Standard Terms of Business

1.0 Definitions In these Standard Terms of Business, the following definitions shall apply:
‘Background IP’ means any Intellectual Property Rights owned by WHWB or generated or developed by WHWB during the provision of the Services, except the results.
‘the Customer’ the company or person who WHWB are providing the Services to.
‘the Documents’ includes, without limitation, in addition to an document in writing, any photograph, drawing, map, plan, diagram, design, picture or other image, tape, disc or other device or record embodying information in any form.
the ‘Due Date’ the final date for payment of invoices submitted by WHWB; 30 days from submission to the Customer.
‘e-OPAS’ central database of all employees of the Customer requiring occupational health services administered by WHWB.
‘the Fee’ the charges payable by the Customer to WHWB for the provision of the Services, plus any additional fees agreed arising from additional services.
‘Force Majeure’ means an event beyond the reasonable control of either Party including, but not limited to; strikes, lock-outs or other industrial disputes (whether involving the workforce of either Party, or any other associated Party); 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; medical pandemic; accident; fire; flood; adverse weather conditions or default of suppliers and / or subcontractors.
‘the Input Material’ all Documents, information and materials provided by WHWB relating to the Services.
‘Intellectual Property Rights’ all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Party’ means singularly either WHWB or the Customer, collectively the Parties.
‘Records’ occupational health records relating to employees of the Customer who have received occupational health services.
‘the Services’ shall mean the occupational health services which are to be provided by WHWB along with any additional services to be provided as agreed with the Customer from time to time.
‘WHWB’ Norfolk and Norwich University Hospitals NHS Foundation Trust, Workplace Health & Wellbeing; the company to be providing the Services to the Customer, pursuant to these Standard Terms of Business.
2.0 General Obligations
2.1 WHWB shall exercise reasonable skill, care and diligence in the carrying out of the Services upon the terms and conditions set out here and in accordance with all legal and regulatory requirements.
2.2 When required, the Customer shall:

2.2.1 provide all facilities reasonably required by WHWB to allow it to perform the Services at locations under the control of the Customer, free of charge; and

2.2.2 use all reasonable endeavours to secure the attendance of its employees at the relevant location for the provision of the Services.

2.3 Neither Party shall have any authority to act as agent for, or to bind, the other Party in any way.
3.0 Programme of Services
3.1 WHWB shall provide the Services as agreed in writing between the Customer and WHWB.
3.2 WHWB shall commit such resources and sufficient personnel with the necessary experience and qualifications to meet its agreed obligations.
3.3 If the Customer wishes to change the scope or execution of the Services, it shall submit details of the requested change to WHWB in writing. WHWB shall, within a reasonable time (and in any event not more than 14 days after receipt of the Customer’s request), provide a written estimate to the Customer of:

3.3.1 the likely time required to implement the change;

3.3.2 any necessary variations to the Fee for the Services arising from the change; and

3.3.3 any other impact of the change on these Standard Terms of Business.

Unless both Parties consent to a proposed change, there shall be no change to the agreed provision of Services.

4.0 Terms of Payment
4.1 The charges payable by the Customer to WHWB for the provision of the Services shall be agreed in writing.
4.2 In consideration of the provision of the Services, the Customer shall pay the Fee to WHWB in accordance with this Clause 4.
4.3 The Fee shall be invoiced at monthly intervals in arrears, and each shall contain all appropriate references and a breakdown of the Services provided within the invoice period.
4.4 The invoice shall be due for payment on the date of submission and the final date for payment shall be 30 days after issue by WHWB (the ‘Due Date’).
4.5 Without limiting any other right or remedy of WHWB, if the Customer fails to make any payment due to WHWB under these Standard Terms of Business by the Due Date, WHWB shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment.
5.0 Taxes
5.1 Value Added Tax (VAT) may be chargeable on certain services provided by WHWB.
6.0 Insurance
6.1 Without prejudice to the obligations under these Standard Terms of Business or otherwise at law, WHWB shall maintain, for as long as may be necessary to cover its obligations and liabilities in connection with providing the Services and for so long as such insurance is available in the market from reputable companies based in the UK on reasonable terms, insurances with limits of indemnity of not less than £5,000,000.00 for any one occurrence or series of occurrences arising out of any one event in respect of any negligence, omission or default on the part of WHWB in the performance of the Services.
6.2 WHWB hereby undertakes to the Customer that all such policies taken out in accordance with clause 6.1 shall remain in force at all times during the contract term and for 12 months thereafter.
6.3 WHWB shall upon request produce to the Customer evidence to show it has complied with the provisions set out in this Clause 6.
7.0 Liability
7.1 Nothing in this Agreement shall limit or exclude either Party’s liability for:

7.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or

7.1.2 fraud or fraudulent misrepresentation.

