Terms & Conditions of Use of Nightingale Site and Services

 

Last Updated: 20th September 2018

 

Thank you for visiting the Nightingale Site; www.nightingaleapp.co.uk (the “Site”).

Nightingale provides an online platform that directly connects Independent Healthcare Professionals (defined below) seeking to provide professional healthcare services (the “Professional Services”) and Clients (defined below) seeking to engage Independent Healthcare Professionals to perform such Professional Services within the Healthcare Services they operate.

The Site is owned and operated by Talent Cloud Limited trading as ‘Nightingale’ – a company registered in England and Wales (collectively, “Nightingale,” “we,” or “our”).  Our Company Registration number is 11423780 and our registered office is at 35 Wilkinson Street, Sheffield, South Yorkshire, S10 2GB. Our registered VAT number is 302 5422 52.  

You should not access or use this site until you have carefully read and agreed to these terms and conditions, which consist of the following sections:

 

1.     General Terms applicable to all Users that access the Site (the “Site Use Terms”);

2.     Terms specific to Independent Healthcare Professionals (defined below) (the “Professional Terms”); and

3.     Terms specific to Clients (defined below) (the “Client Terms”).

 

For the avoidance of doubt the “Site Use Terms” apply to all Users, including but not limited to all Independent Healthcare Professionals (defined below) and all Clients (defined below).

The “Site Use Terms” and the “Professional Terms” together apply to all Independent Healthcare Professionals, the “Site Use Terms” and the “Client Terms” together apply to all Clients. Collectively the “Site Use Terms”, the “Professional Terms” and the “Client Terms” may be referred to as the “Terms.”

 

1. General Terms applicable to all Users that access the Site

 

1.1. Definitions

1.1.1    “Independent Healthcare Professional”

An Independent Healthcare Professional is a self-employed provider of professional healthcare services such as, but not limited to, GPs, qualified Nurses and midwives and care workers.

1.1.2  “Client” or “Clients”

A Client is a healthcare provider of professional healthcare services which is regulated by the Care Quality Commission (“CQC”). A Client may be NHS or a private healthcare provider providing services such as, but not limited to, Care Homes, Walk-in Centres, Out of Hours, Community Services, Hospitals and Prisons

1.1.3. “User”, “Users”, “you” or “your”

The terms “User,” “Users,” “you,” or “your” refer to any and all people that access or use the Site, including but not limited to Independent Healthcare Professionals and Clients. In Section 1 this refers to all Users, in Section 2 this refers to Independent Healthcare Professionals and in Section 3 this refers to Clients.

 

1.2. Coverage of Terms

1.2.1         

By visiting the Site you agree to the Site Use Terms. If you do not agree to the Site Use Terms you may not access or use the Site.

1.2.2

The Site Use Terms apply whenever you visit or use the services available on the Site and may be updated from time to time. We include a ‘Last Updated’ date at the top of the Site Use Terms and encourage you to check the Site frequently to see the current Site Use Terms in effect and take note of any changes that may have been made.

1.2.3

When visiting or using the Site you confirm that i) you are expressly and duly authorised to accept these terms and conditions and ii) you accept these terms and agree to be bound by them.

1.2.4

By visiting or using the services available on the Site following any changes to the Site Use Terms, you agree to be bound by such changes.

 

1.3. Our Services

1.3.1

The Nightingale online platform (the “Platform”) is a marketplace that directly connects Independent Healthcare Professionals seeking to provide Professional Services and Clients seeking to engage Independent Healthcare Professionals to perform such Professional Services within the healthcare services they operate.

1.3.2

As part of the Platform, and subject to the relevant Independent Healthcare Professional's consent, Nightingale provide a service which allows Clients to create a staff bank of preferred Independent Healthcare Professionals.

1.3.3

The Nightingale Platform and all available services can be provided to Clients as a Pay as you Use or Subscription service.

1.3.4

For the purposes of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 Nightingale is not an employment agency or employment business and we do not introduce or supply work seekers to hirers or hirers to work seekers. Instead Nightingale is a Platform through which Independent Healthcare Professionals find ad-hoc Vacancies/Shifts for themselves and Clients find Independent Healthcare Professionals to work on ad-hoc Vacancies/Shifts.

1.3.5

Nightingale does not supervise and/or control the actions of any Independent Healthcare Professional. Nothing in these Terms shall in any way constitute any Independent Healthcare Professional as the employee or worker of Nightingale.  Nightingale shall not be responsible for supervising, monitoring or directing the Independent Healthcare Professional whilst working on an ad-hoc Vacancy/Shift and accordingly, only the Client is able to assess and insure against risks in respect of or during or arising out of the period for which the Independent Healthcare Professional is performing the Professional Services.

1.3.6

Clients are solely responsible for reviewing all applications submitted for any ad-hoc vacancies posted by the Client, and for negotiating and agreeing all terms and arrangements relating to them. We shall have no responsibility for any engagement or employment decisions agreed by any Independent Healthcare Professional with any Client.

1.3.7

You agree that we have no obligation to pay any Independent Healthcare Professional for Professional Services rendered by them to Clients. We do, however, facilitate the payment of monies due from Clients to Independent Healthcare Professionals by providing Users with access to our online payment platform. We do not charge to use the payment platform; however, we reserve the right to do so in the future.

