1.1 In these Conditions the following words shall have the following meanings:
Agreement: The agreement between Oculist and the Locum as formed in accordance with condition 3.1.
Assignment: The placement of a Locum in a Vacancy to perform certain services.
Assignment Terms: Template terms and conditions supplied by Oculist Locum for a Practice to use to govern the relationship between it and a Locum.
Commission: The percentage of the Locum Fees payable to Oculist as specified in Oculist’s standard price list.
Engage: The employment of a Locum or engagement directly or indirectly through any employment business other than through Oculist (whether for a definite or indefinite period) by the Practice as a direct result of any Introduction or Assignment to the Practice and the terms Engaged or Engagement shall be construed accordingly.
Engagement Fee: Shall be as specified in Oculist’s standard price list.
Introduce: The introduction via the Website of a Practice and a Locum in relation to a Vacancy and Introduction and Introduce shall be construed accordingly.
Introduction Criteria: The criteria used by Oculist in order to determine whether to make Introductions of Locums to Practices.
Locum: An individual worker Introduced by Oculist to the Practice to work temporarily for and under the supervision and direction of the Practice.
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.
Practice: The Opticians practice which posts Vacancies on the Website in order to be Introduced to Locums to fill those Vacancies.
Registered User: Means a Practice or a Locum who has registered with the Website.
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 Practice posts on the Website from time to time in accordance with the Agreement.
Bookings/ placement Criteria: The information required from the Practice in relation to a Vacancy in order to be able to post that Booking/ Vacancy on the Website.
Website: Means the online website for providing Introductions currently hosted at www.oculist.co.uk
Services: The provision of an online match-making service that brings together Practices and Locums looking for work.
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.
2.1 These Conditions set out the agreement between Oculist and the Locum for the provision of the Introductions by Oculist via the Website.
2.2 The Website allows the Locum to view and apply for Vacancies posted on the Website by Practices and for Oculist to make Introductions of Locums who fulfil the Vacancy Criteria to Practices in respect of those Vacancies in accordance with the Introduction Criteria.
3. Registration and user ID
3.1 The Locum will be asked to provide a User ID to register. If the chosen user name is not available, the Locum will be asked to provide alternatives. If the user name is available it will be assigned to the Locum and activated following their acceptance of these Conditions by clicking on the “submit” button at which point the Locum will become a Registered User and at which point the Agreement shall be considered to be formed. The Locum is solely responsible for all actions taken under that User ID. It is the responsibility of the Locum to keep its User ID safe. The User ID will act as the Locum’s identity to other Registered Users of the Website. The Locum must immediately inform Oculist 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 Locum must populate their Member Profile. Upon successfully providing this information in compliance with the minimum requirements applicable to Locums as Registered Users, the Locum can use the Website.
3.3 The Locum warrants and represents that all information provided by them on registration and contained within their Member Profile is and continues to be, accurate and not misleading.
3.4 The Locum shall within 5 days update their Member Profile to reflect any change to their contact details indemnity cover, status of registration with the General Optical Council or any other information included in their Member Profile.
4.1 The Website acts as a venue allowing Registered Users to make arrangements for the Introduction of Locums and Practices and Oculist shall use reasonable skill and care to make such Introductions. Oculist has no contractual involvement in the Assignments which will be governed by the Assignment Terms or such terms agreed between the Practice and Locum, from time to time. The Practice may use its own standard terms provided that the Practice have uploaded them to the Website, they are not incompatible with these Conditions and do not offer any less favorable terms to Oculist than the Assignment Terms. Registered Users (whether as Practices 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, Oculist 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 The Website allows a Registered User (whether a Practice or a Locum) to leave feedback and rate either a Locum or a Practice, as the case may be. When leaving any such feedback or rating, the Registered User shall comply with the Feedback Policy. Oculist will consider any failure to comply with the Feedback Policy a material breach of the Agreement.
4.4 In the event of any dispute Oculist may in its sole discretion, so as to assist in the promotion of good practice 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.
4.5 If the Locum has any right, claim or action against any other Registered User arising from its use of the Website, the Locum agrees to pursue such right, claim or action independently, and the Locum releases Oculist (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.
5.1 Once a Practice has posted a Vacancy on the Website, Oculist shall promptly notify those Locums who fulfill the Vacancy Criteria, of such Vacancy. Once the deadline for submitting interest in a Vacancy closes, the Practice shall promptly select the Locum it wishes to perform the booking Oculist will then promptly confirm the Assignment with the Locum and the Practice.
5.2 If Oculist becomes aware of any Locum who no longer meets the minimum criteria for a Member Profile, Oculist shall not Introduce any such Locum to the Practice.
