CALL-OFF AGREEMENT

BETWEEN

[ ● ]

AND

[ ● ]

File Ref: [      ]

AGREEMENT

between

[ ● ]

(“Client Organisation”)

and

[ ● ]

(“Service Provider”)

WHEREAS:

A. 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”).

B. 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.

C. Each Health Board shall select its chosen extent of service provision, available in

terms of the Framework Agreement.

D. Each Health Board shall make payment of the charges applicable to the level of

services selected by it.

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E. The Client Organisation is one of the Health Boards.

NOW THEREFORE THE PARTIES HAVE AGREED AND DO HEREBY AGREE AS

FOLLOWS:

1. DEFINITIONS1.1 Terms used herein shall have the meaning ascribed to them in the

Framework Agreement except to the extent specifically defined herein.

1.2 In 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

shall have the meaning set out in Clause 4.1;

Representative”

“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, know-how, 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 (SI 2000/2699), 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 Error:Reference source not found 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 Error:Reference source not found;

“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 [ ].

1.3 The headings to these conditions shall not affect the interpretation thereof.

1.4 This 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. DURATIONThis 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 SERVICESIn accordance with the terms of this Agreement, the Service Provider shall

provide the Services to the Client Organisation.

4. REPRESENTATIVE4.1 The 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.

4.2 The 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”).

4.3 The 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).

4.4 The 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.

4.5 The Service Provider Representative shall be available to the Client

Organisation on every Business Day.

4.6 The 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.

4.7 The 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.

4.8 Without 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 PROVIDER5.1 The 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. ACCESS6.1 The 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.

6.2 The 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.

6.3 The 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 TESTINGAcceptance Testing shall be carried out in accordance with Annex 2.

8. SERVICE LEVEL REPORTINGThe 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. PAYMENT9.1 In consideration of provision of Services to the Client Organisation under

this Agreement, the Service Provider shall be entitled to receive the

Charges.

9.2 The 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.

9.3 The 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.

9.4 All invoices shall be paid by the Client Organisation no later than thirty

(30) days after receipt.

9.5 The 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 of Part

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.

9.6 All 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: [ ● ]

9.7 All 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.

9.8 All 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.

9.9 The 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.

9.10 The 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.

9.11 The Client Organisation shall advise the Service Provider of any invoice

received which does not conform to the Client Organisation’s

requirements set out in this Annex 3 within ten (10) Business Days from

the receipt of the invoice. The Service Provider shall issue a replacement

invoice within a further five (5) Business Days.

9.12 If any audit or other examination in accordance with this Agreement shows

that the Service Provider has overcharged the Client Organisation or

misrepresented any Charges then the Service Provider shall promptly

refund the Client Organisation or the relevant Client Organisation as the

case may be all amounts incorrectly charged.

9.13 If any audit or other examination in accordance with the Agreement show

that the Service Provider has either fraudulently overcharged the Client

Organisation or deliberately misrepresented any charge or cost allowed

then the Client Organisation may treat this as a material breach of this

Agreement incapable of remedy.

10. LIABILITY AND INSURANCE10.1 The insurance requirements of the Service Provider under this Agreement,

are set out at Clause 18 of the Framework Agreement.

10.2 The Service Provider shall indemnify the Client Organisation in

accordance with Clause 16 of the Framework Agreement.

10.3 Subject to Clause 10.4 (in respect of which the Service Provider’s liability

will be unlimited) the aggregate liability of the Service Provider in respect

of all claims made by or in respect of the Client Organisation arising in

each year of this Agreement (commencing on the Commencement Date)

whether arising from delict (including negligence), breach of contract or

otherwise under or in connection with this Agreement shall in no event

exceed:

(a) TWO MILLION POUNDS (£2,000,000) STERLING, where this

Agreement has been entered into pursuant to a menu call off in

accordance with Clauses 7.1 to 7.4 of the Framework Agreement;

or

(b) the greater of TWO MILLION POUNDS (£2,000,000) STERLING

or two hundred per cent (200%) of the total Charges payable under

this Agreement at the time at which the liability arose, where this

Agreement has been entered into pursuant to a mini tender call off

in accordance with Clauses 7.5 and 7.6 of the Framework

Agreement.

10.4 Notwithstanding any other provision of this Agreement, there shall be no

exclusion or limit of liability in respect of:

(a) fraud or fraudulent misrepresentation by either party; and

(b) death or personal injury caused by the breach of duty or

negligence of either party.

