Definitions and interpretation



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PART 23

EVIDENCE
339. The Contractor shall request in respect of a person who makes a declaration relating to an exemption under section 177(1) of the 2006 Act evidence in support of that declaration.
340. The Contractor shall make a note of the type of evidence submitted.
341. If no evidence is submitted, the contractor shall make a note of that fact.
342. Clauses 339 to 341 do not apply where the contractor is satisfied that the person in respect of whom the declaration is made is under the age of 18 years.
NON-SURVIVAL OF TERMS1
343. Unless expressly provided, no term of this Agreement shall survive expiry or termination of this Agreement. Express provision is made in relation to―
[Part 15 (fees, charges and financial interests)];
[Part 20 (complaints)];
[Part 21 (dispute resolution procedure)];
[consequences of termination];
[governing law and jurisdiction]
ENTIRE AGREEMENT2
344. Subject to clause 200 and any variations made in accordance with Part 22, this Agreement constitutes the entire agreement between the parties with respect to its subject matter.
345. The Agreement supersedes any prior agreements, negotiations, promises, conditions or representations, whether written or oral, and the parties confirm that they did not enter into the Agreement on the basis of any representations that are not expressly incorporated into the Agreement. However, nothing in this Agreement purports to exclude liability on the part of either party for fraudulent misrepresentation.
GOVERNING LAW AND JURISDICTION1
346. This Agreement shall be governed by and construed in accordance with English law.
347. Without prejudice to the dispute resolution procedures contained in this Agreement, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement, each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
348. Clauses 346 and 347 shall continue to apply notwithstanding the termination of the Agreement.
WAIVER, DELAY OR FAILURE TO EXERCISE RIGHTS2
349. The failure or delay by either party to enforce any one or more of the terms or conditions of this Agreement shall not operate as a waiver of them, or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
FORCE MAJEURE3
350. Neither party shall be responsible to the other for any failure or delay in performance of its obligations and duties under this Agreement which is caused by circumstances or events beyond the reasonable control of a party. However, the affected party must promptly on the occurrence of such circumstances or events―
350.1. inform the other party in writing of such circumstances or events and of what obligation or duty they have delayed or prevented being performed; and
350.2. take all action within its power to comply with the terms of this Agreement as fully and promptly as possible.
351. Unless the affected party takes such steps, clause 350 shall not have the effect of absolving it from its obligations under this Agreement. For the avoidance of doubt, any actions or omissions of either party’s personnel or any failures of either party’s systems, procedures, premises or equipment shall not be deemed to be circumstances or events beyond the reasonable control of the relevant party for the purposes of this clause, unless the cause of failure was beyond reasonable control.
352. If the affected party is delayed or prevented from performing its obligations and duties under the Agreement for a continuous period of 3 months, then either party may terminate this Agreement by notice in writing within such period as is reasonable in the circumstances (which shall be no shorter than 28 days)
353. The termination shall not take effect at the end of the notice period if the affected party is able to resume performance of its obligations and duties under the Agreement within the period of notice specified in accordance with clause 352 above, or if the other party otherwise consents.
SEVERANCE1
354. Subject to clauses 355 and 356, if any term of this Agreement, other than a mandatory term, is held to be invalid, illegal or unenforceable by any court, tribunal or other competent authority, such term shall, to the extent required, be deemed to be deleted from this Agreement and shall not affect the validity, lawfulness or enforceability of any other terms of the Agreement.
355. If, in the reasonable opinion of either party, the effect of such a deletion is to undermine the purpose of the Agreement or materially prejudice the position of either party, the parties shall negotiate in good faith in order to agree a suitable alternative term to replace the deleted term or a suitable amendment to the Agreement.
356. If the parties are unable to reach agreement as to the suitable alternative term or amendment within a reasonable period of commencement of the negotiations, then the parties may refer the dispute for determination in accordance with the NHS dispute resolution procedure set out in Part 21.
SERVICE OF NOTICE1
357. Save as otherwise specified in this Agreement or where the context otherwise requires, any notice or other information required or authorised by this Agreement to be given by either party to the other party must be in writing and may be served:―
357.1. personally;
357.2. by post, or in the case of any notice served pursuant to Part 22, registered or recorded delivery post;
357.3. by telex, or facsimile transmission (the latter confirmed by telex or post);
357.4. electronic mail; or
357.5. by any other means which the Board specifies by notice to the Contractor
358. Any notice or other information shall be sent to the address specified in the Agreement or such other address as the Board or the Contractor has notified to the other.
359. Any notice or other information shall be deemed to have been served or given:―
359.1. if it was served personally, at the time of service;
359.2. if it was served by post, two working days after it was posted; and
359.3. if it was served by telex, electronic mail or facsimile transmission, if sent during normal surgery hours then at the time of transmission and if sent outside normal surgery hours then on the following working day.
360. Where notice or other information is not given or sent in accordance with clauses 357 and 358, such notice or other information is invalid unless the person receiving it elects, in writing, to treat it as valid.
PART 24

