D2Expert Contract


D2Expert Expert Agreement

Date: April 13, 2021

Between

(1) D2Expert, a trading style of Nephos Solutions Limited, Company Registration no. 09414740, of Suite 2a, White Rose House, 8 Otley Road, Leeds, LS6 2AD. (D2Expert)

and

(2) , Trading/Company Name: (Reg No. ) of , , , .  (The Examiner).

Background

  • D2Expert provides industry leading facilitation, administration and case management of instructions for medico-legal clinical examinations and the preparation and delivery of Medical Reports instructed to The Expert from the Direct Medical Instruction ‘DME’ branch of the Medco Portal & the new MOJ Litigant in Person Portal and software pursuant to the terms of this contract.
  • The Expert wishes to appoint D2Expert to case manage their DME and other cases through its administration service, including case management, SLA & KPI reporting.
  • D2Expert is not an MRO or sub-agency and will not process cases from MROs.
  • D2Expert will not have any access, role or responsibilities with the regards to the content, verification or clinical judgement expressed by The Expert witness in their report.

Obligations of D2Expert

  • To provide case management administration and system to respond to incoming instructions to The Expert, contacting the Claimant and booking the earliest mutual appointment.
  • To facilitate the Claimant's attendance at that appointment through notifications and reminders.
  • To offer its services from 8.30am to 8pm Monday-Friday with manned phone lines and access to case management systems. To handle other out of hours requirements in a professional manner and resourced appropriately as the demand is defined following introduction of the LIP Portal (June 2021).
  • To offer a full range of communication options for the Claimant including inter alia: Telephone, Post, Email, Two Way SMS, and an electronic booking and re-scheduling system capable of being used on Desktop, Tablet and Mobile platforms by the Claimant.
  • To process and invoice completed reports in the name of The Expert. Invoices will at all times be payable into an independent bank account belonging to The Expert, which D2Expert will have no control over or access to.
  • To log and store all actions on the Nephos Solutions Nephex D2E system, allowing for the reporting of SLAs, KPIs and exception reports in order that the expert can demonstrate compliance with MedCo and MOJ Qualifying Criteria.
  • Maintain Up to date ISO9001 & ISO 270001 accreditation.
  • Report any data breach relating to The Expert within 24 hours of discovery.
  • Ensure that all data is hosted and stored on UK based servers and managed by and under an ISO27001 data security and an ISO22301 business continuity accredited provider.
  • Provide a robust telephone system for administration with high redundancy, call recording, and ISO27001 data security.
  • To provide these services and comply with the Service Level Agreement attached as Schedule A to this contract.
  • Handle and process all data in line with current GDPR guidelines and other best practices for "Health" information.
  • Administer cases in keeping with the requirements of The Expert and any policies or directives provided to D2Expert by The Expert, including, but not limited to: ethics, anti-bribery, customer service, fit and proper persons, data security and handling.
  • Providing management information, SLA reports and core case data to The Expert in the form of Excel in order for the expert to report on any KPIs mandated by MedCo.
  • D2Expert will play no part in completing reports or any clinical decision making with regards to the Claimant. D2Expert will not have access to the Expert's report writing software (Nephex Medical). For the avoidance of doubt, D2Expert staff will not login or have access to The Expert's MedCo Account.
  • For the avoidance of doubt, D2Expert is acting as the agent of The Expert. The Expert will remain the Principal under this contract.

Obligations of The Expert

  • To provide a best in class service to Instructing Parties and Claimants, which is compliant with all the standards set out by MedCo, the Civil Procedure Rules and their respective regulator (GMC/CSP).

  • To direct all instructions from the DME MedCo/Litigant in person portal to D2Expert through changing their instruction email to an allocated "@d2expert.org.uk" email address.

  • Scan and pass any posted instructions to D2Expert so that they can be processed by the administration team.

  • Notify D2Expert immediately should their professional registration status change with their regulator or MedCo.

  • Agree to D2Expert raising invoices in The Expert's name, address and bank details based on:

    • £180 +VAT for DME Cases from MedCo or the LIP Portal at 30 days and addressed to the Compensator. From Instructing Parties (non LIP) paid on settlement or 12 months, whichever is the soonest.
    • Charge out amendment and addendum report fees at the rates set-out by the CPR.
    • Charge out any other reports at the rate and terms set by The Expert.
    • Will not charge non-attendance fees or fees for simple amendments.

