1. DEFINITIONS
1.1 In these Conditions the following words shall have the following meanings:
Agreement: The agreement between Company and the Client incorporating these Terms and Conditions as amended from time to time.
Assignment: The placement of a Locum in a Vacancy to perform certain services.
Assignment Terms: Template terms and conditions supplied by Company for a client to use to govern the relationship between it and a Locum.
Commission: The percentage of the Locum Fees payable to the Company as specified in Oculist’s standard price list or such other sums agreed by Oculist.
Engage: The employment or engagement of a Locum for any period directly by an Opticians or indirectly through any employment business other than through the Company (whether for a definite or indefinite period) by the Client as a direct result of any Introduction or Assignment to the Client and the terms Engaged or Engagement shall be construed accordingly.
Engagement Fee: Shall be (1) in the case of a Locum who is Engaged on a permanent contract 15% of the Locum’s contractual annual remuneration whether paid as salary or otherwise and whether or not that remuneration is actually paid to the Locum or (2) in the case of a Locum who is Engaged as a Locum the Commission that would have been paid on the standard price list in place at the date of the Engagement or such other sums agreed by Oculist.
Introduce: The introduction via the Website of a Client and a Locum in relation to a Vacancy and Introduction and Introduce shall be construed accordingly.
Introduction Criteria: The criteria used by the Company in order to determine whether to make Introductions of Locums to Clients.
Legal Costs: The legal and any other costs and/or expenses incurred by the Company in preparing legal proceedings for issue, issuing legal proceedings, pursuing any such claim to trial or earlier resolution and taking all reasonable steps to enforce its rights against the Client for payment of Commission and/or the Engagement Fee and/or Liquidated Damages.
Liquidated Damages: The sum of £2,500,. The parties agree that this sum represents a genuine pre-estimate of the company’s losses in making enquires about the Engagement and taking any steps required to recover the Engagement Fee prior to the preparation of legal proceedings for issue.
Locum: An individual worker Introduced by the Company to the Client to work temporarily for and under the supervision and direction of the Client.
Locum Fees: The fees payable to the Locum for an Assignment.
Member Profile: The profile of information required by Registered Users on registration to the Website.
BLACKSQUARE SOLUTIONS LIMITED Kingfisher House No. 11 Hoffmanns Way Chelmsford Essex CM1 1GU, Company No. 08564395
Client: The Company/ individual or business and/or any subsidiaries or associates which has registered with the Website and is using the Services.
Registered User: Means an Opticians or a Locum who has registered with the Website.
Services: The provision of an online service that brings together Clients and Locums looking for work.
User ID: Means the username and password allocated to a Registered User granting access to the Website Services and identifying such Registered User.
Bookings/ Placements: The vacant positions as the Client posts on the Website from time to time in accordance with the Agreement.
Booking/ Placement Criteria: The information required from the Client in relation to a Booking/ Vacancy in order to be able to post that Vacancy on the Website.
Timesheet: Confirmation from the client of assignments completed by the Locums introduced by Oculist.
Warning Letter: The letter sent by Company to the Client requesting full details of all the Locums Engaged by the Client and a full breakdown of all hours such Locums have worked.
Website: Means the online website for providing Introductions currently hosted at www.Oculist.co.uk
1.2 In these Conditions, the following rules apply:
1.2.1 Condition, schedule and paragraph headings shall not affect the interpretation of the Agreement.
1.2.2 The schedule(s) form part of the Agreement and shall have effect as if set out in full in the body of the Agreement and any reference to these Conditions includes the schedule(s).
1.2.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.2.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.2.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.2.6 A reference to writing or written includes faxes and e-mail.
1.2.7 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Obligations
2.1 These Conditions set out the agreement between Company and the Client for the provision of the Introductions by Company via the Website.
2.2 The Website allows the Client to post Vacancies on the Website in accordance with the Placement Criteria and for Oculist to make Introductions of Locums who fulfil such Placement Criteria to the Clients in respect of those Vacancies in accordance with the Introduction Criteria.
2.3 The Agreement between the Client and the Company is formed on the earlier of the Client clicking on the “sign up” (or equivalent) button during the registration process, the Client using the Services or where Oculist manages Introductions and Assignments for the Client by the Client agreeing to the provision of the Services. The Company may update the Terms and Conditions from time to time and by posting a new version on the Website. While Company will use reasonable endeavours to notify the Client of such updates, the Client should check the Website from time to time for updates. You agree to such updates once posted on the Website by continuing to use the Services or by logging in to the Website.
