Service Level Agreement – Terms & Conditions
Background
(A) Care 4 Quality. is in the business of providing compliance related services.
(B) The Client agrees to obtain and Care 4 Quality. agrees to provide the Services on the terms set out in this Agreement.
Agreed Terms
1. Interpretation
1.1 The following definitions and rules of interpretation apply in this Agreement.
Applicable Laws – all applicable laws, statutes, regulations and guidance in force as at the date of this Agreement.
Business Day – a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. Charges the sums payable for the Services, as set out in proposal.
Client Materials – all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to Care 4 Quality. in connection with the Services, including the items provided pursuant to clause 4.3.
Deliverables – any written documents or reports prepared by Care 4 Quality. and provided to the Client as part of the Services.
Intellectual Property Rights – patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in getup, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Services – the services as set out in the proposal. Term the duration of the Agreement being the Initial Term and any and all Extended Terms as further described in clause 2.
VAT – value added tax or any equivalent tax chargeable in the UK.
Clause, proposal and paragraph headings shall not affect the interpretation of this Agreement.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.4 A reference to writing or written includes email.
1.5 Any words following the terms including, include, 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.
1.6 If there is an inconsistency between any of the provisions of this Agreement and the provisions of the proposal, the provisions of this Agreement shall prevail.
2. Commencement and Duration
This Agreement shall commence on the date of signing.
2.1 This Agreement shall continue until the services detailed in proposal have been delivered completely or for the agreed length of term, unless terminated earlier in accordance with clause 11 or otherwise by operation of law.
3. Care 4 Quality. Obligations
3.1 Care 4 Quality. shall use reasonable endeavours to supply the Services in accordance with this Agreement and the scope of work detailed within proposal in all material
respects.
3.2 Care 4 Quality. shall use reasonable endeavours to meet any performance dates specified in proposal, but any such dates shall be estimates only and time for performance by Care 4 Quality. shall not be of the essence of this Agreement.
3.3 Care 4 Quality. shall use reasonable endeavours to observe all health and safety and security requirements that apply at the Client’s premises and that have been communicated to it under clause 4.8, provided that it shall not be liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement.
3.4 Care 4 Quality. shall comply with all Applicable Laws relevant to the Services including the Equality Act 2010.
3.5 Care 4 Quality.’s services are to provide advice and guidance in line with CQC regulation, for advice and guidance that falls outside of this, such as business advice, building regulations, tenders etc., the Client will be directed to another appropriate expert service where available and/or appropriate.
4. Client’s Obligations
4.1 The Client shall co-operate with Care 4 Quality. in all matters relating to the Services.
4.2 The Client shall appoint a manager for the Services who shall have the authority to contractually bind the Client on matters relating to the Services and ensure that access to appropriate persons (e.g., the Registered Manager) is continued throughout the process.
4.3 The Client, or their representative, shall make all reasonable efforts to engage with Care 4 Quality. on a regular basis and within at least 7 days of any communication or request for information, documents and materials in any form (whether owned by the Client or a third party), or their Services may be further delayed in priority of routinely engaging clients.
4.4 Where non-engagement is unavoidable or due to unforeseen circumstances, the Client must inform Care 4 Quality. at the earliest opportunity to prevent future delays to the Services.
4.5 Any changes to company, person or service must be relayed to Care 4 Quality. at the earliest opportunity and additional works incurred as a result of this may be subject to an administrative charge that will be dependent upon the scope of the change.
4.6 The Client, or their representative, must be open and honest with respect their business, service and professional capability at all times to Care 4 Quality. to ensure that they receive effective and accurate advice and guidance on Services.
4.7 The Client (Provider and Registered Manager) hold ultimate legal and regulatory responsibility for their fitness to provide the service and for compliance with the relevant regulations and legislation. They are also responsible for ensuring their own preparedness for any CQC contact or intervention (e.g., interviews and inspections).
4.8 Where Care 4 Quality. are to visit on site, the Client shall inform Care 4 Quality. of all health and safety and security requirements that apply at the Client’s premises, including any reasons not to visit, such as infection outbreak.
4.9 The Client shall provide, for Care 4 Quality., its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as required by Care 4 Quality. for the provision of the Services including any such access as is specified in proposal.
4.10 If Care 4 Quality.’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Care 4 Quality. shall be allowed an extension of time to perform its obligations at least equal to the delay caused by the Client.
5. Review and Management
5.1 The parties will each formally review this Agreement annually to ensure that the Services are being delivered and monitored appropriately. Reviews will normally take place on or around the anniversary of the Commencement Date.