The Charges

D2Expert will charge the following fees to The Expert:

  • £29.95+ VAT for all completed full reports.
  • £7.50+VAT for addendums, records reviews and Part 35 responses only if chargeable by the expert.
  • Fees will be payable at 90 days. This is intended to be after settlement of The Expert's fees by the compensator. If this timing varies significantly either way, following the introduction of the LIP portal, then both parties agree to renegotiate and offer flexibility around this clause.

Contract Term & Termination

The Initial Term of this contract will be 3 years from the date of signature, but will continue until due notice of termination is given by either party.

Either Party may terminate this agreement with 12 months notice. Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if the other party commits a breach which is not remedied within 14 days, suspends or ceases to trade, or suffers from an adverse financial event, which affects their ability to fulfil their obligations under this contract.

Data Processing

For the purposes of the services provided under this contract, D2Expert will be deemed to be The Data Processor, The Expert will be deemed to be The Data Controller.

The Controller is the data controller for the Data and the Processor is the data processor for the Data. The Data Processor agrees to process the Data only in accordance with Data Protection Laws and in particular on the following conditions:

  1. the Processor shall only process the Data
    1. on the written instructions from the Controller;
    2. only process the Data for completing the Services and;
    3. only process the Data in the UK with no transfer of the Data outside of the UK (Article 28, para 3(a) GDPR);
  2. ensure that all employees and other representatives accessing the Data are
    1. aware of the terms of this Agreement and;
    2. have received comprehensive training on Data Protection Laws and related good practice, and;
    3. are bound by a commitment of confidentiality (Article 28, para 3(b) GDPR);
  3. the Controller and the Processor have agreed to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, complying with Article 32 of GDPR, details of those measures are set out under Part B of the Annex to this Agreement (Article 28, para 3(c) GDPR);
  4. the Processor shall not involve any third party in the processing of the Data without the consent of the Controller. Such consent may be withheld without reason. If consent is given a further processing agreement will be required (Article 28, para 3(d) GDPR);
  5. taking into account the nature of the processing, assist the Controller by appropriate technical and organisational measures, in so far as this is possible, for the fulfilment of the Controller’s obligation to respond to requests from individuals exercising their rights laid down in Chapter III of GDPR – rights to erasure, rectification, access, restriction, portability, object and right not to be subject to automated decision making etc (Article 28, para 3(e) GDPR);
  6. assist the Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR – security, notification of data breaches, communication of data breaches to individuals, data protection impact assessments and when necessary consultation with the ICO etc, taking into account the nature of processing and the information available to the Processor (Article 28, para 3(f) GDPR);
  7. at the Controller’s choice safely delete or return the Data at any time. (It is agreed that the Processor will in any event securely delete the Data at the end of the Services). Where the Processor is to delete the Data, deletion shall include destruction of all existing copies unless otherwise a legal requirement to retain the Data. Where there is a legal requirement the Processor will prior to entering into this Agreement confirm such an obligation in writing to the Controller. Upon request by the Controller the Processor shall provide certification of destruction of all Data (Article 28, para 3(g) GDPR);
  8. make immediately available to the Controller all information necessary to demonstrate compliance with the obligations laid down under this Agreement and submit to and contribute to any audits, inspections or other verification exercises required by the Controller from time to time (Article 28, para 3(h) GDPR);
  9. arrangements relating to the secure transfer of the Data from the Controller to the Processor and the safe keeping of the Data by the Processor are detailed under Part B of the Annex.
  10. maintain the integrity of the Data, without alteration, ensuring that the Data can be separated from any other information created; and
  11. immediately contact the Controller if there is any personal data breach or incident where the Data may have been compromised (Article 33, para 2 GDPR);
  12. the processor hereby indemnifies the Controller and/or any client of the Controller in respect of losses or costs arising in consequence of any personal data breach or incident where the data has been lost or compromised through fault of the data processor, its employees or any agreed third party engaged by the processor in the processing of the Data;
  13. the processor must co-operate with supervisory authorities, such as the ICO (Article 31, GDPR);
  14. the processor must keep records of its processing activities (Article 30, para 2 GDPR);
  15. the processor must employ a Data Protection Officer if required (Article 37, GDPR);
  16. the processor must appoint (in writing) a representative within the European Union if required (Article 27, GDPR);
  17. Nothing within this contract relieves the processor of its own direct responsibilities and liabilities of GDPR.
  18. LIABILITIES
    The processor must also be aware that:
    1. it may be subject to investigative and corrective powers of supervisory authorities (such as the ICO) (Article 58 GDPR);
    2. if it fails to meet its obligations, it may be subject to an administrative fine (Article 83 GDPR);
    3. if it fails to meet its GDPR obligations it may be subject to a penalty under (Article 84 GDPR);
    4. if it fails to meet its GDPR obligations it may have to pay compensation (Article 82 GDPR).