SIGNING OF DOCUMENTS
361. In addition to any other requirements relating to such documents whether in this Agreement or otherwise, the Contractor shall ensure that the documents specified in clause 362 include—
361.1. the name and clinical profession of the professional who signed the document;
361.2. the name of the contractor on whose behalf it is signed.
362. The documents referred to clause 361 are―
362.1.1. forms that are required to be completed pursuant to these Regulations, where such forms require a signature;
362.2. prescription forms; and
362.3. any other clinical documents.

SCHEDULE 11 (INDIVIDUAL)

Part 1
The Board whose name, address, telephone number, fax number and email address (if any) is:―




Part 2
The Contractor is a dental practitioner whose name, address, telephone number, fax number (if any) and email address (if any)2 is:


If there is any change to the addresses and contact details specified in Part 1 or Part 2 of this Schedule, the party whose details have changed must give notice in writing to the other party as soon as is reasonably practicable.



SCHEDULE 11 (DENTAL CORPORATION)
Part 1
The Board whose name, address, telephone number, fax number and email address (if any) is:




Part 2
The Contractor is a dental corporation whose name and address of the registered office is:



The address to which official correspondence and notices may be sent is, and the contact telephone number, fax number (if any) and email address (if any) is:





If there is any change to the addresses and contact details specified in Part 1 or Part 2 of this Schedule, the party whose details have changed must give notice in writing to the other party as soon as is reasonably practicable.



SCHEDULE 11 (COMPANY LIMITED BY SHARES)
Part 1
The Board whose name, address, telephone number, fax number and email address (if any) is:




Part 2
The Contractor is a company limited by shares whose name and address of the registered office is:



The address to which official correspondence and notices may be sent is, and the contact telephone number, fax number (if any) and email address (if any) is:





If there is any change to the addresses and contact details specified in Part 1 or Part 2 of this Schedule, the party whose details have changed must give notice in writing to the other party as soon as is reasonably practicable.



SCHEDULE 11 (LIMITED LIABILITY PARTNERSHIP)
Part 1
The Board whose name, address, telephone number, fax number and email address (if any) is:




Part 2
The Contractor is a limited liability partnership whose name and address of the registered office is:



The address to which official correspondence and notices may be sent is, and the contact telephone number, fax number (if any) and email address (if any) is:





If there is any change to the addresses and contact details specified in Part 1 or Part 2 of this Schedule, the party whose details have changed must give notice in writing to the other party as soon as is reasonably practicable.


SCHEDULE 2

SIGNATURES OF THE PARTIES TO THE AGREEMENT
Signed by

For and on behalf of the Board



Signed by

In the presence of


[The Agreement must be signed by all persons with power to bind the Contractor.]

