Locum's Nest Platform Agreement (Agency)

1. Background

1.1 Locum's Nest Limited is a company registered in England whose registered office is Locums Nest Ltd, 72 Great Suffolk Street, London, SE1 0BL and whose company number is 09976456 ("Locum's Nest").

1.2 Locum's Nest has a platform that enables healthcare businesses to manage locum shift patterns through allowing locums engaged by healthcare businesses or locums working with relevant agencies to register for shifts online ("Locum's Nest Platform").

1.3 Locum's Nest has contractual relationships with certain NHS organisations, private hospitals and health centres ("Healthcare Organisations").  Amongst other things, this enables those Healthcare Organisations to advertise their available healthcare shifts on the Locum's Nest Platform, and cascade these shifts to external agencies registered with the Locum's Nest Platform (such as yours) to review and put forward their registered workers to fill those shifts.

1.4 This Locum's Nest Platform Agreement sets out the terms between Locum's Nest and the agency for whom you work ("Agency") in respect of the Locum's Nest Platform. You acknowledge that by creating and accessing an online account and by submitting bids ("Acceptance" or "Accept"), you will create a legally binding contract between Locum's Nest and the Agency on the terms set out herein and in doing so:

(a) You represent and warrant to Locum's Nest that Agency is an authorised employment agency which has, or intends to have, individuals registered to work as locums in relation to any one or more of the Healthcare Organisations' Sites ("Workers").

(b) You represent and warrant to Locum's Nest that you have the requisite authority, power and right to fully bind the Agency.  If you or the Agency do not agree to all the terms of this Agreement, or if you do not have the right to bind Agency, Agency, its staff and its Workers are not permitted to access the Locum's Nest Platform.

(c) You will obtain the right to send links to Agency's officers, employees, agents and contractors ("Authorised Users") to access the Locum's Nest Platform on Agency's behalf, provided each Authorised User accepts the Terms of Use.

(d) If, for whatever reason, Agency's staff have accessed the Locum's Nest Platform prior to Agency's Acceptance of this Agreement, the terms of this Agreement will also apply retrospectively as if they were in force from when the Agency staff member first accessed the Locum's Nest Platform.

1.5 Locum's Nest reserves the right to change the terms of this Agreement from time to time by notifying you; save that if it proposes to make any substantive changes, Locum's Nest will contact you via email or via its platforms.  Note that Locum's Nest also may introduce new and/or paid for services on the Locum's Nest Platform, for which separate terms may apply.  These terms were last updated in January 2024.

2. Definitions and interpretation

Defined terms used in this Agreement and rules on interpretation are set out in the schedule.

3. Term

1. Subject to clause 1.4(d), this Agreement starts on the date of Acceptance and continues until Agency or Locum's Nest give no less than 14 days' notice to end it, in which case clause 13 applies.

4. Commercial model

2. The parties acknowledge and agree to comply with the terms set out in the Locum's Nest: Commercial Model (Agency).

5. Services

5.1 Locum's Nest will provide the Services to Agency in accordance with this Agreement.

5.2 Locum's Nest may make improvements and/or minor changes to the Services from time to time in its discretion, and/or suspend the Services in order to repair, maintain or improve the Services, provided that Locum's Nest will, where reasonably practicable, give Agency as much advance notice as reasonably possible.

5.3 Locum's Nest reserves the right to change Agency’s passwords or other security devices used in connection with the Services, and/or temporarily suspend the Services on notice to Agency in the event of a security breach or suspected security breach in connection with the Services.

6. Licence

6.1 Subject to the licence restrictions in this Agreement, in particular those in clauses 6.2 and 6.3, Locum's Nest grants Agency a limited, non-exclusive, non-sub-licensable and non-transferable licence to access and use the Locum's Nest Platform in the United Kingdom for the term set out in clause 3 (save that Agency may use any reports it generates from the Locum's Nest Platform perpetually), provided that doing so is always in accordance with this Agreement.

6.2 Use of the Locum's Nest Platform includes use (under Agency's responsibility) by Agency's Authorised Users.  Agency shall ensure each: (a) Authorised User accepts the Terms of Use before accessing and using the Locum's Nest Platform; and (b) Worker must accept the Terms of Use before accessing and using the Locum's Nest App.  Agency is responsible for all acts and omissions of the Authorised Users and Workers as if they were its own, including for any breaches of the Terms of Use.

