Dated
April 2013
NHS BUSINESS SERVICES AUTHORITY
AND
RELIANCE HIGH-TECH LTD
FRAMEWORK AGREEMENT
for the provision of Lone Worker Services
Contents
Clause
1
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5
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8
9
10
11
12
13
14
15
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18
19
20
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32
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34
35
36
37
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41
42
43
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46
Page
Definitions and Interpretation ..................................................................................................... 3
Scope of this Framework Agreement ........................................................................................ 4
Implementation Plan .................................................................................................................. 5
The Available Services .............................................................................................................. 5
Standards and Regulations ....................................................................................................... 6
Ordering Procedures ................................................................................................................. 6
Charges for Services ................................................................................................................. 7
Representatives ......................................................................................................................... 7
Governance ............................................................................................................................... 8
Business Continuity ................................................................................................................... 8
Management Information ........................................................................................................... 8
Amendments to this Framework Agreement ............................................................................. 8
Marketing ................................................................................................................................... 9
Communications ........................................................................................................................ 9
Financial standing of the Supplier ........................................................................................... 10
Term, suspension and termination .......................................................................................... 10
Consequences of termination and expiry ................................................................................ 13
Force Majeure.......................................................................................................................... 14
Warranties and representations .............................................................................................. 15
Limitation of liability ................................................................................................................. 16
Complaints handling ................................................................................................................ 17
Authority Data .......................................................................................................................... 18
Data Protection ........................................................................................................................ 19
Personnel Security................................................................................................................... 21
Intellectual Property Rights ...................................................................................................... 21
Confidentiality .......................................................................................................................... 23
Publicity ................................................................................................................................... 24
Dispute resolution .................................................................................................................... 24
Insurance ................................................................................................................................. 25
Recovery of sums due ............................................................................................................. 25
Statutory requirements ............................................................................................................ 25
Environmental requirements .................................................................................................... 25
Discrimination .......................................................................................................................... 25
Corrupt gifts and payments of commission ............................................................................. 26
Granting of Trade Marks .......................................................................................................... 26
Transfer and sub-contracting ................................................................................................... 27
Rights of Third Parties ............................................................................................................. 29
Audit ......................................................................................................................................... 29
Freedom of information ........................................................................................................... 31
Customer satisfaction monitoring ............................................................................................ 31
Legislative change ................................................................................................................... 32
Severability .............................................................................................................................. 32
Waiver...................................................................................................................................... 32
Non-exclusivity......................................................................................................................... 32
Law and Jurisdiction ................................................................................................................ 33
Entire agreement ..................................................................................................................... 33
Schedules
1
Definitions ................................................................................................................................ 35
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Model Contract
Services
Delays and Implementation
Maximum Charges
Ordering Process
Management Information
Agreement Change Procedure
Maximum Charges Variation Procedure
Sub-Contractors
Model Self Audit Certificate
Governance
Solution
Security Policy
Marketing and Communications
Exit Assistance
Standards and Regulations
Insurance Requirements
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This Framework Agreement is made on
Between
April 2013
(1)
The NHS Business Services Authority (as agent for the Department of Health) (Authority);
and
(2)
Reliance High-Tech Ltd (No 02025063) whose registered office is at 130-132 Buckingham
Palace Road, London, United Kingdom, SW1W 9SA (Supplier).
Whereas
(A)
On 2 August 2012 the Authority placed a contract notice, reference 2012/S 147-246111 in the
Official Journal of the European Union seeking expressions of interest from Suppliers for the
provision of services to public sector bodies under a framework agreement;
(B)
Following the subsequent procurement process the Authority selected the Supplier to enter
into a framework agreement;
(C)
The Supplier has agreed to enter into this Framework Agreement with the Authority for the
provision of Services; and
(D)
This Framework Agreement provides that Customers may enter into separate Contracts with
the Supplier by placing an Order.
It is agreed
1
Definitions and Interpretation
1.1
As used in this Framework Agreement:
(a)
the terms and expressions set out in schedule 1 (Definitions) shall have the meanings
set out therein;
(b)
the masculine includes the feminine and the neuter;
(c)
the singular includes the plural and vice versa; and
(d)
the words "include", "include"; and "including" are to be construed as if they were
immediately followed by the words "without limitation".
1.2
A reference to any statute, enactment, order, regulation or other similar instrument shall be
construed as a reference to the statute, enactment, order, regulation or instrument as
amended by any subsequent statute, enactment, order, regulation or instrument or as
contained in any subsequent re-enactment thereof.
1.3
A reference to any document other than as specified in clause 1.2 shall be construed as a
reference to the document as at the date of execution of this Framework Agreement.
1.4
Headings are included in this Framework Agreement for ease of reference only and shall not
affect the interpretation or construction of this Framework Agreement.
1.5
References to "clauses" and "schedules" other than in schedule 2 (Model Contract) are,
unless otherwise provided or the context so necessitates, references to the clauses of and
schedules to this Framework Agreement. References to "paragraphs" are, unless otherwise
provided, references to paragraphs of the schedule in which the references are made.
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1.6
References to "clauses" and "schedules" in schedule 2 (Model Contract) are, unless otherwise
provided or the context so necessitates, references to the clauses of and schedules to the
Contract and references in schedule 2 (Model Contract) to "paragraphs" are, unless otherwise
provided, references to paragraphs of the schedule to the Contract in which the references are
made.
1.7
Terms or expressions contained in this Framework Agreement or a Contract which are
capitalised but which do not have an interpretation in schedule 1 (Definitions) or schedule 2
(Model Contract) as appropriate shall be interpreted in accordance with the common
interpretation within the mobile communications industry where appropriate. Otherwise they
shall be interpreted in accordance with the dictionary meaning.
1.8
The use of "[]" in schedule 2 (Model Contract) indicates where information shall be inserted
by the Supplier or Customer for each Contract. Such information shall be obtained from the
Catalogue and the relevant Order.
1.9
In the event and to the extent only of any conflict between the clauses together with schedule
1 (Definitions) and the remainder of the schedules, the clauses together with schedule 1
(Definitions) shall prevail over the remainder of the schedules. The remainder of the
schedules, excluding the Catalogue and the Solution, shall in turn prevail over the Catalogue
and the Solution. In the event of any conflict between the Catalogue and the Solution, the
Catalogue shall prevail.
2
Scope of this Framework Agreement
2.1
This Framework Agreement governs the overall relationship of the Authority with the Supplier
with respect to the provision of the Services to Customers. The Customers are entitled (but not
required) at any time during the Term to order Services from the Catalogue in accordance with
the Ordering Procedure. On acceptance of an Order in accordance with Clause 6.7 the
Supplier shall provide to that Customer such Services in accordance with all applicable
provisions of the relevant Contract.
2.2
The Supplier hereby acknowledges that:
(a)
all obligations entered into under a Contract, and the liabilities incurred by the
Supplier, are given, entered into, or incurred in favour of and for the benefit of each
Customer;
(b)
each Contract forms a separate agreement between the Customer and the Supplier in
respect of the Services ordered under it; and
(c)
with respect to each Contract, the Authority does not give any warranties or
indemnities, and does not accept any liability or responsibility under this Framework
Agreement for any obligation, debt or liability of or incurred by a Customer under a
Contract.
2.3
The Supplier shall not commit any act, nor forbear to commit any act, that shall compromise a
Customer's compliance with the Guidance Notes.
2.4
Any Contract entered into under this Framework Agreement shall commence on the date of
the execution of that Contract and shall expire no later than five (5) years after such execution.
2.5
The Supplier shall not enter into a contract with a Health Service Body for the provision of
services in the nature of the Available Services, other than in the form of the Model Contract.
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3
Implementation Plan
The Supplier shall implement the Solution in accordance with schedule 4 (Delays and
Implementation) and maintain the Solution to enable provision of the Services in accordance
with the Service Levels throughout the Term.
4
The Available Services
4.1
Each of the services specified in schedule 3 (Services) and schedule 2-2 (The Ordered
Services) of a Contract shall be made available to Customers and Potential Customers and
shall be listed as a Catalogue Entry in the Catalogue. When a specific Available Service is the
subject of an Order by a Customer, it will be referred to in the ensuing Contract as an Ordered
Service.
4.2
The Supplier shall maintain the organisational and technical ability and capacity to provide the
Available Services in accordance with this Framework Agreement as the Available Services
are required from time to time by Customers.
4.3
The Supplier shall enter into a Contract on the terms and conditions prescribed in the relevant
Model Contract with each Customer that places an Order in accordance with the provisions of
this Framework Agreement.
4.4
The Supplier shall maintain and keep up to date the Catalogue throughout the Term. Any
amendment to the Catalogue shall be subject to the Agreement Change Procedures.
4.5
The Supplier shall, no less than once in every 6 months, carry out a review of:
(a)
the Available Services;
(b)
the Solution; and
(c)
new lone worker devices or software applications (New Devices),
taking account of technological and operational developments and advancements in the
delivery of services similar to the Services.
4.6
If following a review pursuant to clause 4.5, the Supplier identifies changes to the Available
Services that could improve the Services then the Supplier shall provide a written report of its
findings to the Authority within 14 days of such review. Any potential changes or New Devices
agreed to be considered by the Authority and the Supplier, will be subject to testing by the
Supplier, at the Supplier's cost, and the Supplier shall submit its findings to the Authority for
consideration in a written report. Following such consideration, if the Authority wishes to make
the change or add the New Devices to the Catalogue, the Supplier shall propose such change
through the Agreement Change Procedures.
4.7
The Supplier hereby licenses the Authority for the Term on a royalty-free basis to use, copy
and publish (electronically and in hard copy formats) the descriptions of the Catalogue Entries
provided by the Supplier. All Intellectual Property Rights of the Supplier (or its SubContractors) in such descriptions (except insofar as such descriptions derive from material
provided by the Authority) shall remain with the Supplier (or its Sub-Contractors).
4.8
The Supplier shall comply with its obligations in schedule 3 (Services) and schedule 2-2 (The
Ordered Services) of a Contract regarding the recording of and provision of information
relating to Red Alerts and Amber Alerts.
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5
Standards and Regulations
5.1
The Supplier shall provide the Services and meet its responsibilities and obligations hereunder
in accordance with the Standards and Regulations as set out in schedule 17 (Standards and
Regulations).
5.2
The Supplier shall indemnify, defend and hold harmless the Authority from any fine awarded
against the Authority by the Regulatory Bodies or any payment required by the Regulatory
Bodies to be made to any third parties to the extent arising as a result of a breach of contract
or negligent act or omissions of the Supplier.
6
Ordering Procedures
6.1
Each Customer shall be entitled at any time during the Term to place an order for Services
from the Supplier by serving an Order in accordance with the Ordering Procedures.
6.2
Each Order shall contain the information listed in paragraph 3 of schedule 6 (Ordering
Procedure).
6.3
The Authority and the Supplier agree that any document or communication, including a
document or communication in the apparent form of an Order, which:
(a)
does not contain all of the information listed in paragraph 3 of schedule 6 (Ordering
Procedure); and/or
(b)
purports to exclude or vary any of the terms and conditions of the Model Contract,
other than in accordance with the provisions of schedule 6 (Ordering Procedure),
shall not constitute an Order under this Framework Agreement.
6.4
6.5
The Supplier shall, within two (2) Working Days of receipt of an Order acknowledge in writing
(which, for the purposes of this clause 6, shall include email) receipt of that Order to the
Customer (with a copy to the Authority) and state; either:
(a)
that it is unable to fulfil the Order; or
(b)
its acceptance of that Order.
In the event that the Supplier accepts the Order in accordance with the provisions of
clause 6.4(b), the Supplier shall:
(a)
simultaneously with that acceptance notify the Customer of the proposed dates for
commencement of the Ordered Services; and
(b)
following confirmation of the proposed dates for commencement, send the Order duly
countersigned by an authorised officer of the Supplier to the Customer (with a copy to
the Authority).