Confidentiality

Each party undertakes that it shall at any time during this Contract, and for a period of five years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party.

Force Majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

Entire Agreement

This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract.

Schedule A – Service Level Agreement

Introduction

This service level agreement (SLA) describes the levels of service D2Expert provide to support The Expert, Nephex D2E and Nephex Medical Systems.

Purpose

The Expert and Claimants depend on our administrative and software and services (together: ‘D2Expert services’) that are provided, maintained and supported by D2Expert and Nephos Solutions. These items are of critical importance to their business.

This service level agreement sets out what levels of administration services, availability and support The Expert is guaranteed to receive for specific parts of the D2Expert services.

This SLA forms an important part of the contract between The Expert and D2Expert. It aims to enable the two parties to work together effectively.

The Parties

This SLA is between the Expert and D2Expert as identified in this agreement.

Dates and reviews

This agreement falls under the main service agreement between the Expert and D2Expert.

It may be reviewed at any point, by mutual agreement. It may also be reviewed if there are any changes to the Litigation in Person Portal, Ministry of Justice Guidance or MedCo Rules or Guidance.

Equipment, Software services covered

This SLA covers only the equipment, software and administration services below. This list may be updated at any time, with agreement from both the D2Expert and The Expert.

D2Expert guarantees response times for all items listed in this section.

These items have been assigned a priority level, from 1 (most important) to 3 (least important). The priority levels help determine the guaranteed uptime and response time.

Software & Equipment

Item typePriorityCovered for uptime?
Nephos D2Expert1Yes
Nephos Medical1Yes
SLA Reporting Suite2 No
Claimant Questionnaire/Portal2Yes
Cloud backup1Yes
XERO Accounts2No
Priority Development3(DEV)No

Administrative Services Covered

D2 Expert shall provide administration for the purposes of data input and facilitating the clients of The Expert (The Claimants) to book and attend a medico-legal examination with The Expert, and return a completed report to the Claimant.

These services shall comprise of:

  • An administration service manned with trained medico-legal administrators providing email and telephone support to The Expert and The Claimants between the hours of 8.30am and 8pm Monday to Friday
  • The provision of fallover call service to take the details and messages from Claimants at all times outside the hours above.
  • The administrative service will deliver a professional service, sensitive to the needs and vulnerabilities of Litigants in Person, and will at all times put the needs of The Claimants at the centre of its service provision, treating such Claimants with respect, empathy, courtesy and professionalism and being aware of the differing needs of potentially vulnerable unrepresented claimants. This shall be delivered in keeping with the guidance set down by the Ministry of Justice "New Rules and Audit Process for Direct Medical Experts", Dated 16th March 2020 and all subsequent guidance provided my the MOJ, MedCo and The Expert's own regulatory body from time to time.
  • 97%: Inputting of new case data received from the LIP portal into the D2Expert Case Management system within 4 working hours.
  • 97%: Outbound Call and SMS message to the Claimant within 4 working hours of receipt from LIP portal.
  • 97%: Further Outbound Calls and SMS messages to the Claimant on Day 2 & 3 if no response or appointment booked.
  • 90%: Encouragement to the Claimant to accept an appointment within 28 days of instruction, where adequate availability is provided by The Expert.
  • 99%: SMS/Email Reminders of appointment 1 week and 1 day prior to the appointment, where an email/mobile number is provided.
  • 90%: Inbound calls answered within 30 seconds.
  • 97%: Voicemail or Overflow calls responded to within 60 working minutes.
  • 97%: Reports despatched to The Claimant and Invoiced to compensator within 4 working hours of receipt.
  • 97%: Passing on supplemental Claimant requests to the expert within 4 hours of request.
  • 97%: Acknowledging and processing incoming email and post within 4 working hours of receipt.
  • 100%: Flagging any complaints within 4 hours and dealing with them via The Expert's complaints procedure and workflows on the D2Expert Case Management system.
  • 90%: Working to deliver an overall life-cycle of Instruction to report delivery of 28 calendar days or less.

