for the Licence of Electronic Learning Environments and Associated Services
between
The Common Services Agency
and
LearnPro Limited
Agreement
between
Greater Glasgow Health Board
and
Any Company Limited
File Ref: MP/LW
J:\CONT\XT\11-33\Agreements\NSS-learnPro eLMS Framework Agreement draft (clo amends) 21-02-14.docxPage 1 of 83
INDEX
1.DEFINITIONS
2.COMMENCEMENT AND DURATION
3.CO-OPERATION, LIAISON AND DUE DILIGENCE
4.CATALOGUE AND SERVICES
5.CALL-OFF CONTRACTS
6.SERVICE LEVELS
7.PAYMENT
8.CONTRACTOR UNDERTAKINGS
9.CONFIDENTIAL INFORMATION
10.DATA PROTECTION
11.TERMINATION
12.NON-DEFAULT TERMINATION
13.EFFECT OF TERMINATION OR EXPIRY
14.INDEMNITIES
15.LIABILITY
16.INSURANCE
17.FORCE MAJEURE
18.ASSIGNATION AND SUB-CONTRACTING
19.REPRESENTATIVES
20.AUDIT ACCESS
21.WAIVER
22.SEVERABILITY
23.NOTICES
24.DISPUTE RESOLUTION
25.CORRUPT GIFTS
26.CHANGE CONTROL
27.RANKING
28.SURVIVAL
29.ENTIRE AGREEMENT
30.LAW
SCHEDULE: PART 1
SPECIFICATION
SCHEDULE: PART 2
CATALOGUE AND standard SERVICES charges
SCHEDULE: PART 3
change control procedure
SCHEDULE: PART 4
dispute resolution procedure
SCHEDULE: Part 5
INSURANCEs
SCHEDULE: PART 6
CALL-OFF CONTRACT
J:\CONT\XT\11-33\Agreements\NSS-learnPro eLMS Framework Agreement draft (clo amends) 21-02-14.docxPage 1
FRAMEWORK AGREEMENTbetween
THE COMMON SERVICES AGENCY
(more commonly known as National Services Scotland), a statutory body constituted pursuant to the National Health Service (Scotland) Act 1978 (as amended) and having its headquarters at
Gyle Square, 1 South Gyle Crescent,
Edinburgh, EH12 9EB (who together with its statutory successors and assignees are known as “NSS”);
and
learnPro Limited, a company incorporated in the UK under the Companies Acts (Company No. SC191241) whose registered office is at Fettes Park, West Wing, 496 Ferry Road, Edinburgh, EH5 2DL
(the “Contractor”)
WHEREAS:-
A.An advertisement was placed by NSS in the Official Journal of the European Union, reference OJEU 2013/S 136-236279 in respect of a framework agreement for the provision of services to NSS and Health Boards.
B.From the expressions of interest and tender responses received, NSS subsequently selected the Contractor to be eligible to provide the services to Customers who may wishto call-off the services in the manner and on the terms described herein.
NOW THEREFORE the parties agree as follows:-
1.DEFINITIONS
1.1In this Agreement including the Recitals and the Schedule hereto, unless the context otherwise permits, the following terms shall have the meanings ascribed to them below:-
“Affiliate” / means, in relation to a person, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that person from time to time;“Agreement” / means this framework agreement together with the Schedule;
“Annexes” / means the annexes to a Call-Off Contract;
“Business Day” / means Monday to Friday excluding public holidays as observed by the Bank of Scotland in Edinburgh;
“Caldicott Report” / means the report prepared by Dame Fiona Caldicott which contained recommendations as to the preservation of confidential identifiable information in NHSScotland and which was the subject of two Scottish Executive Circulars namely:
NHS MEL (1999)19; and
NHS MEL (1999)48;
“Call-Off Contract” / means a contract agreed between a Customer and the Contractor substantially in the form contained in Part 6of the Schedule (Call-Off Contract);
“Catalogue” / means the catalogue contained in Schedule Part 2;
“CCN” / means a change control note as detailed in the Change Control Procedure;
“Change Control Procedure” / means the change control procedure set out in Schedule Part 3 (Change Control Procedure);
“Change” / means any change to this Agreement proposed by either party pursuant to the Change Control Procedure;
“Charges” / means the charges payable to the Contractor pursuant to a Call-Off Contract;
“Client Materials” / means items provided to the Contractor by a Customer pursuant to this Agreement;
“Clinical Services” / means management responsibility, administration and carrying out of the clinical, medical and other services provided by NSS, or any Health Boards from time to time and which are not Services to be provided by the Contractor under a Call-Off Contract;
“Confidential Information” / means:-
(a)information or data (whether written, oral, visual, electronic, magnetic, digital or in any other form) which has been or is disclosed to the party receiving it (“the Receiving Party”) by or on behalf of any other party (“the Disclosing Party”) and:
(i)relates to the identity, condition or medical history of patients of any NHS entities, or any other personal information where disclosure is prohibited in terms of Data Protection Act 1998; or