6.3 Except as expressly permitted by this Agreement or as separately agreed in writing between Agency and Locum's Nest, Agency:

(a) may only use the Services for Agency’s own internal business purposes and for the purposes of managing shift patterns for Workers at the Sites;

(b) will not license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit or make the Services available to any third party except where expressly permitted by this Agreement;

(c) will not, except to the extent expressly permitted by Applicable Law, attempt to de-compile, reverse engineer, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or a portion of the Services;

(d) will not introduce or permit the introduction into Locum's Nest's network and information systems any Contaminants or material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property.

6.4 Locum's Nest will be entitled to suspend the Services if Agency (including its Authorised User) is in breach of this clause 6.

7. Agency’s obligations

7.1 Agency will:

(a) be solely responsible for determining who shall be an Authorised User;

(b) give Locum's Nest all information, materials and assistance reasonably required to enable Locum's Nest to provide the Services in accordance with the Agreement;

(c) not impersonate Workers or otherwise use the Locum's Nest App or Locum's Nest Platform as if they are a Worker;

(d) not submit timesheets on behalf of Workers as this must be done by the respective Worker; 

(e) comply with any respective Healthcare Organisations' policies, which are provided to it by Locum's Nest or the relevant Healthcare Organisation;

(f) comply with all Applicable Laws, including the Agency Workers Regulations 2010;

(g) use its best endeavours to prevent unauthorised access or use of the Services, including: (i) ensuring the proper use of any IDs, passwords and other security devices used by Agency in connection with the Services; and (ii) maintaining up-to-date anti-virus software to protect the Services from Contaminants;

(h) immediately inform Locum's Nest if there is or if Agency suspects that there is: (i) a security breach in relation to or arising from Agency’s or Authorised Users' use of the Services; or (ii) unauthorised access, use or copying of the whole or any part of the Services or Locum's Nest Platform by any person, and in each case work with Locum's Nest (at Agency's cost) to remedy the issue as soon as reasonably practicable;

(i) be solely responsible for the security and for the back-up of its Agency Materials and records on the Locum's Nest Platform; and

(j) be solely responsible for operating its business and using the Services in accordance with any agreements it has with the Healthcare Organisations and will comply with those agreements at all times, including in relation to any exclusivity or other obligations or restrictions.

7.2 Locum's Nest will be entitled to suspend the Services if Agency (including its Authorised Users) is in breach of this clause 7.

8. Warranties

8.1 Locum's Nest warrants that the Services will be provided with reasonable care and skill.

8.2 If Locum's Nest breaches the warranty in clause 8.1, Locum's Nest will have a reasonable time to fix the problem and (if necessary) to re-perform any relevant Services or find a practicable way to work around the problem. If Locum's Nest does this within a reasonable time, subject to clause 9.1, this will be Agency's only remedy for a breach of clause 8.1.

9. Liability

9.1 Neither party's liability for the following items is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case: (a) for death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) under any indemnity in this Agreement; or (d) to pay sums properly due and owing (if any) to the other in the normal performance of this Agreement.

9.2 Subject to clause 9.1 neither party will be liable for any: (a) loss of profits, contract, revenue; (b) loss or corruption of data or software; (c) wasted management or officer time;  or (d) indirect, consequential or special loss; in each case, however it arises (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise), whether or not such loss was foreseeable or if the other party was advised of its possibility.

9.3 Subject to clause 9.1, Locum's Nest will not be liable to the extent set out in the Locum's Nest: Commercial Model (Agency).

9.4 Subject to clauses 9.1 and 9.2 and 9.3, each party's total aggregate liability under this Agreement and in relation to anything which the party concerned may have done or not done in connection with this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to £10,000.

9.5 Except as expressly and specifically provided in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

10. Indemnity

Agency hereby indemnifies Locum's Nest against any loss or damage suffered or incurred by Locum's Nest arising out of any claim: (a) that the use, hosting, possession or transmission by Locum's Nest in accordance with this Agreement of any Agency Materials infringe the Intellectual Property Rights of any third party or any Applicable Law; (b) in relation to Agency’s use of the Services and its Workers' use of the Locum's Nest App; (c) in relation to Agency’s breach of clauses 6 and/or 7; and (d) made by any Worker.

11. Intellectual Property Rights

11.1 All Intellectual Property Rights in and to the Services, the Locum's Nest Platform, the Locum's Nest App, the Locum's Nest website and any documentation and/or other materials provided by Locum's Nest, accessed by Agency or, subject to clause 11.2 generated by the Services (including reports), remain vested in Locum's Nest and/or its licensors.  Agency will have no rights in or to such materials other than the right to access and use them in accordance with the terms of this Agreement.

11.2 The Intellectual Property Rights in Agency Materials remain vested in Agency and/or its licensors.  Agency grants to Locum's Nest a royalty-free, non-exclusive licence to use, copy, modify, adapt, translate Agency Materials, and publish and transmit them for the purpose of: (a) providing the Services; and (b) clause 11.3.

