1 Definitions and Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Commencement Date” has the meaning given in clause 2.2.
“Complex Care Staff” means the provisions of specialist mental health Staff to the Customer by Prometheus Complex Care Ltd, a company registered in England and Wales with company number 08074238.
“Conditions” means these terms and conditions as amended from time to time.
“Confidential Information” means any information of a confidential nature concerning the business, assets, affairs, technology, patients, customers, clients, suppliers of each party or of any member of its group, including information relating to its operations, processes, plans, products, services, know-how, designs, trade secrets, computer programs, documentation, materials, marketing or market opportunities.
“Contract” means the contract between Prometheus and the Customer for the supply of Services and is made up of the Confirmation and the Conditions.
“Customer” means the person who purchases the Services from Prometheus and a reference to the Customer includes its representatives.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including UK GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2033 (SI 2003/2426), and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
“Fees” means the fees payable by the Customer for the supply of the Services in accordance with clause 6.
“Location” the location(s) where the Services are to be provided, as specified in the Confirmation.
“Order” means the Customer’s request for Services by email or using Prometheus’ booking line or portal.
“Patient” the individual in respect of whom the Customer requires Services to be provided to.
“Prometheus” means the Prometheus entity specified in the Confirmation.
“Secure Transport Services” means the 24-hour rapid response transport service provided by Prometheus Safe & Secure Ltd, a company registered in England and Wales with company number 08818166.
“Services” means the Complex Care Staff and/or the Secure Transport Services, supplied by Prometheus to the Customer as set out in the Confirmation.
“Staff” means any employee, agent, consultant, subcontractor or otherwise who is engaged by Prometheus for the provision of Services.
“UK GDPR” has the meaning given in section 3(10) of the Data Protection Act 2018.1.2 Interpretation:
1.2.1 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under such legislation or legislative provision.
1.2.2 Any words following the terms including, include, in particular, for example 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.
1.2.3 A reference to writing or written includes email but not fax.
1.2.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.5 If there is any conflict between the Confirmation and the Conditions, then the Conditions shall prevail.2 Basis of contract
2.1 An Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 Each Order shall only be deemed to be accepted when Prometheus issues a written confirmation email accepting the Order (“Confirmation”) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any, descriptive matter or advertising issued by Prometheus, and any descriptions or illustrations contained in Prometheus’ brochures or website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.3 Order for Services
3.1 The Customer shall place an Order for Services by email or using Prometheus’ booking line or portal.
3.2 As part of each Order, the Customer shall provide all information about the Patient to Prometheus, and in particular such information that Prometheus requires so that it is able to undertake a thorough risk assessment of the Patient to understand the Patient’s needs and any potential risks.
3.3 The Customer warrants, represents and undertakes that all information provided to Prometheus pursuant to clause 3.2 is true, accurate and complete.4 Supply of Services
4.1 Prometheus shall provide the Services in accordance with these Conditions in all material respects.
4.2 Prometheus reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
4.3 Prometheus warrants to the Customer that the Services will be provided using reasonable care and skill.
4.4 Prometheus shall assign suitably qualified staff to perform the Services, as determined by Prometheus’ own unfettered discretion.
4.5 Prometheus shall ensure that all Staff have been vetted in accordance with Prometheus’ vetting processes prior to assigning such member of Staff to the provision of Services.
4.6 Prometheus shall observe all reasonable health and safety requirements that apply at the Location provided that the Customer has provided prior written notice of such requirements to Prometheus.
4.7 The Customer acknowledges that time shall not be of the essence for performance of the Services.5 Customer obligations
5.1 The Customer shall:
5.1.1 co-operate with Prometheus and its Staff at all in time in all matters relating to the Services;
5.1.2 procure and ensure that representatives of the Customer are available to liaise with Prometheus and its Staff prior to the commencement of, and during the course of the provision of the Services at all time as may reasonably be required by Prometheus to enable Prometheus to provide the Services;
5.1.3 provide or procure Prometheus and its Staff with access to the Location and any other Customer premises or facilities which Prometheus reasonably requires access to for the provision of the Services;
5.1.4 provide Prometheus with such information, documentation and assistance as Prometheus requires in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
5.1.5 notify Prometheus of all known risks in respect of the Patient and at the Location. The obligation to notify Prometheus of such risk factors is a continuing obligation and the Customer shall review the risks presented to Prometheus and its Staff on a continual basis and notify Prometheus immediately of any changes to its initial and ongoing risk assessments;
5.1.6 inform Prometheus of all health and safety and security measures that apply at each Location where all or any part of the Services are to be provided;
5.1.7 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the Commencement Date; and
5.1.8 inform Prometheus of any concerns it has in relation to a Patient, Staff or the Services as soon as reasonably practicable.
5.2 The Customer warrants, represents and undertakes that:
5.2.1 it has, and shall maintain during the continuance of the Contract, all necessary licences, permissions and consent as may be required for it to carry on its business in the form in which it is carried on;
5.2.2 it is and will remain for the duration of the Contract, duly registered with all applicable relevant authorities, including the Care Quality Commission; and
5.2.3 it has and will continue to operate its business in full compliance with all of its regulatory obligations and all applicable laws from time to time.
5.3 The Customer agrees and acknowledges that it is at all times responsible for the physical health needs of the Patient and complying with its own legal and regulatory obligations.6 Fees and payment
6.1 In consideration for the provision of the Services, the Customer shall pay to Prometheus the Fees in accordance with this clause 6.
6.2 The Fees for the Services shall be set out in the Confirmation.
6.3 Prometheus shall submit invoices for the Services to the Customer weekly in arrears.
6.4 The Customer shall pay each invoice submitted by Prometheus:
6.4.1 within thirty (30) days of the date of the invoice; and
6.4.2 in full and in cleared funds to a bank account nominated in writing by Prometheus from time to time, and
6.4.3 time for payment shall be of the essence of the Contract.
6.5 All amounts payable by the Customer exclude amounts in respect of value added tax (“VAT”), which the Customer shall be additionally liable to pay for (if applicable), subject to receipt of a valid VAT invoice.
6.6 If the Customer fails to make a payment due to Prometheus under the Contract by the due date, then, without limiting Prometheus’ remedies under clause 10, the Customer 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 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
6.7 All amounts due under the Contract 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).7 Confidentiality
7.1 Each party undertakes that it:
7.1.1 shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 7.2;
7.1.2 shall take all measures as are necessary to ensure the confidentiality of the other party’s Confidential Information; and
7.1.3 only use the other party’s Confidential Information exclusively for the purpose of performing its obligations under the Contract.
7.2 Each party may disclose the other party’s confidential information:
7.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. 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 7.1; and
7.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.8 Data protection
The parties shall comply with their applicable data protection obligations under the Data Protection Legislation.9 Limitation of liability
9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
9.2.1 death or personal injury caused by negligence;
9.2.2 fraud or fraudulent misrepresentation; and
9.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.3 Subject to clause 9.2, Prometheus’ total aggregate liability to the Customer under the Contract shall not exceed an amount equal to the total Fees that have been paid to Prometheus during the 12 months immediately preceding the date on which the claim arose.
9.4 The caps on Prometheus’ liabilities shall be reduced by amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
9.5 This clause 9 shall survive termination of the Contract.10 Termination
Without affecting any other right or remedy available to it, Prometheus may suspend or terminate the Contract with immediate effect by giving written notice to the Customer.11 Consequences of termination
11.1 Termination of the Contract 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 Contract which existed at or before the date of termination.
11.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.12 General
12.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.3 Governing law. The Contract, 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.
12.4 Jurisdiction. 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 the Contract or its subject matter or formation.