between
[●]
and
[●]
File Ref: []
AGREEMENT
between
[●]
(“Client Organisation”)
and
[●]
(“Service Provider”)
WHEREAS:
- The Common Services Agency, a statutory body constituted pursuant to the National Health Service (Scotland) Act 1978 (as amended) and having its headquarters at Gyle Square, Edinburgh, (“NSS”) has entered into a number of bilateral agreements with service providers including inter alia the Service Provider for provision of the software development services effective from 14 July 2008, (such agreements referred to collectively as the “Framework Agreement”).
- Under the terms of the Framework Agreement different Health Boards are entitled to receive services either on the basis of menu call-offs on the Standard Service Charges or pursuant to a mini-tender; provided such Health Boards have executed this Agreement.
- Each Health Board shall select its chosen extent of service provision, available in terms of the Framework Agreement.
- Each Health Board shall make payment of the charges applicable to the level of services selected by it.
- The Client Organisation 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 Framework Agreement except to the extent specifically defined herein.
1.2In this Agreement, the following terms shall have the following meanings:
“Acceptance Certificate” / means the written confirmation to be provided by the Client Organisation to the Service Provider following successful completion of Acceptance Testing in accordance with provisions of Annex 2 (Acceptance);“Acceptance Testing” / means testing in accordance with the provisions of Annex 2 (Acceptance);
“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 agreement concluded between the Service Provider and the Client Organisation and such variations in writing as shall subsequently be expressly agreed;
“Annex” / means any annex in six parts annexed as relative hereto;
“Change” / means any change to any one or more of the Services, the Service Levels and/or any other changes to this Agreement proposed by either party pursuant to the Local Change Control Procedure;
“Charges” / means the charges payable in respect the Services all as detailed in Annex 3;
“Client Organisation Representative” / shall have the meaning set out in Clause 4.1;
“Client Organisation Responsibilities” / means the Client Organisation responsibilities listed in Annex 9;
“Commencement Date” / means the last date of execution hereof;
“Confidential Information” / means any and all:
(a)information technical, commercial, financial or otherwise (including without limitation data, knowhow, formulae, processes, designs, photographs, audio or videotape, CD ROMs, DVDs, drawings, specifications, samples, finances, programmes, materials, records, business plans, consumer research, analysis or experience) of whatever nature and whether disclosed orally, pictorially, in writing, by demonstration, by viewing, in machine readable form or other means including without limitation on electromagnetic or CD media or via telephone lines or radio or microwave and whether stored electronically or otherwise which relates to a party’s (or, in the case of either party, any Affiliate’s), or, in the case of the Client Organisation, any business, products, developments, services, trade secrets, know how, personnel, supplies or Client Organisations related to the Project already disclosed to or to be disclosed by or on behalf of one party to the other party (whether or not designated as confidential);
(b)notes, reports, analysis and reviews of, and any other information derived from, any information referred to in paragraph (a) above; and
(c)information designated as confidential, commercially sensitive or politically sensitive or which ought reasonably to be considered as such;
“Data” / means data provided by the Service Provider or any of its Affiliates, or otherwise generated by the Service Provider, in connection with this Agreement;
“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, 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;
“Dispute Resolution Procedure” / means the dispute resolution procedure set out in Schedule Part 6 of the Framework Agreement save to the extent amended by Clause 20 of this Agreement;
“Documentation” / means such manuals, reports, drawings, specifications, training materials, use policies, plans and other documents, in each case relating to the Services (or any part thereof), that are developed by the Service Provider or any Affiliate of Service Provider;
“Embedded Software” / means any third party software integral to provision of the Services and provided or supplied by the Service Provider;
“End User” / means any person authorised by the Client Organisation to use the Software who shall be employees or agents of the Client Organisation;
“Force Majeure” / shall have the meaning ascribed to it in Clause 19.1 of the Framework Agreement;
“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 Client Organisation Services under the same or similar circumstances;
“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 Service Provider and/or the Client Organisation 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 Service Provider by or on behalf of the Service Provider and/or the Client Organisation;
(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 should the Service Provider provide Services);