(ii)the disclosure of which would, or would likely to, prejudice substantially the commercial interests of any person (including, without limitation, financial information, any agreed or proposed commercial terms, trade secrets, know-how and other intellectual property); and
(b)all material derived from such information by the Receiving Party, any of its Affiliates and/or any of its professional advisers, agents or sub-contractors;
“Contract Month” / means a calendar month;
“Contract Year” / means the period of three hundred and sixty five (365) days commencing on 1 April 2014 and each subsequent period of three hundred and sixty five (365) days (or three hundred and sixty six (366) days in the case of any leap year);
“Contractor Default” / has the meaning ascribed to it in Clause 11.1;
“Contractor Representative” / means the Contractor representative appointed pursuant to Clause 19.7;
“Contractor Sub-Contractor” / means any sub-contractor engaged by the Contractor to perform any part of its obligations under this Agreement;
“Control” / means that an entity possesses directly or indirectly the power to direct or cause the direction of the management and policies of another person, whether through the ownership of voting rights, shares, by contract or otherwise or is otherwise deemed to have control of another person for the purposes of section 840 of the Income and Corporation Taxes Act 1988 and “Controls” and “Controlled” shall be interpreted accordingly;
“Customer” / means any of NSS and any Health Board which has entered into a Call-Off Contract in respect of access to the Platform;
“Customer Data” / means all Personal Data and Data supplied by or on behalf of NSS or any other Customer to the Contractor or any of its Affiliates, accessed by the Contractor or any of its Affiliates, or otherwise generated by the Contractor or any of its Affiliates from such data;
“Customer Responsibilities” / means the responsibilities of each Customer as detailed in Annex 6 to the Call-Off Contract;
“Data Controller” / shall have the meaning given to it in the Data Protection Act 1998;
“Data Protection Legislation” / means the EU Data Directive 95/46/EC, the Directive on Privacy and Electronic Communications 2002/58/EC, the Data Protection Act 1998 (“1998 Act”), the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI2000/2699), and all other applicable laws and regulations relating to processing of personal data and privacy including the guidance in relation to health care published by the Information Commissioner in May 2002;
“Data” / means information, text, drawings, diagrams, images, or sounds, which are embodied in any electronic or tangible medium;
“Default Interest Rate” / means the base lending rate from time to time charged by the Bank of Scotland;
“Dispute Resolution Procedure” / means the dispute resolution procedure detailed in Schedule Part 4 (Dispute Resolution Procedure);
“Documentation” / means such manuals, reports, drawings, specifications, training materials, use policies, plans and other documents that are developed by the Contractor or provided by it in the course of delivering the Services;
“Effective Date” / means First April Two thousand and fourteen notwithstanding the date or dates of execution hereof;
“Expiry” / means expiry of the Term;
“Force Majeure” / shall have the meaning set out in Clause 17.1;
“Good Industry Practice” / means using standards, practices, methods and procedures conforming to the Law and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in providing services similar to the Services under the same or similar circumstances;
“Health Board” / means any Health Board or Special Health Board constituted pursuant to the National Health Service (Scotland) Act 1978;
“Holding Company” / has the meaning given to it in Section 736 of the Companies Act 1985 and Section 1159 of the Companies Act 2006;
“ICT” / means information and communication technology systems, hardware or software;
“In Aggregate” / means collectively in respect of all Call-Off Contracts concluded by Customers;
“Index” / means the Consumer Prices Index for all items expressed as a monthly index relative to 2005=100 published from time to time by the Central Statistics Office the Chancellor of the Exchequer or by the Office for National Statistics (CodeD7BT) as appropriate or if the said index ceases to be published or be appropriate such index or other means of assessment of inflation as is most appropriate and agreed between NSS and the Contractor or, in the case of disagreement, pursuant to the Dispute Resolution Procedure;
“Indirect Losses” / means any loss of revenue (other than charges due under this Agreement), loss of profits, loss of business or loss of business opportunity (whether such losses arise directly, or indirectly), and any consequential or indirect loss of any nature;