6.6
If the Supplier wishes to query any matter in relation to an Order served on it by a Customer,
the Supplier shall raise the matter with the relevant Customer as soon as practicable and in
any event within two (2) Working Days of receipt of that Order. The Supplier shall agree the
Order with the Customer as soon as possible thereafter and in any event no later than the
Service Commencement Date.
6.7
A binding agreement for the provision of the Ordered Services shall be formed on the
Customer's receipt of the countersigned Order pursuant to clause 6.5(b).
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6.8
Following the entering into of a Contract if a Customer requires any additional services it shall
follow the procedure set out in this clause 6 and if the resulting Order is accepted a further
Contract in respect of such additional Services shall be entered into pursuant to this Clause 6.
7
Charges for Services
7.1
Charges
7.2
(a)
The Charges applicable for each Service shall be as set out in schedule 2-3 (The
Charges and Charges Variation Procedure) to each Contract.
(b)
The Supplier agrees not to levy any Charges under any Contract that are in excess of
the Maximum Charges from time to time.
(c)
The Maximum Charges shall be varied in accordance with the provisions of schedule
9 (Maximum Charges Variation Procedure).
(d)
The Supplier may lower any or all of the Charges applicable to the Supplier's
Catalogue Entries from time to time by giving 20 Working Days' notice to the Authority,
but may at no time ask to have advertised in the Catalogue any Charges that are in
excess of the Maximum Charges from time to time.
Benchmarking
(a)
The Authority may benchmark the Charges advertised in the Catalogue and/or the
Maximum Charges at any time during the Term in order to compare such Charges
with charges offered by third parties and by the Supplier to other customers.
(b)
The Authority shall be entitled to use any model to determine the achievement of
value for money to carry out the benchmarking evaluation referred to in clause 7.2(a).
(c)
The Authority shall be entitled to publish the results of any benchmarking of the
Charges to Customers and Potential Customers.
(d)
The Supplier shall use all reasonable endeavours and act in good faith to supply
information required by the Authority in order to undertake the benchmarking referred
to in this clause 7.2, such information requirements to be at the discretion of the
Authority.
8
Representatives
8.1
Each party shall notify the other in accordance with clause 14 (Communications) of the
persons appointed by it from time to time to fulfil the roles identified in schedule 12
(Governance). These shall be known as the Authority Representatives and the Supplier
Representatives (as appropriate) and they shall have the authority to act on behalf of their
respective party on the matters set out in, or in connection with, this Framework Agreement.
Either party may, by further written notice to the other party, revoke or amend the authority of
its Representative or appoint a new Representative.
8.2
The respective Representatives shall be sufficiently senior within the organisation of the
appointing party, and granted sufficient authority by that party, to ensure full cooperation in
relation to the operation and the management of this Framework Agreement.
8.3
The Supplier shall ensure that the role of the Supplier Representatives are not vacant for any
longer than 10 Working Days and that any replacements shall be appropriately qualified and
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experienced and fully competent to carry out the tasks assigned to the Supplier
Representative whom he or she has replaced.
9
Governance
The Supplier and the Authority shall comply with their respective contract management
obligations set out in schedule 12 (Governance).
10
Business Continuity
10.1
The Supplier shall ensure that it is able to implement the Business Continuity Plan at any time
in accordance with its terms to ensure continuity of service provision and to minimise the
consequences of any failure in the Solution on the provision of the Services.
10.2
The Supplier shall test the Business Continuity Plan on a regular basis (and in any event not
less than once in every 12 month period). The Authority may require the Supplier to conduct
additional tests of the Business Continuity Plan where the Authority considers it necessary,
including where there has been any change to the Services or any underlying business
processes, or on the occurrence of any event which may increase the likelihood of the need to
implement the Business Continuity Plan.
10.3
If the Authority requires an additional test of the Business Continuity Plan it shall give the
Supplier written notice and the Supplier shall conduct the test in accordance with the
Authority’s requirements and the relevant provisions of the Business Continuity Plan. The
Supplier's costs of the additional test shall be borne by the Authority unless the Business
Continuity Plan fails the additional test in which case the Supplier's costs of that failed test
shall be borne by the Supplier.
10.4
Following each test, the Supplier shall send to the Authority a written report summarising the
results of the test and shall promptly implement any actions or remedial measures which the
Authority considers to be necessary as a result of those tests.
10.5
The Supplier shall undertake regular risk assessments in relation to the provision of the
Services not less than once every six months and shall provide the results of, and any
recommendations in relation to, those risk assessments to the Authority promptly in writing
following each review.
11
Management Information
11.1
The Supplier shall submit Management Information to the Authority in accordance with the
provisions of schedule 7 (Management Information), throughout the Term and thereafter in
respect of any extant Contract.
11.2
The Supplier shall implement and maintain an Order processing system that identifies and
records all Orders. Such system shall enable the Supplier to track all Orders and ascertain
their status at any time and shall produce the Records specified in clause 38 (Audit).
12
Amendments to this Framework Agreement
12.1
No amendment to the provisions of this Framework Agreement, other than a variation of the
Charges pursuant to the provisions of schedule 9 (Maximum Charges Variation Procedure),
shall be effective unless made in accordance with the Agreement Change Procedures.
12.2
In the event that a Change is implemented pursuant to the provisions of clause 12.1 and such
Change is to schedule 2 (Model Contract), the Change shall be implemented in schedule 2
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(Model Contract) and the Authority and the Supplier shall agree implementation of the Change
to extant affected Contracts as follows:
(a)
the Change shall not be implemented in any extant Contracts; or
(b)
the Supplier shall give each Customer that is the party to each such affected extant
Contract the option to implement the Change in their Contract pursuant to the
procedure for contract change set out in the relevant Contract.
12.3
Subject to clause 12.2, no change shall be made to any extant Contract without the written
consent of the Authority.
13
Marketing
The Supplier shall undertake marketing of this Framework Agreement and Services to
Potential Customers in accordance with the provisions of schedule 15 (Marketing and
Communications), throughout the Term.
14
Communications
14.1
Except as otherwise expressly provided, no communication from one party to the other shall
have any validity under this Framework Agreement unless made in writing (which shall, save
as expressly provided otherwise, exclude communications by e-mail) by or on behalf of the
party sending such communication.
14.2
Any notice or other communication whatsoever which either the Authority or the Supplier is
required or authorised by this Framework Agreement to give or make to the other shall be
given or made by first class post in a prepaid letter, addressed to the other at the address
specified in clause 14.3. Such notice or communication shall be deemed, for the purposes of
this Framework Agreement, to have been given or made two (2) Working Days after dispatch
by the sender.
14.3
For the purposes of clause 14.2 the address of each party shall be:
For the Authority:
Address:
Commercial Services (Lone Worker Project)
Stella House
Goldcrest Way
Newbourn Riverside Park
Newcastle upon Tyne
NE15 8NY
For the attention of: the Lone Worker Contract Manager
For the Supplier:
Address: Reliance High-Tech Ltd
100 Berkshire Place
Winnersh Triangle
Reading
Berkshire
RG41 5RD
For the attention of: the National Account Manager
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15
Financial standing of the Supplier
15.1
The Supplier shall, at the request of the Authority, procure that the Guarantor shall execute
and deliver to the Authority the Guarantee.
15.2
The Authority may from time to time during the Term assess the financial standing of the
Supplier and/or the Guarantor including an assessment of credit ratings as published by a
credit rating agency appointed by the Authority. In the event that the Authority considers that
the financial status of the Supplier and/or the Guarantor represents a substantial risk to the
Supplier's ability to perform its obligations under Contracts the Authority will discuss that risk
with the Supplier.
15.3
Following such discussions, if the Authority concludes that there remains a substantial risk the
Authority may by notice in writing suspend the right of the Supplier to accept further Orders
without specific prior written agreement from the Authority.
15.4
In the event that the Authority takes the actions specified in clause 15.3, the Supplier may
invite the Authority at any time to carry out a new assessment, giving evidence of changes to
the financial standing of itself and/or the Guarantor.
15.5
Where the Authority carries out a new assessment, and it concludes that there is no longer a
substantial risk to the Supplier's ability to perform its obligations under Contracts, it shall
advise the Supplier that the provisions of clause 15.3 no longer apply and recommence the
publication of Services in the Catalogue.
16
Term, suspension and termination
16.1
This Framework Agreement shall commence on the date hereof and, subject to clause 17.7,
shall remain in force until the earlier of the expiry or early termination of the last Contract
entered into pursuant to this Framework Agreement unless terminated earlier pursuant to its
terms. The Supplier shall only be entitled to accept Orders or enter into any Contracts for a
period of three (3) years, subject to an extension at the option of the Authority for a period of
one (1) year, unless this Framework Agreement is terminated earlier. The Authority may
exercise the option to extend the right for the Supplier to accept Orders under this Framework
Agreement in accordance with this clause 16.1 by serving written notice on the Supplier to that
effect no later than 6 months before expiry of the three (3) year period.
16.2
The Authority may at any time by notice in writing suspend the right of the Supplier to accept
further Orders for Services without specific prior written agreement from the Authority in the
event that:
(a)
the Supplier does not maintain its ability and capacity in respect of those Services in
accordance with the provisions of clause 4.2; or
(b)
the Supplier fails to submit Management Information in respect of those Services in
accordance with the provisions of clause 11.1; or
(c)
the Supplier commits any breach of any of the Contracts that would entitle the
Customer under that Contract to terminate that Contract (whether or not the relevant
Customer does terminate that Contract); or
(d)
any of the Termination Events specified in clause 16.5 occur,
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provided that such notice shall take effect no sooner than 10 Business Days following the
service of such notice where the events leading to such notice are those listed in clause
16.2(a) and clause 16.2(b) and in all other circumstances such notice may have immediate
effect.
16.3
At any time following service of a notice of suspension pursuant to clause 16.2 the Supplier
may serve notice on the Authority providing full details of the rectification of the events giving
rise to the suspension and steps taken by the Supplier to prevent their repeat. Following the
giving of such notice by the Supplier the Authority shall, where it is satisfied, acting
reasonably, that the events have been rectified and steps taken are sufficient to prevent a
repeat of such events occurring, restore the ability of the Supplier to accept further Orders for
Services without specific prior written agreement from the Authority.
16.4
The Authority may at any time by notice in writing terminate this Framework Agreement as
from the date of service of such notice, or a later date specified in such notice, if any of the
Termination Events occur.
16.5
The following are Termination Events for the purposes of this Framework Agreement:
(a)
A Change of Control where the proposed new owner has:
(i)
been convicted of a criminal offence relating to the conduct of its business or
profession; or
(ii)
committed an act of grave misconduct in the course of its business or
profession; or
(iii)
failed to comply with any obligations relating to the payment of any taxes or
social security contributions; or
(iv)
made any serious misrepresentations in the tendering process for any project
or matter in which the public sector has or had a significant participation; or
(v)
previously failed to obtain any licences and/or membership of any body which
would be necessary if it were to provide services equivalent to the Services.
(b)
A Change of Control occurs and there are reasonable grounds for the Authority to
withhold its consent relating to the financial standing of the new owner, any security
concerns arising from the new ownership or issues relating to the provision of the
Services by the new owner.
(c)
Any of the events listed in clause 16.5(a)(i) to 16.5(a)(iv) occur in relation to or in
respect of the Supplier itself, or if the Authority has reasonable grounds to object to
the Supplier arising from security concerns in respect of the Supplier.