11.3 Locum's Nest may derive aggregated and/or anonymised data relating to this Agreement (including Agency Materials) that is irreversibly disassociated with Agency and its Authorised Users; and Locum's Nest will own all Intellectual Property Rights in and to that information and may use that information for commercial purposes such as product improvement.

12. Confidentiality and Data Protection

12.1 Each party will keep confidential any Confidential Information which it receives in connection with this Agreement.  Confidential information will include all information marked as being confidential and any other information which might reasonably be assumed to be confidential.  The obligations as to confidentiality in this Agreement will not apply to any information which: (a) is available to the public, other than because of any breach of this Agreement; (b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure (but only to the extent of such requirements).

12.2 Each party acts as a data controller in its own right and agrees to provide reasonable assistance as is necessary to the other party to:

(a) comply with any subject access requests (whether in relation to access to personal data, rectification, restrictions on processing, erasure or portability) and to respond to any other queries or complaints from their Data Subjects ("Data Subject Request") in accordance with the Data Protection Laws.

(b) facilitate the handling by the other party of any Data Security Breach for which the other party is responsible as soon as reasonably practicable upon becoming aware, which shall include the Party responsible for the breach notifying: (i) the relevant supervisory authority, promptly and in any event no later than 72 hours after becoming aware of it; and (ii) the relevant data subjects without undue delay, where required by the Data Protection Laws.

(c) before making a notification under Clause 11.2(b)(ii), each party agrees not to make any other announcement or otherwise make public any notice or information about a Data Security Breach without the other party's approval, where applicable.

(d) provide reasonable assistance as is necessary to the other party to respond within a reasonable time to any enquiries from the supervisory authorities in relation to the personal data.

12.3 The terms "data subject(s)", “personal data”, “data controller”, “data processor” and "data security breach" have the meanings given in the Data Protection Act 1998 and “processing”, “process” and “processed” will be construed accordingly. The terms “personal data”, “data controller” and “data processor” have the meanings given in the Data Protection Act 1998 and “processing”, “process” and “processed” will be construed accordingly.

13. Consequences of Termination

3. Termination of this Agreement will not affect any accrued rights or liabilities which either Locum's Nest or Agency may have by the time termination takes effect.  Upon termination of this Agreement for any reason: (a) Locum's Nest may invoice Agency for fees due under this Agreement (if any) which Agency shall pay within 30 days from the date of the invoice; and (b) Agency and its Authorised Users access to the Services shall immediately stop.

14. Other terms

14.1 Locum's Nest may sub-contract any or all of its rights or obligations under this Agreement but in doing so Locum's Nest will be responsible for the acts and omissions of those sub-contractors as if they were its own.  Other than this, neither party may sub-license or assign, sub-contract or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other.

14.2 All notices and consents relating to this Agreement must be in writing (which may include email).  Notices must be sent to the address of the recipient set out in this Agreement or otherwise notified by the relevant party in accordance with this Agreement.

14.3 Locum's Nest will not be liable to Agency for any breach of this Agreement which arises because of any circumstances which Locum's Nest cannot reasonably be expected to control.

14.4 Nothing in this Agreement shall create a partnership or relationship of agency between the parties or give the rights of a partner to either party.

14.5 All notices and consents relating to this Agreement must be in writing.  All variations to this Agreement must be agreed, set out in writing and signed on behalf of both Locum's Nest and Agency.

14.6 If a party: (a) delays in enforcing its rights under this Agreement (whether in relation to a breach by the other party or otherwise); or (b) agrees not to enforce its rights, or to delay doing so, then unless the party concerned expressly agrees otherwise, that delay or agreement shall not be treated as waiving the rights of the party concerned. Any waiver of a party's rights in relation to a particular breach of this Agreement shall not operate as a waiver of any subsequent breach.

14.7 No other representations or terms shall apply or form part of any agreement between the parties.  Agency acknowledges that it has not been influenced to enter into this Agreement by anything Locum's Nest has said or done or committed to do, except as expressly recorded herein.

14.8 In the event of any provision of this Agreement being held to be void, voidable or unenforceable this shall not affect the validity or enforceability of any other provision of this Agreement or of the remainder of this Agreement as a whole.

14.9 No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.

14.10 This Agreement is governed by English law.  Both Locum's Nest and Agency submit to the exclusive jurisdiction of the English courts in relation to any dispute concerning this Agreement but either party is also entitled to apply to any court worldwide for injunctive and other remedies in order to protect or enforce its Intellectual Property Right.

4. SCHEDULE  - Definitions and interpretation