7.2 Subject to Clause 7.1:

7.2.1 WHWB shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

7.2.2 WHWB’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the greater of:

  1. i) the Fee payable under the Contract; and
  2. ii) £5,000,000.00 (WHWB’s Maximum Liability).
7.3 The Customer agrees to indemnify and keep indemnified WHWB against all costs, claims, demands, liabilities, damages incurred or suffered by WHWB as a result of any act or omission of the Customer, its employees or agents.
7.4 Except as set out in these Standard Terms of Business, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Standard Terms of Business.
8.0 Termination
8.1 Without limiting its other rights or remedies, each Party may terminate any agreement between the Parties with immediate effect by giving written notice to the other Party if:

8.1.1 the other Party is in material breach of these Standard Terms of Business and fails to remedy the breach (if capable of remedy) within 30 days’ of written notice of the breach being given by the terminating party; or

8.1.2 a resolution is passed or an order is made for the winding up of the other Party (otherwise than for the purpose of solvent amalgamation or reconstruction) or the other Party becomes subject to an administration order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of any of the other Party’s property; or

8.1.3. the other Party ceases or threatens to cease to carry on business in the United Kingdom, save where WHWB is affected by a statutory reorganisation of the National Health Service; or

8.1.4. WHWB is no longer permitted to provide the Services due to changes in the National Health Service.

8.2 Without limiting its other rights or remedies, WHWB may terminate any agreement between the Parties with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under said agreement on the Due Date.
8.3 Without limiting its other rights or remedies, each Party shall have the right to terminate any agreement between the two Parties by giving the other Party 3 months’ written notice.
9.0 Obligations on Termination
9.1 Upon termination of any agreement between the two Parties for any reason:

9.1.1 the Customer shall immediately pay to WHWB all outstanding unpaid invoices and interest and, in the respected of Services supplied but for which no invoice has been submitted, WHWB shall submit an invoice which shall be payable by the Customer immediately on receipt.

9.1.2 the accrued rights, remedies, obligations and liabilities of the Parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of these Standard Terms of Business which existed at or before the date of termination or expiry.

9.1.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.

9.1.4 all confidential information including patient records relating to employees of the Customer who have received occupational health services shall be transferred in accordance with the provisions set out in Clause 11.

9.2 If the Transfer of Undertakings (Protection of Employment) Regulations 2006 or any amendment or re-enactment thereof apply by reason of the termination of any Agreement between the Parties or any part of these Standard Terms of Business or the cessation of any requirement of WHWB so as to transfer any employees from WHWB to a new service provider, then the Customer shall indemnify WHWB against all costs, claims, demands, awards, damages, liabilities and expenses arising against WHWB by reason of such transfer (including without prejudice to the generality of the foregoing any such action, costs, claims, demands, awards, damages, liabilities, debts and expenses arising on/or outstanding at the termination by the Customer or the new service provider of the employment of any employee transferring to it).
10.0 Confidentiality
10.1 Both Parties shall use all reasonable endeavours to ensure that any person employed or engaged by the relevant Party shall keep the other Party’s confidential information strictly confidential.
10.2 The receiving Party of confidential information shall restrict disclosure of such confidential information to its employees, agents or subcontractors as need to know it for the purpose of discharging the receiving Party’s obligations under any agreement between the two Parties, and shall ensure that such employees, agents or subcontractors are subject to the obligations of confidentiality corresponding to those which bind the receiving Party.
10.3 The obligations of confidence set out in this Clause 10 will not apply to any information that either Party can show:

10.3.1 was, at the time of disclosure, published, known publicly or otherwise in public domain;

10.3.2 is, after disclosure, published or becomes known publicly or otherwise becomes part of public domain, through no fault of either Party;

10.3.3 is required to be disclosed under any mandatory applicable law or regulation (including but not limited to the Freedom of Information Act 2000) or by or to a court or other public, regulatory or financial authority that has jurisdiction over the Parties, provided that the Party gives written notice to the other Party prior to disclosing any confidential information and that the disclosure is made only to the extent required and for the purpose of complying with the requirement.

10.4 The Parties shall ensure that all “personal data” (as defined in the Data Protection Act 1998) acquired by them in connection with any agreement between the two Parties shall be processed in accordance with the provisions of the Act, and the NHS Code of Practice; Confidentiality (Department of Health 2003).
10.5 The provisions of this Clause 10 shall survive the expiry or termination of any agreement between the two Parties howsoever caused and shall continue thereafter in full force and effect.
11.0 Occupational Health Records
11.1 All occupational health records relating to employees of the Customer who have received occupational health services prior to any agreement between the two Parties coming into effect (“Records“) shall be provided to WHWB on or as soon as possible after the Commencement Date, at the Customer’s cost.
11.2 The Records shall be held by WHWB in a secure and confidential manner in accordance with current and relevant guidance and legislation; particularly The Faculty of Occupational Medicine of the Royal College of Physicians’ guidelines on the storage of clinical records, and the Department of Health: Records Management Code of Practice. Both Parties acknowledge storage duration of the Records is subject to change upon guidance and legislation review.
11.3 WHWB will administer a central database of all employees of the Customer requiring occupational health services (‘e-OPAS’). On expiry or termination of any Agreement between the two Parties:

11.3.1 the Records of current and ex-employees of the Customer shall be transferred to any new service provider for storage according to guidance and legislation listed in Clause 11.2;

11.3.2 audit and disposal of Records considered past the “period of retention” (as defined in the Data Protection Act 1998) shall be the responsibility of the new service provider after transfer of the Records;

11.3.2 the Customer shall be responsible for any associated costs of extraction of Records from e-OPAS;

11.3.3 the new service provider shall be responsible for transfer of any physical Records to the new service provider including any associated costs;

11.3.4 in accordance with guidance and legislation listed in Clause 11.2; the Customer will be required to inform the data subjects of any proposed transfer of Records and ascertain their wishes as to the distribution of the Records.