(d)
The Supplier or the Guarantor:
(i)
being an individual, or where the Supplier is a firm, any partner or partners in
that firm who together are able to exercise direct or indirect control, as defined
by Section 416 of the Income and Corporation Taxes Act 1988, shall at any
time become bankrupt or shall have a receiving order or administration order
made against him or shall make any composition or arrangement with or for
the benefit of his creditors, or shall make any conveyance or assignment for
the benefit of his creditors, or shall purport so to do, or appears unable to pay
or to have no reasonable prospect of being able to pay a debt within the
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meaning of Section 268 of the Insolvency Act 1986, or any application shall
be made under any bankruptcy or insolvency act for the time being in force for
sequestration of his estate, or a trust deed shall be granted by him on behalf
of his creditors, or any similar event occurs under the law of any other
jurisdiction; or
(ii)
16.6
being a company
(A)
passes a resolution, or the court makes an order that the Supplier, its
Guarantor or its Parent Company be wound up (otherwise than for the
purpose of a bona fide reconstruction or amalgamation); or
(B)
a receiver, manager or administrator on behalf of a creditor is
appointed in respect of the business or any part thereof of the
Supplier, the Guarantor or the Parent Company (or an application for
the appointment of an administrator is made or notice to appoint an
administrator is given in relation to the Supplier, the Guarantor or the
Parent Company), or circumstances arise which entitle the court or a
creditor to appoint a receiver, manager or administrator or which
entitle the court (otherwise than for the purpose of a bona fide
reconstruction or amalgamation) to make a winding-up order; or
(C)
the Supplier, the Guarantor or the Parent Company enters into an
arrangement, compromise or composition in satisfaction of its debts
with its creditors or any class of them or takes steps to obtain a
moratorium or makes an application to a court of competent
jurisdiction for protection from its creditors; or
(D)
the Supplier, the Guarantor or its Parent Company is unable to pay its
debts within the meaning of Section 123 of the Insolvency Act 1986
(except where the claim is made under Section 123(1)(a) and is for an
amount of less than ten thousand pounds (£10,000)); or
(E)
any similar event occurs under the law of any other jurisdiction.
(e)
Where the circumstances detailed in clause 19.2 (Warranties and Representations) or
clause 34.2 (Corrupt Gifts and Payments of Commission) arise.
(f)
The Supplier fails to meet any Default Service Level, as set out in paragraph 5 of
schedule 3 (Services), on three occasions within any consecutive 12 month period.
(g)
In the event that any authorisation or licence required by the Supplier to provide the
Ordered Services, including any licence under the Wireless Telegraphy Act 1949 and
the general authorisation under the Communications Act 2003, is revoked or
withdrawn.
(h)
Subject to Paragraph 5 of Schedule 4, the Supplier fails to achieve a Milestone by the
date falling twenty (20) Working Days after the applicable Milestone Date.
For the purposes of clause 16.5(a) the following shall be disregarded:
(a)
any change in beneficial or legal ownership of any shares that are listed on a stock
exchange resulting in the relevant shareholding being less than or equal to five per
cent (5%) of the total issued share capital; and
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(b)
16.7
any transfer of shares or of any interest in shares by a person to its Affiliate where
such transfer forms part of a bona fide reorganisation or restructuring.
Without prejudice to the provisions of clause 16.2 the Authority may at any time by notice in
writing terminate this Framework Agreement forthwith if the Supplier is in material Default of
any obligation under this Framework Agreement and:
(a)
the material Default is capable of remedy and the Supplier shall have failed to remedy
the material Default within thirty (30) Days of written notice to the Supplier specifying
the material Default and requiring its remedy; or
(b)
the material Default is not capable of remedy.
16.8
The Supplier shall promptly notify the Authority in writing on each occasion of the occurrence
of any of the events specified in clauses 16.5(a) to 16.5(c).
16.9
The Authority shall only be permitted to exercise its rights pursuant to clause 16.5(a) or
16.5(b) for six (6) Months after service of a notice by the Supplier pursuant to clause 16.8
relative to each such Change of Control and shall not be permitted to exercise such rights
where the Authority has agreed in advance in writing to the particular Change of Control and
such Change of Control takes place as proposed.
17
Consequences of termination and expiry
17.1
Notwithstanding the service of a notice to terminate this Framework Agreement, the Supplier
shall continue to fulfil its obligations under this Framework Agreement until the date of expiry
or termination of this Framework Agreement or such other date as required under this clause
17.
17.2
A termination of this Framework Agreement shall not cause any Contracts to terminate
automatically. For the avoidance of doubt, all Contracts shall remain in force unless and until
they are terminated or expire in accordance with their own terms.
17.3
On termination of this Framework Agreement, the Supplier shall cease to use all Authority
Data and within ten (10) Working Days of the date of termination, the Supplier shall return to
the Authority any data and Confidential Information belonging to the Authority in the Supplier's
possession, power or control, either in its then current format or in a format nominated by the
Authority, together with all training manuals and other related documentation, and any other
information and all copies thereof owned by the Authority, save that it may keep one copy of
any such data or information:
(a)
for a period of up to twelve (12) Months to comply with its obligations under clause
17.4, or such period as is necessary for such compliance; and
(b)
for such period as is necessary to enable the Supplier to perform its obligations under
any Contract.
17.4
The Supplier shall comply with its obligations as set out in schedule 16 (Exit Assistance), to
manage a smooth transition of the provision of the Devices or Software Applications and
Services from the Supplier to a new contractor or the Authority.
17.5
The Parties shall continue to comply with their respective obligations under schedule 9
(Maximum Charges Variation Procedure).
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17.6
The Authority shall be entitled to require access to data or information to be provided under
this Framework Agreement and arising from the provision of the Services by the Supplier until
the latest of:
(a)
the expiry of a period of twelve (12) Months following termination or expiry of this
Framework Agreement; or
(b)
the expiry of a period of three (3) Months following the date on which the Supplier
ceases to provide any Ordered Services under any Contract.
17.7
The provisions of clauses 1, 14, 17, 19, 20, 22, 23, 25, 26, 28, 30, 35, 37, 42 to 46 (inclusive)
and the relevant provisions of schedules 1 (Definitions), 7 (Management Information), 14
(Security Policy) and 16 (Exit Assistance) (and without limitation to the foregoing, any other
provision of this Framework Agreement which by its terms is to be performed or observed
notwithstanding termination or expiry or which is expressed to survive termination or expiry)
shall survive the termination or expiry of this Framework Agreement.
18
Force Majeure
18.1
Subject to the remaining provisions of this clause 18, either party to this Framework
Agreement may claim relief from liability for non-performance of its obligations to the extent
this is due to a Force Majeure Event. In particular, the Supplier shall be relieved from its
Service Credits obligation to the extent that the Services are affected by the Force Majeure
Event and the Charges shall be reduced to the extent that the Customer does not receive the
Services as a result of the Force Majeure Event.
18.2
A party cannot claim relief if the Force Majeure Event is attributable to its wilful act, neglect or
failure to take reasonable precautions against the relevant Force Majeure Event.
18.3
The Supplier cannot claim relief from a Force Majeure Event to the extent that it is required to
comply with the Business Continuity Plan but has failed to do so.
18.4
An Affected Party cannot claim relief as a result of a failure or delay by any other person in the
performance of that other person's obligations under a contract with the Affected Party (unless
that other person is itself prevented from or delayed in complying with its obligations as a
result of a Force Majeure Event).
18.5
The Affected Party shall immediately give the other party written notice of the Force Majeure
Event. The notification shall include details of the Force Majeure Event together with evidence
of its effect on the obligations of the Affected Party, and any action the Affected Party
proposes to take to mitigate its effect.
18.6
As soon as practicable following the Affected Party's notification, the parties shall consult with
each other in good faith and use all reasonable endeavours to agree appropriate terms to
mitigate the effects of the Force Majeure Event and to facilitate the continued performance of
this Agreement. Where the Supplier is the Affected Party, it shall comply with its obligations in
the Business Continuity Plan, schedule 3 (Services), schedule 2-2 (The Ordered Services) to
a Contract and the Solution, and shall take all steps in accordance with Good Industry Practice
to overcome or minimise the consequences of the Force Majeure Event.
18.7
The Affected Party shall notify the other party as soon as practicable after the Force Majeure
Event ceases or no longer causes the Affected Party to be unable to comply with its
obligations under this Agreement. Following such notification, this Agreement shall continue
to be performed on the terms existing immediately before the occurrence of the Force Majeure
Event unless agreed otherwise by the parties.
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19
Warranties and representations
19.1
The Supplier warrants and represents that:
(a)
it has full capacity and authority and all necessary consents (including, where its
procedures so require, the consent of its Parent Company) to enter into and to
perform this Framework Agreement and that this Framework Agreement is executed
by a duly authorised representative of the Supplier;
(b)
as at the date hereof, all information contained in its tender for the Services remains
true, accurate, and not misleading save as may have been specifically disclosed in
writing to the Authority prior to the execution of this Framework Agreement;
(c)
this Framework Agreement shall be performed in compliance with all applicable Laws,
as amended from time to time;
(d)
the Services shall be provided and carried out by appropriately experienced, qualified
and trained personnel with all due skill, care and diligence;
(e)
it shall discharge its obligations hereunder with all due skill, care and diligence
including Good Industry Practice and (without limiting the generality of this clause 19)
in accordance with its own established internal procedures;
(f)
it owns, has obtained or shall obtain valid licences for all Intellectual Property Rights
that are necessary for the performance of this Framework Agreement and the use of
the Services by Customers;
(g)
it has taken and shall continue to take all steps, in accordance with Good Industry
Practice, to prevent the introduction, creation or propagation of any disruptive element
(including any virus, worm and/or trojan horse) into systems, data, software or
Confidential Information (held in electronic form) owned by or under the control of, or
used by, Customers and/or the Authority;
(h)
on behalf of itself and its Affiliates or Parent Company, in the three (3) years prior to
the date of this Framework Agreement and continuing throughout the Term:
(i)
19.2
(i)
it has conducted all financial accounting and reporting activities in compliance
in all material respects with the generally accepted accounting principles that
apply to it in any country where it files accounts;
(ii)
it has been in full compliance with all applicable securities laws and
regulations in the jurisdiction in which it is established; and
(iii)
it has not performed any act or omission with respect to its financial
accounting or reporting which could have an adverse effect on the Supplier's
position as an ongoing business concern or its ability to fulfil its obligations
under this Framework Agreement;
in its acceptance of an Order, it will enter into a contract with a Customer on the terms
and conditions of the Model Contract without amendment thereto save for the
necessary information to complete the Model Contract as specified in the Order.
The Supplier acknowledges that:
(a)
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any breach of the warranties in clause 19.1 (other than a breach of clause 19.1(h))
shall be remedied as a matter of urgency at no cost to the Authority. Failure to
15
remedy (if capable of remedy) such to comply with clause 19.1 within five (5) Working
Days of notification by the Authority shall constitute a breach of this Framework
Agreement entitling the Authority to terminate in accordance with clause 16.4; and
(b)
a breach by the Supplier of its obligations in clause 19.1(h) shall afford the Authority
the right to immediately terminate this Framework Agreement without liability or
payment of any charges or costs whatsoever.
19.3
Except as expressly stated in this Framework Agreement, all warranties and conditions,
whether express or implied by statute, common law or otherwise (including fitness for
purpose) are hereby excluded to the extent permitted by law.
20
Limitation of liability
20.1
Neither the Authority nor the Supplier excludes nor limits liability to the other for:
(a)
death or personal injury; or
(b)
for fraud or fraudulent misrepresentation.
20.2
The aggregate liability of the Supplier for each year of this Framework Agreement in respect of
any claims arising in connection with clause 23 (Data Protection), clause 25 (IPR), clause 26
(Confidentiality) and Part 2 of Schedule 16 (Staff Transfer) shall be ten million pounds
(£10,000,000).
