extended provided that a change of scope order is provided and that the duration of this Contract shall be no longer than 7 years in total.
2.SERVICES COMMENCEMENT DATE
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.
3.QUALITY ASSURANCE STANDARDS
The following quality assurance standards shall apply, as appropriate, to the provision of the Services: ISO:9001
4.INCLUSION OF A CHANGE CONTROL PROCESS
Any change to the Services or other variation to this Contract shall only be binding once it has been agreed either: (a) in accordance with the Change Control Process if the Key Provisions specify that changes are subject to a formal change control process; or (b) if the Key Provisions make no such reference, in writing and signed by an authorised representative of both Parties.
5. PURCHASE ORDERS
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.
6.MONTHLY PAYMENT PROFILE
The payment profile for this Contract shall be as stated in the Engagement Letter.
7.PRICE AND PAYMENT
The Contract Price shall be calculated as set out in the Engagement Letter. Unless otherwise stated and agreed in the Engagement letter 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 and includes, without limitation, any royalties, licence fees, supplies and all consumables used by NICHE and travel costs and accommodation expenses.
7.1 Unless stated otherwise in the Engagement Letter: where the Key Provisions confirm that the payment profile for this Contract is monthly in arrears, NICHE shall invoice the CLIENT, within fourteen (14) days of the end of each calendar month, the Contract Price in respect of 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.
7.2 Each invoice shall contain such information and be addressed to such individual as the CLIENT may inform NICHE from time to time.
7.3 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.
7.4 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.
7.5 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.
7.6 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 fill payment is received.
8.TERMINATION OF CONTRACT
The CLIENT may terminate this Contract forthwith in writing to NICHE. Should the CLIENT terminate this Contract within 1 month of the 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.
9.TERM AND TERMINATION
9.1 This 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.
9.2 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, provided that the duration of this Contract shall be no longer than the total term specified in the Key Provisions.
9.3 In the case of a breach of any of the terms of this Contract by either Party that is capable of remedy (including, without limitation any breach of any KPI and any failure to pay any sums due under this Contract), 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”) before exercising any right to terminate this Contract in accordance with Clause 0of this. 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.
9.4 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 (or such other period as the non-breaching Party may agree in writing) from written notification of the relevant default or breach from the non-breaching Party; comply with such Remedial Proposal (including, without limitation, as to its timescales for implementation, which shall be thirty (30) days unless otherwise agreed between the Parties); and/or remedy the default or breach notwithstanding the implementation of such Remedial Proposal in accordance with the agreed timescales for implementation, shall be deemed, for the purposes of Clause 0 of this, a material breach of this Contract by the Party in breach not remedied in accordance with an agreed Remedial Proposal.
9.5 Either Party may terminate this Contract forthwith by notice in writing to the other Party if such other Party: commits a material breach of any of the terms of this Contract 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.
10.CONSEQUENCES OF EXPIRY OR EARLIER TERMINATION OF THIS CONTRACT
10.1Upon expiry or earlier termination of this Contract, 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.
10.2 Immediately following expiry or earlier termination of this Contract: NICHE shall comply with its obligations under any agreed exit plan; and all data, including without limitation Personal Data, documents and records (whether stored electronically or otherwise) relating in whole or in part to the Services, including without limitation relating to patients or other service users, and all other items provided on loan or otherwise to NICHE by The Client shall be delivered by NICHE to The Client provided that NICHE shall be entitled to keep copies to the extent that: (a) the content does not relate solely to the Services; (b) NICHE is required by Law and/or Guidance to keep copies; or (c) NICHE was in possession of such data, documents and records prior to the Commencement Date.
10.3 NICHE shall retain all data relating to the provision of the Services that are not transferred pursuant to 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. This cooperation shall extend to providing access to all information relevant to the operation of this Contract, as reasonably required by The Client to achieve a fair and transparent re-procurement and/or an effective transition without disruption to routine operational requirements.
10.4 Immediately upon expiry or earlier termination of this Contract any license or lease entered into in accordance with the Key Provisions shall automatically terminate
10.5 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.
10.6 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.
11.CONFLICTS OF INTEREST AND THE PREVENTION OF FRAUD
11.1 NICHE shall take appropriate steps to ensure that neither NICHE nor any Staff are placed in a position 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. NICHE will disclose to The Client full particulars of any such conflict of interest which may arise.
11.2 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.
11.3 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.
11.4 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.
12.INFORMATION GOVERNANCE PROVISIONS
In respect of any Confidential Information it may receive directly or indirectly from the other Party (“Discloser”) and subject always to the remainder of Clause 0 of this Schedule 3, each Party (“Recipient”) undertakes to keep secret and strictly confidential and shall not disclose any such Confidential Information to any third party without the Discloser’s prior written consent provided that: the 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 Clause 0 of this Schedule 3 shall not apply to any Confidential Information: which is in or enters the public domain other than by breach of this Contract or other act or omissions of the Recipient; which is obtained from a third party who is lawfully authorised to disclose such information without any obligation of confidentiality; which is authorised for disclosure by the prior written consent of the Discloser; which the Recipient can demonstrate was in its possession without any obligation of confidentiality prior to receipt of the Confidential Information from the Discloser; or which the Recipient is required to disclose purely to the extent to comply with the requirements of any relevant stock exchange.