10.5 Notwithstanding any other provision of this Agreement, the Service

Provider shall not be entitled to any relief from its obligations under this

Agreement and the Client Organisation shall not have any liability under

this Agreement, in each case, if and to the extent that the circumstances

giving rise to such relief or liability are caused or contributed to by the

Service Provider or any Service Provider Sub-Contractor (including,

without limitation, by way of any act, omission, breach or negligence of the

Service Provider under this Agreement or otherwise).

11. CLIENT ORGANISATION UNDERTAKINGSThe Client Organisation undertakes that it will perform the Client Organisation

Responsibilities.

12. DATA PROTECTION12.1 The Service Provider shall comply with the provisions of the Data

Protection Legislation as appropriate in connection with this Agreement

including where appropriate maintaining a valid and up to date data

protection notification.

12.2 The Service Provider shall store or process any Client Organisation Data

supplied to it for the purposes of this Agreement (as defined in the 1998

Act) only as specifically agreed in advance with the Client Organisation.

The Service Provider shall not transfer any Client Organisation Data out of

the UK unless such transfer has been registered and previously approved

by the Client Organisation provided always that the Service Provider

hereby confirms that it is not and at all times will not be in breach of any

laws of the country in which the Client Organisation Data will be

processed which would prevent the Service Provider from processing the

Client Organisation Data or would give rise to a liability for the Client

Organisation.

12.3 The Service Provider hereby warrants and undertakes that it shall not, by

any act or omission (other than as expressly required by the Client

Organisation pursuant to this Agreement cause any breach by the Client

Organisation (having regard to the nature of the Service and the Client

Organisation’s obligations as Data Controller) of any Data Protection

Legislation.

12.4 The Service Provider warrants that it has and undertakes that it will at all

times have in place appropriate technical and organisational measures

against accidental or unlawful destruction of the Client Organisation Data

or accidental loss, alteration, unauthorised or unlawful disclosure of or

access to the same and adequate security programmes and procedures in

place to ensure that unauthorised persons will not have access to any

Client Organisation Data or to the data processing equipment used to

process any Client Organisation Data and that any persons it authorises to

have access to any Client Organisation Data will respect and maintain the

confidentiality and security of the Client Organisation Data.

12.5 The Service Provider shall provide the Client Organisation at reasonable

intervals within thirty (30) days of request a written description of the

technical and organisational measures referred to in Clause 12.4 in

sufficient detail to enable the Client Organisation to determine whether

such measures are sufficient to ensure that the Client Organisation is in

compliance with the Data Protection Legislation.

12.6 The Service Provider shall within one month after the date when Client

Organisation Data is no longer required for the purposes of this

Agreement certify in writing to the Client Organisation that to the best of

the Service Provider’s knowledge and belief the original and all copies of

all Client Organisation Data received by the Service Provider from the

Client Organisation or acquired by the Service Provider during the course

of this Agreement have been returned to the Client Organisation or

destroyed. This requirement shall apply to all copies of Client

Organisation Data in any form whether partial or complete.

12.7 The Service Provider shall make no use whatsoever of Client Organisation

Data other than for the purpose of performance of this Agreement.

12.8 The Service Provider shall indemnify the Client Organisation against any

liability including without prejudice to the foregoing generality any loss,

costs, penalty, expense or damage incurred by the Client Organisation

either directly or indirectly as a consequence of breach by the Service

Provider of the provisions of the 1998 Act or this Clause 12 provided that

the Client Organisation gives notice of any claim or action to the Service

Provider and makes no admission in respect thereof without the Service

Provider’s prior written consent.

12.9 The Client Organisation shall indemnify the Service Provider against any

liability including without prejudice to the foregoing generality any loss,

costs, penalty, expense or damage incurred by the Service Provider either

directly or indirectly as a consequence of breach by the Client

Organisation of the provisions of the 1998 Act provided that the Service

Provider gives notice of any claim or action to the Client Organisation and

makes no admission in respect thereof without the Client Organisation’s

written consent.