5.3 If the Locum after applying for a Vacancy on the Website, accepts a position otherwise than through the Website or for any other reason becomes unavailable for the Vacancy applied for, where this is prior to the Vacancy closing, the Locum shall immediately withdraw its application for the Vacancy from the Website and notify Oculist of the same and where this is after the Vacancy has closed the Locum shall immediately notify the Practice and Oculist.
6.1 Oculist shall charge Commission to the Practice for each Assignment, but shall not make any charge to the Locum for Introductions or the Locum’s use of the Website.
6.2 On the last working day of the month, at the end of an Assignment Oculist will send the Practice a statement of account with the details of that Assignment together with the Locum Fees incurred by the Practice and the commission due to Oculist.
6.3 Within 48 hours of receipt of such statement the Practice shall either confirm its acceptance of the statement or make amendments to it and return it to Oculist. If Oculist does not receive any amendments to the statement from the Practice within this timeframe it shall be deemed that the Practice accepts the statement.
6.4 Following acceptance of the statement by the Practice, Oculist shall produce an invoice for the relevant Locum Fees due, for the Locum to confirm. The Locum shall promptly either confirm their acceptance of the invoice or make amendments to it and return it to Oculist. If Oculist does not promptly receive any amendments to the invoice from the Locum it shall be deemed that the Locum accepts the invoice and the Oculist will send the invoice to the relevant practice on behalf of the Locum. The Locum on agreeing to find work through Oculist agrees for Oculist to send invoices on their behalf. It is the sole responsibility of the Practice to pay the Locum Fees to the Locum. It is the Locums sole responsibility to ensure their VAT status, accounting and payments are correct.
6.5 If, following the Introduction of a Locum by Oculist to the Practice the Practice Engages the Locum, the Practice will pay Oculist the Engagement Fee.
6.6 The Locum Agrees to inform Oculist of any Engagement, Vacancy or Placement made by a Client outside of the Oculist website.
7. Term and termination
7.1 Either party may terminate the Agreement at any time by providing the other with 30 days' prior written notice.
7.2 Either party may terminate the Agreement immediately on giving notice in writing to the other party if:
7.2.1 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;
7.2.2 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;
7.2.3 If the other party (being an individual) is the subject of a bankruptcy petition; and
7.2.4 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.
7.3 Any termination of the Agreement however caused shall not affect:
7.3.1 Any rights or liabilities which have accrued before the time of termination; or
7.3.2 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.
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.
9. Audit and record-keeping
9.1 Oculist 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:
9.1.1 The services provided by Oculist under the Agreement;
9.1.2 Details of each Assignment and the date from which it commenced; and
9.1.3 All invoices produced by Oculist on behalf of the Locum.
9.2 Oculist shall on request provide the Locum such access, on reasonable notice and within normal working hours, to those records as may be reasonably required in connection with the Agreement.
10.1 During and after the Agreement, the Locum agrees to protect, indemnify, defend and hold harmless Oculist and any successor to it, and to the extent required from time to time by Oculist, (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) arising out of, connected with, or resulting from the Locum’s negligence, misrepresentation or any act or omission by the Locum whether in breach of any obligation to be performed by the Locum under the Agreement or otherwise.
10.2 The provisions of this condition 10 shall survive termination of the Agreement.
11.1 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.
11.2 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.
12. Data protection compliance
12.1 Oculist will
12.1.1 Process any personal data in respect of the Locum in order to fulfill the Agreement and any Assignment;
12.1.2 Not transmit such data and information to a country or territory outside the European Economic Area without the Practice's prior express written consent; and
12.1.3 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 as a data processors.
13. Warranties and undertakings
13.1 Oculist 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.
13.2 Oculist warrants that it does and it shall comply with the all relevant statutes, laws, regulations and codes of practice from time to time in force in.
13.3 Each party warrants that it has full capacity and authority to enter into and perform the Agreement.
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.
15. Assignment and sub-contracting
15.1 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.
15.2 Oculist 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 Locum.
15.3 Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
16. Entire agreement
16.1 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.
16.2 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.
16.3 No variation of the Agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
17. Contracts (Rights of Third Parties) Act 1999
17.1 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.
17.2 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.
18. Unforeseen Events
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.
19. Governing law and jurisdiction
19.1 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.
Member Profile - Information & minimum criteria
Proof that the Locum has the relevant indemnity insurance;
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.
The address of the Client;
The contact details of the Client;
The Billing details of the client
Details of the information technology.
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.
Locums who meet the Client's Placement Criteria; and
Locums who have valid indemnity cover.