Exclusions

This SLA is written in a spirit of partnership. D2Expert will always do everything possible to rectify every issue in a timely manner.

However, there are a few exclusions. This SLA does not apply to:

  • Any equipment, software, services or other parts of the IT system not listed above
  • Software, equipment or services not purchased via and managed by D2Expert

Additionally, this SLA does not apply when:

  • The problem has been caused by using software or service(s) in a way that is not recommended.
  • The Expert has made unauthorised changes to the configuration or set up of affected equipment, software or services.
  • The Expert has prevented D2Expert from performing required maintenance and update tasks.
  • The issue has been caused by unsupported equipment, software or other services.

This SLA does not apply in circumstances that could be reasonably said to be beyond D2Expert's control. For instance: floods, war, acts of god and so on.

This SLA also does not apply if The Expert is in breach of its contract with D2Expert for any reason (e.g. late payment of fees).

Having said all that, D2Expert aims to be helpful and accommodating at all times, and will do its absolute best to assist its customers wherever possible, working ultimately for the benefit of the unrepresented Claimant.

Responsibilities

D2Expert responsibilities

D2Expert will:

  • Ensure relevant software, services and equipment are available to The Expert in line with the uptime levels listed below.
  • Respond to support requests within the timescales listed below.
  • Take steps to escalate and resolve issues in an appropriate, timely manner.
  • Maintain good communication with The Expert at all times.
  • Provide the administration services in line with the timescales listed above.

The Expert's responsibilities

The Expert will use D2Expert-provided IT system as intended.

The Expert will:

  • Notify D2Expert of issues or problems in a timely manner.
  • Provide D2Expert with remote access to equipment, software and services for the purposes of identifying and solving faults.
  • Maintain good communication with D2Expert at all times.

Guaranteed service & uptime

Uptime levels

In order to enable The Expert to do business effectively, D2Expert guarantees that certain services and items will be available for a certain percentage of time.

These uptime levels apply to items in the administrative service, equipment, software and services covered table that show a tick in the “Covered for uptime?” column.

The level of guaranteed uptime depends on the priority level of each item:

Priority levelGuaranteed uptime
199%
298%
395%

Administration Service as per the SLA above

Measurement and penalties

Uptime is measured the using supplier’s automated systems, over each calendar month. It is calculated to the nearest minute, based on the number of minutes in the given month during the supported hours of use. These hours are deemed to be between 7am and 10pm, 7 days per week (for instance, a 31-day month contains 27,900 minutes).

If uptime for any item drops below the relevant threshold, a penalty will be applied in the form of a credit for The Expert.

This means the following month’s fee payable by The Expert will be reduced on a sliding scale.

The level of penalty will be calculated depending on the number of hours for which the service was unavailable, minus the downtime permitted by the SLA:

Priority levelPenalty per hour
(Pro-rated to nearest minute)
13% of total monthly fee
22% of total monthly fee
3(DEV)1% of total monthly fee

Failure to provide the administration service according to the SLA will result in a 25% deduction in the fee where significant delay or complaint is received that has a detrimental effect on the overall goal of delivering a report back to The Claimant within 28 days of instruction.

Important notes:

  • Uptime penalties in any month are capped at 25% of the total monthly fee.
  • Uptime measurements exclude periods of routine maintenance. These must be agreed between D2Expert and customer in advance.
  • Administration Service penalties will only be paid whereby the failure of service delivery by D2Expert has added significantly (>25%) to the delay.

Guaranteed response times

When The Expert raises a support issue with D2Expert, D2Expert promises to respond in a timely fashion.

Response times

The response time measures how long it takes D2Expert to respond to a support request raised via D2Expert's online support system.

D2Expert is deemed to have responded when it has replied to The Expert's initial request. This may be in the form of an email or telephone call, to either provide a solution or request further information.

Guaranteed response times depend on the priority of the item(s) affected and the severity of the issue. They are shown in this table:

Issue severity (see Severity levels section, below)

All new incidents come into GoToAssist (The Help Desk) as To Triage. Below is a check list of what needs to be done to successfully triage a ticket.