“Insurances” / means such insurances as are reasonable in the context of the scope and scale of delivery of the Services and which shall be maintained by the Contractor all in accordance with Schedule Part 5;
“Intellectual Property Rights” or “IPRs” / means rights, title and interest in:
(a)patents;
(b)trade marks, and trade and business names (including service marks);
(c)design rights;
(d)utility models;
(e)copyright (including copyright in software programs);
(f)database rights;
(g)know-how;
(h)trade secrets;
(i)confidential business information;
in each case whether registered or unregistered, registerable or not, and including (i) any pending applications or rights to apply for registrations of any of these rights, and (ii) any similar or analogous rights to any of these rights, whether arising or granted in the United Kingdom or any other jurisdiction;
“Law” / means:
(a)any applicable statute or proclamation or any delegated or subordinate legislation;
(b)any enforceable community right within the meaning of section 2(1) European Communities Act 1972;
(c)any applicable guidance, direction, determination or regulations with which the Contractor and/or any Customer is bound to comply to the extent that the same are published and publicly available or the existence or contents of them have been notified to the Contractor by or on behalf of the Contractor and/or any Customer;
(d)any applicable judgement of a relevant court of law which is a binding precedent in Scotland;
in each case in force at any time during the Term in Scotland and during which time the Contractor is providing Services;
“Losses” / means any claim, liability, costs, expense, loss, penalty or damage;
“NHS Scotland Requirements” / means, in relation to the Services, Scottish Health Technical Memoranda, all Scottish Executive Letters, Health Service Guidelines, Health Circulars of NHS Scotland, the Caldicott Report, any similar official requests, requirements and guidance having similar status and any policies of NSS and/or any Customer in force at any time during the Term, but only to the extent the same are published and publicly available on-line, are publicly displayed or the existence and contents of them have been notified to the Contractor by NSS or any Customer;
“NHS Specific Change in Law” / means any Change in Law which predominantly affects or predominantly relates to any or all of NSS or any Customer and the provision or operation of healthcare, social care, dental services, ophthalmic services or pharmacy services;
“NHSScotland” / means National Health Service Scotland;
“NSS Representative” / means the NSS representative appointed pursuant to Clause 19.1;
“Personal Data” / has the meaning given to that term in the Data Protection Act 1998;
“Platform” / means the e-Learning Platform to be provided by the Contractor as detailed in the Specification;
“Potential Customer” / means a Health Board which is not presently party to a Call-Off Contract;
“Prohibited Act” / shall have the meaning ascribed to it in Clause 25.1;
“Regulatory Bodies” / means those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate or influence the matters dealt with in this Agreement or any other affairs of the Customer and “Regulatory Body” shall be construed accordingly;
“Schedule” / means the schedule in six (6) parts annexed hereto;
“Service Deductions” / means the deductions which a Customer is entitled to make for failure by the Contractor to achieve the relevant Service Levels, as set out in the relevant Call-Off Contract;
“ServiceLevels” / means any service level(s) set out in the relevant Call-Off Contract;
“Services” / means any services detailed in the Specification called off by a Customer under a Call-Off Contract by means of an order from the Catalogue, as detailed in the relevant Call-Off Contract;
“Specification” / means the specification forming Part 1 of the Schedule;
“Standard Service Charges” / means the fixed price menu of charges detailed in Part 2 of the Schedule (Standard Service Charges);
“Sub-Contract” / means any agreement between the Contractor and the Contractor Sub-Contractor;
“Term” / means the period of four (4) years from the Effective Date;
“Termination Date” / means the date on which any Termination Notice takes effect in accordance with the provisions of this Agreement or the date of Expiry, as the case may be;
“Termination Notice” / means any notice of termination of this Agreement given by either party pursuant to Clause 11 or otherwise lawfully given; and
“TUPE Regulations” / means the Transfer of Undertakings (Protection of Employment) Regulations 2006.
1.2As used herein, the masculine includes the feminine, the singular includes the plural and vice versa.