SCHEDULE 3

INFORMATION TO BE INCLUDED IN PATIENT LEAFLETS
A patient leaflet shall include―
1. The name of the Contractor.

2.  In the case of an Agreement with a dental corporation1

(a) the names of the directors, chief executive and secretary of that body, in so far as those positions exist in relation to the dental corporation; and

(b) the address of that corporation’s registered office.

2A. In the case of an Agreement with a company limited by shares—

(a) whether or not it is a company limited by shares;

(b) the names of the directors, chief executive and secretary of the company, in so far as those positions exist in relation to the company; and

(c) the address of the company’s registered office.

2B. In the case of an agreement with a limited liability partnership—

(a) whether or not it is a limited liability partnership;

(b) the names of the members of the partnership; and

(c) the registered premises address of the limited liability partnership.

3. The full name of each person performing services under the Agreement.

4. In the case of each person performing dental services under the Agreement, his professional qualifications.

5. Whether the Contractor undertakes the teaching or training of persons who provide dental services or who intend to do so.

6. The address of each of the practice premises.

7. The Contractor’s telephone and fax numbers and the address of its website (if any).

8. Whether the practice premises have suitable access for disabled patients and, if not, the alternative arrangements for providing services to such patients.

9. How to request services as a patient.

10. The rights of a patient to express a preference of practitioner, and the means of expressing such a preference.

11. The services available under the Agreement.

12. The normal surgery days and hours of the practice.

13. The arrangements for dental services for the hours and days that fall outside normal surgery hours (whether or not provided by the Contractor) and how the patient may contact such services.

14. If the services in paragraph 13 are not provided by the Contractor, the fact that the Board is responsible for commissioning the services.

15. The telephone number of NHS Direct and details of NHS Direct online.

16. How patients may make a complaint or comment on the provision of service.

17. The rights and responsibilities of the patient, including keeping appointments.

18. The action that may be taken where a patient is violent or abusive to the contractor, its staff, persons present on the practice premises or in the place where treatment is provided under the Agreement or other persons specified in clause 34.

19. Details of who has access to patient information (including information from which the identity of the individual can be ascertained) and the patient’s rights in relation to disclosure of such information.

20. The full name, postal, email and website address, and telephone number of the Board.


SCHEDULE 4

PAYMENT SCHEDULE
[include payments in respect of services or the amounts of such payments that are not specified in directions pursuant to clause 237.4.]


1The National Health Service (Personal Dental Services Agreements) Regulations 2005.

2 Part 1 is not required by the Regulations, but is recommended.

1 At the time of publication, this Order is not yet in force.

1 Paragraph (a) of the definition of “primary care list” in regulation 2 (interpretation) of the Regulations does not currently refer to ophthalmic services. The Department is intending to amend this in the next set of amendments made to these Regulations to correct this omission.

1 This provision has been included so that if, in relation to a particular agreement, a particular clause number or numbers are not relevant (for example, because that clause or those clauses only need to be included in contracts with a partnership and the contractor concerned is an individual dental practitioner), the words of that clause can be deleted and the word ‘reserved’ can be inserted next to that clause number: this is to avoid renumbering the clauses or cross-references in the Agreement.

2 Except where indicated, Part 2 is not required by the Regulations, but is recommended.

2 This clause is required by the Regulations (see paragraph 83 of Schedule 3).

3 The words indicated in square brackets only need to be included if the Contractor is a dental corporation, company limited by shares or limited liability partnership and Schedule 1 (dental corporation), (company limited by shares) or (limited liability partnership) has therefore been utilised.

1 If the Contractor has elected to be regarded as a health service body for the purposes of section 9 of the 2006 Act pursuant to regulation 9 of the Regulations, then the Agreement must state that it is an NHS contract: see regulation 10 of the Regulations.