 

1.4. Engagement of an Independent Healthcare Professional by a Client

1.4.1

When an Independent Healthcare Professional confirms to a Client via the Platform that they are willing to undertake a Vacancy as posted by the Client, and the Client confirms via the Platform that they agree to Engage the Independent Healthcare Professional for that Vacancy, then an engagement contract to formalise what has been outlined via the Platform should be put in place.

1.4.2

For the avoidance of doubt both the Client and Independent Healthcare Professional acknowledge that there is no contract between Nightingale and any Independent Healthcare Professional relating to the provision of Professional Services.

1.4.3

Nightingale shall not be responsible for and shall have no involvement in any disputes between the Client and the Independent Healthcare Professional and shall not be responsible for the quality of the Professional Services provided by the Independent Healthcare Professional or their activities while at the Client's location.

1.4.4

Our Service Charge reflects only those services available and used via the Platform and do not indicate acceptance of any liability for any Independent Healthcare Professional's acts or omissions at any time.

1.4.5

Nightingale act only as a Commercial Agent for both Clients and Independent Healthcare Professionals in communicating key terms of the Engagement such as, but not limited to, rate of pay, start/end date, engagement length, break length, location of engagement and description of Professional Services required/provided.

1.4.6

Clients may choose to cancel a request for Professional Services from an Independent Healthcare Professional at any time prior to the Independent Healthcare Professional arriving at the Client location, however, in some cases you may be charged a cancellation fee.

1.4.7

If a Client does not cancel an Engagement at least four hours before the start time of the Vacancy/Shift, and the Independent Healthcare Professional arrives for the shift, the Client will be liable to pay the Independent Healthcare Professional the equivalent of a minimum of four hours pay at the previously agreed pay rate for the Engagement. 

1.4.8

Information relating to the frequency and timeliness of cancellations by a Client will be visible to the Independent Healthcare Professional via the Clients profile and on any Vacancies/Shifts the Client posts.

1.4.9

Repeated and frequent cancellation of Vacancies/Shifts by Clients may result in their use of the Platform being suspended or terminated at our sole discretion.

1.4.10

Information relating to the frequency and timeliness of cancellations by an Independent Healthcare Professional will be visible to Clients via the Independent Healthcare Professionals profile and on any applications made for Vacancies/Shifts.

1.4.11

Repeated and frequent cancellation of Vacancies/Shifts by Independent Healthcare Professionals may result in their use of the Platform being suspended or terminated at our sole discretion.

 

1.5. Rules and Limits on the use of the Site and Platform

1.5.1

We reserve the right, for any reason and at our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site/Platform. We will not be liable to you or to any third party for doing so.  We will try to give you reasonable notice of any major changes.

1.5.2

We may also impose rules and limits on use of the Site/Platform to restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time and at our sole discretion. We will try to give you reasonable notice of any major changes.

1.5.3

The Site or Platform may be used only for lawful purposes. You are responsible for your own communications, including the upload and posting of information (by way of free-text or otherwise) (“User Content”), and you are responsible for the consequences of such uploads and posting of information on or through the Site/Platform.

1.5.4

By uploading, posting or displaying User Content on the Nightingale Platform, you grant Nightingale a worldwide, non-exclusive, irrevocable, perpetual, royalty-free license to reproduce, adapt, distribute and publish such User Content through the Nightingale Site or Platform. We reserve the right to refuse to accept, post, display or transmit any User Content at our sole discretion and shall comply with the Data Protection Legislation in relation to sensitive personal data.

1.5.5

Accordingly, any claims or disputes that arise from any such information or comments are your sole responsibility and you shall indemnify Nightingale in respect of any Loss it may suffer in relation to any of the same including in relation to any such information or comment that is or is alleged to be defamatory.

1.5.6

Our Site may include information, material or content uploaded by other Users of the Site. This information and these materials have not been verified or approved by us. The views expressed by other Users on our Site do not necessarily represent our views or values.

1.5.7

If you wish to complain about any information, materials or content uploaded by other Users please contact us using the information provided at the top of the Terms.

1.5.8

You agree to use our Platform and the services only for lawful purposes and in a way which does not infringe the rights of anyone else or restrict or inhibit anyone else's use of our Platform or services.

1.5.9

You are permitted to download and print content from the Nightingale Site or Platform solely for your personal use.

1.5.10

All or any part of the Nightingale Site or Platform content must not be copied or reproduced, modified, redistributed, used or otherwise dealt with for any reason without Nightingale’s express written permission.

1.5.11

You are not entitled to use the content of the Nightingale Site or Platform for commercial exploitation in any circumstances.

1.5.12

Nightingale specifically prohibits any use of the Site, and requires all Users to agree not to use the Site, for any of the following:

(a)  For any unlawful purpose of for the promotion of illegal activities;

(b)  Attempt to, or harass, abuse or harm another person or group;

(c)  Posting any information that is incomplete, false, inaccurate or not your own, such as creating a fictional account;

(d)  Impersonating another person, such as creating an account for a person other than yourself;

(e)  Use another person’s User account without permission;

(f)   Post any Vacancies/Shifts where there is a risk to the health and safety of any Independent Healthcare Professional;

(g)  Attempt to re-register with Nightingale if we have terminated your User Account for any reason

(h)  Constituting or encouraging any conduct that would constitute a criminal offense or that fails to comply with accepted Internet protocol;

(i)    Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;