3. Registration and user ID
3.1 Where the company manages Introductions and Assignments for the Client, the Client will be asked to provide an email address at which point the Client will become a Registered User. The Client is solely responsible for all actions taken under that User ID. It is the responsibility of the Client to keep its User ID safe. The Client has no right to disclose or transfer its User ID to any person other than suitably authorised individuals within its organisation. The User ID will act as the Client’s identity to other Registered Users of the Website. The Client must immediately inform the company of any unauthorised use of its User ID or any other breach of security regarding the Website.
3.2 In order to use the Website, the Client must populate its Member Profile. Upon successfully providing this information in compliance with the minimum requirements applicable to Optician Clients as Registered Users, the Client can use the Website.
3.3 The Client warrants and represents that all information provided by it on registration and contained within its Member Profile is and continues to be, accurate and not misleading.
3.4 The Client shall within 5 days update its Member Profile to reflect any change to its name, principal place of business, directors or officers or any other information included in its Member Profile.
4. Venue
4.1 The Website acts as a venue allowing Registered Users to make arrangements for the Introduction of Locums and Clients and the Company shall use reasonable skill and care to make such Introductions. The Company has no contractual involvement in the Assignments which will be governed by the Assignment Terms or such terms agreed between the Client and Locum, from time to time. The Client may use its own standard terms provided that the Client have uploaded them to the Website, they are not incompatible with these Conditions and do not offer any less favourable terms to the Company than the Assignment Terms. Registered Users (whether as Clients or Locums) accept sole responsibility for the legality of their actions under laws applicable to them.
4.2 Although a Registered User must comply with the Member Profile minimum requirements in order to be able to use the Website, the Company does not confirm the purported identity of Registered Users or the validity of the information which Registered Users provide on registration or otherwise post to the Website.
4.3 In the event of any dispute the Company may in its sole discretion, so as to assist in the promotion of good Clients amongst its Registered Users, disclose information it holds regarding the identity of a Registered User to any other Registered User involved in a dispute or the relevant other third party or regulatory body investigating any such dispute or otherwise as may be required by law.
4.4 If the Client has any right, claim or action against any other Registered User arising from its use of the Website, the Client agrees to pursue such right, claim or action independently, and the Client releases Company(and its parent, subsidiaries, affiliates, officers, directors, agents and employees) from all and any claims, liability, damages, losses, costs and expenses, including legal fees, known and unknown, arising from or in any way connected with such right, claim or action.
5. Assignments
5.1 Once a Client has posted a Vacancy on the Website, the Company shall promptly notify those Locums who fulfil the Vacancy Criteria, of such Vacancy. The Client shall promptly select the Locum it wishes to be matched to for the Vacancy. The Company will then promptly confirm the Assignment with both the Locum and the Client.
5.2 Details of the confirmed Assignment will be posted by the Company on the Client’s “Bookings” section of the Website. If the Client wants to extend a confirmed Assignment it should notify the Company who will confirm that new Assignment. If the Client subsequently wants to cancel an Assignment the cancellation fees set out in the standard price list will apply. If a Locum does not turn up for work for some or all of the Assignment it is the Client’s responsibility to notify the Company of that promptly.
5.3 If the Company becomes aware of any Locum who no longer meets the minimum criteria for a Member Profile, the Company shall not Introduce any such Locum to the Client.
5.4 It is the sole responsibility of the Client, prior to the commencement of an Assignment, to confirm the accuracy of the Member Profile information provided by the Locum matched to the Assignment.
5.5 If the Client after posting a Vacancy on the Website fills that Vacancy otherwise than through the Website, the Client shall immediately remove the Vacancy from the Website and notify the Company of the same.
5.6 When submitting a Vacancy Notification or other records or details relating to an Engagement it will not breach or directly or indirectly cause Oculist to breach any anti-discrimination laws or provide any information or make any requests that may bring Oculist into disrepute;
(a) It will not block a Locum or prospective Locum from work with the Client for any reason that is of an unlawfully discriminatory nature, or that may bring Oculist into disrepute; and
(b) All information provided by the Client in the form of Engagement Details or otherwise for the purposes of the Engagement will be true and accurate and up to date; and
(c) It will supply information to Oculist via Website confirming the assignment by appropriate completion of the Timesheet.
(d) That they are a genuine hirer of Locum Services being a hirer who supplies medical services and who does not supply such services to any intermediary or supplier of medical services and not a locum agency (whether acting as an employment agency or employment business or otherwise).
