Terms of Business
Smile Locum LTD Company
# 7108588
1. INTERPRETATION
1.1. In these terms of business ("the Terms") the following expressions shall be given the following meanings:-
"Assignment" means the period during which a Nurse performs services or carries out work for or on behalf of the Practice or agreed between the Practice and the Company, commencing at the time the Nurse first reports to the Practice to take up duties (or, if earlier, the commencement by the Nurse of such work or services) and ending upon the cessation by the Nurse of all such work and services;
"the Company" the Company means Smile Locum Agency Limited, company number 7108588 whose registered office is at Towers Point,Towers Business Park, Wheelhouse Road, Rugeley, Staffordshire, England, WS15 1UN;
"Month" means a calendar month;
"Nurse" means any person who is introduced or supplied by the Company to the Practice with a view to carrying out work for the Practice;
"the Practice" the Practice means any person, firm or corporation who approaches the Company with a view to placing an order with the Company for the introduction or supply of a Nurse;
"Week" means 7 consecutive days.
1.2. In these Terms words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and vice versa.
1.3. All and any business undertaken by the Company is transacted subject to these Terms, all of which shall be incorporated in any agreement between the Company and the Practice. In the event of any conflict between these Terms and any other terms and conditions, these Terms shall prevail unless expressly otherwise agreed in writing by a director or other authorised officer of the Company. No variation in these Terms shall be valid if made without the written consent of a director or other authorised officer of the Company.
1.4. The interviewing by or on behalf of the Practice or the acceptance by or on behalf of the Practice or the commencement of work (whichever first occurs) of any Nurse shall be deemed acceptance of and agreement to these Terms.
1.5. The complete or partial invalidity or unenforceability of any provision in these Terms for any purpose shall in no way affect the validity or enforceability of such a provision for any other purpose or the remaining provisions. Any such provisions shall be deemed to be severed for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.
1.6. These Terms supersede all other previous terms of business.
2. OBLIGATIONS OF THE COMPANY
2.1. The Company will use reasonable endeavours to introduce to the Practice a suitable Nurse to carry out work for the Practice of such nature as the Practice shall notify to the Company when placing its order for a Nurse. The Practice accepts that no warranty as to the suitability of the Nurse can be given by the Company.
2.2. Subject to clause 4.1 the Company will pay each Nurse the fees or hourly charge and other payment and reimbursement of disbursements to which he is entitled by reason of carrying out work for the Practice.
2.3. In cases where the Company is acting as principal, it will:
2.3.1. make deductions and account to H M Revenue & Customs for PAYE income tax in respect of the remuneration of each Nurse; and
2.3.2. make deductions and account for all necessary national insurance contributions relevant to the remuneration of each Nurse.
3. OBLIGATIONS OF THE PRACTICE
3.1. The Practice shall specify its exact requirements by providing full details of the work for which the Nurse is required and, in particular, by notifying the Company of any special skills required for such work when placing its order.
3.2. The Practice shall not allow any Nurse to undertake any work other than that which has been notified by the Practice in accordance with clause 3.1 to the Company in placing its order for such Nurse.
3.3. The Practice shall verify at the time that the Nurse begins to render services for or on behalf of the Practice that the Nurse is suitable for the purposes for which he is required and that he has the capability to carry out the duties required, including the operation of any machinery. The Practice shall be responsible for obtaining any work and other permits and for ensuring that the Nurse satisfies any medical requirements or other qualifications that may be appropriate or required by law.
3.4. The Practice hereby undertakes to comply with all obligations, duties and regulations (whether statutory or otherwise and without prejudice to the generality of the foregoing those relating to the place, nature or system of work) in any way arising from or directly or indirectly connected with the services rendered by a Nurse.
3.5. The Practice undertakes to exercise all supervision, direction and control over the manner, time and place in which each Nurse carries out their work for the Practice throughout the duration of the Assignment (notwithstanding that where the Company is acting as contractor, the Nurse is not in fact the Practice's employee).
3.6. The Practice undertakes that in the event of the Practice engaging (whether for a definite or indefinite period) any Nurse or effectively introducing (directly or indirectly) any Nurse introduced or supplied to the Practice by the Company to another person, firm or corporation, including any subsidiary, associated or holding company of the Practice, resulting in full or part-time employment ("Engagement") by the Practice or by that person, firm or corporation (which the Practice shall immediately notify to the Company) the Practice shall pay to the Company an introduction fee if the Engagement occurs within [8 weeks] of the date on which services were last provided to the Practice by the Nurse. The introduction fee shall be calculated in accordance with the Company's fees for permanent introductions in force from time to time on which VAT shall be paid in addition at the prevailing rate.
4. TIME SHEETS
4.1. The Nurse shall be paid under the terms of clause 5 as appropriate by the Company.
4.2. In order to facilitate payment, the Nurse shall provide to the Company a time sheet signed by the Practice which shall be deemed conclusive evidence:
4.2.1. that the Practice is satisfied with the work carried out by the Nurse;
4.2.2. that the Practice agrees to and accepts these Terms; and
4.2.3. that the Practice will pay the charges in accordance with clause 5 of these Terms in full and without dispute or deduction.