20.3
Subject to:
(a)
(b)
20.4
clauses 20.1 and 20.2, the aggregate liability of the Supplier for each year of this
Framework Agreement in addition to its obligation to pay the management fee to the
Authority;
(i)
for all matters for which the Supplier is required to maintain insurance under
this Framework Agreement, whether such liability arises under contract, tort
(including negligence) or otherwise in connection with this Framework
Agreement (but excluding any liability governed by any Contracts, these being
subject to the limitation of liability as set out in the Contracts) shall in no event
exceed an amount equal to the level of insurance cover required to be
maintained in accordance with this Framework Agreement (whether or not
such insurance is maintained); and
(ii)
in respect of all other claims one million pounds (£1,000,000),
clause 20.1, the aggregate liability of the Authority, in addition to its obligation to pay
any Charges for each year of this Framework Agreement, shall not exceed a sum
equal to the level of insurance cover required to be maintained by the Supplier under
this Framework Agreement for claims which would be claimable under such
insurances were the Authority to take out such insurances and in respect of all other
claims one million pounds (£1,000,000).
Subject always to the provisions of clauses 20.1 and 20.2, in no event shall either the
Authority or the Supplier be liable to the other for:
(a)
indirect or consequential loss or damage; and/or
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(b)
20.5
loss of profits, business opportunities, revenue, goodwill or anticipated savings
provided that nothing in this clause 20.4 shall prevent the Supplier from recovering the
Charges where these are payable by the Authority.
Subject always to the provisions of clauses 20.1 and 20.2, the provisions of clause 20.4 shall
not be taken as limiting the right of either the Authority or the Supplier to claim from the other
for:
(a)
additional operational and administrative costs and expenses;
(b)
any costs or expenses rendered nugatory;
(c)
damage due to the loss of data, but only to the extent that such losses relate to the
costs of working around any loss of data and the direct costs of recovering or
reconstructing such data; and
(d)
the additional cost to the Authority of procuring a replacement supplier and
replacement Services for the remainder of the Term,
resulting directly from the Default of the other party.
20.6
For the purposes of clause 20.3, "a year of this Framework Agreement" shall mean a period of
twelve (12) Months commencing on the date hereof or on any anniversary of that date
thereafter.
20.7
Nothing in this Framework Agreement shall limit the right of the Authority to claim from the
Supplier any management fee properly due to the Authority in accordance with the terms of
this Framework Agreement. Any such sum shall not be included within the Supplier's limitation
of liability as set out in clause 20.3.
20.8
Neither party shall be entitled to recover compensation, or make a claim under this Framework
Agreement, in respect of any loss incurred where it has already been compensated for that
loss under a Contract.
20.9
The Supplier acknowledges that the Authority can enforce the provisions of the Framework
Agreement as agent for each Customer, or in the Authority's name in respect of recoverable
losses incurred by a Customer.
20.10
The liability of the Supplier pursuant to, or in relation with the Framework Agreement arising
out of the performance or non-performance of the Services shall be specified in each Contract.
20.11
The Authority and the Supplier expressly agree that should any limitation or provision
contained in this clause 20 be held to be invalid under any applicable statute or rule of law, it
shall to that extent be deemed omitted, but if either of them thereby becomes liable for loss or
damage which would otherwise have been excluded, such liability shall be subject to the other
limitations and provisions set out herein.
20.12
Subject to clauses 20.1 and 20.2 neither party shall be liable to the other (the claiming party)
to the extent that any action, proceeding, liability, tort, claim, loss, expense and/or demand
arises as a result of the claiming party’s negligence, wilful default or failure to comply with its
obligations under this Framework Agreement.
21
Complaints handling
21.1
Subject to the provisions of clause 9 (Governance), the Supplier shall inform the Authority of
any Complaint within five (5) Working Days of becoming aware of that Complaint.
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21.2
Without prejudice to any rights and remedies that a complainant may have at law and/or any
obligation of the Supplier to take remedial action, including under this Framework Agreement
or a Contract, the Supplier shall use all reasonable endeavours to resolve the Complaint and
in so doing, shall deal with the Complaint fully, expeditiously and fairly.
21.3
Within three (3) Working Days of a request by the Authority, the Supplier shall provide full
details of a Complaint to the Authority, including details of steps taken to its resolution.
22
Authority Data
22.1
The Supplier shall not delete or remove any proprietary notices contained within or relating to
the Authority Data.
22.2
The Supplier shall not store, copy, disclose, or use the Authority Data except as necessary for
the performance by the Supplier of its obligations under this Framework Agreement or as
otherwise expressly authorised in writing by the Authority.
22.3
To the extent that Authority Data is held and/or processed by the Supplier, the Supplier shall
supply that Authority Data to the Authority as requested by the Authority in the format specified
in schedule 3 (Services) and/or in part 1 of schedule 16 (Exit Assistance).
22.4
Upon receipt or creation by the Supplier of any Authority Data and during any collection,
processing, storage and transmission by the Supplier of any Authority Data, the Supplier shall
take all precautions necessary to preserve the integrity of the Authority Data and to prevent
any corruption or loss of the Authority Data, in accordance with the Security Policy.
22.5
The Supplier shall perform secure back-ups of all Authority Data and shall ensure that up-todate back-ups are stored off-site in accordance with the Business Continuity Plan. The
Supplier shall ensure that such back-ups are available to the Authority at all times upon
request and are delivered to the Authority at no less than 3 month intervals.
22.6
The Supplier shall ensure that any system on which the Supplier holds any Authority Data,
including back-up data, is a secure system that complies with the Security Policy, and that
security is maintained to the level required by schedule 14 (Security Policy) and is subject to
the audit rights at clause 38 (Audit).
22.7
If the Authority Data is corrupted, lost or sufficiently degraded as a result of the Supplier's
Default so as to be unusable, the Authority may:
22.8
(a)
require the Supplier (at the Supplier's expense) to restore or procure the restoration of
the Authority Data and the Supplier shall do so as soon as practicable but not later
than twenty (20) Working Days; and/or
(b)
itself restore or procure the restoration of the Authority Data, and shall be repaid by
the Supplier any reasonable expenses incurred in doing so.
If at any time the Supplier suspects or has reason to believe that Authority Data has or may
become corrupted, lost or sufficiently degraded in any way for any reason, then the Supplier
shall notify the Authority immediately and inform the Authority of the remedial action the
Supplier proposes to take.
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23
Data Protection
23.1
With respect to the parties' rights and obligations under this Framework Agreement, the
parties agree that the Authority is the Data Controller and that the Supplier is the Data
Processor.
23.2
The Supplier shall:
(a)
process the Personal Data only in accordance with instructions from the Authority
(which may be specific instructions or instructions of a general nature as set out in this
Framework Agreement or as otherwise notified by the Authority to the Supplier during
the Term);
(b)
process the Personal Data only to the extent, and in such manner, as is necessary for
the provision of the Services or as is required by Law or any Regulatory Body;
(c)
implement appropriate technical and organisational measures to protect the Personal
Data against unauthorised or unlawful processing and against accidental loss,
destruction, damage, alteration or disclosure. These measures shall be appropriate to
the harm which might result from any unauthorised or unlawful Processing, accidental
loss, destruction or damage to the Personal Data and having regard to the nature of
the Personal Data which is to be protected;
(d)
take reasonable steps to ensure the reliability of any Supplier Personnel who have
access to the Personal Data;
(e)
obtain prior written consent from the Authority in order to transfer the Personal Data to
any Sub-contractors or Affiliates;
(f)
ensure that all Supplier Personnel required to access the Personal Data are informed
of the confidential nature of the Personal Data and comply with the obligations set out
in this clause 23;
(g)
ensure that none of Supplier Personnel publish, disclose or divulge any of the
Personal Data to any third party unless directed in writing to do so by the Authority;
(h)
notify the Authority (within five Working Days) if it receives:
(i)
(i)
a request from a Data Subject to have access to that person's Personal Data;
or
(ii)
a complaint or request relating to the Authority's obligations under the Data
Protection Legislation;
provide the Authority with full cooperation and assistance in relation to any complaint
or request made, including by:
(i)
providing the Authority with full details of the complaint or request;
(ii)
complying with a data access request within the relevant timescales set out in
the Data Protection Requirements and in accordance with the Authority's
instructions;
(iii)
providing the Authority with any Personal Data it holds in relation to a Data
Subject (within the timescales required by the Authority); and
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(iv)
providing the Authority with any information requested by the Authority;
(j)
permit the Authority or the Authority Representative (subject to reasonable and
appropriate confidentiality undertakings), to inspect and audit, in accordance with
clause 38 (Audit), the Supplier's data Processing activities (and/or those of its agents,
subsidiaries and Sub-contractors) and comply with all reasonable requests or
directions by the Authority to enable the Authority to verify and/or procure that the
Supplier is in full compliance with its obligations under this Framework Agreement;
(k)
provide a written description of the technical and organisational methods employed by
the Supplier for processing Personal Data (within the timescales required by the
Authority); and
(l)
not Process Personal Data outside the European Economic Area without the prior
written consent of the Authority and, where the Authority consents to a transfer, to
comply with:
(i)
the obligations of a Data Controller under the Eighth Data Protection Principle
set out in Schedule 1 of the Data Protection Act 1998 by providing an
adequate level of protection to any Personal Data that is transferred; and
(ii)
any reasonable instructions notified to it by the Authority.
23.3
The Supplier shall comply at all times with the Data Protection Requirements and shall not
perform its obligations under this Framework Agreement in such a way as to cause the
Authority to breach any of its applicable obligations under the Data Protection Requirements.
The Supplier's attention is hereby drawn to the Data Protection Requirements.
23.4
The Supplier shall observe the terms of each and any agreement relating to the safeguarding
and processing of Personal Data.
23.5
The Authority may from time to time serve on the Supplier an information notice requiring the
Supplier within such time and in such form as is specified in the information notice, to furnish
to the Authority such information as the Authority may reasonably require relating to:
(a)
compliance by the Supplier with the Supplier's obligations under this Framework
Agreement or any Contract in connection with the processing of Personal Data; and/or
(b)
the rights of data subjects, including but not limited to subject access rights.
23.6
The Supplier will allow its data processing facilities, procedures and documentation to be
submitted for scrutiny by the Authority or its auditors in order to ascertain compliance with the
relevant laws of the United Kingdom and the terms of this Framework Agreement.
23.7
Save as set out in this clause 23, any unauthorised processing, use or disclosure of Personal
Data by the Supplier is strictly prohibited.
23.8
The Supplier shall be liable for and shall indemnify (and keep indemnified) the Authority
against each and every action, proceeding, liability, cost, claim, loss, expense (including
reasonable legal fees and disbursements on a solicitor and client basis) and demands
incurred by the Authority which arise directly or in connection with the Supplier's data
processing activities under this Framework Agreement, including without limitation those
arising out of any third party demand, claim or action, or any breach of contract, negligence,
fraud, wilful misconduct, breach of statutory duty or non-compliance with any part of the Data
Protection Requirements by the Supplier, its Affiliates or Sub-Contractors and any of its or
20
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their employees, servants or agents other than any arising directly as a result of the Supplier
complying with the Authority’s instructions.
24
Personnel Security
24.1
The Supplier shall comply with the Personnel Vetting Procedures in respect of all Supplier
Personnel employed or engaged in the provision of the Services. The Supplier confirms that
all Supplier Personnel employed or engaged by the Supplier at the date hereof were vetted
and recruited on a basis that is equivalent to and no less strict than the Personnel Vetting
Procedures.
24.2
The Supplier shall provide training on a continuing basis for all Supplier Personnel employed
or engaged in the provision of the Services in compliance with the Security Policy and Security
Plan.
