1. Shalom Digital Limited, Trading as Nursely, registered in England & Wales, company registration number 11691014, registered at 20-22 Wenlock Road, London, England, N1 7GU, hereafter referred to as ‘Nursely’
2. Whoever enters into a contract with Nursely for engaging nurses and Carers through the NUrsely App, referred to as ‘Client’
1.1 These terms set out the agreement between Nursely and the Client for the supply of CHPs by Nursely to the Client.
1.2 Nursely acts as a technology solutions provider. All healthcare staff who engage through Nursely are Contract Healthcare Providers (CHP’s). They are self-employed healthcare professionals who have registered and been accepted onto the Nursely platform.
1.3 In addition to providing the technology platform in the form of web and mobile apps, Nursely will perform additional manual services using reasonable skill and care and will ensure that all staff involved in the provision of the services are suitably trained, sufficiently skilled, experienced, competent and hold a valid and active DBS Certificate.
1.4 Prior to the commencement of an Assignment, the Client has to check and approve each CHPs through the Client portal of Nursely for:
(a) the identity of the CHP; and
(b) the CHP’s experience, training, qualifications and authorisations necessary for the Assignment.
2.1 When making a request for the provision of a CHP to perform certain services (an "Assignment"), the Client will use Nursely Apps and provide: the date on which the Client requires the CHP to commence work and the duration of the work, the hourly rate and total pay for the hours during which the CHP would be required to work. This is automated through the App.
2.2 The Client is responsible for providing a safe working environment and safe and appropriate equipment for the tasks to be completed by the CHP.
2.3 The Client is responsible for ensuring that the CHP is not subject to discrimination by the Client's employees, service users or any other third party during the course of an Assignment.
2.4 The Client shall ensure that the CHP is able to take same refreshment breaks, meals and facilities as the Client's own staff.
2.5 Any costs associated with refreshment breaks (which must be provided in accordance with applicable law), meals or any benefits in kind in accordance with clauses 3.4 and 3.5 are not deductible from the Service Fees, unless otherwise agreed in writing by the parties.
2.6 An authorised representative of the Client is responsible for verifying and approving the hours worked by the CHP through the Nursely app sign off procedure.
3.1 Nursely’s most valuable asset is its bank of workers. Nursely invests heavily in the recruitment, investigation and approval, training and development of all members of its staff. As such it is necessary for Nursely to protect its investment.
3.2 If, within 6 months following the Introduction of a CHP by Nursely to the Client, in circumstances where the CHP has not then been supplied by Nursely to the Client, the Client Engages the CHP, the Client will pay Nursely an introduction fee of £6,000 (where the CHP is a nurse) or £3,000 (where the CHP is a care worker) (the "Introduction Fee").
3.3 If, following the supply of a CHP by Nursely to the Client, the Client Engages the CHP within the Relevant Period, the Client will pay Nursely a transfer fee of £6,000 (where the CHP is a nurse) or £3,000 (where the CHP is a care worker) (the "Transfer Fee").
3.4 If, within 6 months following the Introduction of a CHP by Nursely to the Client, in circumstances where the CHP has not then been supplied by Nursely to the Client, the Client introduces the CHP to a third party who then Engages the CHP, the Client will pay Nursely a referral fee of £6,000 (where the CHP is a nurse) or £3,000 (where the CHP is a care worker).
3.5 If, following the supply of a CHP by Nursely to the Client, the Client introduces the CHP to a third party who then Engages the CHP within the Relevant Period, the Client will pay Nursely a referral fee of £6,000 (where the CHP is a nurse) or £3,000 (where the CHP is a care worker).
4.1 The Client will approve each CHP prior to engagement and only pre-approved CHPs will get shift alerts through the Nursely App.
4.2 If (acting reasonably and in a non-discriminatory fashion) either party believes that a CHP is unsuitable to perform the relevant Assignment once the CHP has arrived at the Client's premises and/or the provision of services by the CHP has commenced (an "Unsatisfactory CHP"), then it should be notified to the CHP and Nursely through the shift Cancel feature in the App.
4.3 The client can choose to terminate the services of such CHPs from future services and engagements through the ‘Remove Approval’ feature within the staff profile of the App.
4.4 If a CHP cancels a Shift for any reason after accepting and confirming an Assignment, Nursely will use its reasonable endeavours to provide another suitably qualified CHP to cover the absence. Nursely will notify the Client if no suitable replacement is available and shall have no liability to the Client in respect of the absence.
4.5 The Client may terminate an Assignment at any time by giving sufficient notice through the Cancel Shift feature of the Nursely App.
4.6 Nursely may, at its sole discretion, charge the full amount of any Service Fees which would have become due in respect of any Assignment which is terminated by the Client less than 12 hours' notice.
5.1 The Client will pay Nursely the Service Fees in respect of CHPs. The client has the freedome to set appropriate hourly rates that take into consideration the prevailing market rate, puls an element for tax, NI contributions and insurance. Nursely will give recommendations to the client based on the prevailing market rate.
5.2 The Service Fees will:
(a) be calculated according to the amount of time worked by the CHP (rounded up to the nearest 15 minutes); and
(b) comprise the entire charge in respect of the CHP.
(c) Nursely application service charge of 11.25% to 20% (depending on the agreed rate between the parties) of the total invoice amount (which also includes the payment gateway service charges).
5.3 Nursely shall be entitled, at its sole discretion, to review and increase or decrease the fees every 6 months in respect of qualified nurses and every 12 months in respect of care workers. Nursely shall give the Client written notice of any changes to the Scale of Charges four weeks before they will take effect.
5.5 Nursely will submit its invoice to the Client in respect of the Fees and any Expenses weekly in arrears once every week as per the agreed payment terms.
