Call Off Contract
between
LearnPro Limited
and
[ • ]
Agreement
between
Greater Glasgow Health Board
and
Any Company Limited
XT11/33 MP/LW

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INDEX

1.Definitions

2.Duration

3.Grant of Licence

4. Services

5.Acceptance Testing

6.Conditions of Use

7.Charges

8.Termination

9.Intellectual Property Rights

10.Content

11.Services

12.Authorised Representatives

13.Warranties

14.Liability

15.Dispute Resolution

16.No Agency/Partnership

17.Confidentiality and Publicity

18.Assignation

19.Notices

20.Waiver

21.Severability

22.Changes

23.Law

SCHEDULE

PART 1 –

SOFTWARE

PART 2

Services

PART 3

SERVICE LEVELS

PART 4

CHANGE CONTROL PROCEDURE

SCHEDULE: PART 5

CHARGES AND SERVICE DEDUCTIONS

SCHEDULE: PART 6

ACCEPTANCE

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CALL OFF CONTRACT
between
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
(“Contractor”)
and
[ • ]
(“Customer”)

WHEREAS

  1. The Common Services Agency, a statutory body constituted pursuant to the National Health Service (Scotland) Act 1978 (as amended) has entered into a Contract with the Contractorfor the licence of electronic learning environments and associated services (“Framework Agreement”).
  2. Under the terms of the Framework Agreement, Health Boards are entitled to enter into Call Off Contracts for the provision to them of services.
  3. Each Health Board shall select its chosen extent of service provision available in terms of the Framework Agreement.
  4. Each Health Board shall make payment of the charges applicable to the level of services selected by it.
  5. The Customer is one of the Health Boards.

NOW THEREFORE the Parties have agreed and do hereby agree as follows:-

1.Definitions

1.1Terms used herein shall have the meaning ascribed to them in the Contract except to the extent specifically defined herein.

1.2In this Contract, the following terms shall have the following meanings:-

“Acceptance” / means the issue of an Acceptance Certificate;
“Acceptance Certificate” / has the meaning ascribed in Schedule Part 6;
“Acceptance Testing” / means testing the Software all in accordance with Schedule Part 6;
“Business Day” / means Monday to Friday excluding public holidays as observed by the Bank of Scotland in Edinburgh;
“Change Control Procedure” / means the procedure forming Schedule Part 4;
“Charges” / means the charges payable to the Contractor by the Customer as detailed in Schedule Part 5 being the Licence Fee, the Implementation Charges and the Service Charges;
“Commencement Date” / means[ • ], notwithstanding the date or dates of execution hereof;
“Content” / means the NHSScotland Content and SP Content;
“Contract” / means this Call Off Contract together with the Schedule;
“Database” / means the information, including the Content, which is accessed through the Contractor’s server pursuant to the licence to the Software granted hereunder in favour of the Customer;
“Expiry” / shall mean four (4) years from theCommencement Date;
“Intellectual Property Rights” / shall mean patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Library” / means the library of resources, including documents, databases, internet links etc;
“New Version” / means a set of the Software in which substantial new but successor functionalities or other substantial charges (e.g. architectural) are introduced e.g. version 5 to version 6;
“NHSScotland Content” / means the content supplied by an entity within NHSScotland to which the Contractor will allow access by using the Software;
“Notice” / has the meaning ascribed in Clause 18;
“On-line Activity” / means the interactive activity to be undertaken by a User in relation to the Content;
“Platform” / means the e-learning platform to be provided by the Contractor as part of the Services;
“Schedule” / shall mean such schedule in six (6) parts annexed hereto;
“Service Level” / means the performance levels in accordance with which the Services shall be delivered, as detailed in Part 3 of the Schedule;
“Services” / shall mean the services specified in Parts 1 and 2 of the Schedule;
“Software” / shall mean that software specified in Part 1 of the Schedule licensed to the Customer hereunder which will allow access to the Content;
“SP Content” / means the content, more fully described in the Catalogue forming part of the Framework Agreement, sourced and supplied by the Contractor to which the Contractor will allow access by using the Software;
“Unacceptable Content” / has the meaning ascribed at Clause 10.2;
“Upgrade” / means a set of the Software in which, in addition to correction of detected shortcomings, small functional enhancements have been included e.g. version 5.1 to version 5.2;
“User” / means the Customer and any of its employees, agents, or contractors;

1.3In this Contract unless there is something in the subject or the context inconsistent therewith:-

1.3.1headings and recitals shall not affect the interpretation of this Contract.

1.3.2a reference to any statute, order, regulation or other similar instrument shall be construed as a reference to the statute, order, regulation or instrument as amended by any subsequent statute, order, regulation or instrument or as contained in any subsequent re-enactment thereof.

1.4In the event and to the extent only of any conflict between the Clauses and the Schedule, the Clauses shall prevail. In this Contract the masculine includes the feminine and the neuter and the singular includes the plural and vice versa.