25
Intellectual Property Rights
25.1
Save as granted under this Framework Agreement, neither the Authority nor the Supplier shall
acquire any right, title or interest in the other's pre-existing Intellectual Property Rights.
25.2
The Supplier hereby grants to the Authority, or shall procure the grant to the Authority of:
(a)
a royalty-free, irrevocable, non-exclusive licence in or in relation to such of the
Supplier’s or any third party’s Intellectual Property Rights as are necessary for the
sole purpose of enabling the Authority to use the Devices, Software Applications and
Services in accordance with this Framework Agreement and such licence shall expire
upon termination or expiry of this Framework Agreement; and
(b)
a royalty-free, perpetual, irrevocable, non-exclusive licence in relation to any Project
Specific IPR, as are necessary for the purpose of enabling the Authority to use the
Solution in accordance with this Framework Agreement, and to enable the transfer of
the Solution to an alternative provider.
25.3
The Authority hereby grants to the Supplier a royalty-free, non-exclusive, non-transferable
licence during the Term to use such of the Authority's Intellectual Property Rights and/or
Authority Data, as is necessary for the sole purpose of performing the Supplier's obligations
under this Framework Agreement and the Contracts.
25.4
All title, interest and Intellectual Property Rights in any Materials developed by, for or on behalf
of the Supplier (excluding for the avoidance of doubt any third party Intellectual Property
Rights) in anticipation of, in connection with and/or in the course of performance, provision or
receipt of the Services shall belong to and vest in the Authority.
25.5
The Supplier hereby assigns absolutely (and shall procure that all representatives, employees,
Sub-Contractors, contractors and agents assign absolutely) to the Authority, by way of present
assignment of existing and all future property, rights, title and interest and all Intellectual
Property Rights in Materials, all of which shall vest in the Authority immediately upon creation
of the same with full title guarantee and free from all encumbrances and other rights of
whatever nature exercisable by any third party, together with the right to take action for any
past, present and future damages and other remedies in respect of any infringement or
alleged infringement of such Intellectual Property Rights.
25.6
The Supplier warrants that the provision of the Services and the performance of the Supplier's
responsibilities hereunder shall not infringe any Intellectual Property Rights of any third party.
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25.7
The Supplier shall indemnify the Authority against all claims, demands, actions, costs,
expenses (including legal costs and disbursements on a solicitor and client basis), losses and
damages arising from or incurred by reason of any infringement or alleged infringement
(including the defence of such alleged infringement) of any Intellectual Property Right by the
availability of the Services or the performance of the Supplier's or the Authority's
responsibilities hereunder, except to the extent that such liabilities have resulted directly from
the Authority's failure properly to observe its obligations under this clause 25.
25.8
The Supplier shall promptly notify the Authority if any claim or demand is made or action
brought against the Supplier for infringement or alleged infringement of any Intellectual
Property Right that may affect the availability of the Services hereunder.
25.9
If a claim or demand is made or action brought to which clause 25.7 may apply, or in the
reasonable opinion of the Supplier is likely to be made or brought, the Supplier may at its own
expense and within a reasonable time either:
(a)
modify any or all of Available Services without reducing the performance and
functionality of the same, or substitute alternative services of equivalent performance
and functionality for any or all of the Available Services, so as to avoid the
infringement or the alleged infringement, provided that the terms herein shall apply
mutatis mutandis to such modified or substituted items or services and such
substitution shall not increase the burden on Customers party to a Contract; or
(b)
procure a licence to use relevant Intellectual Property Rights on terms that are
reasonably acceptable to the Authority.
25.10
If the Supplier elects to modify or replace an item pursuant to clause 25.9(a) or to procure a
licence in accordance with clause 25.9(b), but this has not avoided or resolved such claim,
then the Authority may terminate this Framework Agreement by written notice with immediate
effect and, without prejudice to the indemnity set out in clause 25.7, the Supplier shall be liable
for all reasonable and unavoidable costs of the substitute items and/or services including the
additional costs in procuring, implementing and maintaining the substitute items.
25.11
The Supplier shall not less than 10 Working Days before the first Service Commencement
Date or such other periods as the Authority may require deposit the Source Code of any
Software Applications in escrow with NCC on the basis of terms reasonably agreed by the
Authority. The Supplier shall ensure that the deposited version of the Source Code is the
current version of the Software Applications and that the deposited version is kept up-to-date
as the Software Applications are modified or upgraded. The Supplier shall pay the initial
storage fees under the escrow agreement and the Authority shall pay the release fees.
25.12
Where the Supplier is unable to procure compliance with the provisions of clause 25.11 in
respect of any third party Software Applications, it shall provide the Authority with written
evidence of its inability to comply with these provisions and shall agree with the Authority a
suitable alternative to escrow that affords the Authority the nearest equivalent protection. The
Supplier shall be excused from its obligations under clause 25.11 only to the extent that the
parties have agreed on a suitable alternative.
25.13
In circumstances where the Authority obtains the release of the Source Code from escrow, the
Supplier hereby grants to the Authority or shall procure the grant to the Authority of a
perpetual, irrevocable, assignable, royalty-free and non-exclusive licence to Use and support
the Software Applications and the Source Code version of the Software Applications to the
extent necessary for the receipt of the Services and/or any replacement Services including the
right to grant sub-licences to any third parties engaged by the Authority for the purpose of
providing services to the Authority including any replacement supplier.
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26
Confidentiality
26.1
The Authority and the Supplier acknowledge that any Confidential Information originating from:
26.2
26.3
26.4
(a)
the Authority, its servants or agents is the property of the Authority; and
(b)
each Customer, its servants or agents is the property of the Customer; and
(c)
the Supplier, its employees, servants or agents is the property of the Supplier.
The Supplier and the Authority shall procure that:
(a)
any person employed or engaged by them shall only use Confidential Information for
the purposes of this Framework Agreement;
(b)
any person employed or engaged by them in connection with this Framework
Agreement shall not, in the course of such employment or engagement, disclose any
Confidential Information to any third party without the express prior written consent of
the originator of that Confidential Information;
(c)
they shall take all necessary precautions to ensure that all Confidential Information is
treated as confidential and not disclosed (save as aforesaid) or used other than for the
purposes of this Framework Agreement by their employees, servants, agents or subcontractors; and
(d)
without prejudice to the generality of the foregoing neither they nor any person
engaged by them whether as a servant or a consultant or otherwise shall use the
Confidential Information for the solicitation of business from the other or from a
Customer or from any third party.
The provisions of clause 26.1 and clause 26.2 shall not apply to any information which:
(a)
is or becomes public knowledge other than by breach of this clause 26; or
(b)
is in the possession of the recipient without restriction in relation to disclosure before
the date of receipt from the disclosing party; or
(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 Confidential Information; or
(e)
must be disclosed pursuant to a statutory, legal or parliamentary obligation placed
upon the party making the disclosure, including any requirements for disclosure under
FOIA, Code of Practice on Access to Government Information or the Environmental
Information Regulations 2004 pursuant to clause 39.
Nothing in this clause 26 shall be deemed or construed to prevent the Authority from
disclosing any Confidential Information obtained from the Supplier:
(a)
to any other Crown Body, Health Service Body or a Contracting Authority, provided
that the Authority has required that such information is treated as confidential by such
bodies;
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(b)
to any Customer, insofar as is reasonably necessary for the Customer to procure and
make best use of the Services, provided that the Authority shall have required that
such information be treated as confidential by such Customer and its servants; and
(c)
to any consultant, contractor or other person engaged by the Authority in connection
herewith, provided that the Authority shall have required that such information be
treated as confidential by such consultant, contractor or other person, together with
their servants.
(d)
for the purpose of the examination and certification of the Authority’s accounts; or
(e)
for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the
economy, efficiency and effectiveness with which the Authority has used its resources.
26.5
Nothing in this clause 26 shall prevent the Supplier or the Authority from using ideas and
know-how gained during the performance of this Framework 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 Authority or the Supplier of any Intellectual Property
Rights.
26.6
The parties acknowledge that, except for any information which is exempt from disclosure in
accordance with the provisions of FOIA, the content of this Framework Agreement is not
Confidential Information. The Authority shall be responsible for determining in its absolute
discretion whether any of the content of this Framework Agreement is exempt from disclosure
in accordance with the provisions of FOIA. Notwithstanding any other term of this Framework
Agreement, the Supplier hereby gives its consent for the Authority to publish this Framework
Agreement and any Contract in its entirety, (but with any information which is exempt from
disclosure in accordance with the provisions of FOIA redacted) including from time to time
agreed changes to this Framework Agreement to the general public.
27
Publicity
27.1
Subject to clause 13 (Marketing), the Supplier shall not use any Authority Marks in any
promotional or marketing material, make any press announcements or publicise this
Framework Agreement in any way without the Authority's prior written consent. The Supplier
shall ensure the observance of the provisions of this clause 27 by all their employees,
servants, agents and Sub-Contractors.
27.2
The Authority shall be entitled to publicise this Framework Agreement in accordance with any
legal obligation upon the Authority, including any examination of this Framework Agreement
by the National Audit Office pursuant to the National Audit Act 1983 or otherwise.
28
Dispute resolution
28.1
Any dispute arising under, or in connection with this Framework Agreement shall be dealt with
in accordance with the terms set out in clause 25 of the Model Contract and schedule 2-6
(Dispute Resolution Procedure) of the Model Contract which shall apply mutatis mutandis to
the Framework Agreement as if set out fully in the body of this Framework Agreement.
28.2
Each party agrees that the other shall, where relevant to the subject matter of the dispute, be
entitled to join any Customer in any mediation, arbitration or litigation between the Authority
and the Supplier and shall be entitled to keep any Customer informed of all disputes between
the Authority and the Supplier.
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29
Insurance
The Supplier shall take out and maintain, or procure the maintenance of insurances, in
accordance with the provisions of schedule 18 (Insurance Requirements).
30
Recovery of sums due
If any sum of money shall be due from the Supplier, the same may be deducted from any sum
then due or which at any time thereafter may become due to the Supplier under this
Framework Agreement and any Contract.
31
Statutory requirements
31.1
The Supplier shall observe all statutory provisions and approved safety standards applicable
to the Services and their provision, including the Authority's Security Policy at schedule 14
(Security Policy), and shall be responsible for obtaining all licences, consents or permits
required for the performance of this Framework Agreement and the Contracts.
31.2
The Supplier shall inform the Authority and Customers if the Services are hazardous to health
or safety and of the precautions that should be taken in respect thereto.
31.3
The Supplier shall take all measures necessary to comply with the requirements of the Health
and Safety at Work etc. Act 1974 and any other acts, orders, regulations and codes of practice
relating to health and safety, which may apply to staff in the performance of this Framework
Agreement and Contracts.
31.4
The Supplier as an employer and as a provider of the Services, shall at all times comply with
the requirements of the Equality Act 2010, the Disability Discrimination Act 1995 and the Race
Relations Act 1976 and all related Laws and other equivalent Laws in countries where the
Supplier employs staff.
31.5
The Supplier shall ensure the Services are delivered in accordance with the Authority's code
of
conduct
for
suppliers
which
is
located
on
the
Authority’s
website
http://www.nhsbsa.nhs.uk/Documents/CommercialServices/NHSBSA_supplier_code_of_cond
uct.pdf or is otherwise notified to the Supplier and as may be updated from time to time.
32
Environmental requirements
32.1
The Supplier shall comply in all material respects with all applicable environmental laws and
regulations in force from time to time in relation to the Services, including the Waste Electric
and Electronic Equipment Regulations Act 2006. Without prejudice to the generality of the
foregoing, the Supplier shall promptly provide all such information regarding the environmental
impact of the Services as may reasonably be requested by the Authority.
32.2
The Supplier shall meet all reasonable requests by Customers for information evidencing
compliance with the provisions of this clause 32 by the Supplier.