5.6 Nursely will submit invoices to the Client via the Invoice Payable menu of the web app.
5.7 The Client shall pay each invoice submitted to it by Nursely, in cleared funds, within 7 days of receipt (or 14 days depending on agreed terms), by BACS to a bank account nominated in writing by Nursely.
5.8 If the Client fails to make any payment due to Nursely under this agreement by the due date for payment, then, the Client shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
Term This Agreement shall commence on the date the Client starts usig the the Nursely App to book the first CHP (the "Commencement Date") and shall continue, unless terminated earlier in accordance with clause 9, until either party gives to the other party 30 days' written notice to terminate, expiring on or after the first anniversary of the Commencement Date.
7.1 Nursely may withdraw CHPs in circumstances, which, in Nursely reasonable opinion, make the completion of an Assignment untenable. Such circumstances would include (without limitation) failure by the Client to provide safe and appropriate equipment and a safe environment in accordance with clause 2.2, failure to pay an invoice in accordance with clause 5.2(a) or 3 occurrences of late payment of an invoice within a calendar year.
7.2 Without affecting any other right or remedy available to it, Nursely may terminate this Agreement with immediate effect by giving written notice to Client if the Client:
(a) fails to pay any amount due under this Agreement on the due date and remains in default no less than 14 days after being notified in writing to make such payment;
(b) commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing to do so;
(c) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(d) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business or if the Client's financial position deteriorates to such an extent that in Nursely's opinion the Client's capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
8.1 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
8.2 Termination of this Agreement shall not affect any rights, remedies, obligations 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 the Agreement which existed at or before the date of termination.
9.1 The Client shall at all times comply with its obligations under the AWR 2010, including but not limited to providing any CHPs with access to collective facilities and amenities and employment opportunities subject to and in accordance with regulation 12 and 13 of the AWR 2010.
9.2 In the event that either party receives an allegation by any CHP that there has been a breach of the AWR 2010 in relation to the supply of that person to the Client by Nursely (whether that allegation has been made as a request for information under regulation 16 of the AWR 2010 or otherwise), it shall provide a copy of that allegation to the other party within seven days of receipt. The parties shall cooperate with each other in relation to responding to that allegation, which shall include supplying any information which may be reasonably requested by the other party, and complying with any reasonable requests in relation to the contents of any response.
9.3 The Client will maintain in force, with a reputable insurance company, and shall procure that the CHP benefits from, adequate insurance cover for any loss, injury or damage caused by or to the CHP during the course of an Assignment, including (without limitation) employers' liability insurance in an amount not less than £10 million in respect of any one claim and public liability insurance (including malpractice cover for treatment risks, error and omissions) in an amount not less than £5 million in respect of any one claim.
9.4 Nursely will maintain, for the term of this agreement, employers' liability insurance in an amount not less than £10 million in respect of any one claim and public liability insurance (including malpractice cover for treatment risks, error and omissions) in an amount not less than £5 million in respect of any one claim.
9.5 The Client shall be responsible for insuring to full replacement value all personal furniture and belongings of individuals in their care and accepts that Nursely shall not be responsible or have any liability for any loss of or damage to such individuals' personal items (including but not limited to cash, credit cards, cheques, certificates, documents or personal effects such as jewellery) unless the Client can demonstrate to Nursely's satisfaction (acting reasonably), that the CHP has been negligent or fraudulent in respect of those individuals' belongings.
9.6 Subject to clause 9.9, due to the nature of the service offered by Nursely to the Client, Nursely shall have no liability to the Client whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss, expenses, damage or delay arising from any failure to provide a CHP for all or part of an Assignment.
9.7 Subject to clause 9.9, Nursely shall have no liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with this agreement.
9.8 Subject to clause 9.9, Nursely's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the total of the Service Fees paid under this agreement.
9.9 Nothing in this agreement shall limit or exclude either party's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
9.10 The provisions of this clause 9 shall survive termination of this agreement.
10.1 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 , except as permitted by clause 10.2.
10.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
Each party warrants that it has full capacity and authority to enter into and perform this agreement.
Subject to clause 4, the Client agrees that it will not, either on its 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 this 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 Nursely who has worked on the services provided under this agreement at any time during the term of this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties.
14.1 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.
14.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
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 acknowledges that in entering into this agreement it does not rely on, and 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.
15.3 Nothing in this clause 15 shall limit or exclude any liability for fraud.
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
17.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by 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).
17.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt; or
(b) 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.
17.3 This clause 17 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.
18.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it ("Dispute") then except as expressly provided in this agreement, the parties shall follow the procedure set out in accordance with Nursely’s written Complaints Procedure that shall be available upon request and in accordance with this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars and the parties attempt in good faith to resolve the Dispute within 28 Business Days, or such other period which may be agreed between the parties;
(b) where such dispute cannot be resolved, the parties will attempt, acting in good faith, to settle it by mediation. Unless otherwise agreed by the parties within 14 days, the mediator shall be appointed by the President of the Law Society of England and Wales; and
(c) the parties shall agree upon the conduct of the mediation and in default of agreement, the mediator (if he has been appointed) shall consult with the parties and determine the issue.
18.2 If the dispute is not resolved in accordance with clause 21.1 within 60 days of referral for mediation, either party may refer the dispute to the English Courts for determination.
18.3 Nothing in clause 21.1 shall restrict Nursely from pursuing its outstanding invoices through the English Courts or from seeking injunctive relief.
This 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 the law of England and Wales.
Subject to clause 21, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement, including payment, if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 days, the party not affected may terminate this agreement by giving 14 days' written notice to the affected party.
22.1 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 25 shall not affect the validity and enforceability of the rest of this agreement.
22.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.