6. Fees and VAT
6.1 The Company shall charge Commission to the Client for each Assignment.
6.2 The Client will pay the Commission to the Company either via the Website at the time it posts a Vacancy, or immediately upon receipt of an invoice from BlackSquare Solutions Limited. Invoices will generally be sent to the Client monthly. The Client shall pay such invoices either via the Website or by other means acceptable to the company.
6.3 The Company shall charge VAT to the Client, at the prevailing rate, and the Client shall pay such VAT after Company has provided the Client with a VAT invoice.
6.4 Any sums payable by the Client under the Agreement which remain outstanding after the agreed date for payment shall carry interest (both before and after judgment) on a daily basis at an annual rate equal to 4% above the base rate of Barclay’s Bank Plc. The Company acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 (as amended). The Company may suspend the Services until all sums are paid.
7. Engagement of Locums
7.1 If the Client Engages the Locum within 6 months of an Introduction or completion of an Assignment the Client shall within 24 hours of the Engagement :
7.1.1 Notify the Company in writing of such Engagement; and
7.1.2 Pay the Engagement Fee when it is due.
7.2 If the Company learns at any time that the Client has Engaged the Locum within 6 months of an Introduction or completion of an Assignment but not notified it within the timescale set out in condition 6.1 above the Client shall pay to Company the Engagement Fee, Liquidated Damages and Legal Costs.
7.3 If the Client does not pay Commission and/or the Engagement Fee when either or both is/are due then the Client will also pay Legal Costs.
7.4 If the Company suspects or becomes aware of any Engagement which the Client has not notified it about under condition 7.1 the Company may issue a Warning Letter to the Client. The Client shall provide Company with a full and proper response to the Warning Letter within 7 days of receipt. The following shall apply:
7.4.1 Pending such response, the Company may suspend the Services.
7.4.2 If the Client’s full and proper response shows to the company’s reasonable satisfaction that the Client has not Engaged any Locums, the Company shall continue to provide or reinstate the Services.
7.4.3 If the Client does not make a full and proper response to the reasonable satisfaction of the Company or the response reveals that the Client has Engaged Locums, the Client shall pay to Company the Engagement Fee, Liquidated Damages and Legal Costs.
8. Term and termination
8.1 Either party may terminate the Agreement at any time by providing the other with 30 days' prior written notice.
8.2 Either party may terminate the Agreement immediately on giving notice in writing to the other party if:
8.2.1 The other party commits any material breach of the Agreement (repeated failure by the other party to fulfil any service levels agreed between the parties or comply with the Agreement generally will amount to a material breach) and (in the case of a breach capable of being remedied) shall have failed to remedy the breach within 14 days after receiving a written notice of the breach requiring the breach to be remedied within such period;
8.2.2 If the other party becomes insolvent, is unable to pay its debts, ceases to trade, has a receiver appointed over the whole or any part of its assets, has an administrator appointed, enters into any composition with creditors generally, is wound up or any step is taken towards any of these events;
8.2.3 If the other party (being an individual) is the subject of a bankruptcy petition; and
8.2.4 The other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
8.3 Any termination of the Agreement however caused shall not affect:
8.3.1 Any rights or liabilities which have accrued before the time of termination; or
8.3.2 Any rights or liabilities under conditions 6 and 7
8.3.3 The continuance in force of any provision of the Agreement which expressly or by implication is intended to come into or continue in force after termination.
9. Announcements
9.1 Each party shall ensure that, except as may be required by law or any regulatory authority, neither it nor any of its employees, agents or contractors (or any tier) shall make, or cause to be made, (whether to the employees, customers, suppliers, public, press or otherwise) any communication, media statement, announcement or other disclosure whatsoever, whether written or oral, about the other party to the Agreement, the existence of the Agreement or any matter referred to in the Agreement without the other party's prior written consent to its contents.
10. Audit and record-keeping
10.1 The Company shall keep and maintain until three years after the agreement has been completed, or as long a period as may be agreed between the parties, full and accurate records of the agreement including, in particular:
10.1.1 The services provided by the Company under the Agreement;
10.1.2 Details of each Assignment and the date from which it commenced; and
10.1.3 All Commission paid and payable by the Client.
10.2 The Company shall on request provide the Client or the Client's representatives such access, on reasonable notice and within normal working hours, to those records as may be reasonably required in connection with the Agreement.