33
Discrimination
33.1
The Supplier shall comply with and shall not unlawfully discriminate within the meaning and
scope of the provisions of the Sex Discrimination Act 1975, the Race Relations Act 1976, the
Disability Discrimination Act 1995, the Employment Equality (Religion or Belief) Regulations
2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment
Equality (Age) Regulations 2006, the Equality Act 2010 or any statutory modification or re-
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enactment thereof or any other Law relating to discrimination in employment including
equivalent Laws in any countries in which the Supplier employs staff.
33.2
The Supplier shall take all reasonable steps to secure the observance of the provisions of
clause 33.1 by the Sub-Contractors employed in the execution of this Framework Agreement.
34
Corrupt gifts and payments of commission
34.1
The Supplier shall not:
(a)
offer or give or agree to give any person employed by or on behalf of the Authority, a
Customer or any other public body ("Relevant Person") or any person acting for and
on behalf of a Customer or the Authority any gift or consideration of any kind as an
inducement or reward for doing, forbearing to do, or for having done or forborne to do
any act in relation to the obtaining or execution of this Framework Agreement or
Contracts or any other contract with a Relevant Person or for showing favour or
disfavour to any person in relation to this or any other contract with a Relevant
Person;
(b)
enter into this Framework Agreement or Contracts or any other contract with a
Relevant Person or any person acting for and on behalf of a Customer or the Authority
in connection with which commission has been paid or agreed to be paid by him or on
his behalf, or to his knowledge, unless before this Framework Agreement and/or any
Contract is made particulars of any such commission and of the terms and conditions
of any agreement for the payment thereof have been disclosed in writing to the
Authority.
34.2
Any breach of clause 34.1 by the Supplier or by anyone employed by him or acting on his
behalf (whether with or without the knowledge of the Supplier) or the commission of any
offence by the Supplier or by anyone employed by him or acting on his behalf under the
Prevention of Corruption Acts 1889 to 1916, in relation to this Framework Agreement or the
Contracts or any other contract with a Relevant Person, Customer, the Authority or any other
public body, shall entitle the Authority to terminate this Framework Agreement with immediate
effect and recover from the Supplier the amount of any loss resulting from such termination
and/or to recover from the Supplier the amount or value of any such gift, consideration or
commission.
34.3
Any dispute, difference or question arising in respect of the interpretation of this clause 34, the
right of the Authority to terminate this Framework Agreement or the amount or value of any
such gift, consideration or commission shall be decided by the Authority, whose decision shall
be final and conclusive.
35
Granting of Trade Marks
35.1
The Supplier shall not apply for a Trade Mark in any part of the world in respect of the
Authority Marks or any derivative of either nor any mark so nearly resembling them as to be
likely to deceive or cause confusion, either during the Term or at any time thereafter except
with the express approval of the Authority.
35.2
The Supplier shall ensure that the provisions of this clause 35 shall apply to its SubContractors.
35.3
The Supplier hereby acknowledges that title to and goodwill in Intellectual Property Rights in
the Authority Marks vests with the Authority and its licensors. The Authority hereby grants to
the Supplier a non-exclusive, non-transferable, revocable licence to use, copy and broadcast
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the Authority Marks solely to the extent necessary for the performance of the Supplier's
responsibilities hereunder during the Term.
35.4
The Supplier shall not use the Authority Marks in any way which would allow them to become
generic, lose their distinctiveness, become liable to mislead the public in particular as to their
quality, nature or geographic origin, or be materially detrimental to or inconsistent with the
good name, goodwill, reputation and image of the Authority.
35.5
Unless otherwise specified, nothing contained in this Framework Agreement shall entitle the
Supplier to use the Authority Marks as part of any corporate business or trading name or style
of the Supplier either during or after termination of this Framework Agreement.
36
Transfer and sub-contracting
36.1
This Framework Agreement is personal to the Supplier. Subject to the provisions of clause
36.5, the Supplier shall not assign, novate, sub-contract or otherwise dispose of this
Framework Agreement or any part thereof without the previous consent in writing of the
Authority.
36.2
Subject to the provisions of clause 36.4, the Authority shall be entitled to:
(a)
assign, novate or otherwise dispose of its rights and obligations under this Framework
Agreement or any part thereof to any Contracting Authority; or
(b)
novate this Framework Agreement to any other body (including any private sector
body) which substantially performs any of the functions that previously had been
performed by the Authority,
provided that where such assignment, novation or other disposal increases the burden of the
Supplier's obligations pursuant to this Framework Agreement, the Supplier shall be entitled to
such charges as may be agreed between the Authority and the Supplier to compensate for
such additional burdens.
36.3
Subject to the provisions of clause 36.4, any change in the legal status of the Authority such
that it ceases to be a Contracting Authority shall not affect the validity of this Framework
Agreement. In such circumstances, this Framework Agreement shall bind and inure to the
benefit of any successor body to the Authority.
36.4
If this Framework Agreement is novated to a body which is not a Contracting Authority
pursuant to clause 36.2(b), or if a successor body which is not a Contracting Authority
becomes the Authority pursuant to clause 36.3 (in the remainder of this clause 36 both such
bodies are referred to as the transferee):
(a)
the rights of termination of the Authority in clause 16.3 and clause 16.7 shall be
available, mutatis mutandis, to the Supplier in the event of the bankruptcy, insolvency
or Default of the transferee;
(b)
the transferee shall only be able to assign, novate or otherwise dispose of its rights
and obligations under this Framework Agreement or any part thereof with the previous
consent in writing of the Supplier; and
(c)
the following clause shall be varied from the date of the novation or the date of the
change of status (as appropriate) as set out below as if this Framework Agreement
had been amended by the Authority and the Supplier in accordance with clause 12:
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(i)
the words "and any Contract" in clause 30 shall be deleted.
36.5
Notwithstanding the provisions of clause 36.1, the Supplier shall be entitled to Sub-Contract its
obligations under Contracts in accordance with the provisions of this clause 36 and schedule
10 (Sub-Contractors).
36.6
In selecting, appointing and managing sub-contractors, the Supplier shall comply with the
procedures specified in schedule 10 (Sub-Contractors).
36.7
The Supplier shall not enter into any Sub-Contract for the fulfilment of such responsibilities
and obligations as are fulfilled by the principal Sub-Contractors listed in schedule 10 (SubContractors) by any sub-contractor not listed in schedule 10 (Sub-Contractors) without the
prior written approval of the Authority in accordance with the provisions of the Agreement
Change Procedures.
36.8
The Supplier shall, immediately by notice in writing, inform the Authority if it exercises the
rights available to it in accordance with the safeguards/protection provisions detailed in the
table in paragraph 2 of schedule 10 (Sub-Contractors).
36.9
The Supplier shall not remove or change any Sub-Contractor, or the safeguards/protections in
respect of any Sub-Contractor without giving prior written notice to, and receiving the approval
of, the Authority in accordance with the provisions of the Agreement Change Procedures.
36.10
The Authority reserves the right to veto or withdraw the approval of the use of any SubContractor or partner in the provision of the Services. Such right shall not be exercised
unreasonably, frivolously or vexatiously.
36.11
In the event that the Authority exercises its right pursuant to clause 36.10 the Supplier shall
use all reasonable endeavours to maintain the provision of the Services and the Authority and
the Supplier shall enter into good faith negotiations to agree the impact of the situation on the
provisions of this Framework Agreement.
36.12
The use of Sub-Contractors as set out in schedule 10 (Sub-Contractors) and any subsequent
approval of other sub-contractors by the Authority under this clause 36 shall not in any way
constitute any form of recommendation by the Authority of the Sub-Contractor, whether
implied or otherwise.
36.13
Unless otherwise stated to the contrary, any reference to the Supplier's personnel within this
Framework Agreement shall include the Sub-Contractor's personnel, and where applicable
any reference to the Supplier shall include the Sub-Contractor. Notwithstanding any SubContracting permitted hereunder, the Supplier shall remain primarily responsible for the acts
and omissions of its Sub-Contractors as though they were its own.
36.14
In the event that the Supplier, in accordance with the terms of this Framework Agreement,
enters into a Sub-Contract in connection with this Framework Agreement, the Supplier shall
ensure that a term is included in the Sub-Contract which requires the Supplier to pay all sums
due thereunder to the Sub-Contractor within a specified period, not to exceed thirty (30) days,
from the date of receipt of a valid invoice as defined by the terms of the Sub-Contract.
36.15
The Authority shall not be liable for any payment whatsoever to Sub-Contractors, the burden
of which shall be solely with the Supplier.
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37
Rights of Third Parties
37.1
This Framework Agreement shall not create any rights, under the Contracts (Rights of Third
Parties) Act 1999 or otherwise, that shall be enforceable by anyone other than the Authority
and/or the Supplier, except that the rights specified in the following clauses may be enforced
by the following third party beneficiaries:
Reference
Third Party Beneficiaries
Clause 2.1
Customers
Clause 4.1
Customers
Clause 4.3
Customers
Clause 5.1
Customers
Clause 6
Customers
As provided in Paragraph 11 of Schedule 16 Part 2 (Staff Transfer)
Contractors
Replacement
37.2
The Authority shall have the right to act as agent for any Customer to enforce on their behalf
any term of this Framework Agreement, intended for their benefit.
37.3
The parties to this Framework Agreement reserve the right to rescind or vary this Framework
Agreement without the consent of any third party who is expressly entitled to enforce this
Framework Agreement in accordance with clause 37.1.
38
Audit
38.1
The Supplier shall document, implement and comply with processes, and keep or cause to be
kept full and accurate Records, such that the Authority (or its statutory auditors or authorised
agents) may verify that the Supplier has complied and is complying with its obligations under
this Framework Agreement and any Contracts, during the Term and for a period of six (6)
years thereafter.
38.2
The Supplier shall provide the Authority with a completed Self Audit Certificate in respect of
each financial year of this Framework Agreement and any Contract. The Self Audit Certificate
shall be completed by the Supplier's auditor and provided to the Authority no later than two (2)
Months after the end of the relevant financial year.
38.3
Without prejudice to the generality of the foregoing, the Supplier shall document, implement
and comply with processes, and keep or cause to be kept full and accurate Records, such that
(and such that the Authority or its statutory auditors or authorised agents may verify that):
(a)
all Contracts made under this Framework Agreement are ascribed hereto and
included in the Management Information, thus enabling the Authority to verify the
Management Charge;
(b)
Management Information is checked and signed off by a senior officer, other than the
Framework Manager, who understands the obligations and requirements of this
Framework Agreement;
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(c)
books of account kept by the Supplier in connection with the provision of the Services
are on an open basis to provide clarity on the breakdown of Charges between Device
or Software Applications, network services and alarm centre costs;
(d)
quotations for the provision of Services under this Framework Agreement accurately
reflect the Charges and content of the Catalogue;
(e)
records are kept of all Contracts entered into;
(f)
Orders are promptly and systematically actioned;
(g)
sales invoices are correct and issued in a timely manner;
(h)
Service Levels are monitored, corrective action is taken where necessary, and
Customers are credited with Service Credits to which they are entitled;
(i)
the service desk has undertaken all of its functions (as outlined in schedule 3
(Services) and schedule 2-2 (The Ordered Services) to a Contract);
(j)
complaints are recorded, investigated and resolved;
(k)
Management Information is accurate and provided promptly to the Authority;
(l)
the Security of Authority Data and Customer Data is maintained;
(m)
quality procedures are complied with; and
(n)
external security, quality, environmental management and similar accreditations are
maintained.