(j)    Posting material that reveals trade secrets, unless you own them or have the permission of the owner;

(k)   Posting material that infringes on any other intellectual property, privacy or publicity right of another;

(l)    Transmitting or transferring (by any means) information or software derived from the Site to any third parties;

(m) Interfere, or attempt to interfere, with the proper functioning of the Nightingale Site;

(n)  Attempt to interfere in any way with the Site’s networks or network security, or attempting to use the Site’s services to gain unauthorized access to any other computer system;

(o)  Use any software, technology, or device to scrape, spider, or crawl the Nightingale Site or harvest or manipulate data;

(p)  Use any of the Client or Independent Healthcare Professionals information, contacts or content from the Nightingale Platform for any commercial solicitation purposes; and

(q)  Publish or link to malicious content intended to damage or disrupt another User’s web browser or Device   

1.5.13

Any violations of our Site, Platform or network security may result in legal action. Nightingale will investigate any such occurrences under the Computer Misuse Act 1990 and may involve, and co-operate closely with, the relevant authorities in order to prosecute any Users involved in such violations.

1.5.14

You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:

(a)  Accessing data not intended for you or logging into a server or account that you are not authorised to access;

(b)  Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation;

(c)  Attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus or malware to the Site, overloading, “flooding,” “mailbombing,” or “crashing,” or sending unsolicited e-mail, including promotions and/or advertising of products or services; or

(d)  Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

 

1.6. Indemnity

1.6.1

You agree to indemnify, defend and hold harmless Nightingale and its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers and employees from and against any and all claims, losses, expenses or demands of liability, including reasonable legal fees and costs incurred by Nightingale in connection with any claim by a third party (including an intellectual property claim) arising out of:

(a)  The User Content you upload, submit, post or transmit through the Nightingale Platform, or

(b)  Your use of the Nightingale Platform or any of our available services in violation of these Terms or in violation of any applicable law

 

1.7. Third party websites

1.7.1

Our Platform may contain links to other website, platforms and resources provided by third parties. We accept no responsibility or liability for any material supplied or contained on any third-party website, platform or resource which is linked from or to our Platform.  We have no control over the content of such third-party websites, platform or resources.

 

1.8. Bugs, Viruses and Malware

1.8.1

Whilst our Site and Platform is developed to the highest levels of security standards we cannot guarantee that our Site or Platform will be secure or free from bugs, viruses or malware. You agree that we are not liable for any bugs, viruses or malware on our site.

1.8.2

It is your responsibility for configuring your computers, desktops, laptops, tablets mobile phones (“Devices”) to access our Site.

1.8.3

It is your responsibility to use your own anti-virus software and ensure all Devices are automatically updated with the latest version of the anti-virus software you are using.

 

1.9. Termination

1.9.1

This Agreement shall continue unless terminated:

(a)  by Nightingale with immediate effect following any breach of this Agreement by you which, in our reasonable opinion, is not capable of remedy; or

(b)  by 7 Business Days' written notice by Nightingale if there is any other serious or repeated breach of this Agreement, which is, in our reasonable opinion, capable of remedy and which is not remedied within 10 Business Days after an earlier notice requiring it to do so; or

(c)  by written notice with immediate effect by Nightingale and without liability for Nightingale or prejudice to any right for relief Nightingale may have if in good faith Nightingale considers for any reason that

(i)             the Client may not meet its obligations to Nightingale; or

(ii)            the Independent Healthcare Professional may no longer be willing, or able or suitable to undertake the Professional Services for the Client;

(d)  by written notice with immediate effect by either party for convenience; or

(e)  by written notice with immediate effect by either party if the other party shall become insolvent within the meaning of the Insolvency Act 1986, becomes bankrupt, applies for, or has made against it a receiving order, or makes any composition with its creditors or an administration order or if an order is made or resolution passed for the winding up of that party or that party passes a resolution to cease trading or actually ceases trading

 

1.10. Data Protection

1.10.1

The terms "Data Subject", "Personal Data" and "processing" shall have the meanings set out in Data Protection Laws.

1.10.2

The parties acknowledge that, for the purposes of the Data Protection Laws, each party shall be considered to be a Data Controller with respect to Personal Data processed in connection with the marketplace.  Each party warrants to the other that, it shall comply with all requirements set out in Data Protection Laws.

1.10.3

The parties shall comply with the provisions and obligations imposed on them by the Data Protection Laws at all times when processing Personal Data in connection with the marketplace.

1.10.4

To the extent that a party processes any Personal Data on behalf of the other party, the processing party shall:

(a)  comply with the provisions and obligations imposed on a processor by the GDPR, including the stipulations set out in Article 28(3)(a)-(h) which form a part of, and are incorporated into, this Agreement as if they were set out in full, and the reference to "documented instructions" in Article 28(3)(a) shall include the provisions of this Agreement; and

(b)  not disclose any Personal Data to any Data Subject or to a third party other than at the written request of the other Party or as expressly provided for in this Agreement.

1.10.5

Each party shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Laws, and shall make such information available to the appropriate regulator on request.

 

1.10.6

If either party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data by the other party or to either party's compliance with the Data Protection Laws, it shall as soon as reasonably practicable notify the other party and it shall provide the other party with commercially reasonable co-operation and assistance in relation to any such complaint, notice or communication or personal data breach.