1.3This Agreement shall be interpreted according to the following provisions, unless the context requires a different meaning:
1.3.1the headings and marginal notes and references to them in this Agreement shall be deemed not to be part of this Agreement and shall not be taken into consideration in the interpretation of this Agreement;
1.3.2except where the context expressly requires otherwise, references to Clauses, paragraphs, subparagraphs and parts of the Schedule are references to Clauses, paragraphs, subparagraphs and parts of the Schedule to this Agreement and references to Sections, Appendices and Attachments (if any) are references to Sections, Appendices and Attachments to or contained in this Agreement;
1.3.3the Schedule to this Agreement is an integral part of this Agreement and a reference to this Agreement includes a reference to the Schedule;
1.3.4words importing persons shall, where the context so requires or admits, include individuals, firms, partnerships, boards, corporations, governments, governmental bodies, authorities, agencies, unincorporated bodies of persons or associations and any organisations having legal capacity;
1.3.5where the context so requires, words importing the singular only also include the plural and vice versa and words importing the masculine shall be construed as including the feminine or the neuter or vice versa;
1.3.6the language of this Agreement is English. All correspondence, notices, drawings, test reports, certificates, specifications and information shall be in English. All operating and maintenance instructions, name plates, identification labels, instructions and notices to the public and staff and all other written, printed or electronically readable matter required in accordance with, or for purposes envisaged by, this Agreement shall be in English;
1.3.7references to any agreement or document include (subject to all relevant approvals and any other provisions of this Agreement concerning amendments to agreements or documents) a reference to that agreement or document as amended, supplemented, substituted, novated or assigned;
1.3.8references to any law are to be construed as references to that law as from time to time amended or to any law from time to time replacing, extending, consolidating or amending the same;
1.3.9references to a public organisation shall be deemed to include a reference to any successor to such public organisation or any organisation or entity which has taken over either or both the functions and responsibilities of such public organisation. References to other persons shall include their successors and assignees;
1.3.10the words in this Agreement shall bear their natural meaning. The parties have had the opportunity to take legal advice on this Agreement and no term shall, therefore, be construed contra proferentem;
1.3.11reference to “parties” means the parties to this Agreement and references to “a party” mean one of the parties to this Agreement;
1.3.12in construing this Agreement, the rule known as the ejusdem generis rule shall not apply nor shall any similar rule or approach to the construction of this Agreement and accordingly general words introduced or followed by the word “other” or “including” or “in particular” shall not be given a restrictive meaning because they are followed or preceded (as the case may be) by particular examples intended to fall within the meaning of the general words; and
1.3.13references to amounts or sums expressed to be “subject to indexation” are references to amounts or sums which require to be adjusted whenever the provision containing the amount or sum is given effect in accordance with this Agreement to reflect the effects of inflation after that date. The adjustment shall be measured by changes in the Index published for that Contract Year as calculated in accordance with the following formula:
Amount or sum x CPI
CPI(n)
where CPI is the value of the Index published or determined with respect to the month most recently preceding the date when the provision in question is to be given effect and CPI(n) is the value of the Index on the Effective Date.
2.COMMENCEMENT AND DURATION
2.1This Agreement shall commence on the Effective Date and shall continue throughout the Term unless it has been earlier terminated in accordance with the provisions of this Agreement. This Agreement may be terminated by NSS with effect from the second or third anniversaries of the Effective Date, subject to NSS giving three (3) months’ prior written notice thereof to the Contractor.
2.2Each Call-Off Contract entered into prior to or on the Termination Date shall continue in effect notwithstanding Expiry of this Agreement unless and until terminated in accordance with the terms thereof.
3.CO-OPERATION, LIAISON AND DUE DILIGENCE
3.1The Contractor agrees to co-operate and liaise, at its own expense, with other providers of services to Customers as necessary to ensure successful performance of this Agreement and delivery by any other provider of services of its obligations to any Customer.
4.CATALOGUE AND SERVICES
4.1The Catalogue details the Services to be made available by the Contractor for purchase by Customers pursuant to concluded Call Off Contracts.
4.2The Catalogue may only be amended by agreement between the Contractor and NSS. Subject to Clause 4.3 below, if either party wishes to request a change to the Catalogue (outside the circumstances provided for in Clause 4.3 below), it will notify the other party in writing. The parties will negotiate in good faith and without undue delay to agree an appropriate amendment provided always that it shall be at the sole discretion of NSS, whether or not to agree to the addition of any new Services proposed by the Contractor.
4.3Following any changes agreed to the Catalogue pursuant to Clause 4.2 the Contractor shall provide an amended Catalogue to NSS (incorporating any agreed revisions) and from the date of receipt of the same Customers may place orders only from such revised Catalogue. NSS shall distribute and/or make such amended Catalogue available to Customers. The Catalogue may be made available through the NHSScotland SHOW website.
4.4It is expressly stated that no amendments to the Catalogue may be agreed or effected between the Contractor and any Customer.
4.5This Clause 4 shall survive termination of the Framework Agreement for the purposes of administering the Catalogue in terms aforesaid and determining the prices and basis of a delivery of Services to Customers pursuant to their Call Off Contracts.
4.6Any deliverables paid for by a Customer under their Call Off Contract shall be licensed by the Contractor upon request to all other Customers free of charge. To avoid doubt, if provision to or use by any such Customer of such deliverables requires implementation, customisation or support, a Customer shall only be entitled to receive such Services from the Contractor subject to completion of a Call Off Contract and submission of orders for such relevant Services from the Catalogue.