13. CONFIDENTIALITY13.1 The Service Provider hereby undertakes that:

(a) the Service Provider (and any person employed or engaged by the

Service Provider in connection with the Agreement) shall only use

Confidential Information provided by the Client Organisation

(“Client Organisation Confidential Information”) for the purposes of

this Agreement;

(b) the Service Provider (and any person employed or engaged by the

Service Provider in connection with this Agreement) shall not

disclose any Client Organisation Confidential Information to any

third party without the prior written consent of the Client

Organisation;

(c) without prejudice to the generality of the foregoing neither the

Service Provider nor any person engaged by it whether as a

servant or a consultant or otherwise shall use the Client

Organisation Confidential Information for the solicitation of

business from the Client Organisation or another National Health

Service entity by the Service Provider or by such servant or

consultant or by any third party.

13.2 The Service Provider shall not make any use whatsoever of patient

identifiable information other than for the purposes of this Agreement or

disclose such patient identifiable information that may become available to

it to any third party other than expressly authorised in writing by the Client

Organisation.

13.3 The Service Provider’s attention is expressly drawn to the importance of

retaining confidentiality in any and all information relating to patients and

any unauthorised disclosure shall constitute a default incapable of remedy

hereunder. The Service Provider shall comply with the requirements of

the following two NHSiS Circulars, namely:

(a) NHS MEL (1992) 42;

(b) NHS MEL (1994) 100.

13.4 The Service Provider shall ensure that all its employees who have access

to or handle patient identifiable information sign a statement in which they

undertake to keep all such information confidential. The Service Provider

shall inform such employees in writing of the importance of the

confidentiality of patient identifiable information; the principles of protecting

confidentiality and that breach of any confidentiality shall be a serious

disciplinary matter. Employees of the Service Provider shall be required

to give written acknowledgement of the foregoing in a form approved by

the Client Organisation prior to the date of receipt of any such Client

Organisation Confidential Information. Copies of all forms and statements

so signed shall be sent to the Client Organisation.

13.5 Always subject to the terms of Clauses 13.7 and 13.8, the Client

Organisation:

(a) shall treat as confidential all Confidential Information, obtained

from the Service Provider, including but not limited to any source

code in Service Provider’s Software (“Service Provider Confidential

Information”);

(b) shall only use the Service Provider Confidential Information for the

purposes of this Agreement; and

(c) shall not, subject to Clauses 13.7 and 13.8, disclose to any third

party without the prior written consent of the Service Provider any

Service Provider Confidential Information.

13.6 The provisions of this Clause 13 shall not apply to any information (other

than patient identifiable information to which the provisions of Clause 13.2,

13.3 and 13.4 shall apply) which:-

(a) is or becomes public knowledge other than by breach of this

Clause 13;

(b) is in the possession of the receiving party without restriction in

relation to disclosure before the date of receipt from the disclosing

party;

(c) is received from a third party who lawfully acquired it and who is

under no obligation restricting its disclosure; or

(d) is independently developed without access to the disclosing party’s

Confidential Information.

13.7 Nothing contained in this Clause 13 shall prevent the Client Organisation

from disclosing any Confidential Information:

(a) wherever disclosure is required by virtue of the Client

Organisation’s status as a National Health Service Entity to a

department, office or agency of Her Majesty’s Government or to

any other National Health Service Entity; or

(b) to any consultant, company or other person engaged by the Client

Organisation in connection with the Project, but not to any of

Service Provider’s competitors, provided that the Client

Organisation shall have obtained from such consultant, company

or other person engaged by it to whom Confidential Information is

so disclosed, a confidentiality undertaking substantially in the same

terms as contained in this Clause 13. For the purposes of this sub

clause, a competitor of the Service Provider shall mean any person

or entity, whether corporate or otherwise providing services, which

are the same as or similar in nature to the Services.

13.8 No term of this Agreement, whether express or implied, shall preclude the

Client Organisation from making public under the Freedom of Information

(Scotland) Act 2002 and/or any Codes applicable from time to time

relating to access to public authorities’ information, details of all matters

relating to this Agreement unless (i) such details constitute a trade secret;

(ii) the disclosure of such details would or would be likely to prejudice

substantially the commercial interests of any person (including but not

limited to the Service Provider or the Client Organisation); (iii) or such

details fall within such other exemption as may be applicable at the

discretion of the Client Organisation in terms of the said Act; provided that

the Client Organisation shall use reasonable endeavours to provide the

Service Provider with notice of such intended disclosures prior to making

such information public. The Service Provider will facilitate the Client

Organisation’s compliance with its obligations under these provisions and

comply with any request from the Client Organisation for that purpose.