1.10.7

The parties shall co-operate and assist each other in relation to any request made by a Data Subject to exercise its rights under the Data Protection Laws.

1.10.8

You will notify us immediately of any loss, or any compromise of Personal Data processed by you in relation to this Agreement.

 

1.11. Privacy

1.11.1

You agree that all personal information you provide to us may be collected, stored, processed and used in accordance with our current Privacy and Cookie Policy.

 

1.12. General

1.12.1

If any of the terms and conditions in these Terms are found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the rest of these terms and conditions shall remain in full force and effect.

1.12.2

Only you and Nightingale shall be entitled to enforce these Terms. No third party shall be entitled to enforce any of these terms and conditions, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.

1.12.4

These Terms set out the entire agreement between you and us with respect to your use of the Nightingale Platform and services and supersedes any and all representations, communications and prior agreements (written or oral) made by you or us.

1.12.5

These Terms are governed by the law of England and Wales. In the event of any matter or dispute arising out of or in connection with these Terms, you and we shall submit to the exclusive jurisdiction of the courts of England and Wales.

 

2. Terms specific to Independent Healthcare Professionals

 

2.1. Account Registration

2.1.1

To access the Nightingale Site and use our services you will need to register an account and create an Independent Healthcare Professional profile ("Profile") with us.

2.1.2

You will register an account and create a Profile by:

(a)  entering at least one of several identifiers, including, but not limited to, first and last name, telephone number, email address;

(b)  selecting and verifying information in pre-populated drop downs or profile options; or 

(c)  uploading and posting information and documentation (by way of free-text or otherwise) (“User Content”)

2.1.3

The date that you create an account is the “Registration Date”.

2.1.4

On registering an account, you will be provided with a login and password or any other such pieces of information as deemed necessary as part of our security procedures. You must treat such information as confidential. You must not disclose it to any third party.

2.1.5

You are responsible for the contents of your Profile. You warrant to us that any and all information contained in your Profile is true, accurate and not misleading in any way, including, but not limited to, career history, your right to work, work experience and professional qualifications. It is your responsibility to ensure that all information in your Profile is current and kept up to date.

2.1.6

You are responsible for all applications for Vacancies/Shifts submitted by you via the Platform and for negotiating and agreeing all terms and arrangements relating to them. We shall have no responsibility for any engagement or employment decisions agreed by you with a Client.

2.1.7

You may suspend or delete your account at any time using the account settings or by contacting us to do this for you.

2.1.8

We may suspend or delete your account at any time, if in our reasonable opinion, you have failed to comply with any of the provisions of our Terms. 

2.1.9

You must contact us immediately if you suspect that anyone other than you knows your login and password credentials and/or has access to your account.

 

2.2. Relationship between Independent Healthcare Provider, the Client and Nightingale

2.2.1

Nightingale does not supervise and/or control the actions of any Independent Healthcare Professional. Nothing in these Terms shall in any way constitute any Independent Healthcare Professional as the employee or worker of Nightingale. 

2.2.2

The Independent Healthcare Professional shall provide the Professional Services for the Client in accordance with the Terms.

2.2.3

The Terms shall apply to any and each Engagement agreed between the Independent Healthcare Provider and the Client.

2.2.4

We have no obligation to pay the Independent Healthcare Professional for the Professional Services provided to a Client. We do, however, facilitate the payment of fees due to you by providing you and Clients with access to our online payment platform. We will not charge you for the use of the payment platform, but we reserve the right to in the future.

2.2.5

The Independent Healthcare Professional is required to submit their timesheet via the Platform to the Client as soon as possible after completing Shift. There is no obligation from the Client to pay you until you submit a timesheet.

 

2.3. Independent Healthcare Professionals Obligations         

2.3.1

Prior to accepting a Vacancy/Shifts the Independent Healthcare Professional shall check:

(a)  the identity of the Client and the nature of its business;

(b)  the type of work, location, start date, times and duration of the Shifts;

(c)  any risks to health and safety;

(d)  the level of experience, training, qualifications and authorisation which the Client considers necessary to undertake the Shifts, or are required by law or otherwise to undertake the position; and

(e)  the ability to give reasonable notice, and a minimum of 48 hours’ notice, to the Client for any Shifts you accept and subsequently cancel

2.3.2

During each and every Engagement the Independent Healthcare Professional shall:

(a)  provide the Professional Services in accordance with best practice and within their scope of practice at all times;

(b)  comply with all health and safety, site and security regulations applicable at the Client’s location to the extent that they apply to the type of work required for the provision of the Professional Services and report to the Client any unsafe working practices or conditions;

(c)  comply with all the Client regulations, policies and protocols as notified by the Client;

(d)  promote the interests of the Client and not engage in any conduct detrimental to the interests of the Client, including, without limitation, any conduct likely to bring the Client into disrepute;

(e)  hold valid professional indemnity insurance with a recognised and reputable organisation such as, but not limited to, the RCN or MDU;

(f)   supply to the Client, via their Profile on the Platform, copies of any relevant qualifications or authorisations that you are required by the Client, or by law any professional body, to have in order to provide the Professional Services; and

(g)  indemnify the Client against all losses incurred by the Client arising out of any negligent, wrongful or fraudulent act or omission of the Independent Healthcare Professional

2.3.3

The Independent Healthcare Professional shall notify us immediately upon the occurrence of any one or more of the following events:

