Terms & Conditions
THE WAY FORWARD FOR NEW AND EXISTING CARE SERVICES
TERMS & CONDITIONS
This Contract is between Contesto Ltd (Company Number 12402416) (“Service Provider”) and the Customer named on the Proposal which forms a part of the Terms and Conditions. The Contract is non transferrable and not assignable by the Customer without the Service Provider’s written consent.
1 Interpretation and Definitions
1.1 In this Contract and the Proposal unless the context otherwise requires, the following expressions shall have the following meanings:-
“Additional Services” means additional services as agreed in writing in a Change Order between the Service Provider and Customer and signed by the Authorised Representative;
“Authorised Representative” the individual nominated from time to time as having authority to make changes to this Contract (including without limitation services and charges;
“Account Manager” the individual nominated from time to time by the Service Provider to have day to day contact with the Customer about the delivery of the Services.
“Change Order” means a document setting out the changes to the Services or other terms of this Contract signed by the Authorised Representatives;
“CQC” means the Care Quality Commission or any successor body;
“DBS” means Disclosure and Baring Service;
“Charges” means the fees and charges at the rates set out in the Proposal together with charges for Additional Services as may be agreed;
“Contract” these terms and conditions together with the Proposal as between the Service Provider and the Customer;
“Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426);
“Data Controller, Data Processor, Data Subject, Personal Data, Special Categories of Personal Data and Processing” shall have the meanings given to them in the Data Protection Legislation;
“Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, nuclear, chemical or biological contamination, any action taken by a government or public authority, including imposing a licence or consent, collapse of buildings, fire or explosion;
“Industry Practice” means the degree of skill, diligence, prudence and foresight which would reasonably be expected from a provider of services of the nature of the Services;
“Initial Period” means the period of 12 months from the Commencement Date during which the Customer may not terminate this agreement under clause 11 (Termination)
“Notice” means notice given in writing to the email address for the Authorised Representative set out in this Contract;
“Office Hours” Between 9am – 5pm Monday – Friday inclusive excluding bank holidays in England;
“On Call Service” the Out of Hours service set out under the heading “What we Provide” in the Proposal (together with any Additional Services);
“Out of Hours” means Monday to Thursday from 17.00 to 09.00 and from Friday 17.00 until the following Monday at 09.00 together with Bank Holidays where we operate 24 hours a day;
“Privacy Notice” means a statement (whether publicly available or issued individually) informing Data Subjects what processing the relevant Data Controller will undertake with their Personal Data including Special Category Data and on what legal basis;
“Proposal” the proposal for the Services of which these terms and conditions forms a part, save that the section in the Proposal under the heading About Contesto Ltd is a statement of intentions only and does not form part of the Contract;
“Regulated Activities” means the activities which are subject to regulation, and registration with the CQC under The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014;
“Relevant Period” means the 12 months prior to the incident giving rise to the claim for loss or damage save that where the incident occurs less than 12 months after the Commencement Date the relevant period shall be the period from the Commencement Date to the date of the incident;
“Representatives” means individual, agents, subcontractors, consultants or employees engaged by either party and acting on its behalf in connection with the Contract;
“Services” the services set out in the Proposal, being the Out of Hours On Call Service together with any Additional Services agreed in writing;
“Services Commencement Date” means the agreed first date on which the Services will be provided;
“Service Users” means the residents or other users of the Customer’s CQC registered premises or services; and
“Support Centre Officers” means the Representatives of the Service Provider providing the Services;
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
1.2 All references to statute and other legislation in this Contract shall be construed as references to that statute or other legislation as amended, modified, substituted or re-enacted from time to time.
1.3 All references to "this Contract" are to be construed as referring to the terms and conditions set out in this Agreement as the same may be amended, varied, supplemented or substituted from time to time in writing.
1.4 All sums shown in this Contract are, unless otherwise indicated, exclusive of VAT.
2 Contract Term
2.1 The Contract shall commence on the date when it has been signed by all the parties and shall continue unless terminated in accordance with clause 11 (Termination).