13.9 Nothing in this Clause 13 shall prevent the Service Provider or the Client

Organisation from using data processing techniques, ideas and know-how

gained during the performance of this Agreement in the furtherance of its

normal business, to the extent that this does not relate to a disclosure of

Confidential Information or an infringement by the Client Organisation or

the Service Provider of any Intellectual Property Rights of the other party.

14. TERMINATION OF THE ACCESS AGREEMENT14.1 Unless terminated earlier in accordance with the provisions of this

Agreement, this Agreement shall terminate immediately without notice on

any termination of the Framework Agreement. In the event of termination

of one or more, but not all, Service Providers’ participation in the

Framework Agreement, or expiry of the Framework Agreement, this

Agreement shall remain in full force and effect where it is with the Service

Provider whose participation in the Framework Agreement has not been

terminated.

14.2 The Client Organisation may terminate this Agreement forthwith by notice

in writing to the Service Provider where the Service Provider has

committed a material breach and where such breach is capable of remedy

has failed to remedy such breach within thirty (30) days of receiving notice

specifying the breach and requiring its remedy.

14.3 The accrued rights and obligations of the parties shall survive any

termination or expiry of this Agreement.

15. FORCE MAJEURE15.1 For the purposes of this Agreement, "Force Majeure" means any of the

following events or circumstances:

(a) war, civil war, armed conflict or terrorism;

(b) nuclear contamination unless in any case the Service Provider is

the source or cause of the contamination; or

(c) national emergency declared by Her Majesty's Government, which

directly causes either party to be unable to comply with all or a

material part of its obligations under this Agreement, provided that

the Service Provider shall not be relieved of any express

obligations set out in this Agreement (save to the extent the

Service Provider is expressly prohibited from performing the same

as a result of the Force Majeure event).

15.2 Subject to Clause 15.3 the party claiming relief shall be relieved from

liability under this Agreement to the extent that by reason of the event of

Force Majeure it is not able to perform its obligations under this

Agreement, provided that if the party claiming relief is the Service

Provider, the Client Organisation shall be entitled to make Service

Deductions in respect of the part of the Services not provided by the

Service Provider as a result of the event of Force Majeure.

15.3 Where a party is (or claims to be) affected by an event of Force Majeure:

(a) it shall take and continue to take all reasonable steps to eliminate

or mitigate the consequences of such an event upon the

performance of its obligations under this Agreement and resume

performance of its obligations affected by the event of Force

Majeure as soon as practicable and use all reasonable endeavours

to remedy its failure to perform; and

(b) it shall not be relieved from liability under this Agreement to the

extent that it is not able to perform, or has not in fact performed, its

obligations under this Agreement due to its failure (if any) to

comply with its obligations under Clause (a);

15.4 The party claiming relief shall serve written notice on the other parties as

soon as reasonably possible and in any event within five (5) days of it

becoming aware of the relevant event of Force Majeure. Such initial notice

shall give sufficient details to identify the particular event claimed to be an

event of Force Majeure.

15.5 A subsequent written notice shall be served by the party claiming relief on

the other parties as soon as reasonably possible and in any event within a

further period of five (5) days of the notice referred to in Clause 15.4 which

shall contain such relevant information relating to the failure to perform (or

delay in performing) as is available, including the effect of the event of

Force Majeure on the ability of the party to perform, the action being taken

in accordance with Clause 15.3, the date of the occurrence of the event of

Force Majeure and an estimate of the period of time required to overcome

it (and/or its effects).

15.6 The party claiming relief shall notify the others in writing as soon as the

consequences of the event of Force Majeure have ceased and of when

performance of its affected obligations can be resumed.

15.7 If, following the issue of any notice referred to in Clause 15.5, the party

claiming relief receives or becomes aware of any further information

relating to the event of Force Majeure (and/or any failure to perform), it

shall submit such further information to the other party as soon as

reasonably possible.

15.8 The parties shall endeavour to agree in writing any modifications to this

Agreement which may be equitable having regard to the nature of an

event or events of Force Majeure. The Dispute Resolution Procedure

shall not apply to a failure of the Client Organisation and the Service

Provider to reach agreement pursuant to this Clause 15.8.

16. ASSIGNATION16.1 This Agreement is personal to the parties hereto and shall be binding and

inure for the benefit of the Service Provider and the Client Organisation

and their respective successors and permitted assignees or transferees.