(a)  you are given a caution order, conditions of practice order, suspension order or striking-off order by your regulatory or governing body;

(b)  you are aware of any threatened, pending or final suspension, revocation, limitation, restriction or disciplinary action taken by, but not limited to, any employer, regulatory body or other governing body that has authority over your ability to practice;

(c)  you are charged with or convicted of a criminal offence, or any other crime relevant to the provision of professional healthcare services;

(d)  you perform the Professional Services while impaired by or under the influence of any chemical substance or use of illegal drugs or alcohol;

(e)  you breach any of the provisions in 2.3.2 of these Terms; and

2.3.4

The Independent Healthcare Professional acknowledges that their primary duty of care is to the patients to which they are charged. Safeguarding of patients and effective reporting of adverse incidents is an integral part of patient care. Your duties to safeguard patients are required by professional regulators, service regulators and supported in law.

2.3.5

The Independent Healthcare Professional should raise all safeguarding concerns with the most senior person at the Client location where they are performing the Professional Services.

2.3.6

If for any reason the Independent Healthcare Professional cannot raise concerns with the Client, they should contact Nightingale at the earliest opportunity using our contact details and ask to speak to a Director regarding Whistleblowing and Safeguarding.

2.3.7

In the event of a safeguarding emergency, the Independent Healthcare Professional should contact the most appropriate local authorities.

 

2.4. General

2.4.1

The Independent Healthcare Professional acknowledges and agrees that the Nightingale Site/Platform and its services provides value in directly connecting Independent Healthcare Professional and Clients.

2.4.2

You agree that you will not solicit or accept any Vacancies/Shifts or permanent positions directly with a Client.

2.4.3

You agree that should you be offered any Vacancies/Shifts or a permanent position by a Client, and you have been introduced to that Client via our Site/Platform, you will notify us immediately. Failure to notify us may be considered a breach of Terms and result in you being removed from the platform.

2.4.4

You agree to indemnify, defend and hold harmless Nightingale and its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers and employees from and against any and all claims, losses, expenses or demands of liability, including reasonable legal fees and costs incurred by Nightingale in connection with any claim by a third party (including an intellectual property claim) arising out of:

(a)  The User Content you upload, submit, post or transmit through the Nightingale Platform, or

(b)  Your use of the Nightingale Platform or any of our available services in violation of these Terms or in violation of any applicable law

2.4.5

If you provide User Content to our Site, or make contact with other Users of our site, you must comply with the Terms and not do anything that is false or could mislead any user of the Site.

2.4.6

We have the right to disclose your identity to any Users or third-party who claims User Content posted or uploaded by you to our Site constitutes a violation of their intellectual property rights, or their right to privacy.

2.4.7

By creating a Profile you authorise us, and Clients you apply for a Vacancy/Shift with, to use the information and documentation within your profile to carry out the relevant checks in order to evaluate the validity and accuracy of the information and documentation provided. This may include sharing information with third parties. 

2.4.8

You also authorise us to conduct such security and identification checks as we deem necessary, including but not limited to, DBS checks via the use of the online DBS Update Service and Right to Work checks via Onfido and other third-party providers.

2.4.9

From time to time you will provide feedback for Clients following an Engagement via the Platform. You acknowledge that this information will be made available across the Site/Platform to other Independent Healthcare Professionals applying for Vacancies/Shifts with those Clients.

2.4.10

You acknowledge that Clients will be asked to provide feedback on you following an Engagement and that this information will be made available across the Site/Platform to other Clients you apply to Vacancies/Shifts with.

2.4.11

If any of the terms and conditions in these Terms are found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the rest of these terms and conditions shall remain in full force and effect.

2.4.12

These Terms are governed by the law of England and Wales. In the event of any matter or dispute arising out of or in connection with these Terms, you and we shall submit to the exclusive jurisdiction of the courts of England and Wales.

 

3. Terms specific to Clients

 

3.1. Nightingale’s Obligations

3.1.1

The Nightingale online Platform is a marketplace that directly connects Independent Healthcare Professionals seeking to provide Professional Services and Clients seeking to engage Independent Healthcare Professionals to perform such Professional Services within the healthcare services they operate.

3.1.2

The Nightingale Platform and all available services are provided to Clients as a Pay as you Use service or Subscription service. The Nightingale Service Fees will be provided in Schedule 1 of the Client Terms.

3.1.3

You acknowledge that Nightingale does not supervise and/or control the actions of any Independent Healthcare Professional. Nothing in these Terms shall in any way constitute any Independent Healthcare Professional as the employee or worker of Nightingale.  Nightingale shall not be responsible for supervising, monitoring or directing the Independent Healthcare Professional whilst working on an ad-hoc Vacancy/Shift and accordingly, only you are able to assess and insure against risks in respect of or during or arising out of the period for which the Independent Healthcare Professional is performing the Professional Services.

3.1.4

You acknowledge that we do not recommend any Independent Healthcare Professional to you.  Our Site/Platform simply connects you directly with the Independent Healthcare Professionals that best match your specified requirements.

3.1.5

Nightingale will use its reasonable endeavours to carry out certain checks on Independent Healthcare Professionals who register on the Platform, and in accordance with Clause 3.1.6 of the Client Terms.  You acknowledge and agree that these are the only checks we will carry out.