2.Duration

This Contract shall commence on the Commencement Date and on such date the Contractor shall, transfer to the Customer the appropriate information to enable the permitted end Users access to the Software. This Contract, unless earlier terminated in accordance with further provisions hereof, shall subsist until Expiry unless otherwise agreed in writing by the parties. Notwithstanding the foregoing, the Customer may extend the period of this Contract on up to three (3) occasions, each such extension being for a period of one (1) year by giving not less than three (3) months prior written notice to the Contractor. The parties shall agree any changes to the Charges and Services to apply during such extension or extensions, such agreement not to be unreasonably withheld.

3.Grant of Licence

3.1The Contractorhereby grants in favour of the Customera licence for permitted end Users to access the Software for the purposes after-mentioned and in accordance with the terms and conditions of this Contract.

3.2The Customerhereby grants in favour of the Contractora non-exclusive licence to access (including the right to copy and integrate the NHSScotland Content with the Software) the NHSScotlandContent to allow the Contractorto fulfil their obligations under this Contract, including the Service Levels, in accordance with the terms and conditions of this Contract.

3.3The Software is hosted on the Contractorserver and the grant of licence contained herein shall enable the permitted end Users’ access thereto. The Customershall not, by virtue of this Contract, receive or become entitled to receive any copy of the Software on any physical medium whatsoever, and hereby agrees not to download or attempt to download the Software from the said Contractorhost server. Following execution of this Contract as aforesaid the Contractorshall provide the Customerwith an appropriate access key and/or password to enable the permitted end Users to obtain access toand use to the Software as detailed herein.

3.4To avoid doubt the Contractormay, throughout the period of this Contract, continue to develop the Software. The Customer’s access to the Software under this Contract shall be to the latest release version thereof, as the Contractorshall determine. Any developed version of the Software shall operate in accordance with Part 1 of the Schedule. Access to and use any such amended version of the Software shall be subject to the terms of this Contract.

4.Services

The Contractor shall provide the Services. The Contractor shall provide hosting services in respect of the Software to the extent agreed with the Customer.

5.Acceptance Testing

Acceptance Testing shall be carried out in accordance with the provisions of Schedule Part 6. All Upgrades and New Versions shall be subject to acceptance testing as provided in Schedule Part 6. Following successful completion of Acceptance Testing, written confirmation thereof shall be documented by the Customer issuing an Acceptance Certificate.

6.Conditions of Use

6.1Where the Customerprovides access to the Software to a User such access shall be so provided on the basis that the User shall have been notified that the Contractorshall, by virtue of such access, acquire information relative to such User which may constitute personal data under the Data Protection Act 1998, for the purpose of monitoring users of the Software and for no other purpose whatsoever. The Customershall remain responsible for ensuring that appropriate consent to such acquisition, (if any), by the Contractorto such personal data is obtained in advance of such access.

6.2The Customershall indemnify the Contractorin respect of all claims which may arise in relation to the transmission of personal data to the Contractorfor which appropriate consent shall not have been obtained pursuant to Clause 6.1aforesaid.

6.3The Contractorshall indemnify the Customerin respect of all claims which may arise in relation to use, other than in accordance with the Data Protection Act 1998, by the Contractorof the personal data obtained by the Contractorpursuant to Clause 6.1.

6.4The Software is licensed as a single product and the Customerand Users may not modify, translate, reverse-engineer or decompile the Software except to the extent required by law.

6.5The Customerand Usersare prohibited from copying the Software in whole or in part, other than is essential for the proper operation of the Software for normal security back-up purposes.

6.6The Customerand Usersare prohibited from removing the acknowledgment of the rights and the proprietary markings in the Software from the Software or any installation of it.

7.Charges

7.1The Customerwill pay to the Contractorthe Chargesas detailed herein.

7.2The Charges shall be exclusive of VAT which shall be payable at the rate applicable when payment of the relevant Charges shall have fallen due.

7.3The Charges shall be payable quarterly in arrears. The Contractorshall, on receipt of the Charges, issue the Customerwith a receipted VAT invoice therefore.

7.4 All invoices from the Contractor which are properly due shall be paid by the Customer no later than thirty (30) days after the date they are received by the Customer.

8.Termination

8.1Either party may terminate this Contract at any time on written notice to the other if the other:

8.1.1is in material or persistent breach of any of the terms of this Contract including, to avoid doubt, where the Software fails to operate in accordance with Part 1 of the Schedule, and either that breach is incapable of remedy or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or

8.1.2is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986); or becomes insolvent; or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; or enters into or proposes any composition or arrangement with its creditors generally; or is subject to any analogous event or proceeding in any applicable jurisdiction.

8.2Termination by either party in accordance with the rights contained in this Clause 8 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.