2.2 The Initial Term shall be 12 months from the Services Commencement Date.
2.3 Unless the Customer gives 2 months’ notice prior to the expiry of the Contract that it does not wish this Contract to renew for a further term, then the Contract shall be extended for a further term of 12 months.
3 Service Provider Responsibilities
3.1 From the Services Commencement Date the Service Provide shall provide the Services to the Customer in accordance with the Contract and Industry Practice.
3.2 The Service Provider shall ensure that the Support Centre Officers are reasonably trained and skilled to perform the Services.
3.3 If the Service Provider's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer its Representatives, then, without prejudice to any other right or remedy it may have, the Service Provider shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
3.4 The Service Provider shall not undertake any of the activities listed under “What we don’t” in the Proposal.
3.4.1 The Customer confirms that they understand that the Service Provider is an advisory service only, and that it is not a CQC registered provider of Regulated Activities. This
means that the Service Provider is unable to give individual medical advice or recommend prescriptions or treatments for individual Service Users of the Customer.
4 Customer Responsibilities
4.1 The Customer shall:
4.2 co-operate with the Service Provider in all matters relating to the Services;
4.3 provide to the Service Provider in a timely manner all documents and other information reasonably required by the Service Provider to Provide the Services;
4.4 permit the Service Provider access to your computer systems as required for the delivery of the Services.
4.5 make the payments in accordance with clause 5.
5 Payments
5.1 The Customer shall pay any onboarding charge, annual charge and the first month’s subscription charge as set out in the Proposal prior to the Services Commencement Date.
5.2 Invoices for monthly subscriptions based on either 1) the number of carers employed by the Customer as set out in the Proposal or 2) The subscription level agreed (including contracted additional talk time bundles as agreed) will be issued and payable monthly in advance. All invoices must be paid within 14 days of issue and/or prior to the delivery of the next months’ Services if sooner.
5.3 Payment shall be made into an account designated by the Service Provider.
5.4 Payment shall be made without reservation, setoff or withholding by the Customer.
5.5 The Service Provider may increase the Charges on an annual basis with effect from or after each anniversary of the date of this agreement.
5.6 The Service Provider shall give 1 months’ Notice of any increases to the Charges to the Authorised Representative. The Charges shall take effect from the calendar month after the notice is given, unless the Customer gives notice terminating the Contract in which case the existing Charges will apply until the Contract is terminated.
6 Changes to Contract Services
6.1 Either party may propose changes to the terms of this Contract but no changes other than as provided for under this agreement shall come into effect until a Change Order has been signed.
7 Force Majeure
7.1 If the Service Provider is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event it shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
8 Non-Solicitation
8.1 The Customer shall not, without the prior written consent of the Service Provider, at any time from the Service Commencement Date to the expiry of 6 months after the termination of this Contract, solicit or entice away from the Service Provider or employ or attempt to employ any person who is, or has been, engaged as an employee of the Service Provider in the provision of the Services.
9 Confidentiality
9.1 The Customer and Service Provider agree to keep confidential all information relating to the other’s business and commercial affairs obtained in the course of implementing this agreement, and to not disclose such information to any person, firm or company other than those staff members to whom it is necessary for the purposes of implementing this Contract (on the basis that such staff members have been made aware of these confidentiality obligations). These obligations shall not apply to any such information required by law to be disclosed or obtained without breach of any confidentiality obligations.
10 Data Protection
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
10.2 The parties have determined that the Service Provider is a Data Controller within the meaning of the Data Protection Legislation as whilst it will undertake the activities for the benefit of the Customer, it will in carrying out the activities determine how best to process the Personal Data to deliver the Services.
10.3 Processing of limited amounts of Service User Personal Data is necessary for the performance of this contract, and in the legitimate interests of both Customer and Service Provider to enable the Customer to deliver the Services to the Service Users. The processing of special categories of data is necessary for the provision of health treatment by the health professionals who have duties who have professional duties of confidentiality.