5.2 For compliance retainers this Agreement will be reviewed quarterly to ensure that the original scope or work remains appropriate and that it continues to meet the needs of the Client.
5.3 Care 4 Quality. shall identify a named Senior Manager who is accountable for the performance and delivery of the Service and an appointed consultant who will represent Care 4 Quality. on a day-to-day basis.
5.4 Care 4 Quality. use time tracking software to monitor the delivery of Services in line with the agreed scope of work. Where allocated time is likely to be reached and/or exceeded Care 4 Quality. will issue fair warning and provide options as to how to proceed.
6. Charges and Payment
6.1 The Client agrees to pay to Care 4 Quality. the Charges set out in the proposal document in accordance with the terms of this clause 6. One-off payments to be made upon receipt of invoice. Monthly payments to be setup via GoCardless direct debit pages and are due upon receipt of invoices.
6.2 Care 4 Quality. may increase the Charges of policy subscriptions and compliance retainers on an annual basis with effect from each anniversary of the date of this Agreement.
6.3 Care 4 Quality. will review time tracking data for compliance retainers quarterly (at a minimum) and will issue additional charges where the agreed hours have been exceeded due to the needs of the Client. Where agreed hours are routinely exceeded, this Agreement will be reviewed prior to annual review in accordance with Client need.
6.4 Care 4 Quality. shall invoice the Client for the Charges either in advance of the Services being provided or monthly (depending upon the Services being provided) as shall be further indicated in the proposal. Charges for retainer Services shall be invoiced monthly in advance. Charges for other Services shall be invoiced monthly, at the end of each month for Services performed during that month.
6.5 Care 4 Quality. will provide two user logins for the iBenchmark Care 4 Quality. Software system, either on iBenchmark ‘Silver Package’ or iBenchmark ‘Gold Package’. Additional users will be subject to an additional per user charge. The Client may be provided temporary access to iBenchmark to deliver compliance or inspection feedback.
6.6 The Client shall pay the initial invoice submitted to it by Care 4 Quality. promptly and in any event within 24 hours of receipt to a bank account nominated in writing by Care 4 Quality. from time to time. For monthly invoices, the Client agrees to setup a direct debit payment via GoCardless.
6.7 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Care 4 Quality. any sum due under this Agreement on the due date, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%. Care 4 Quality. may suspend all or part of the Services until payment has been made in full.
6.8 Unless stated otherwise in proposal, all sums payable to Care 4 Quality. under this Agreement are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on receipt of a VAT invoice.
6.9 All sums payable to Care 4 Quality. shall be paid in full without any set-off, counterclaim, deduction or withholding other than any deduction or withholding of tax as required by law.
6.10 Where services are terminated by the Client during the course of the Services being provided, at any time, for reasons not resulting from a failure in Care 4 Quality.’s duties under clause 3, a refund of Charges will not be provided.
7. Non-solicitation
7.1 The Client shall not, without the prior written consent of Care 4 Quality., at any time from the date of this Agreement to the expiry of 12 months after the termination of this Agreement, solicit or entice away from Care 4 Quality. or employ or attempt to employ any person who is, or has been, engaged as an employee of Care 4 Quality. in the provision of the Services.
7.2 Any consent given by Care 4 Quality. in accordance with clause 7.1 shall be subject to the Client paying to Care 4 Quality. a sum equivalent to 20% of the annual remuneration to be paid by the Client to that employee.
8. Intellectual Property Rights
8.1 Care 4 Quality. shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Client Materials (definitions) and shall in consideration of the Charges, grant to the Client, a worldwide, non-exclusive, royalty-free licence to use and copy the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Services and the Deliverables in its business.
8.2 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 8.1 to any third party.
8.3 The Client shall retain ownership of all Intellectual Property Rights in the Client Materials and grants to Care 4 Quality. a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the Term of this Agreement for the purpose of providing the Services to the Client.
8.4 Care 4 Quality. shall not be liable to the Client or to any third party for use of the Deliverables for any purpose other than that for which they are prepared and/or provided.
8.5 Care 4 Quality. warrants that the receipt and use of the Deliverables (excluding any Client Materials) by the Client in accordance with the terms of this Agreement shall not infringe the Intellectual Property Rights of any third party.
9. Confidentiality
9.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (“Confidential Information”) except as permitted by clause 9.2.
9.2 Each party may disclose the other party’s Confidential Information:
9.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement.
Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 9; and/or 9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 Neither party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
9.4 Where sensitive service user information needs to be shared, the Client shall sign a separate Information Sharing Agreement and shall be responsible for ensuring that
consent is appropriately obtained for any data shared.