16.2 Subject always to Clause 16.4 the Service Provider shall not assign,

novate, sub-contract or otherwise dispose of this Agreement or any part

thereof without the previous written consent of the Client Organisation

(subject always to Clause 16.3) which shall not be unreasonably withheld

or delayed and in any case of sub-contracting, shall only be withheld if the

proposed sub-contractor:-

(a) lacks the legal capacity, power of authorisation to perform the

relevant obligations;

(b) lacks the technical competence or technical resources to perform

the relevant obligations; or

(c) is known to have a history of poor contractual performance or has

acted in bad faith in its dealings with the NHSiS or other public

bodies.

16.3 The Client Organisation shall grant consent to assignation or transfer of

this Agreement to any assignee or transferee of the Service Provider in

terms of the Framework Agreement.

16.4 The Service Provider be entitled to sub-contract those elements of

delivery of this Agreement all as set out in the Framework Agreement.

16.5 The Client Organisation shall not assign, novate or otherwise dispose of

the benefit of the whole or in part of this Agreement save:-

(a) to the First Minister;

(b) another National Health Service in Scotland Health Board;

(c) a National Health Service in Scotland Special Health Board; or

(d) any other person or body replacing the foregoing (or to whom the

First Minister exercising his statutory rights would be entitled to

transfer such benefits;

(e) without the prior written consent of the Service Provider (such

consent not to be unreasonably withheld or delayed).

17. WAIVERFailure or neglect by one party to enforce at any time any of the provisions hereof

shall not be construed nor shall be deemed to be a waiver of that party’s right

hereunder nor in any way affect the validity of the whole or any part of this

Agreement nor prejudice that party’s right to take subsequent action.

18. SEVERABILITYIn the event that any of these terms, conditions or provisions shall be determined

by any competent authority to be invalid, unlawful or unenforceable to any extent,

such term, condition or provision shall to that extent be severed from the

remaining terms, conditions and provisions which shall continue to be valid to the

fullest extent permitted by law.

19. NOTICESAny notice to be given by either party to the other may be sent by recorded

delivery to the address of the other party as appearing herein or such other

address as such party may from time to time have communicated to the other in

writing and if so sent shall be deemed to be served 3 days following the date of

posting.

20. DISPUTE RESOLUTION20.1 Any dispute or difference arising between the Client Organisation and the

Service Provider in respect of the provision of the Client Organisation

Services, or in connection with the interpretation of any provision of this

Agreement (“Local Dispute”) shall be resolved in accordance with the

Dispute Resolution Procedure (Schedule Part 6 of the Framework

Agreement) save that:-

(a) reference to the “NSS Representative” shall be construed as “the

Client Organisation Representative”; and

(b) in the event of failure by the Client Organisation Representative

and the Service Provider Representative to resolve the Local

Dispute the Local Dispute shall instead be referred to the Client

Organisation’s Chief Executive and the Service Provider’s

Managing Director; and

(c) in the event that the Client Organisation’s Chief Executive and the

Service Provider’s Managing Director fail to resolve the Local

Dispute the provisions of Schedule Part 6 of the Framework

Agreement shall apply in relation to referral of the Local Dispute to

an Expert.

21. CONFLICT21.1 In the event of any conflict between the terms of this Agreement and the

Framework Agreement, the terms of the Framework Agreement shall

prevail.

22. CHANGE CONTROL22.1 Any change to this Agreement may be effected only in accordance with

the Local Change Control Procedure by Service Provider under this

Agreement. At any time during the continuance of this Agreement, the

Client Organisation may request and Service Provider may recommend

variations to any part or parts of the Services, but only to the extent that

such variations are locally applicable and would have no impact upon the

terms of the Framework Agreement (“Amendments” or “Amended

Services”).

22.2 To avoid doubt, the parties may make Changes only which are applicable

to the Client Organisation and  have no impact on the terms of the

Framework Agreement.

23. SURVIVAL23.1 Termination or expiry shall not affect the continuing rights and obligations

of the Service Provider and the Client Organisation which are expressly by

implication included to survive termination of this Agreement.