“Local Change Control Procedure” / means the local change control procedure set out in Annex 5;
“Local Dispute” / shall have the meaning ascribed to it in Clause 20.1;
“Location” / means any location of the Client Organisation at which Services will be provided;
“Normal Office Hours” / means the hours 0900 through 1700 Monday through Friday, excluding public holidays as observed by the Bank of Scotland in Edinburgh;
“Performance Monitoring Report” / means the monthly report prepared by the Service Provider in accordance with Clause 8;
“Service Deductions” / means the deductions which the Client Organisation is entitled to make or that are made by the Client Organisation pursuant to any such entitlement (as the context requires) for failure by the Service Provider to achieve the relevant Service Levels as set out in or calculated in accordance with Part B of Annex 3;
“Service Levels” / means the service level(s) set out in Part B of Annex 3;
“Service Provider Sub-contractor” / means any sub-contractor engaged by the Service Provider to perform any part of this Agreement;
“Service Provider’s Representative” / shall have the meaning set out in Clause 4.2;
“Services” / means the services detailed in Annex 1;
“Software” / means programs and codes, the Intellectual Property Rights in which are:
(a)owned by or licensed to the Service Provider; and
(b)used by the Service Provider to provide the Services,
and also includes any Embedded Software (in respect of which no separate licence shall be required);
“Term” / means the period of this Agreement commencing on the Commencement Date and terminating on [ ].
1.3The headings to these conditions shall not affect the interpretation thereof.
1.4This Agreement shall be interpreted according to the following provisions, unless the context requires a different meaning:
(a)The 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.
(b)Except where the context expressly requires otherwise, references to Clauses are references to Clauses and Annexes to this Agreement.
(c)The Annexes to this Agreement are an integral part of this Agreement and a reference to this Agreement includes a reference to the Annexes.
(d)Words 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.
(e)Where 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.
(f)The 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.
(g)References 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.
(h)References 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.
(i)References to a public organisation (other than NSS or the Client 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 (other than NSS or the Client Organisation) shall include their successors and assignees.
(j)The 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.
(k)Reference to "parties" means the parties to this Agreement and references to "a party" mean one of the parties to this Agreement.
(l)In 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.
2.DURATION
This Agreement shall commence on the Commencement Date and, unless earlier terminated in accordance with the further provisions hereof, shall continue in force and effect for the Term.
3.PROVISION OF SERVICES
In accordance with the terms of this Agreement, the Service Provider shall provide the Services to the Client Organisation.
4.REPRESENTATIVE
4.1The Client Organisation shall appoint a representative to act as the liaison point with the Service Provider (the “Client Organisation Representative”). The Client Organisation Representative shall be entitled at any time, by notice to the Service Provider, to authorise any other person(s) to exercise the functions and powers of the Client Organisation as delegated to him pursuant to Clause 4.1, either generally or specifically.
4.2The Service Provider shall appoint a representative to act as the liaison point with the Client Organisation and the Client Organisation Representative and support the Client Organisation’s requirements under the terms of this Agreement (”Service Provider Representative”).
4.3The Service Provider may change the Service Provider Representative only with the prior written approval of the Client Organisation (not to be unreasonably withheld or delayed).
4.4The Service Provider shall ensure that the role of the Service Provider Representative is covered by an appropriately qualified and experienced replacement in the event that the Service Provider Representative is on leave or absent from work for whatever reason.
4.5The Service Provider Representative shall be available to the Client Organisation on every Business Day.
4.6The Service Provider shall provide the Client Organisation with full Agreement details for the Service Provider Representative and the Service Provider Representative’s line manager and ensure that such Agreement details are kept up to date and accurate.
4.7The Service Provider shall ensure that the Service Provider Representative holds regular meetings with the Client Organisation Representative to review the Client Organisation’s requirements and issues. Such meetings shall be at such location and times as agreed with the Client Organisation in advance. The Service Provider Representative shall minute such meetings and circulate minutes to attendees promptly, normally within seven (7) days of the holding of the meeting. A full set of all such minutes shall be open to inspection by the Client Organisation or by NSS at any time, upon request.