8.3Upon termination for any reason:

8.3.1all rights granted by one party to the other under this Contract shall cease;

8.3.2the Customershall cease all activities authorised by this Contract;

8.3.3the Customershall immediately pay to the Contractorany sums due to the Contractorunder this Contract; and

8.3.4the Customershall immediately destroy or return (at the Contractor’s option) to the Contractorall copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Contractorthat it has done so;

8.3.5The Contractorshall immediately destroy or return to the Customer, at the Customer’s option, all copies of the NHSScotlandContent then in its possession, custody or control and, in the case of destruction, certify to the Customerthat it has done so.

9.Intellectual Property Rights

9.1The Software and any future releases or improvements thereto, including all Intellectual Property Rights therein and thereto, is the property of the Contractor, and nothing in this Contract shall transfer or be deemed to transfer any proprietary interest in the Software or Intellectual Property Rights in favour of the Customer.

9.2The NHSScotlandContent and any future releases or improvements thereto, including all Intellectual Property Rights therein and thereto, are the property of the Customer, (or permitted end Users or a third party other than the Contractor) and nothing in this Contract shall transfer or be deemed to transfer any proprietary interest in the NHSScotland Content or Intellectual Property Rights therein and thereto in favour of the Contractor.

9.3All copyright and other Intellectual Property Rights subsisting in the Database, arising under The Copyright and Rights in Databases Regulations 1997, shall vest in and belong exclusively to the Contractor. For the avoidance of doubt, the Contractorshall, by virtue of this Contract, acquire no proprietary right in the NHSScotlandContent or in the Intellectual Property Rights therein.

9.4In the event that any third party shall assert any proprietary right in or to the Software, which right shall, or may be infringed as a result of the exercise of the grant of licence included in this Contract, the Contractormay obtain from such third party the appropriate right to use the Software or modify the Software so that it ceases to be infringing, failing which the Contractorshall be entitled to terminate this Contract with immediate effect by notice in writing to the Customer. Subject to the foregoing, the Contractorshall indemnify the Customerin respect of all liability to such third party which shall arise as a direct result of infringement of such third party Intellectual Property Rights pursuant to this Contract.

9.5In the event that any third party shall assert any proprietary right in or to the NHSScotlandContent, which right shall, or may be infringed by the Contractorin granting the licence rights contained in this Contract, the Customershall obtain from such third party the appropriate right to use the said NHSScotlandContent, failing which the Contractorshall be entitled to terminate this Contract with immediate effect by notice in writing to the Customer. The Customershall indemnify the Contractorin respect of all liability to such third party which shall arise as a direct result of infringement of such third party Intellectual Property Rights pursuant to this Contract.

9.6For the avoidance of doubt, nothing contained in this Clause 9 shall operate to prevent or restrict the right of the Customerto have or obtain, at any given time during the term of this Contract, a copy of all information contained within the Database and relevant to a module.

10.Content

10.1The Customergrants to the Contractor, a non exclusive licence to the NHSScotlandContent for the purposes of delivery of the Services and for delivery of other services to NHS Scotland. The Contractor shall source and provide access to the SP Content as part of the Services. The Contractorwill run the Content in conjunction with the Software on its servers in terms of this Contract.

10.2Each partyshall ensure that the Content provided by it does not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights)(“Unacceptable Content”).

10.3The Contractorreserves the right to remove any Content from being accessed via the Software where it reasonable suspects such Content is Unacceptable Content. The Contractorshall notify the Customerif it becomes aware of any allegation that content on the Software may be Unacceptable Content.

10.4Each partyshall indemnify the other against all liabilities, damages, losses and expenses arising as a result of any action or claim that the Content supplied by itconstitutes Unacceptable Content.

10.5The Customerwill ensure that the NHSScotlandContent is provided in a format and/or on a medium and on date(s) agreed between the parties and use reasonable endeavours to ensure that the NHSScotlandContent is free from viruses.

Upon or immediately prior to termination or expiry of this Licence, theContractorshall provide the Customerwith a copy of the NHSScotland Content in an electronic format capable of being read used by the Customer.

11.Services

11.1Until the Termination Date of this Contract and subject to the due and punctual payment of the Fee by the Customer, the Contractorshall provide the Services to the Customer. To avoid doubt, theContractormay at any time make proposals in writing to the Customerregarding changes to the Software or Services. Such proposed changes shall not be implemented without the prior written consent of the Customer, but such consent shall not be unreasonably withheld where the proposals do not make material changes to the provisions of Part 1 or Part 2 of the Schedule.

11.2The Services will be provided with reasonable skill and care and at all times in accordance with good industry practice and all laws applicable to the provisions of the Services in the United Kingdom. Save as provided for in this Contract, all other warranties, express or implied, are excluded to the fullest extent permitted by law.

12.Authorised Representatives

12.1For the Purpose of this Contract, the authorised representatives of each party are as follows:-