24. LAW24.1 The parties hereby agree that this Agreement shall be governed and

construed in accordance with Scots law and the parties prorogate the

jurisdiction of the Scottish Courts: IN WITNESS WHEREOF these

presents typewritten on this and the preceding [ ] pages together with

the Annex are executed as follows:-

For and on behalf of [ ]

Place ......................................................... Date ............................................................

Signed by .................................................. Witnessed by ..............................................

Print Name ................................................ Print Name .................................................

Designation ............................................... Designation ................................................

Address ......................................................

....................................................................

For and on behalf of [ ]

Place ......................................................... Date .........................................................

Signed by .................................................. Witnessed by ...........................................

Print Name ................................................ Print Name ...............................................

Designation ............................................... Designation ..............................................

Address ....................................................

..................................................................

ANNEX 1

SERVICES

This should detail what is being provided and when (e.g. any local implementation timetable). Include details such as training etc.

ANNEX 2

ACCEPTANCE

Detailed acceptance testing.

ANNEX 3

PART A: PRICING

This Part A of Annex 3 shall detail the Charges to be payable by the relevant Client Organisation Services. This will be built up from (i) either or both of the Standard Service Charges as detailed in Part 3 of the Schedule to the Framework Agreement; and (ii) the tendered Charges established through the Mini Tender Process detailed in Part 4 of the Schedule to the Framework Agreement.

The Standard Service Charges shall remain fixed for first two years of Framework Agreement and thereafter shall be subject to indexation in accordance with Clause 1.3.13 of the Framework Agreement. Charges established through the Mini Tender Process shall be subject to indexation annually from the anniversary of the date of commencement of provision of the Services delivered pursuant to such Mini Tender Process except that, for the purposes of such indexation RPI(n) shall be the value of the Index on the date of commencement of provision of the Services delivered pursuant to such Mini Tender Process.

PART B: SERVICE LEVELS AND SERVICE DEDUCTION

This Part B of Annex 3 shall detail the service levels and deduction mechanism to apply. No deductions mechanism will apply for Menu Call Offs. The deductions mechanism will be detailed in the mini tender pack to be issued as part of the Mini Tender Process.

ANNEX 4

LOCATIONS

ANNEX 5

LOCAL CHANGE CONTROL PROCEDURE

1. DEFINITIONSIn this Annex 5, unless the context otherwise requires, the following words shall

have the following meanings:

“Change” means any change to this Agreement proposed by either party pursuant to the Local Change Control Procedure;

“Change Authorisations”

has the meaning given to it in paragraph 3.6 of Annex 5;

“Local Change Control Note" and "LCCN”

has the meaning given to them in paragraph 3.1 of Annex 5;

“Mandatory Change”

has the meaning given to it in paragraph 5.2 of Annex 5;

“Milestone” means any milestone for performance agreed between the parties;

“Notice of Change”

means prior written notice of any Change given by the Client Organisation in accordance with this Annex 5;

“Urgent Change”

has the meaning given to it in paragraph 4.1 of Annex 5.

2. GENERAL PRINCIPLES

2.1 Both parties shall conduct discussions relating to proposed Changes in

good faith and neither party shall act unreasonably in implementing the

Local Change Control Procedure set out in this Annex 5 (‘LCCP’).

2.2 Changes may either be initiated by the Client Organisation or the Service

Provider. These Changes may be unique to this Agreement or give rise to

consequent changes that need to be implemented by other integrated

service providers.

2.3 All Changes proposed by the Client Organisation must be carried out by

the Service Provider save in the circumstances set out in paragraph 2.5.

2.4 Neither party shall unreasonably withhold or delay any consent which is

requested pursuant to this Annex 5 in relation to a proposed Change.

Until such time as a written Change Authorisation has been signed and

issued by the Client Organisation in accordance with paragraph 3.6 of this

Annex 5, both parties shall, unless otherwise expressly agreed in writing,

continue to perform this Agreement in accordance with the existing terms

of the Agreement.

2.5 The Client Organisation shall not be entitled to require the Service

Provider to implement any Change (including specifically any Mandatory

Change) which:

(a) would materially and adversely affect the health and safety of any

person;

(b) requires the Services to be performed in a way that infringes any

law; or

(c) the Service Provider can demonstrate to the Client Organisation's

reasonable satisfaction, is impossible to carry out technically

provided that the Service Provider may not rely on this exception

where:

(i) the description of the Services indicates that the Service

Provider must have the technical capacity and flexibility

required by the proposed Change; or

(ii) such proposed Change could reasonably be undertaken by

a supplier of services similar to the Services.

