Conditions Precedent to an Agreement for the Provision Of

Dated 2009

(1) / [ ]Primary Care Trust
- and –
(2)

CONDITIONS PRECEDENT TO AN AGREEMENT FOR THE PROVISION OF

PERSONAL DENTAL SERVICES

draft - not available for acceptance

Beachcroft LLP

7 Park Square EastLeedsLS1 2LWUK

Tel: +44 (0) 113 251 4700 fax: +44 (0) 113 251 4900

DX 14099 Leeds Park Square

© Beachcroft LLP 2009

Draft: 16 October 2009

104956420_3.DOC

THIS AGREEMENT is made on the [ ] day of [ ]

BETWEEN

[(1)[Insert name of PCT] of [insert address] (called the “PCT”); and

(2)[Name of Contractor] having its main or registered address at [insert address] [insert company number] (called the “Contractor”).][1]

OR

[(1)The Commissioning Arm of the [insert name] PCT of [insert address] (called the “PCT”); and

(2)The Providing Arm of the [insert name] PCT of [insert address] (called the “Contractor”).][2]

OR

[(1)[Insert name of PCT] of [insert address] (called the “PCT”); and

(2)The several persons whose names and addresses are set out in the Schedule to this Agreement(called the "Contractor").][3]

BACKGROUND

(A)The PCT is a statutory body established by an order made pursuant to section 18 of the National Health Service Act 2006. It is the duty of the PCT to exercise its powers so as to provide or secure the provision of primary dental services within its area.

(B) In order to achieve this object the PCT is empowered by the National Health Service Act 2006, and the regulations made thereunder[4] to make such arrangements for the provision of primary dental services as it thinks fit.

(C)The Contractor falls within one of the specified categories of person set out within the Regulations.

(D)The PCT and the Contractor wish to enter into theMain Agreement for primary dental services subject to the Contractor meeting the terms of the conditions precedent contained within this Agreement.

THE PARTIES AGREE as follows:

1.Definitions and Interpretation

1.1In this Agreement the term "Main Agreement" shall mean the agreement for primary dental services in the form annexed to this agreement, the validity of which is conditional upon the Contractor meeting the conditions precedent set out within this Agreement.

1.2Unless the context requires otherwise this Agreement shall be interpreted according to the provisions of clause 1.2 and Schedule 1 (Definitions) of the Main Agreement.

2.Conditions Precedent to the execution of the Main Agreement

2.1This Agreement shall come into effect on the date of signature of this Agreement by the parties.

2.2The parties agree that (save to the extent required to give effect to this Agreement) the Main Agreement shall only come into effect as an agreement for the delivery of the Services in accordance with the Regulations and its terms, on the date on which the following conditions precedent have been satisfied, as confirmed by the PCT sending a written notice of satisfaction of conditions precedent to the Contractor:[5]

2.2.1[Note: PCT should insert any particular scheme specific conditions precedent into the Agreement here, some examples of areas which could be used in this manner are:

2.2.2the valid execution of the [Underlease/Lease][6] delivered to the PCT with unconditional authority to enter into it / (a) [delivery to the PCT of a certified copy of the Practice Premises Documents];

2.2.3[the valid execution of the Broker’s Letter by the Contractor’s insurance broker and the Contractor];

2.2.4the inspection of the Practice Premises by the PCT Dental Adviser and written confirmation from the PCT Dental Adviser that the Practice Premises meet the standards required in this Agreement; and

2.2.5if and to the extent that the Contractor and/or the Practice Premises are required to be registered with the Care Quality Commission, all necessary registrations, licences and consents are in place;

(the “Conditions Precedent”).

2.3The Contractor shall ensure that the Conditions Precedent set out in Clause 2.2 are complied with, to the written satisfaction of the PCT.

2.4If by the date falling sixty (60) Business Days after the date of signature of this Agreement all of the Conditions Precedent in Clause 2.2 have not been satisfied, as confirmed by the PCT sending a written notice of satisfaction of conditions precedent to the Contractor, theMain Agreementshall not take effect.[7]

3.Application of Contracts (Rights of Third Parties) Act 1999

It is not intended that any person will be entitled to enforce any provisions of this Agreement who would not have been so entitled but for the enactment of the Contracts (Rights of Third Parties) Act 1999.

4.Entire Agreement

4.1This Agreement constitutes the entire agreement and understanding of the Parties and supersedes any previous agreement between the Parties relating to the subject matter of this Agreement, except for any contract entered into between the PCT and the Contractor to the extent that it relates to the same or similar services and is designed to remain effective until the commencement of the Main Agreement.

4.2Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty or in any document agreed by the Parties to be contractually binding.

4.3Nothing in this Clause 4 (Entire Agreement) shall exclude any liability for fraud or any fraudulent misrepresentation.

5.Governing Law and Jurisdiction

5.1This Agreement shall be governed by and construed in accordance with the laws of England.

5.2All disputes and claims arising out of, relating to or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts, to which the Parties irrevocably submit.

6.Notice

6.1Any notice given under or in relation to this Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by fax to the address set out in paragraph 2 of Schedule 11 (Administration) of the Main agreement.

6.2Notices shall not be sent by e-mail.

6.3A notice shall be deemed to have been received:

(a)if delivered personally, at the time of delivery;

(b)if sent by pre-paid first class post or recorded delivery, at 0900 hours on the second Business Day after posting; or

(c)if sent by fax, on the day of transmission if sent before 1600 hours of any Business Day and otherwise at 0900 hours on the next Business Day and provided that, at the time of transmission of such fax, an error-free transmission report has been received by the sender.

IN WITNESS OF THE ABOVEthe Parties have signed this Agreement on the date written at the head of this Agreement:

[8]SIGNED by)

for and on behalf of)

)

[PCT]

)

)

SIGNED by)

for and on behalf of)

CONTRACTOR)

OR

7SIGNED by)

for and on behalf of)

THE COMMISSIONING ARM)

OF PCT

SIGNED by)

for and on behalf of)

THE PROVIDING ARM)

OF PCT

OR

[9]SIGNED by [] )

for and on behalf of)

)

[PCT])

SIGNED by [Name])

)

SIGNED by [Name])

)

SIGNED by [Name])

)

SIGNED by [Name])

)

as the CONTRACTOR

SCHEDULE

NOTE: where the Contractor is individuals their names and addresses should be listed in this Schedule otherwise this can be removed.
ANNEX 1

The Main Agreement

104956420_3.DOC- 1 -

[1] Please complete as appropriate to reflect the status of the Contractor

[2] To be used only in relation to PCT Provider Arms

[3]To be used only where the agreement is being entered into with individuals.

[4] The National Health Service (Personal Dental Services Agreements) Regulations 2005

[5] PCT to consider contract specific conditions precedent

[6]The requirement for Clause 3.3(a) and the property documentation which is required will depend on the property solution of the preferred bidder and whether there is to be third party property and/or more than one premises solution. This will not be appropriate where the Contractor is operating from its own existing premises which. Please refer to premises guidance for further details

[7] PCT to consider whether it would want to retain a right to grant extensions.

[8] Delete options as appropriate. The PCT should consider the appropriate execution clause and signatories in accordance with its Standing Orders and Standing Financial Instructions.

[9] Option to be used where the Contractor is individuals. Delete options as appropriate. The PCT should consider the appropriate execution clause and signatories in accordance with its Standing Orders and Standing Financial Instructions.