12.2 Nothing in Clause 0 of this Schedule 3 shall prevent the Recipient from disclosing Confidential Information where it is required to do so by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by applicable Law, including the Freedom of Information Act 2000 (“FOIA”), Codes of Practice on Access to Government Information, on the Discharge of Public Authorities’ Functions or on the Management of Records (“Codes of Practice”) or the Environmental Information Regulations 2004 (“Environmental Regulations”).
12.3 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 on the basis that the information is confidential and is not to be disclosed to a third party which is not part of any Contracting Authority); 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; or on a confidential basis to a proposed successor body in connection with any proposed or actual, assignment, novation or other disposal of rights, obligations, liabilities or property in connection with this Contract; and 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.
12.4 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 0 of this Schedule 3 as to confidentiality 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, and shall ensure that the Staff do not, use any of The Client’s Confidential Information received otherwise than for the purposes of performing the Supplier’s obligations in this Contract.
12.5 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.
12.6 Clause 12.0 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.
13.1 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.
13.2 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; 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 Clause 0 of this Schedule 3, the state of technical development and the level of harm that may be suffered by a Data Subject whose Personal Data is affected by unauthorised or unlawful Processing or by its loss, damage or destruction; 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 0 of this Schedule 3; and not cause or allow Personal Data to be transferred outside the European Economic Area without the prior consent of The Client.
13.3 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).
13.4 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; will receive regular reports on information governance matters including, but not limited to, details of all incidents of data loss and breach of confidence; report all incidents of data loss and breach of confidence; put in place and maintain policies that describe individual personal responsibilities for handling Personal Data and apply those policies vigorously; put in place and maintain a policy that supports its obligations under the NHS Care Records Guarantee (being the rules which govern information held in the NHS Care Records Service, which is the electronic patient/service user record management service providing authorised healthcare professionals access to a patient’s integrated electronic care record); put in place and maintain agreed protocols for the lawful sharing of Personal Data with other NHS organisations and (as appropriate) with non-NHS organisations in circumstances in which sharing of that data is required under this Contract; and where appropriate, have a system in place and a policy for the recording of any telephone calls in relation to the Services, including the retention and disposal of those recordings.
13.5 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 12.1 of this Schedule, as if such subcontractor were the Supplier.
13.6 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.
14.FREEDOM OF INFORMATION AND TRANSPARENCY
14.1 The Parties acknowledge the duties of Contracting Authorities under the FOIA, Codes of Practice and Environmental Regulations and shall give each other all reasonable assistance as appropriate or necessary to enable compliance with those duties.
14.2 NICHE shall assist and cooperate with The Client to enable it to comply with its disclosure obligations under the FOIA, Codes of Practice and Environmental Regulations. NICHE agrees: that this Contract and any recorded information held by NICHE on The Client’s behalf for the purposes of this Contract are subject to the obligations and commitments of The Client under the FOIA, Codes of Practice and Environmental Regulations; that the decision on whether any exemption to the general obligations of public access to information applies to any request for information received under the FOIA, Codes of Practice and Environmental Regulations is a decision solely for The Client; that where NICHE receives a request for information under the FOIA, Codes of Practice and Environmental Regulations and NICHE itself is subject to the FOIA, Codes of Practice and Environmental Regulations it will liaise with The Client as to the contents of any response before a response to a request is issued and will promptly (and in any event within two (2) Business Days) provide a copy of the request and any response to The Client; that where NICHE receives a request for information under the FOIA, Codes of Practice and Environmental Regulations and NICHE is not itself subject to the FOIA, Codes of Practice and Environmental Regulations, it will not respond to that request (unless directed to do so by The Client) and will promptly (and in any event within two (2) Business Days) transfer the request to The Client; that The Client, acting in accordance with the Codes of Practice issued and revised from time to time under both section 45 of FOIA, and regulation 16 of the Environmental Regulations, may disclose information concerning NICHE and this Contract; and to assist The Client in responding to a request for information, by processing information or environmental information (as the same are defined in FOIA and the Environmental Regulations) in accordance with a records management system that complies with all applicable records management recommendations and codes of conduct issued under section 46 of FOIA, and providing copies of all information requested by The Client within five (5) Business Days of that request and without charge.
14.3 The Parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the FOIA, Codes of Practice and Environmental Regulations, the content of this Contract is not Confidential Information.
14.5 Notwithstanding any other term of this Contract, NICHE consents to the publication of this Contract in its entirety (including variations), subject only to the redaction of information that is exempt from disclosure in accordance with the provisions of the FOIA, Codes of Practice and Environmental Regulations.
14.6 In preparing a copy of this Contract for publication under Clause 0 of this Schedule 3, The Client may consult with NICHE to inform decision making regarding any redactions but the final decision in relation to the redaction of information will be at The Client’s absolute discretion. NICHE shall assist and cooperate with The Client to enable The Client to publish this Contract
14.7 Where any information is held 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 3 of this Schedule 3, as if such subcontractor were the Supplier.
15.1 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.
15.2 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.
15.3 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.