2.6 If the Service Provider reasonably believes that any Change proposed by

a Notice of Change received from the Client Organisation falls within the

provisions of paragraph 2.5 of this Annex 5 then it shall inform the Client

Organisation in writing of its reasons for this belief within seven (7) days of

receipt and shall not be obliged to submit a LCCN in relation to such Client

Organisation Notice of Change. If the Client Organisation disagrees with

the Service Provider's conclusion, the matter will be addressed in

accordance with the Dispute Resolution Procedure contained in the

Agreement.

2.7 To the extent that any Change requires implementation and/or testing, the

procedures set out in Annex 2 (Acceptance Testing) shall apply (as

relevant) and the plan for implementing the Change shall apply, unless

otherwise specified by the Client Organisation.

3. PROCEDURES

3.1 The Client Organisation may issue a Notice of Change to the Service

Provider at any time. Any such Client Organisation Notice of Change shall

include sufficient details of the required Change to enable the Service

Provider to prepare a change control note containing the information set

out in paragraph 3.3 ("Local Change Control Note" or "LCCN") in relation

to it. The Service Provider shall provide the CCN to the Client

Organisation's Representative within ten (10) Business Days of receipt of

the Client Organisation Notice of Change or such shorter period as the

Client Organisation, acting reasonably, shall specify.

3.2 A recommendation for a Change by the Service Provider shall be

submitted as a LCCN to the Client Organisation's Representative. The

Service Provider shall request from the Client Organisation any

clarification it requires in relation to a Notice of Change promptly, giving

the Client Organisation reasonable time to respond, and the Service

Provider shall provide sufficient information to enable the Client

Organisation to respond to any such request submitted by it to the Client

Organisation.

3.3 Each LCCN shall contain (but need not be limited to):

(a) the title of the Change;

(b) the originator of the Change and the date of the request or

recommendation for the Change;

(c) the reason for the Change;

(d) full details of the Change, including any specifications;

(e) price, if any, for the Change and a schedule of payments (where

appropriate) which shall be calculated in accordance with

paragraph 3.10;

(f) the impact of the Change on other aspects of the Agreement,

including, without limitation:

(i) Milestones and any timetable previously agreed with the

Client Organisation (including, without limitation,

Acceptance Testing);

(ii) the provision of the Services (including performance and

resource issues) and the Service Provider's ability to meet

its obligations under the Agreement;

(iii) on the provision of services to the Client Organisation by

any other IT service provider, including any required

modification to any parts of the Client Organisation's IT

infrastructure;

(iv) the terms of the Agreement, including amendments

required to the terms of the Agreement as a result of the

Change and a plan for implementing the Change;

(v) the provisions of Annex 3;

(vi) details of any resources which it intends to use to

implement any proposed Change; and

(vii) such other information as the Client Organisation may

reasonably request.

3.4 For each LCCN submitted to the Client Organisation's Representative, the

parties shall follow the procedure set out below:

(a) the Client Organisation shall allocate a sequential number to the

LCCN;

(b) the Client Organisation shall evaluate the LCCN and as

appropriate, within 10 (ten) Business Days of receiving the LCCN,

either:

(i) request further information or further discussions with the

Service Provider and then either approve or reject any

modified LCCN;

(ii) approve the LCCN;

(iii) notify the Service Provider of rejection of the LCCN; or

(iv) require the Service Provider to modify the LCCN in which

event the Service Provider shall make such modifications

within five (5) Business Days of the request. The Client

Organisation may approve or reject a modified LCCN and

the remaining provisions of this paragraph 3 shall apply.

3.5 If the LCCN is given initial approval by the Client Organisation's

Representative, two copies of it in its agreed form shall be:

(a) prepared for signature on behalf of the Service Provider and the

Client Organisation;

(b) provided to the Service Provider for its signature; and

(c) once signed, returned by the Service Provider to the Client

Organisation for signature by the appropriate person as described

in paragraph 6 of this Annex 5.

3.6 When the LCCN signed by the Service Provider under paragraph 3.5 of

this Annex 5 is signed on behalf of the Client Organisation in accordance

with paragraph 6 of this Annex 5, this shall constitute a Change

Authorisation and shall constitute a variation to this Agreement.