2 Where the agreement is an NHS contract, it is not enforceable in the courts but instead is subject to the dispute resolution procedures set out in Part 21 of the Agreement and paragraphs 55 and 56 of Schedule 3 to the Regulations. Therefore, the Agreement must specify whether or not the Contractor has elected to be regarded as a health service body, and if it has, the Contractor must indicate that the Agreement is an NHS contract.

3 The parties must insert the date of commencement: services can only be provided under the Agreement on a date after 31st March 2006 (see regulation 22 of the Regulations)

4 The words in square brackets may be needed depending on the terms of clause 17 et seq.

5 The clause is required by the Regulations: see regulation 12.

6 This clause and clauses 18, 19 or 20 if further space is needed, need to be adapted and completed as indicated.

1 This Part is not required by the Regulations, but is recommended.

2 The words in square brackets only need to be included if the Contractor is a dental corporation, a company limited by shares, or a limited liability partnership.

1 Except where specifically indicated in a footnote, this Part is required by the Regulations if mandatory or additional services are to be provided under the Agreement: see regulation 20 and Part 1 of Schedule 3.

2 A period may or may not be specified.

3 The parties should set out details of the specified group of persons to whom services are to be provided.

1 In these circumstances the parties may choose to set out in additional clauses the details of to whom such services are to be provided.

2 In these circumstances the parties may choose to set out in additional clauses any obligations as regards patient preference of practitioner.

1 This clause is required by the Regulations (see paragraph 29 of Schedule 3).

1 This whole section (Provision of Services) is required by the Regulations (see regulation 24 and Part 2 of Schedule 3).

1 See regulation 12(1)(a) of the Regulations. Every Agreement must specify the services to be provided by the Contractor. Where the Board agrees with the Contractor that mandatory services should be provided under the Agreement, Part 8 must apply. The Agreement must specify the times at which the contractor has agreed with the Board that the surgery will be open to patients for the provision of services (normal surgery hours).

2It is recommended that the Agreement specifies the times during which the Contractor is to provide mandatory services including urgent treatment under the Agreement. If additional specified services are to be provided during normal surgery hours the Agreement should specify. See Part 10. Clauses 75.1.1 to 75.1.3 should be completed accordingly or if not all of these clauses are needed, they can be omitted.

1A unit of dental activity is the measure of the provision of mandatory services and advanced mandatory services. The number inserted here will represent both services if the Contractor is to provide both mandatory services and advanced mandatory services.

2This clause must be included if the Agreement begins on 1st April. If not it should be omitted. See regulation 13 of the Regulations and article 22 of the General Dental Services and Personal Dental Services Transitional Provisions Order 2005. If the Agreement begins on a date other than 1st April, clause 78 should be used. See regulation 13 of the Regulations.

1This needs adapting depending on whether clause 77 or 78 has been utilised.

2This needs adapting depending on whether clause 77 or 78 has been utilised.

1Insert here any variation to the period of 60 days referred to in clause 84.2. In the case of a temporary agreement a period of less than 60 days or no period may be appropriate and the contract should specify the period, if any, to apply in such circumstances. See regulation 15(4) of the Regulations.

2 This needs adapting depending on whether clause 77 or 78 has been utilised.

1 See regulation 20(3) of the Regulations.

1This Part only needs to be included in the Agreement where the Contractor is to provide any one or more of advanced mandatory services, sedation services, domiciliary services or orthodontic services. It is for the Contractor and the Board to negotiate which of these services will be provided by the Contractor. If the Contractor is providing any one or more additional services under the Agreement, then the clauses in this Model Agreement relating to that particular additional service are required to be inserted into the Agreement. This reflects the requirements of regulation 11 of, and Schedule 1 to the Regulations.

2Clauses 101 to 103 only need to be included if the Contractor has agreed to provide advanced mandatory services under the agreement.

1 This needs adapting depending on whether clause 77 or 78 has been utilised.

2 There is no requirement that the hours during which non mandatory services are to be provided should be specified in the Agreement but it is advisable to provide so in the Agreement.
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