11.4 If the Customer fails to comply with its obligations under this Clause 11, WHWB shall transfer the Records on to such media WHWB shall consider appropriate and store the Records at the Customer’s cost for such period as is required by applicable guidance and law.
12.0 Intellectual Property Rights
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by WHWB.
12.2 Each Party hereby grants to the other Party a non-exclusive, non-transferable, royalty free license to use its Intellectual Property Rights for the purposes and duration of any agreement between the two Parties.
12.3 Each Party agrees that it will not use the other Party’s Intellectual Property Rights for any purpose other than the performance of its obligations under the agreement between the two Parties.
12.4 The provisions of this Clause 12 shall survive expiry or termination of any agreement between the two Parties howsoever caused and shall continue thereafter in full force and effect.
13.0 Disputes
13.1 In the event of a dispute or disagreement arising out of or in connection with the agreement between to the two Parties, the Parties shall consult with each other and use reasonable endeavours to negotiate in a good faith a resolution of the dispute.
13.2 If the dispute is not resolved under Clause 13.1 then the Parties shall refer the matter to their respective chief executives who shall also user their reasonable endeavours to resolve the dispute.
13.3 If the dispute is not resolved under Clause 13.2 then the Parties shall refer the matter for resolution to a single arbitrator to be agreed upon by both Parties.
13.4 Nothing in this Clause 13 shall prevent either Party from exercising their right to terminate the agreement between the two Parties under Clause 9 or issue immediate legal proceedings where necessary.
14.0 Governing Law and Jurisdiction
These Standard Terms of Business, any agreement between the two Parties 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 irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
15.0 Force Majeure
15.1 For the purposes of these Standard Terns of Business, a force majeure event means an event beyond the reasonable control of either Party including, but not limited to; strikes, lock-outs or other industrial disputes (whether involving the workforce of either Party, or any other associated Party); 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; fire; flood; adverse weather conditions or default of suppliers and / or subcontractors (‘Force Majeure’).
15.2 Subject to Clause 15.3, WHWB shall not be liable to the Customer for any delay or failure to perform its obligations under this Contract, nor any consequential losses, damages or loss of earnings or anticipated savings arising as a result of a Force Majeure.
15.3 WHWB shall only be entitled to rely on a Force Majeure and the relief set out in this Clause 15, and will not be considered to be in default or liable for breach of any obligations hereunder if:

15.3.1 The Force Majeure does not arise directly or indirectly as a result of any wilful or negligent act or default of WHWB; and

15.3.2 WHWB has complied with the procedural requirements set out in this Clause 15.

15.4 If WHWB is prevented or delayed in the performance of its obligations under any agreement between the two Parties by a Force Majeure, WHWB shall immediately serve notice in writing to the Customer specifying the nature and extent of the circumstances giving rise to its failure to perform or any anticipated delay in performance of its obligations.
15.5 Where WHWB is (or claims to be) affected by a Force Majeure it shall use all reasonable endeavours to mitigate the consequences of such a Force Majeure upon the performance of its obligations under the agreement between the two Parties, and to resume the performance of its obligations affected by the Force Majeure as soon as practicable.
15.6 If the Force Majeure prevents WHWB from providing any of the Services for more than 12 weeks, either party shall, without limiting its other rights or remedies, have the right to terminate the agreement between the two Parties immediately by giving written notice to the other party.
16.0 Variation
16.1 In the event of a change in law or other requirement imposed on WHWB that requires it to amend the terms and conditions of these Standard Terms of Business, WHWB shall in writing describe and cost the necessary change and the Customer shall authorise the change unless it reasonably believes that the cost or scope of the change is unreasonable in the circumstances.
16.2 No variation to these Standard Terms of Business shall be effective unless made in writing and signed by both parties. Such variations shall form an addendum to these Standard Terms of Business.
17.0 Severability
17.1 If any provision of these Standard Terms of Business is declared void or unenforceable, such provision shall be severed from these Standard Terms of Business, which shall otherwise remain in full force and effect. In such a case, the Parties shall use reasonable endeavours to reach mutually agreeable terms for a replacement provision that as far as possible actualises the purpose and effect of the original provision in an enforceable manner.
18.0 Waiver
18.1 No failure, delay, relaxation or indulgence on the part of either Party in exercising or partial exercise of any right hereunder shall operate as a waiver of such rights.
19.0 Policies and Procedures
19.1 WHWB are governed my NHS policies and procedures, as well as specific departmental policies, including Business Continuity, Approved Sub-Contractor, Confidentiality, Consent etc.
19.2 Should the Customer wish to view these procedures, an appointment can be made to review these at our business premises.