4.3. The failure by the Practice to sign any time sheet shall not however preclude the Company charging the Practice in full for all time actually worked by any Nurse in accordance with these Terms.
5. FEES
5.1. The Practice shall pay to the Company for the supply of a Nurse the hourly charge in respect of each Nurse notified to the Practice at the time of booking [together with the amount of any national insurance contributions required to be paid by the Company and such travel and other expenses as may be agreed between the Nurse and the Company.] VAT shall be paid in addition at the prevailing rate where and to the extent applicable.
5.2. All moneys due under these Terms shall be paid by the Practice within 7 days of the date of invoice by the Company. Any breach of this clause 5.2 shall entitle the Company to terminate without prior notice each and every Assignment concluded under these Terms between the Company and the Practice.
5.3. The Company reserves the right to charge the Practice interest in respect of any amount outstanding after the period of payment set out in clause 5.2 (both before and after judgment) from the date of invoice up to and including the day of payment at the rate of [4%] a year above the base rate from time to time of [ ] Bank Plc.
6. UNSATISFACTORY NURSE PROCEDURE
6.1. If the Practice, acting reasonably, decides that a Nurse is unsatisfactory to do the work required by the Practice (subject at all times to the Practice complying with its obligations set out in clauses 3.1 to 3.6) (an "Unsuitable Nurse"), then the Practice shall notify the Company in writing of that fact giving the full grounds for its dissatisfaction with the Unsuitable Nurse (a "Dissatisfaction Notice").
6.2. Within 5 working days of receipt by the Company a Dissatisfaction Notice, the Company shall either:-
6.2.1. provide a suitable replacement for the Unsuitable Nurse, in which case clause 5 shall continue to apply without interruption;
6.2.2. if no such suitable replacement is available, inform the Practice in writing of that fact, in which case clause 5 shall cease to apply in respect of the Unsuitable Nurse with effect from the date on which the Company receives the Dissatisfaction Notice; or
6.2.3. if the Company disagrees with the grounds as set out in the Dissatisfaction Notice, inform the Practice, in which case the Assignment shall be terminated.
6.3. The Practice shall give the Company such co-operation as the Company may reasonably request (including but not limited to the production of relevant documents and the attendance of witnesses) at the Practice's expense in any internal disciplinary proceedings, employment tribunal proceedings or other legal proceedings in relation to any Unsuitable Nurse's performance of conduct.
7. LIABILITY AND INDEMNITY
7.1. Neither the Company nor any of its staff shall be liable to the Practice for any loss, injury, damage, expense or delay incurred or suffered by the Practice arising directly or indirectly from or in any way connected with the introduction or supply of a Nurse to the Practice or with any failure by the Company to introduce or supply a Nurse for all or part of the period booked (save that in the latter case the Practice may be entitled to a reduction or cancellation of the charge payable under clause 5 in accordance with clause 6) and, in particular, but without limitation to the foregoing, any such loss, injury, damage, expense or delay arising from or in any way connected with:-
7.1.1. failure of the Nurse to meet the requirements of the Practice for all or any of the purposes for which he is required by the Practice (subject to clause 6);
7.1.2. any act or omission of a Nurse, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;
7.1.3. any loss, injury, damage, expense or delay incurred or suffered by a Nurse;
7.1.4. any claim by or on behalf of any individual that there existed during the term of these terms a contract of employment between the Practice and such Nurse; or
7.1.5. any income tax, national insurance contributions, interest and/or penalties thereon arising in respect of the Nurse for which the Practice may be called upon to account to H M Revenue & Customs and the disallowance of any VAT charged in respect of the services as allowable input tax for the Practice;
PROVIDED THAT nothing in this clause 7 shall be construed as purporting to exclude or restrict any liability of the Company to the Practice for personal injury or death resulting from negligence (as defined in the Unfair Contract Terms Act 1977) nor any statutory liability or exclusion or limitation which is prohibited by law.
7.2. In consideration of the Company entering into an agreement with the Practice into which these Terms are incorporated, the Practice hereby undertakes to indemnify the Company in respect of any and all liability of the Company for:-
7.2.1. any loss, injury, expense or delay suffered or incurred by a Nurse, howsoever caused;
7.2.2. any loss, injury, damage, expense or delay suffered or incurred by anyone arising directly or indirectly from or in any way connected with the acts and omissions of a Nurse, whether wilful, reckless, fraudulent, negligent, dishonest or otherwise; and
7.2.3. any loss, injury or delay suffered or incurred by the Company as a result of any act or omission of the Practice;
PROVIDED THAT this indemnity is given only in respect of any such loss, injury, damage, expense or delay caused during or arising directly out of or in any way connected with the relevant Assignment.
7.3. The Practice acknowledges that the limitations and exclusions of the obligations and liabilities of the Company set out in these Terms are reasonable and reflected in the charges payable to the company under these Terms and shall accept risk and/or insure accordingly.
8. MISCELLANEOUS
8.1. The Company reserves the right to review and to revise these Terms without prior notice.
8.2. These Terms shall be governed by and construed in accordance with the laws of England and Wales.