38.4
The Supplier shall grant to the Authority, any statutory auditors of the Authority and any
authorised agents of the Authority or of its statutory auditors, the right of reasonable access to
any premises of the Supplier which are used in connection with the performance of the
Supplier's responsibilities and obligations under this Framework Agreement and in relation to
any Contract, together with a right to reasonable access to all computer systems, personnel
and Records. For the avoidance of doubt, the Authority shall be entitled to carry out audits to
determine whether the Supplier has performed its obligations under any Contract.
38.5
Further to the provisions of clause 38.4, the Supplier shall provide, or procure the provision of,
all co-operation and reasonable assistance at all times for the purposes of carrying out an
audit of the Supplier's compliance with this Framework Agreement or any Contract as well as
an audit of all activities, performance, security and integrity in connection therewith.
38.6
Without prejudice to the foregoing, in the event of an investigation into suspected fraudulent
activity or other impropriety by the Supplier or any third party, the Authority reserves for itself,
any statutory auditor of the Authority or of its statutory auditors, or any Crown Body, the right
of immediate access to the premises and documents described in clauses 38.1, 38.2 and 38.3
and the Supplier agrees to render all necessary assistance to the conduct of such
investigation.
38.7
The Authority shall use all reasonable endeavours to ensure that its auditors cause the
minimum amount of disruption to the business of the Supplier, and shall comply with the
building regulations and security requirements of the Supplier while on the Supplier's
premises.
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38.8
The Authority reserves the right to publish the results of any audit exercise undertaken
pursuant to this clause 38:
(a)
to Customers and to Potential Customers; and
(b)
as required to enable the Authority to fulfill its obligations to supply information for
parliamentary, governmental, judicial or other administrative purposes.
38.9
The Authority will invite the Supplier to comment on the results of the audit exercise and the
proposed publicity material and will take account of those comments to the extent that it
deems fit in any publication. In this respect, the Supplier shall provide comments to the
Authority within five (5) Working Days.
39
Freedom of information
39.1
The Supplier acknowledges that the Authority is subject to the requirements of the Code of
Practice on Government Information, FOIA and the Environmental Information Regulations
and shall assist and cooperate with the Authority to enable the Authority to comply with its
Information disclosure obligations.
39.2
The Supplier shall and shall procure that its Sub-Contractors shall:
(a)
transfer to the Authority all Requests for Information that it receives as soon as
practicable and in any event within two (2) Working Days of receiving a Request for
Information;
(b)
provide the Authority with a copy of all Information in its possession, or power in the
form that the Authority requires within five (5) Working Days (or such other period as
the Authority may specify) of the Authority's request; and
(c)
provide all necessary assistance as reasonably requested by the Authority to enable
the Authority to respond to the Request for Information within the time for compliance
set out in section 10 of the FOIA or regulation 5 of the Environmental Information
Regulations.
39.3
The Authority shall be responsible for determining in its absolute discretion whether any
Information is exempt from disclosure in accordance with the provisions of the Code of
Practice on Government Information, FOIA or the Environmental Information Regulations.
39.4
In no event shall the Supplier respond directly to a Request for Information unless expressly
authorised to do so by the Authority.
39.5
The Supplier acknowledges that the Authority may, acting in accordance with the Department
of Constitutional Affairs' Code of Practice on the Discharge of the Functions of Public
Authorities under Part 1 of FOIA, be obliged to disclose Information, which may include
information that is commercially sensitive to the Supplier, without consulting or obtaining
consent from the Supplier, or despite having taken the Supplier's views into account.
39.6
The Supplier shall ensure that all Information is retained for disclosure and shall permit the
Authority to inspect such records as requested from time to time.
40
Customer satisfaction monitoring
40.1
The Authority may undertake monitoring of Customer satisfaction with the Services.
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40.2
The Authority shall adopt such mechanisms as it may deem appropriate for monitoring
Customer satisfaction.
40.3
The Authority reserves the right to advise Customers and Potential Customers of the findings
of its Customer satisfaction monitoring, which shall include the right to make available, in
paper or electronic form, statistical information derived from any Customer satisfaction
questionnaires issued by the Authority to Customers.
41
Legislative change
41.1
The Supplier shall bear the cost of ensuring that the Services shall comply with all applicable
Laws and any amendments thereto or any additional Laws brought into force, except where
any such amendments to Laws or additional Laws:
(a)
necessitates a change to the Available Services; and
(b)
is neither contemplated by the Catalogue nor could reasonably have been foreseen by
the Supplier at the date hereof.
41.2
In the event that the provisions of clauses 41.1(a) and 41.1(b) apply, the Authority and the
Supplier shall use all reasonable endeavours to agree that the Supplier is entitled to relief, or
such reasonable adjustments to the Charges as may be necessary to compensate the
Supplier for such additional costs as are both reasonably and necessarily incurred by the
Supplier in accommodating such amendments to Laws or additional Laws.
42
Severability
Subject to the provisions of clause 20.11, if any provision of this Framework Agreement is held
invalid, illegal or unenforceable for any reason, such provision shall be severed and the
remainder of the provisions hereof shall continue in full force and effect as if this Framework
Agreement had been executed with the invalid provision eliminated. In the event of a holding
of invalidity so fundamental as to prevent the accomplishment of the purpose of this
Framework Agreement, the Authority and the Supplier shall immediately commence good faith
negotiations to remedy such invalidity.
43
Waiver
43.1
The failure of the Supplier or the Authority to insist upon strict performance of any provision of
this Framework Agreement or to exercise any right or remedy to which it is entitled hereunder,
shall not constitute a waiver thereof and shall not cause a diminution of the obligations
established by this Framework Agreement.
43.2
A waiver of any default shall not constitute a waiver of any other default.
43.3
No waiver of any of the provisions of this Framework Agreement shall be effective unless it is
expressed to be a waiver communicated by notice, in accordance with the provisions of clause
14 (Communications).
44
Non-exclusivity
44.1
For the purposes of this Framework Agreement, the Authority shall:
(a)
at all times be entitled to enter into separate contracts with separate Suppliers for the
provision of any or all services the same as or similar to the Services; and
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(b)
not be deemed, unless expressly stated to the contrary by the Authority, to make any
representation or warranty to the Supplier in respect of any Customer other than
where the Authority is itself the Customer and enters into any Contract as principal;
(c)
not be deemed to be an agent of any Customer unless expressly stated to the
contrary in this Framework Agreement or by the Authority in an Order.
44.2
No guarantee or representation shall be deemed to have been made by the Authority in
respect of the total quantities or values of the Services to be ordered by any or all Customers.
Further, the Supplier acknowledges and agrees that it has not entered into this Framework
Agreement on the basis of any such guarantee or representation.
44.3
For the avoidance of doubt, nothing in this Framework Agreement shall create an exclusive
relationship between the Supplier and any Customer for the provision of services.
45
Law and Jurisdiction
Subject to the provisions of clause 28 (Dispute Resolution) the Authority and the Supplier
accept the exclusive jurisdiction of the English courts and agree that this Framework
Agreement is to be governed by and construed according to English law.
46
Entire agreement
46.1
This Framework Agreement constitutes the entire understanding between the Authority and
the Supplier relating to the subject matter.
46.2
Neither the Authority nor the Supplier has relied upon any representation or promise except as
expressly set out in this Framework Agreement.
46.3
Both the Authority and the Supplier unconditionally waives any rights it may have to claim
damages against the other on the basis of any statement made by the other (whether made
carelessly or not) not set out or referred to in this Framework Agreement (or for breach of any
warranty given by the other not so set out or referred to) unless such statement or warranty
was made or given fraudulently.
46.4
Both the Authority and the Supplier unconditionally waives any rights it may have to seek to
rescind this Framework Agreement on the basis of any statement made by the other (whether
made carelessly or not) whether or not such statement is set out or referred to in this
Framework Agreement unless such statement was made fraudulently.
Signed by
duly authorised for and on behalf of the
Authority
)
)
)
.............................................................................
Signed by
duly authorised for and on behalf of the
Supplier
)
)
)
.............................................................................
.............................................................................
.............................................................................
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Schedule 1
Definitions
Agreed Handset means any mobile phone/smart-phone/handset as listed in schedule 2-2
(The Ordered Services) of the Model Contract, suitable for installation of the Software
Application
Affected Party means the party seeking to claim relief in respect of a Force Majeure Event
Affiliate means any person, partnership, joint venture, corporation or other form of enterprise,
domestic or foreign, including but not limited to subsidiaries, that directly or indirectly are
controlled by, or are under common control with the Supplier or a Parent Company
Agreement Change Note (ACN) means the agreement change note specified in schedule 8
(Agreement Change Procedure)
Agreement Change Procedures means the procedures specified in schedule 8 (Agreement
Change Procedure) for making changes to this Framework Agreement
Alarm Handling Software means Supplier software used to manage alarm handling in the
ARC
Amber Alert means an alert to the ARC from a Device or Software Application recording User
details, location, tasks and potential risks
ARC means the alarm receiving centre
Authorised Customer Representative or ACR means
representative(s) referred to in schedule 12 (Governance)
the
authorised
Customer
Authority Cause means any breach by the Authority of its obligations under this Framework
Agreement
Authority Data means:
(a)
(b)
the data, text, drawings, diagrams, images or sounds (together with any database
made up of any of these) which are embodied in any electronic, magnetic, optical or
tangible media, and which are:
(i)
supplied to the Suppler by or on behalf of the Authority; or
(ii)
generated, processed, stored or transmitted by the Supplier pursuant to this
Framework Agreement; or
any Personal Data for which the Authority is the Data Controller
Authority Marks means the NHS' and the Authority’s (or its licensor’s) trade marks (whether
registered or not), logos and brands pertinent to this Framework Agreement
Available Service means any of the Services listed in schedule 3 (Services) or schedule 2-2
(The Ordered Services) of a Contract
Business Continuity Plan means the plan set out or referred to in the Solution, as may be
amended from time to time
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Catalogue means the catalogue of Services that shall be made available to the Authority by
the Supplier in electronic format. The Catalogue shall specify the Catalogue Entries
Catalogue Entry means a listing of a Service in the Catalogue
Change means any amendment to this Framework Agreement and any amendments to the
Catalogue
Change of Control means a change of control as defined by Section 416 of the Income and
Corporation Taxes Act 1988 in the Supplier, the Guarantor or its Parent Company
Charges means in relation to any Contract, the charges set out in schedule 2-3 (Charges and
Charges Variation Procedure) of that Contract
Charges Variation Procedure means the procedure for varying the Charges, specified in
schedule 2-3 (Charges and Charges Variation Procedure) of the relevant Contract
Complaint means any complaint made by a Customer in respect of the Supplier not fulfilling
its obligations under the terms of a Contract, other than not meeting any applicable Service
Levels
Confidential Information means any information, however it is conveyed, that relates to the
business, affairs, developments, trade secrets, know-how, personnel and suppliers of either
party, including Intellectual Property Rights, together with all information derived from the
above in relation to the Framework Agreement or the Contracts, any information related to the
Services, Users of the Device or Software Applications and/or Red Alerts and Amber Alerts,
and any other information clearly designated as being confidential (whether or not it is marked
as confidential) or which ought reasonably to be considered to be confidential
Contract means the binding agreement for the provision of Ordered Services entered into by
the Supplier and a Customer in accordance with the provisions of this Framework Agreement
and comprising the completed Part 1 Contract Details and Part 2 Terms and Conditions
Contract Change Procedure means the contract change procedure, specified in clause 6
(Amendments to this Contract) of any Contract, for making changes to a Contract
Contracting Authority means a contracting Authority as defined in Regulation 5(2) of the
Public Contracts Works Services and Supply (Amendment) Regulations 2000
Crown Body means any department, office or agency of the Crown
Customer means a Potential Customer that has entered into Contract or has made an Order
Data Controller shall have the same meaning as set out in the Data Protection Act 1998
Data Protection Requirements mean the Data Protection Act 1998, the EU Data Protection
Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications
(Lawful Business Practice) (Interception of Communications) Regulations 2000
(SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the
Privacy and Electronic Communications (EC Directive) Regulations 2003, and all applicable
laws and regulations relating to processing of personal data and privacy, including where
applicable the guidance and codes of practice issued by the Information Commissioner
Days means calendar days
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Default means any breach of the obligations of any party (including fundamental breach or
breach of a fundamental term) or any default, act, omission, negligence or negligent statement
of any party, its employees, agents or sub-contractors in connection with or in relation to the
subject matter of this Framework Agreement, including Contracts arising hereunder, and in
respect of which such party is liable to the other
Default Service Level means the threshold level of service performance identified as such in
the table in paragraph 5 of schedule 3 (Services)
Device means a lone worker device as specified in schedule 3 (Services) and schedule 2-2
(The Ordered Services) to a Contract provided by the Supplier, including any associated
accessories or peripheral items supplied by the Supplier pursuant to this Framework
Agreement or a Contract
Device Refresh means refresh of device on replacement and shall include one or more of
firmware upgrade, battery and casing
Environmental Information Regulations mean the Environmental Information
Regulations 2004 and any guidance and/or codes of practice issued by the Information
Commissioner in relation to such regulations
Escalation Contact is the escalation point(s) that the ARC will contact in the event of a Red
Alert
False Alarm is a Red Alert signal that is accidentally or unintentionally activated
FOIA means the Freedom of Information Act 2000 and any subordinate legislation made
under this Act from time to time together with any guidance and/or codes of practice issued by
the Information Commissioner in relation to such legislation
Force Majeure Event means the occurrence after the date of this Framework Agreement of:
(a)
war, civil war, armed conflict or terrorism; or
(b)
nuclear, chemical or biological contamination unless the source or the cause of the
contamination is the result of the actions of or the breach by the Supplier or its SubContractors; or
(c)
pressure waves caused by devices travelling at supersonic speeds,
which directly causes either party to be able to comply with all or a material part of its
obligations under this Framework Agreement
Framework Agreement means this Framework Agreement, comprised of the clauses and
schedules
Framework Manager means a representative of either party responsible for ensuring the
parties are performing their obligations under this Framework Agreement
Genuine Alarm means a Device or Software Application activated due to User's perceived
personal safety risk
Genuine Alarm Escalated to the Emergency Services means an Alarm raised by a User
and escalated to the Emergency Services
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Genuine Alarm Closed Safely means an Alarm raised by a User due to a perception of risk
where the alarm is subsequently closed by the User due to risk disappearing
Good Industry Practice means the exercise of that degree of skill, care, prudence, efficiency,
foresight and timeliness as would be expected from a leading company within the relevant
industry or business sector
Guarantee means the deed of guarantee in favour of the Authority entered into by the
Guarantor on or about the date of this Agreement, or any guarantee acceptable to the
Authority that replaces it from time to time
Guarantor means a Parent Company or other company acceptable to the Authority
Guidance Notes means the guidance notes that advise Potential Customers on the
appropriate use of this Framework Agreement to be provided by the Authority
Health Service Body means a health service body as defined in Section 9(4) National Health
Service Act 2006 (as amended) and any foundation trust
Implementation Plan means the plan for the implementation of the Solution attached at part 2
of schedule 4 (Implementation Plan)
Indexing has the meaning ascribed to it in schedule 9 (Maximum Charges Variation
Procedure)
Information has the meaning given under section 84 of FOIA
Intellectual Property Rights means patents, trade marks, service marks, design rights
(whether registrable or otherwise), applications for any of the foregoing, copyright, database
rights, trade or business names and other similar rights or obligations whether registrable or
not in any country (including but not limited to the United Kingdom)
Invoicing Procedure means the procedure by which the Supplier invoices the Customer, as
set out in schedule 2-4 (Invoicing Procedure) of each Contract
Law means any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance
or industry code, rule of court or directives or requirements of any Regulatory Body, delegated
or subordinate legislation or notice of any Regulatory Body
Location Fix means last known good position obtained either by an Amber Alert, location
based tracking service or GPS unit
Lone Worker Guidance is Guidance provided by the Authority to NHS healthcare
organizations and their staff to assist them to develop, implement and disseminate local
policies and procedures that address the needs of, and minimise the risks faced by lone
workers and to meet their legislative responsibilities under the Health and Safety at Work Act
(1974)
Materials means all training materials, protocols, alarm receiving centre scripts and
documentation produced by the Supplier for the provision of the Services including the User
Information form
Management Information means information supplied by the Supplier to the Authority in
accordance with the provisions of schedule 7 (Management Information)
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Maximum Charges means the maximum charges set out in schedule 5 (Maximum Charges)
as the same may be varied from time to time in accordance with schedule 9 (Maximum
Charges Variation Procedure)
Maximum Charges Variation Procedure means the procedure for varying the Maximum
Charges specified in schedule 9 (Maximum Charges Variation Procedure).
Milestone means the milestones set out in part 2 of schedule 4 (Delays and Implementation)
Milestone Date means the date for achievement of the relevant Milestone set out in part 2 of
schedule 4 (Delays and Implementation)
Minimum Service Levels means the minimum levels of service set out in schedule 3
(Services)
Model Contract means the model contract in schedule 2 (Model Contract) which specifies the
terms and conditions for Contracts
Month means a calendar month and “Monthly” shall be similarly construed
NCC means NCC Escrow International Limited
NHS means the National Health Service in England
OJEU Notice means contract notice published on 2 August 2012, reference 2012/S 147246111 placed by the Authority in the Official Journal of the European Union
Operational Change means any change, decision or item specifically identified as such in this
Framework Agreement
Operational Change Procedure means the procedures specified in schedule 8 (Agreement
Change Procedure) for making Operational Changes
Order means an order for Services served by the Customer on the Supplier in accordance
with the Ordering Procedures
Ordered Service means an Available Service selected by a Customer and included in
schedule 2-2 (Services) of a Contract following the placing of an Order
Ordering Procedure means the ordering procedure specified in schedule 6 (Ordering
Procedure)
Parent Company means any company which is the ultimate Holding Company of the Supplier
or any other company of which the ultimate Holding Company of the Supplier is also the
ultimate Holding Company and which is either responsible directly or indirectly for the
business activities of the Supplier or which is engaged in the same or similar business to the
Supplier. The term “Holding Company” shall have the meaning ascribed by Section 1159 of
the Companies Act 2006 or any statutory re-enactment or amendment thereto
Personnel Vetting Procedures means the Authority's procedures and departmental policies
for the vetting of personnel whose role will involve the handling of information of a sensitive or
confidential nature or the handling of information which is subject to any relevant security
measures including, but not limited to, the provisions of the Official Secrets Act 1911-1989.
This should include as a minimum a face to face interview, a full 5 year written employment
check and two personal references
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Potential Customer means any of the bodies referred to in the OJEU Notice as being
customers or potential customers of the services to be provided under this Framework
Agreement
Process shall have the same meaning as under the Data Protection Act 1998
Project Specific IPR means IPR in items created by the Supplier (or by a third party on behalf
of the Supplier) specifically for the purposes of this Framework Agreement
Quarter means a three (3) Month period beginning on 1 January, 1 April, 1 July or 1 October.
The term “Quarterly” shall be similarly construed
Records means such full and accurate records as are required to be kept by the Supplier to
satisfy the requirements of clause 38 (Audit)
Red Alert means an alarm activation to the ARC from a Device or Software Application which
is listened to and recorded by the ARC
Regulatory Bodies means those government departments and regulatory, statutory and other
entities, committees and bodies which, whether under statute, rules, regulations, codes of
practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in
this Framework Agreement or any other affairs of the Authority and “Regulatory Body” shall be
construed accordingly
Relevant Person has the meaning given in clause 34.1(a)
Reports means reports submitted by the Supplier to the Customer as specified in schedule 22 (The Ordered Services) and 2-5 (Contract and Service Management) of the Model Contract
Requests for Information means a request for information or an apparent request under the
Code of Practice on Access to Government Information, FOIA or the Environmental
Information Regulations
Security Policy means the security policy in schedule 14 (Security Policy)
Self Audit Certificate means the certificate, a model of which is in schedule 11 (Model Self
Audit Certificate), to be completed by the Supplier’s auditor and provided to the Authority in
accordance with the provisions of clause 38 (Audit)
Service Commencement Date means the date of commencement of the provision of the
Ordered Services by the Supplier in accordance with the Order
Service Credits means the service credits specified in paragraphs 3, 4 and 5 of schedule 3
(Services) which shall be payable to the Authority by the Supplier in the event that the Service
Levels are not met in respect of Ordered Services
Service Desk means Supplier second line technical support team/function that deal with
technical failures or issues with Devices or Software Applications
Service Incident is an event which results in disruption to the Services
Service Level Failure means a failure on the part of the Supplier to deliver the Services to a
User in accordance with the terms of a Contract
Service Levels means the levels of service defined in clauses 3 and 5 of schedule 3
(Services)
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Service Maintenance means Supplier second line technical support team/function that deal
with technical failures or issues with Devices or Software Applications
Services means the services to be provided under this Framework Agreement and any
Contract and “Service” shall be construed accordingly
Software Application is a software application loaded onto an Agreed Handset as specified
in schedule 2-2 (The Ordered Services) of any Contract
Solution means the organisational and technical framework necessary to provide the
Services to Customers, including for the Service Desk and ARC, as set out in Schedule 13
(Solution) and those boxes of information italicised and marked as "Solution" in schedule 3
(Services) and schedule 2-2 (The Ordered Services) of a Contract
Source Code means computer programs and/or data in eye-readable form and in such form
that it can be compiled or interpreted into equivalent binary code together with all technical
information and documentation necessary for the use, reproduction, modification and
enhancement of such software
Standard Operating Procedures or SOP's means the drilled down day to day operational
procedures and process maps that describe, in detail, each activity carried out to deliver the
Services
Standards and Regulations means the standards and regulations as set out in schedule 17
(Standards and Regulations) which the Supplier shall comply in the provision of Ordered
Services and in relation to its responsibilities and obligations hereunder
Status Check is the process by which a Device or Software Application is checked for battery
charge level and strength of network
Sub-Contractor means any supplier and/or key third party selected, appointed and managed
by the Supplier, subject to the Authority’s consent pursuant to the provisions of clause 36.1, in
accordance with the provisions of schedule 10 (Sub-contractors), including the SubContractors specified in schedule 10 (Sub-contractors). The terms “Sub-Contract” and “SubContracting” shall be similarly construed
Supplier Personnel means all employees, agents, consultants and contractors of the
Supplier and/or of any Sub-contractor
Technology Refresh means full Device repair and refurbishment, battery replacement, and
software upgrade (if applicable), testing and repackaging in new plastics, and all software
upgrades relating to Software Applications
Term means the term of this Framework Agreement as set out in clause 16.1 (Term,
Suspension and Termination)
Termination Events means each of the events specified in clause 16.5 (Term, Suspension
and Termination)
Trade Mark means a sign, including words, logos, pictures or a combination of these, which
distinguishes the Services of one Supplier from those of another, or as otherwise set out in the
Trade Marks Act 1994
User means an individual whom the Customer permits to use the Ordered Services in
accordance with the terms of a Contract
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User Information means personal data provided to the Supplier by the User which is
captured by the User Information form
User Information Form means the form issued to all Users to capture User, contact and work
details, and personal information which shall include a signed agreement of the User's
consent for the Supplier to obtain an approximate location fix in the event of a Genuine Red
Alert, and the consent for the Supplier to hold the information contained on the form in
accordance with the Data Protection Act 1998
Working Days means Monday to Friday inclusive, excluding English public and bank holidays
Year means a calendar year
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