10.4 The Customer will ensure that it has all necessary appropriate authority to enable lawful access to Service User Personal Data necessary for the Service Provider to provide the Services by informing the Service Users (or their appropriate representatives, whether through Privacy Notices or otherwise).
10.5 The Service Provider will notify the Customer without undue delay on becoming aware of a Personal Data breach involving the Service User Personal Data.
10.6 The Service Provider shall ensure that it has in place appropriate technical and organizational measures, to protect against unauthorized or unlawful processing of personal data, against accidental loss or damage to personal data, appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
10.7 The Service Provider shall not transfer the Service User Personal Data outside of the UK or EEA without the Customer’s consent.
10.8 The Service Provider shall use data minimisation and data protection by design in delivering the Services. Only Service User Personal Data which is necessary for the specific purposes of the processing are processed.
10.9 The scope, nature, type and purpose of processing personal data by the Service Provider incudes:
10.10 Details of the Customer’s Representatives to identify who may make use of the Service;
10.11 Details of the Customer’s employees and staff to carry out the Service;
10.12 Details (only so far as needed to provide the Services) of Service Users where strictly necessary to provide the service.
10.13 On termination of the Contract the Service Provider shall only retain such Personal Data as received in the course of the Contract as necessary for regulatory, insurance or legal purposes. Call recordings shall only be kept for 30 days.
10.14 The Service Provider shall not use the Personal Data received otherwise than in the course of the delivery of the delivery or the Services or related legal, regulatory or insurance purposes.
11 Termination
11.1 The Service Provider may either suspend or terminate this Contract immediately by giving Notice if any invoices are not paid by their due date.
11.2 The Service Provider may terminate this contract on 3 months’ notice to the Customer.
11.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written Notice to the other party if:
11.4 the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of five (5) days after being notified in writing to do so;
11.5 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
11.6 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
11.7 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement (including payment) is in jeopardy (including any insolvency event).
12 Consequences of Termination
12.1 On termination or expiry of this Contract the Customer shall immediately pay to the Service Provider all of the Service Provider's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Service Provider may submit an invoice, which shall be payable immediately on receipt.
12.2 If the Service Provider terminates under clause 11.2 it shall provide a pro-rata return of the annual subscription charge for the period of any year in which the services shall not be provided. No refund shall be made of the onboarding charge or any monthly subscription charges.
13 Limitation of Liability
13.1 References to liability in this include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.3 Nothing in this this clause shall limit the Customer's payment obligations under this Contract.
13.4 Nothing in this agreement limits any liability which cannot legally be limited for:
13.4.1 death or personal injury caused by negligence; or
13.4.2 fraud or fraudulent misrepresentation.
13.5 Subject to clauses 13.2, 13.4 and 13.5.1 the Service Provider's total liability to the Customer for any damage or loss (including legal or other professional costs) caused to the Customer through the negligence, breach of contract or other actionable fault of the Service Provider and/or its employees and directors, including the Representatives, Account Manager, Authorised Representative and/or Support Centre Officers in connection with this agreement shall not exceed 120% of the amount paid during the Relevant Period under this Contract by the Customer at the time of the incident giving rise to the liability in respect of any one event or series of connected events;
13.5.1 Subject to clause clauses 13.2 and 13.4 the following the types of losses are excluded from the Service Provider’s liability: loss of Customer employee time, loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
14 Notice
14.1.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be sent by email to the address specified for the Authorised Representative.
14.1.2 Any Notice or communication shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. Business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
14.1.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15 Entire Agreement
15.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
16 No Partnership
16.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17 Contracts (Rights of Third Parties) Act
The parties do not intend to confer rights on any person who is not a party to the this Contract to enforce any term of this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999 except for clause 13.5 whose limitation of liability may be relied on an enforced by Service Provider and/or its employees and directors, including the Representatives, Account Manager, Authorised Representative and/or Support Centre Officers in respect of claims brought by the Customer.
18 Governing law and Jurisdiction
18.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.