4.8Without prejudice to any other rights or obligations in the Agreement, the Service Provider Representative shall escalate issues promptly and as necessary within the Service Provider, Client Organisation and NSS organisations to gain efficient and expeditious resolution of problems or issues.
5.UNDERTAKINGS BY THE SERVICE PROVIDER
5.1The Service Provider undertakes:
(a)to ensure that the Services shall be provided by suitably skilled personnel (including with working knowledge of e-library where relevant) and in accordance with Good Industry Practice;
(b)to perform the Services in a timely and efficient manner and to a professional standard in accordance with any timescales agreed between the parties to the satisfaction of the Client Organisation; and
(c)to co-operate with the employees of the Client Organisation or other independent consultants where this is necessary for the performance of the Services.
6.ACCESS
6.1The Client Organisation shall provide the Service Provider with such access as may reasonably be required to any Location for the purposes of providing the Services. Unless expressly agreed otherwise, such access shall be given only during normal working hours of the Client Organisation.
6.2The Service Provider will ensure that its employees, agents and Service Provider Sub-contractors comply with all requirements at the Locations made known by the Client Organisation to the Service Provider (including but not limited to the Health and Safety Regime safety and security regulations, policy standards and codes of practice and health and safety requirements) and all applicable laws, regulations and directions of competent authorities.
6.3The Service Provider shall ensure that the Service Provider Sub-contractors identify themselves as such to the Client Organisation Representatives at the Client Organisation Location.
7.ACCEPTANCE TESTING
Acceptance Testing shall be carried out in accordance with Annex2.
8.SERVICE LEVEL REPORTING
The Service Provider shall in respect of provision of the Services provide such information and reports to the Client Organisation as is required in terms of Schedule Part 1 of the Framework Agreement (Service Management and Reporting).
9.PAYMENT
9.1In consideration of provision of Services to the Client Organisation under this Agreement, the Service Provider shall be entitled to receive the Charges.
9.2The Service Provider shall not be entitled to levy provision of the Charges until:-
(a)successful completion of all Acceptance Tests in accordance with Clause 7 if applicable; or
(b)successful delivery of Services where there are no Acceptance Tests.
9.3The Service Provider may not submit an invoice for any element of the Charges being Standard Service Charges until after successful completion of the Services to which such Standard Service Charges apply.
9.4All invoices shall be paid by the Client Organisation no later than thirty (30) days after receipt.
9.5The following details are to be disclosed and/or confirmed on all invoices and accompanying statements issued by the Service Provider to the Client Organisation (save where the details are manifestly not applicable to the invoice concerned):
(a)the Services to which the invoice relates;
(b)(if applicable) the training provided to which the invoice relates;
(c)the date of the invoice and due date for payment;
(d)details of the correct Agreement reference;
(e)the month or other period(s) to which the relevant Charges relate;
(f)details of Service Deductions, if applicable, credited against the Charges for that month in accordance with the provisions ofPart B of Annex 3;
(g)total charges gross and net of any applicable deductions for the month excluding VAT;
(h)total VAT; and
(i)any other applicable sales tax.
9.6All Service Provider invoices and accompanying statement shall be submitted in both hard and electronic copy format and be sent to the Client Organisation at the following address:
[●]
and shall be marked for the attention of: [●]
9.7All Service Provider invoices shall be in Pounds Sterling (GBP) and shall include any applicable VAT and any other sales tax, which will be charged at the prevailing rate.
9.8All payments under this Agreement shall be made by electronic transfer of funds to the bank account of the Service Provider (located in the United Kingdom) specified in the relevant invoice, quoting the invoice number against which payment is made.
9.9The Service Provider shall incorporate all reasonable requests from the Client Organisation for variations to the type and content of invoices and the information summary attached to any invoices provided the same have been approved by the Client Organisation in advance.
9.10The Client Organisation shall be entitled to withhold or deduct any sum of money agreed, or determined, as due and payable by the Service Provider to the Client Organisation to reduce the amount of any sum then due, or which at any time afterwards may become due, to the Service Provider from the Client Organisation under this Agreement provided that the Client Organisation has given the Service Provider not less than seven (7) days’ notice of its intention to deduct or so apply such sum.