3.1.6

You acknowledge and agree that we will use reasonable endeavours to carry out the following checks in relation to Independent Healthcare Professionals on the Platform:

(a)  telephone, video or in person interview to assess English language skills and appropriate clinical experience

(b)  obtain two references from previous, most recent employment in the healthcare industry

(c)  Passport / Photographic ID

(d)  Right to Work (including any work permits) and ID check

(e)  Visual check of uploaded mandatory training certificates

(f)   Limited Company or Self-employed information

(g)  Confirmation and evidence of professional indemnity insurance with a recognised and reputable organisation such as, but not limited to, the RCN or MDU

(h)  for registered nurses, we review the NMC registration database to ensure there are no restrictions to practice and their registration is up to date. If restrictions do exist, we will highlight these restrictions in the Independent Healthcare Professionals Profile that is visible to Clients.  This check is made on sign up and annually;

(i)    for GPs, we review the GP register to ensure to ensure there are no restrictions to practice and their registration is up to date. If restrictions do exist, we will highlight these restrictions in the Independent Healthcare Professionals Profile that is visible to Clients.  This check is made on sign up and quarterly;

(j)    for GPs, we check the GP Performers List Status to ensure the Independent Healthcare Professional is registered with full licence. This check is made on sign up and annually;

(k)   view copies of DBS certificates and, where possible, check their status on the online DBS Update Service website. If the Independent Healthcare Professional is not registered for the DBS Update Service, we insist that DBS certificates are less than 12 months old.  Any prior convictions the Independent Healthcare Professional’s Profile that is visible to Clients

3.1.7

For the avoidance of doubt the Client acknowledges, and agrees that it is reasonable, that we may use third-party providers (such as Onfido in the case of Right to Work and ID checks) to carry out certain checks detailed in Clause 3.1.6 of the Client Terms. 

3.1.8

You acknowledge that whilst all information is collected in good faith, Nightingale does not guarantee that information provided by Independent Healthcare Professionals, or any and all third parties, is true and accurate.

3.1.9

You acknowledge that whilst we carry out the checks in Clause 3.1.6 of the Client Terms and review them from time to time, it is your responsibility to carry out all necessary and appropriate checks, including but not limited to, identification, qualifications and previous experience, whether such checks are required by law or otherwise.

 

3.2. The Client’s Obligations

3.2.1

You acknowledge and agree that subject to Clause 3.1.5 and 3.1.6 of the Client Terms we have no further obligation to vet and/or evaluate the suitability, qualifications and credentials of any Independent Healthcare Professional appearing on or engaged via our Platform.

3.2.2

It is for the Client and each Independent Healthcare Professional to agree the terms of any Engagement. Any contract entered into, whether a contract for services or otherwise, will be entered into between the Client and the Independent Healthcare Professional directly.

3.2.3

Nightingale act only as a Commercial Agent for both Clients and Independent Healthcare Professionals in communicating key terms of the Engagement such as, but not limited to, rate of pay, start/end date, engagement length, break length, location of engagement and description of Professional Services required/provided.

3.2.4

To access the Nightingale Site and use our services you will need to register an account and create a Client profile ("Client Profile") with us.

3.2.5

You will register an account and create a Client Profile by:

(a)  entering at least one of several identifiers, including, but not limited to, Organisation name, authorised contact first and last name, telephone number, email address;

(b)  selecting and verifying information in pre-populated drop downs or Client Profile options;

(c)  uploading and posting information and documentation (by way of free-text or otherwise) (“User Content”); or

(d)  Onboarding with Nightingale as per Clause 3.2.6 of the Client Terms

3.2.6

Nightingale provide the following services for you as part of our onboarding process:

(a)  register your account and create a Client Profile on your behalf as part of our client onboarding process;

(b)  create and format a Vacancy/Shift upload template;

(c)  carry out the uploading and posting of Vacancies/Shifts to your Client Profile; and

(d)  Prior to posting a shift, and in order for us to be able to facilitate in-platform payments via our third-party provider, Mangopay (mangopay.com), we may perform a number of KYC checks.

We will not charge you for these services, however, we reserve the right to do so in the future.

3.2.7

The date that your account is created is the “Client Registration Date”.

3.2.8

On registering an account, you will be provided with a login and password or any other such pieces of information as deemed necessary as part of our security procedures. You must treat such information as confidential. You must not disclose it to any third party.

3.2.9

You are responsible for the contents of your Client Profile. You warrant to us that any and all information contained in your Client Profile is true, accurate and not misleading in any way. It is your responsibility to ensure that all information in your Client Profile is accurate and up to date.

3.2.10

You agree that by posting a Vacancies/Shifts on our Platform you authorise Independent Healthcare Professionals to search, and to apply for, your Vacancies/Shifts.

3.2.11

You warrant, represent and undertake to us that the description and detail of any Vacancies/Shifts submitted will be genuine, honest, truthful and accurately reflect the nature of the Vacancies/Shifts in all respects, including but not limited to, Professional Services required, location, rates of pay, experience, qualifications and hours of work.

3.2.12

You warrant, represent and undertake to us that your description of any Vacancies/Shifts submitted will not breach, or directly or indirectly cause us to breach, any anti-discrimination laws. Your description of any Vacancies/Shifts and the criteria required for the Engagement of any Independent Healthcare Professional for such Vacancies/Shifts will not discriminate on the grounds of race, gender, disability or any other unlawful grounds.