3.7 Any dispute in relation to any Change or any LCCN or to the application

of, or compliance with, this Local Change Control Procedure (including

whether the Change is correctly classified as an Urgent Change) shall be

resolved in accordance with the Dispute Resolution Procedure.

3.8 If the Service Provider does not intend to use its own resources to

implement any proposed Change it shall comply with Good Industry

Practice with the objective of ensuring that it obtains best value for money

(taking into account all relevant circumstances including, in particular, the

requirement that the Client Organisation should not be worse off as a

result of the implementation of the Change) when procuring any work,

services, supplies, materials or equipment required in relation to the

Change.

3.9 At all times best value principles shall apply to the costing of any

Changes.

3.10 Any Changes required as a result of, or in connection with, an error or

default by the Service Provider shall be paid for by the Service Provider.

3.11 Each party shall bear its own costs in relation to the preparation and

agreement of each Notice of Change and Local Change Control Note.

4. URGENT CHANGES

4.1 The following types of Change are Urgent Changes:

(a) in the case of the Client Organisation:

(i) Changes required as a result of a ministerial decision; and

(ii) other Changes which in the reasonable opinion of the Client

Organisation need to be dealt with urgently; and

(b) in the case of the Service Provider, Changes which in the

reasonable opinion of the Service Provider need to be dealt with

urgently.

4.2 Where either party wishes to propose an Urgent Change, it shall include in

the relevant Client Organisation Notice of Change or LCCN (as the case

may be) a statement that the Change is an Urgent Change (and a brief

statement of the grounds for classifying it as an Urgent Change).

4.3 In the case of an Urgent Change requested by either party, the Client

Organisation may specify that it wishes the Service Provider to produce a

LCCN within two (2) days unless otherwise agreed. Any queries

regarding the Urgent Change shall be discussed and agreed between the

parties and incorporated into the LCCN. The Service Provider shall

implement the Urgent Changes in accordance with the relevant Client

Organisation Notice of Change or LCCN as soon as reasonably

practicable.

5. MANDATORY CHANGES

5.1 Upon the Client Organisation becoming aware of the occurrence of an

event requiring a Mandatory Change, the Client Organisation may issue

an Notice of Change in respect of such Mandatory Change. If the Client

Organisation does not issue an Client Organisation Notice of Change for a

Mandatory Change the Service Provider shall also be entitled to initiate a

LCCN for such Mandatory Change.

5.2 The following types of Changes are Mandatory Changes:

(a) where the Change is necessary to enable the Service Provider or

the Services to comply with any change in Law;

(b) where any Change is necessary for the Services to be performed

in accordance with the Service Levels.

5.3 Upon receipt of an Client Organisation Notice of Change in respect of a

Mandatory Change, the Service Provider shall, within five (5) Business

Days of such receipt (or such other timescale as may be agreed between

the parties having due regard to the operational urgency of the Mandatory

Change) provide the relevant LCCN to the Client Organisation.

6. FORM OF CHANGE AUTHORISATIONS

6.1 Unless otherwise agreed by Client Organisation’s Representative in

writing, the Service Provider may not proceed with any Change until the

relevant Change Authorisation, which shall have the relevant LCCN

attached to it, has been issued and executed by the Client Organisation in

accordance with the prescribed limits and authorisations set out in the

Client Organisation's Change Authorisation and sign off procedure, as

notified to the Service Provider from time to time.

ANNEX 6

CLIENT ORGANISATION RESPONSIBILITIES

The Client Organisation agrees that it will:

1.1 take all reasonable precautions to protect the health and safety of the

Service Provider’s personnel whilst at the Locations;

1.2 grant access to all Locations as reasonably required by the Service

Provider to fulfil its obligations under this Licence, subject always to the

rights to refuse such access expressly set out elsewhere in this

Agreement;

1.3 ensure that where the Client Organisation is to perform data conversion of

legacy systems the Service Provider will be provided with the data to be

converted in a format, and on machine readable media, or access to such

data, as reasonably specified in writing by the Service Provider.

Furthermore, the Service Provider will be provided with data samples as

and when required to test the Service Provider’s data conversion routines;

1.4 co-operate as reasonably required with the Service Provider in respect of

provision of the Services by the Service Provider;

1.5 procure that the Service Provider has at all times all logon IDs, valid

passwords, authorisations, and remote connectivity that the Service

Provider reasonably requires from the Client Organisation to perform this

Agreement.