11. Indemnities
11.1 During and after the Agreement, the Client agrees to protect, indemnify, defend and hold harmless Company and any successor to it, and to the extent required from time to time by the company, (or their successors) its officers, agents, and employees, from and against any and all expenses, damages, claims (whether valid or invalid and whether deemed alleged or upheld), suits, losses, actions, judgments, liabilities, and costs whatsoever (including legal fees on a full indemnity basis) (Indemnify) arising out of, connected with, or resulting from:
11.1.1 The Client’s negligence, misrepresentation or the breach of any obligation to be performed by the Client under the Agreement; and
11.1.2 Any Locum having at any time claimed or being held or deemed to have been an employee of the Client or been otherwise engaged directly by the Client including any claim for wrongful or unfair dismissal or redundancy payment.
11.2 The provisions of this condition 11 shall survive termination of the Agreement.
12. Confidentiality
12.1 Neither party shall during and after termination of the Agreement, without the prior written consent of the other party, use or disclose to any other person any information of the other party which is identified as confidential or which is confidential by its nature.
12.2 Each party shall on demand and on termination of the Agreement surrender to the other party all materials relating to such confidential information in its or its personnel's agent or representatives' possession.
13. Data protection compliance
13.1 To the extent that any data or information belonging to the Client is personal data within the meaning of the Data Protection Act 1998 or equivalent legislation:
13.1.1 The Company will process such data and information only in accordance with the Client's instructions;
13.1.2 The Company will not transmit such data and information to a country or territory outside the European Economic Area without the Client's prior express written consent; and
13.1.3 The Company will take such technical and organisational measures against unauthorised or unlawful processing of such data and information and against accidental loss or destruction of, or damage to, such data and information as are appropriate to the Client as data controller.
14. Warranties and undertakings
14.1 The Company warrants that it has the necessary expertise to provide the services contemplated in the Agreement and will perform them in keeping with the highest professional business standards by using appropriately qualified, experienced and trained personnel.
14.2 The Company warrants that it does and it shall comply with the all relevant statutes, laws, regulations and codes of Client from time to time in force in.
14.3 Each party warrants that it has full capacity and authority to enter into and perform the Agreement.
15. Non-solicitation
15.1 The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, Company or organisation, or otherwise and whether directly or indirectly during, or for a period of six months from, the end of the term of the Agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the other party who has worked on the services provided under the Agreement at any time during the term of the Agreement.
16. Assignment and sub-contracting
16.1 Neither party shall, without the prior written consent of the other party (such consent not to be unreasonably conditioned, withheld or delayed), assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with the Agreement or any of its rights and obligations under or arising out of the Agreement (or any document referred to in it), or purport to do any of the same.
16.2 The Company may sub-contract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent without the prior written consent of the Client.
16.3 Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
17. Entire agreement
17.1 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Agreement (whether made innocently or negligently) shall be for breach of contract.
17.3 No variation of the Agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
18. Contracts (Rights of Third Parties) Act 1999
18.1 A person who is not a party to the Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
18.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Agreement is not subject to the consent of any person that is not a party to the Agreement.
19. Unforeseen Events
19.1 Either party may defer the date for performance of, or payment for, the services, or terminate the Agreement, if it is prevented from, or delayed in, carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lockouts or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
20. Governing law and jurisdiction
20.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the parties irrevocable submit to the exclusive jurisdiction of the English courts.
CRITERIA
Member Profile - Information & minimum criteria
For Locums:
Proof that the Locum has the relevant indemnity insurance;
Photographic ID
Proof that the Locum is on the relevant NHS performer’s list;
Proof of membership of the General Optical Council;
Proof that the Locum has the right to work in the UK.
For Clients:
The address of the Client;
The contact details of the Client;
The Billing details of the client
Details of the information technology.
Placement Criteria
The date on which the Client requires the Locum to commence work and the duration, or likely duration, of the work; the position which the Client seeks to fill, including the type of work the Locum in that position would be required to do, the location at which, and the hours during which, the Locum would be required to work, and any risk to health or safety known to the Client and what steps the Client has taken to prevent or control such risks; the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law, or by any professional body, for the Locum to possess in order to work in the position; and any expenses payable by or to the Locum.
Introduction Criteria
Locums who meet the Client's Placement Criteria; and
Locums who have valid indemnity cover.
Standard Price List
The Company charges a Commission of 15% of the remuneration paid (or that should be paid) by the Client to the Locum.
Should the Client need to cancel an Assignment (including any Assignment period extended under condition 5.2) the Client should inform the Company immediately. If the Client cancels the Assignment then the Client is liable to pay the following proportion of the Commission that would have been payable for the Assignment during or within 24 hours of the Assignment start date 100%.
· Within one week but more than 24 hours of the Assignment start date 50%
· Within 1 month and more than 1 week of the Assignment start date 25%
· More than 1 month of the Assignment start date there is no charge.