3.2.13

When posting any Vacancies/Shifts on the Platform you must provide the following information as a minimum:

(a)  the Client Location (address, postcode and contact number) at which the Independent Healthcare Professional should attend to perform Professional Services;

(b)  the Job Title/Role, Service Sector and, where applicable, Band (e.g. RGN, Care Home, Band 5 or Practice Nurse, General Practice, Band 6 or GP, Out of Hours) to which the Vacancies/Shifts relate and the Independent Healthcare Professional must be qualified/experienced in;

(c)  the Date, Start Time and End Time for the Vacancies/Shifts and, where applicable, the duration they are required;

(d)  the Hourly Rate of Pay, or Total Pay, for Vacancies/Shifts on offer;

(e)  the Number of Hours of Paid or Unpaid Break duration to be taken during the Vacancies/Shifts; and

(f)   details of any specific Clinical Skills, Experience, Training and Qualifications you consider necessary, or which are required by law or by any professional/regulatory body, in order for the Independent Healthcare Professional to provide Professional Services

3.2.14

From time to time you will provide feedback for Independent Healthcare Professional following an Engagement via the Platform. You acknowledge that this information will be made available across the Site/Platform to other Clients considering Engaging with the Independent Healthcare Professional for Vacancies/Shifts.

3.2.15

You acknowledge that Independent Healthcare Professionals will be asked to provide feedback on you following an Engagement and that this information will be made available across the Site/Platform to other Independent Healthcare Professionals that apply to your Vacancies/Shifts.

3.2.16

You acknowledge and agree that we have no obligation to pay the Independent Healthcare Professional for the Professional Services provided to you. We do, however, facilitate the payment of fees due by providing you with access to our online payment platform. We will not charge you for the use of the payment platform, but we reserve the right to in the future.

3.2.17

The Independent Healthcare Professional is required to submit their electronic timesheet (“Hours Worked”) via the Platform to the Client as soon as possible after completing a Vacancy/Shift.

3.2.18

You are required to review the Hours Worked as soon as possible to verify the Independent Healthcare Professional Hours Worked are correct and to ensure the Independent Healthcare Professional is paid in a timely fashion.

3.2.19

You acknowledge that a summary view of the timeliness of approving timesheets and making payments to Independent Healthcare Professionals will visible in your Client Profile to Independent Healthcare Professionals that apply to your Vacancies/Shifts.

3.2.20

Upon Engaging an Independent Healthcare Professional to fill a Vacancy/Shift you agree that you will:

(a)  do so in accordance with the Terms;

(b)  carry out risk assessments of the Professional Services to be undertaken and notify the Independent Healthcare Professional immediately of any specific or potential hazards relating to the Engagement and any precautions the Independent Healthcare Professional should take in relation to such risks;

(c)  not allow the Independent Healthcare Professional to undertake any Professional Services that is hazardous without first undertaking a risk assessment and notifying the Independent Healthcare Professional of any risks identified;

(d)  inform the Independent Healthcare Professional of any applicable rules, policies or procedures relevant to the performance of any Professional Services at the Client Location at which they are to be performed (including but not limited to health and safety, site and security policies, procedures and regulations);

(e)  notify us immediately if you are dissatisfied with the performance by the Independent Healthcare Professional of the Professional Services provided;

(f)   review the Independent Healthcare Professional Hours Worked and as soon as possible, but no later than 36 hours, following submission via the Platform. You are responsible for verifying and approving time sheets.

(g)  Unless notified of any dispute within 36 hours of submission, the Hours Worked shall be deemed to be conclusive proof of satisfactory performance by the Independent Healthcare Professional for the Professional Services provided and the Hours Worked will be Auto Approved, in line with your break policies, and processed for payment; and

(h)  (without limitation to the above) not commit any act or omission constituting unlawful discrimination against or harassment of any Independent Healthcare Professional in connection with the performance of the Professional Services

3.2.21

Clients acknowledge and agree that any concerns about the behaviour or practice of an Independent Healthcare Professional will be escalated as per your local policy.

3.2.22

Clients must inform us of any ongoing concerns, allegations or investigations involving any Independent Healthcare Professional identified or Engaged via our Platform.

3.2.23

You warrant, represent and undertake to us that you are a genuine healthcare provider and that you are you are not a locum agency (whether acting as an employment agency or employment business or otherwise).

 

3.3. Payments

3.3.1

Once the Independent Healthcare Professionals Hours Worked have been approved, or Auto Approved where Hours Worked have been submitted by the Independent Healthcare Professionals and not been processed by the Client within 36 hours, an invoice will be generated and issued to the Client on a weekly basis covering their total obligations.

3.3.2

Nightingale shall be entitled to issue one consolidated summary invoice to Clients covering all the Hours Worked by all Independent Healthcare Professionals at a Client Location in any given week.  Invoices will be made up of the following:

(a)  sums due in respect of any Hours Worked by Independent Healthcare Professionals and payable by the Client for any Engagement, including any Short Notice Cancellation Fees due (“Healthcare Professionals Invoice”);

(b)  sums due in respect of any Nightingale invoice for Nightingale Service Fees, Subscription Fees and Short Notice Cancellation Fees payable by the Client (“Nightingale Services Invoice”);

(c)  sums due in respect of any Late Payment Charge;

(d)  any other sums from time to time payable by the Client in accordance with this Agreement and/or as specified in the Engagement Details and/or the Platform; and

(e)  VAT as applicable.