10. Limitation of Liability
10.1 The Client acknowledges that Care 4 Quality. provides consultancy services. Care 4 Quality. shall not be responsible for or have liability to the Client, their practice, or their services for the Client’s compliance in any form with Health and Social Care regulation and the Care Quality Commission.
10.2 Furthermore, Care 4 Quality. shall not be liable for any act or omission or delay by the Client to undertake actions or recommendations identified by Care 4 Quality. or where the Client fails to make known to Care 4 Quality. any relevant matters, concerns, or issues it is aware of, or the Client has failed to comply with its obligations under this Agreement.
10.3 The Company shall not be liable to the Client for any loss of profits, loss of revenue, loss of goodwill, loss of anticipated savings, loss or corruption of data or software or for any indirect, special or consequential losses or damages.
10.4 Care 4 Quality. hold no liability in relation to this Agreement.
11. Termination
11.1 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:
11.1.1 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 [14] days after being notified in writing to do so;
11.1.2 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;
11.1.3 the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation or has a receiver, administrative receiver or administrator appointed or otherwise suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.2 Without affecting any other right or remedy available to it, Care 4 Quality. may terminate this Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default for not less than 14 days after being notified in writing to make such payment.
11.3 Without affecting any other right or remedy available to it, Care 4 Quality. may terminate this Agreement with immediate effect and no return of Charges if its staff are deemed to have been treated unprofessionally, including where they are bullied, harassed or abused in any form by a Client or their representative. This is supported by a Zero-Tolerance Policy as set out by Care 4 Quality..
12. Obligations on Termination
12.1 On termination or expiry of this Agreement, the Client shall immediately pay to Care 4 Quality. all of Care 4 Quality.’s outstanding unpaid invoices together with any accrued interest and, in respect of the Services supplied but for which no invoice has been submitted, Care 4 Quality. may submit an invoice, which shall be payable by the Client immediately on receipt.
12.2 If the Client terminates this Agreement other than in accordance with its rights under clause 2, clause 11.1, or clause 13.4, it shall be liable for the full Charges due for the remainder of the Term and in respect of Charges which are due under this clause but for which no invoice has been submitted, Care 4 Quality. may submit an invoice, which shall be payable by the Client immediately on receipt.
12.3 Termination of this Agreement shall not prejudice or affect any rights, remedies or liabilities of the parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination and such termination shall not affect the coming into or continuance in force of any provisions of this Agreement which are expressly or by reasonable interpretation intended to come into or continue in force on or after termination.
13. Force Majeure
13.1 In this clause, “Force Majeure Event” means any circumstance not within a party’s reasonable control including acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil commotion or riots, war, any law or any action taken by a government or public authority, and any industrial action.
13.2 If a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.
13.3 The Affected Party shall as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement.
13.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 3 months, either party may terminate this Agreement by giving written notice to the Affected Party.
14. Assignment
14.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of Care 4 Quality..
14.2 Care 4 Quality. may assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement, provided that Care 4 Quality. gives prior written notice of such dealing to the Client.
15. Variation
No variation of this Agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
16. Waiver
16.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16.2 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17. Severance
17.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
18. Entire Agreement
18.1 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.
18.2 Each party agrees that it will 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
19. No Partnership or Agency
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. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. Third Party Rights
This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
21. Notices
21.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by record delivery or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
21.2 Any notice shall be deemed to have been received if delivered by hand or recorded delivery at the time the notice is left at the proper address, or if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
21.3 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.
21.4 A notice given under this Agreement is not valid if sent by email.
22. Counterparts
22.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
22.2 Transmission of an executed counterpart of this Agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as the valid execution of this Agreement.
22.3 No counterpart shall be effective until each party has executed and delivered at least one
counterpart.
23. Dispute Resolution Procedure
23.1 Where a disagreement occurs which relates to this Agreement, the parties will attempt to resolve the issues promptly in good faith through discussion by the signatories to this Agreement or by their authorised representatives.
23.2 Where the individuals from each party have not been able to resolve the disagreement then the matter will be escalated to a more senior manager within each organisation who will attempt to resolve the issues without any undue delay.
23.3 If the senior managers are for any reason unable to resolve the disagreement within [30] days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the disagreement, requesting a mediation. A copy of the ADR notice should be sent to CEDR.
23.4 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the disagreement under clause 25.2.
24. Governing Law and Jurisdiction
24.1 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.
24.2 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.
24.3 This Agreement has been entered into on the date stated at the beginning of it
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