This paper examines the Elance Services Agreement as a model service contract between a client and a provider. It explores the contract's structure, applicable governing laws — including California state law and common law — and its status as a partially integrated agreement. Using a Clinical Commissioning Group's anti-coagulation service procurement as a real-world scenario, the paper illustrates how service contracts operate in practice. It also addresses the fairness of the agreement, the type of evidence that may be used to challenge contract issues, and the conditions under which assignment of rights to a third party is permissible.
Elance has a Services Agreement that acts as part of the company's Member Contract between a Client and a Provider. The agreement becomes effective after a client awards and a provider accepts a job on the firm's website. The Member Contract is similarly implemented once the client agrees to purchase and the provider agrees to deliver a job on the site. To ensure the suitability of the Member Contract, the Services Agreement is based on the company's conditions, terms, rules, guidelines, and policies, which include the organization's terms of service.
The client is responsible for managing, accepting, evaluating, and making payments for suitable Provider Services under the Member Contract in a timely and professional manner. By contrast, the Provider is responsible for the quality and performance of services delivered to the Client under the Member Contract, also in a professional and timely manner. This Services Agreement, or Member Contract, is an example of a contract that can be applied across a variety of scenarios.
Generally, the Elance Services Agreement is a Service Contract in which the Client and Provider agree to act in good faith through fair dealings carried out in a timely and professional manner. While the client manages, accepts, evaluates, and pays for satisfactory services from the provider, the provider renders those services based on industry practice at a time and place he or she deems appropriate. The provider is also responsible for determining the manner in which he or she performs the job, using his or her own tools, equipment, and other necessary materials ("Services Agreement," 2010).
An example of a scenario that may require the use of a Services Agreement or Service Contract is a situation in which a Clinical Commissioning Group is launching an anti-coagulation, or International Normalization Ratio (INR), locally enhanced service sourced from local medical practices. The basis for commissioning the INR service is that the Clinical Commissioning Group considers lower cost and a direct link to clinical responsibility and dosage as important factors in selecting the appropriate provider.
Clinical Commissioning Groups (CCGs) are organizations established in England's health sector by the Health and Social Care Act 2012 to arrange the provision of NHS services across the country. As clinically led groups that include all general practitioners in a respective geographical area, CCGs function by purchasing or commissioning health services. They also work with patients and healthcare professionals, as well as in partnership with local communities and authorities, to organize the delivery of National Health Service (NHS) services.
To fulfill this mandate, the Clinical Commissioning Group in this scenario is procuring an International Normalization Ratio, or anti-coagulation, locally enhanced service from practices in the local community. Anti-coagulation services are offered to patients above 16 years of age who require long-term anticoagulant therapy monitoring and who are registered with a local General Practitioner. Anti-coagulants are medicines that help reduce blood clotting in an artery, the heart, or a vein.
The commissioning of INR services from local practices requires the CCG to identify an appropriate service provider and enter into a formal agreement for the provision of such services. The group proposes that General Practitioner practices should continue offering the services based on the registered patient list ("Hypothetical Case Scenarios," 2012). This proposal is also influenced by the view that GP practices would be appropriate given lower costs and a direct link to clinical responsibility and dosage. As a result, the CCG seeks to continue with plans to contract with all General Practitioner practices rather than marketing the service more broadly.
Since this approach is consistent with NHS regulations, the CCG's plans would require the use of a Services Contract or Agreement with General Practitioner practices. Under the agreement, the CCG acts as the Client, responsible for managing, accepting, evaluating, and providing payment for suitable services in a timely and professional manner. All local GP practices with which the CCG seeks to establish contracts would act as the Provider, responsible for performing and delivering quality services in an apt and professional manner.
The Service Contract or Agreement does not only involve the CCG and GP practices — it also requires the involvement of patients. The third-party beneficiaries of this contract are the patients who receive the anti-coagulation service. These patients play a critical role in determining whether the Provider (i.e., the General Practitioner) has delivered appropriate services to the Client (i.e., the Clinical Commissioning Group). The suitability and effectiveness of the anti-coagulation services are assessed based on patients' reactions and feedback.
The establishment of service contracts or agreements is a sound business practice in any arrangement between a client and a service provider. These contracts are types of collaborative service agreements involving two or more parties that work together on a service, project, or initiative. They are generally governed on the basis of the client/provider relationship, terms of agreement, and terms of use. They may also be governed on the grounds of a collaborative relationship in which two or more departments work together to create or deliver a project or service. Importantly, service agreements are subject to certain laws that play a crucial role in protecting both parties in the client/provider relationship.
Like many contracts in the United States, the Elance Services Agreement is governed by common law and specific state laws. Common law is legislation created by courts through the interpretation of previous circumstances and facts (Mack, 2011). It is considered the primary source of contract law and is largely based on general judicial interpretations. With respect to specific state laws, the Elance Services Agreement between Client and Provider is governed by the laws of the State of California ("Services Agreement," 2010). Any action related to the contract is governed, defined, and interpreted under California state laws, though without applying conflicts-of-law principles that would require the law of another jurisdiction. In addition, the agreement is governed by intellectual property rights with respect to confidentiality, partnership, and indemnification.
The Elance Services Agreement between Client and Provider is a fair contract because it incorporates all essential elements of a contract and is based on the applicable laws that govern contracts. The contract provides details that govern the independent contractor relationship with respect to clients purchasing the service and providers delivering it. The fairness of the contract is also attributed to the flexibility of job terms within the independent client/provider relationship. According to the contract's provisions, the Services Agreement may be modified through job terms awarded and accepted on the website and uploaded to the Elance platform ("Services Agreement," 2010).
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