  • Priority
  • Incident Type
  • Solution
  • Comment Back to the customer
  • When a new ticket is created, there is a triage SLA given of 4hrs. Within this time, the assignee must give the ticket a priority, Incident Type, a Status and respond to The Expert.

    There are five different priorities that a ticket can be set to. Below is a matrix of how these are worked out to help you pick the correct priority:

    • P1 - Urgent:
      A ticket will be given this priority if the impact of the issue is affecting more than 75% of our customers. An example of this would be if the server (which hosts the applications) crashed or got rebooted but wasn't coming back online.
      The Service Level Agreement (SLA) for a P1 Ticket is 4hrs from the moment the ticket has been triaged
    • P2 - Very Important
      A ticket will be given this priority if the impact of the issue is affecting at least 50% of our customers. An example of this may be that a function on one of the applications isn't working correctly and it is stopping people from working, such as unable to search for cases.
      The SLA for a P2 ticket is 24hrs from the moment it has been triaged.
    • P3 - Important
      A ticket will be given this priority if the impact of the issue is stopping a team of people working. An example of this would be if the invoicing stopped functioning correctly which would result in the accounts team not being able to do part of their job.
      The SLA for a P3 ticket is 48hrs (Two Business Days)
    • P4 - Inconvenient
      A ticket will be given this priority if the impact of the issue is stopping a user from completing a task, but they are still able to work as there has been a workaround provided for them to continue to work.
      The SLA for a P4 ticket is 168hrs (Seven Business Days)
    • P5 - Cosmetic
      A ticket will be given this priority if the impact of the issue doesn't affect the core business but is instead feedback or a feature request. An example of this would be someone asking for a new feature to allow them to do a task differently.
      The SLA for a P5 is 480hrs (Twenty Business Days)

    Response times are measured from the moment The Expert submits a support request via D2Expert's online support system.

    Response times apply during standard weekday working hours (9am — 5.30pm) only.

    Measurement and penalties

    Response times are measured using D2Expert’s support ticketing system, which tracks all issues from initial reporting to resolution.

    It is vital The Expert raises every issue via this system. If an issue is not raised in this way, the guaranteed response time does not apply to that issue.

    If D2Expert fails to meet a guaranteed response, a penalty will be applied in the form of a credit for The Expert.

    This means the following month’s fee payable by The Expert will be reduced on a sliding scale.

    The level of penalty will be calculated depending on the number of hours by which D2Expert missed the response time, minus the downtime permitted by the SLA:

    Priority levelPenalty per hour
(Pro-rated to nearest minute)
    13% of total monthly fee
    22% of total monthly fee
    3(DEV)1% of total monthly fee

    Important notes:

    • Response time penalties in any month are capped at 25% of the total monthly fee
    • Response times are measured during weekday working hours (9am — 5.30pm).

    For instance, if an issue is reported at 5.00pm with a response time of 60 minutes, D2Expert has until 9.30am the following day to respond.

    Resolution times

    D2Expert will always endeavor to resolve problems as swiftly as possible. It recognises that The Expert’s computer systems are key to its business and that any downtime can cost money.

    However, D2Expert is unable to provide guaranteed resolution times. This is because the nature and causes of problems can vary enormously.

    For instance, it may be possible to resolve a fatal server issue in minutes, simply by restarting the server. But if a server fails due to disk error or a hardware fault (also classed as a fatal issue) it may take much longer to get back up and running.

    In all cases, D2Expert will make its best efforts to resolve problems as quickly as possible. It will also provide frequent progress reports to The Expert.

    Out of Hours Support

    D2Expert recognises that the solutions will inevitably be used out of hours, especially by reporting experts. Whilst D2Expert does not operate a formal support desk during these hours, the solutions will be expected to be running, unless a pre-arranged window has been organized for server/solution maintenance. Such maintenance, will normally take place outside weekend daytime hours (8am-9pm).

    D2Expert will provide The Expert with emergency telephone numbers, which can be given out in the case of emergencies. These should be reserved for use in critical situations.

    Out of hours email and numbers:

    Please note, these are numbers and emails addresses for you, The Expert, to use. They are not for general distribution of dissemination to Claimants.

    Administrative Support Tickets: admin@d2expert.org.uk

    IT and Systems Support: support@d2expert.org.uk, 03303356903

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    Document name: D2Expert Contract
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