3.3.3

The Client will transfer funds in respect of the Healthcare Professionals Invoice into their Client Wallet using our online Payment Platform. Upon receipt of funds into the Client Wallet, these funds will then be automatically transferred to the Independent Healthcare Professionals Wallet. By using the Payment Platform Nightingale will not at any point hold these funds on our account.

3.3.4

The Client will transfer funds in respect of the Nightingale Services Invoice into their Client Wallet using our online Payment Platform. Upon receipt of funds into the Client Wallet these funds will then be automatically transferred to the Nightingale Wallet.

 

3.4. Acknowledgments and Liability

3.4.1

The Client acknowledges that Nightingale does not supervise and/or control the actions of any Independent Healthcare Professional. Nothing in this Agreement shall in any way constitute any Independent Healthcare Professional as the employee or worker of Nightingale. Nightingale shall not be responsible for supervising, monitoring or directing the Independent Healthcare Professional whilst working on an Engagement and that accordingly, only the Client is able to assess and insure against risks in respect of or during or arising out of the period for which the Independent Healthcare Professional is performing the Professional Services.

3.4.2

The Client acknowledges that for the purposes of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 Nightingale is not an employment agency or employment business and we do not introduce or supply work seekers to hirers or hirers to work seekers. Instead Nightingale is a Platform through which Independent Healthcare Professionals find ad-hoc Vacancies/Shifts for themselves and Clients find Independent Healthcare Professionals to work on ad-hoc Vacancies/Shifts.

3.4.3

The Client acknowledges that there is no contract between Nightingale and an Independent Healthcare Professional relating to the Professional Services. Nightingale shall not be responsible for and shall have no involvement in any disputes between the Client and the Independent Healthcare Professional and shall not be responsible for the quality of the Professional Services provided by the Independent Healthcare Professional or their activities while at the Client's location.

3.4.4

The Client acknowledges that any contract for services relating to an Independent Healthcare Professional is between the Client and the Independent Healthcare Professional. Nightingale have no responsibility for the quality of services performed by the Independent Healthcare Professional nor is it our responsibility to resolve any disputes between you and them. The legal status of the Independent Healthcare Professional when Engaged by you is for you to agree and determine with them.

3.4.5

The Client acknowledges that our Service Charge reflects only those services available and used via the Platform and do not indicate acceptance of any liability for any Independent Healthcare Professional's acts or omissions at any time.

3.4.6

For the purposes of the Payment Services Regulations 2009, we have the authority to act as an active commercial agent of the Client. As such we will negotiate and conclude how payments are made to the Independent Healthcare Professional on your behalf.

3.4.7

Nightingale shall not be responsible for ensuring the suitability of any Healthcare Professional or for the accuracy or validity of any Nightingale Checks save to the extent set out in Clause 3.1.6 of the Client Terms.

3.4.8

Nightingale shall not be liable for any Losses arising from:

(a)  any failure to provide the Professional Services of the Independent Healthcare Professional for all or part of the term of this agreement;

(b)  the negligent, wrongful, dishonest or fraudulent acts or omissions or misrepresentations of the Independent Healthcare Professional, including, without limitation, any lack of skill or qualification of any Independent Healthcare Professional; or

(c)  the theft, destruction, deletion or damage of or to any data, computer systems or materials by any Healthcare Professional.

(d)  any act or omission or misrepresentation (whether before or after the date of this Agreement) of any Healthcare Professional;

(e)  any special, indirect or consequential damages or loss; or

(f)   any loss of profit, business, revenue, goodwill, anticipated savings and/or any claims made under third party contracts, arising out of any failure by Nightingale to perform any obligations under this Agreement.

3.4.9

Our total liability in respect of any breach of this Agreement shall not exceed the amount of cover provided for from time to time under our professional indemnity insurance.

3.4.10

Nothing in this Agreement shall operate to exclude or limit Nightingale’s liability for:

(a)  death or personal injury caused by Nightingale's negligence;

(b)  its own fraudulent acts or omissions; or

(c)  any other liability which cannot by law be excluded.

3.4.11

The Client shall indemnify and keep indemnified Nightingale against any Losses incurred by Nightingale arising out of any breach of this Agreement by the Client.

3.4.12

You agree to indemnify, defend and hold harmless Nightingale and its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers and employees from and against any and all claims, losses, expenses or demands of liability, including reasonable legal fees and costs incurred by Nightingale in connection with any claim by a third party (including an intellectual property claim) arising out of:

    1. The User Content you upload, submit, post or transmit through the Nightingale Platform, or

    2. Your use of the Nightingale Platform or any of our available services in violation of these Terms or in violation of any applicable law

 

3.5. General

3.5.1

If any of the terms and conditions in these Terms are found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the rest of these terms and conditions shall remain in full force and effect.

3.5.2

Only you and Nightingale shall be entitled to enforce these Terms. No third party shall be entitled to enforce any of these terms and conditions, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.

3.5.3

These Terms set out the entire agreement between you and us with respect to your use of the Nightingale Platform and services and supersedes any and all representations, communications and prior agreements (written or oral) made by you or us.

3.5.4

These Terms are governed by the law of England and Wales. In the event of any matter or dispute arising out of or in connection with these Terms, you and we shall submit to the exclusive jurisdiction of the courts of England and Wales.