NETFORMULARY LICENCE AND SERVICE PROVISION AGREEMENT
between
Nottingham University Hospitals NHS Trust
and
Demo Hospital : NHS Trust
PARTIES
- Nottingham University Hospitals NHS Trust of Derby Road, Nottingham NG7 2UH
- Demo Hospital : NHS Trust
BACKGROUND
(A) The NUH has developed netFormulary software for the Purpose (as defined below).
(B) The Demo Hospital wishes to use the NUH's Software in its operations.
(C) The NUH has agreed to provide and the Demo Hospital : NHS Trust has agreed to take and pay for the NUH's software subject to the terms and conditions of this Agreement.
AGREED TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Registered Users: those employees of the Demo Hospital : NHS Trust who are entitled to Manage the Software.
Demo Hospital : NHS Trust Data: the data input into the information fields of the Software by the Demo Hospital : NHS Trust or by Registered Users.
Purpose: The use of the Software to enable the Demo Hospital : NHS Trust manage the formulary
Commencement Date: [10th November 2009].
Annual Fee: the sum of £2,000 (plus VAT if applicable at the prevailing rate) for the first Year of this Agreement . This sum shall be reviewed thereafter annually by the NUH.
Maintenance and Support: any updates and upgrades that the NUH may provide or perform with respect to the Software, as well as any other technical support provided to the Demo Hospital : NHS Trust under this Agreement.
Services : Maintenance and Support.
Software: the NUH's proprietary software known as netFormulary in machine-readable object code form including any error corrections, modifications and enhancements to it provided to the Demo Hospital : NHS Trust.
Specification: the functionality and performance specifications for the Software, as set out in Schedule 1.
Year: each period of twelve consecutive months the first of which period shall commence on the Commencement Date.
2. PROVISION OF SERVICES
2.1 Within 30 days of the Commencement Date the NUH shall make available to the Demo Hospital : NHS Trust access to the Software.
2.2 Following the provision of such access NUH shall provide training to a designated system manger at Demo Hospital : NHS Trust.
2.3 Within 7 days of the Training the Demo Hospital : NHS Trust shall confirm that the Software functions in material conformance with the Specification. If it fails in any material respect to conform to the Specification, the Demo Hospital : NHS Trust shall give the NUH a detailed description of any such non-conformance, in writing, within the seven-day review period and the NUH shall use reasonable efforts to correct any such non-conformance within a reasonable time.
3. MAINTENANCE AND SUPPORT
3.1 With effect from the Commencement Date the NUH shall perform the Maintenance and Support services.
3.2 In relation to Registered Users:
(a) the Demo Hospital : NHS Trust's access to the Software shall be limited to up to that Trust alone;
(b) the Demo Hospital : NHS Trust shall ensure that each Registered User keeps a secure password for his or her use of the Software, and that each Registered User keeps such password confidential;
(c) the NUH may audit the Software regarding the name and password for each Registered User. Such audit may be conducted no more than once per quarter, at the NUH´s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Demo Hospital : NHS Trust's normal conduct of business and if such audit reveals that passwords have been provided to individuals who are not Registered Users, then without prejudice to the NUH's other rights, the Demo Hospital : NHS Trust shall promptly disable such passwords and shall not issue any new passwords to such individuals.
(d) the Demo Hospital : NHS Trust undertakes to notify each Registered User of the applicable provisions of this Agreement and procure the compliance by the Registered Users with such provisions.
3.3 In relation to the Software:
(a) the NUH hereby grants to the Demo Hospital : NHS Trust on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to allow Registered Users to access the Software and to use the Software solely for the Purpose;
(b) the Demo Hospital : NHS Trust shall not store, distribute or transmit any material in the Software that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(c) the rights provided under this clause 3.3 are granted to the Demo Hospital : NHS Trust only, and shall not be considered granted to any third party; and
(d) the Demo Hospital : NHS Trust shall not:
(i) attempt to duplicate, modify or distribute any portion of the Software; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties; or
(iii) use the Software to provide services to third parties; or
(iv) transfer, temporarily or permanently, any of its rights under this Agreement, or
(v) attempt to obtain, or assist others in obtaining, access to the Software, other than as provided under this clause 3.3(d).
4. NUH'S OBLIGATIONS
4.1 The NUH undertakes that the Software will perform substantially in accordance with the Specification. This undertaking shall not apply to the extent of any non-conformance that is caused by use of the Software contrary to the NUH's instructions or modification or alteration of the Software by any party other than NUH or NUH's agents. If the Software does not conform with the foregoing warranty, NUH will, at its expense, use all reasonable efforts to correct any such non-conformance promptly, or provide the Demo Hospital : NHS Trust with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Demo Hospital : NHS Trust's sole and exclusive remedy for any breach of the undertaking set out in this clause 5.2. Notwithstanding the foregoing, NUH does not warrant that the Demo Hospital : NHS Trust´s use of the Software will be error-free.
5. Demo Hospital : NHS Trust'S OBLIGATIONS
The Demo Hospital : NHS Trust shall:
(a) provide the NUH with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by the NUH;
in order to render the Services, including but not limited to Demo Hospital : NHS Trust Data, security access information and software interfaces to the Demo Hospital : NHS Trust's other applications; and
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement (including without prejudice to the generality of the foregoing the Data Protection Act).
6. CHARGES AND PAYMENT
6.1 The Demo Hospital : NHS Trust shall pay the Annual Fee for the first Year in advance within thirty days of receipt of the NUH’s invoice and the NUH shall be entitled to submit such invoice immediately upon signature of this Agreement by the Demo Hospital : NHS Trust.
6.2 Thereafter Demo Hospital : NHS Trust shall pay the Annual Fee in advance within thirty days of receipt of the NUH’s invoice and the NUH shall be entitled to submit such invoice not more than thirty days before the expiry of the then current Year.
6.3 If the NUH has not received payment within five days after the due date the NUH may suspend the provision of the Services, and without prejudice to any other rights of the NUH, interest shall accrue on such due amounts at the rate of 3% over the base lending rate of the NUH's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after the judgment.
7. CHANGE CONTROL
7.1 If the Demo Hospital : NHS Trust requests a change to the scope of the software (including the addition of further Registered Users or additional Section or Subsections) the NUH shall, within a reasonable time, provide a written estimate to the Demo Hospital : NHS Trust of:
(a) the likely time required to implement the change;
(b) any variations to the Annual Fee or other costs arising from the change;
(c) any other impact of the change on the terms of this Agreement.
7.2 If the Demo Hospital : NHS Trust wishes the NUH to proceed with the change, the NUH has no obligation to do so unless and until the parties have agreed in writing any relevant terms to take account of the change.
8. PROPRIETARY RIGHTS
8.1 The Demo Hospital : NHS Trust acknowledges and agrees that the NUH own all intellectual property rights in the Software. Except as expressly stated herein, this Agreement does not grant the Demo Hospital : NHS Trust any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software or any related documentation.
8.2 The NUH confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
9. CONFIDENTIALITY, DATA PROTECTION AND EQUALITY
9.1 In respect of any Confidential Information (being secret or proprietary information concerning its business or other affairs) it may receive from the other party (“the Discloser”) and subject always to the remainder of this clause 9.1 each party (“the Recipient”) undertakes to keep secret and strictly confidential and shall not disclose any such Confidential Information to any third party, without the Discloser’s prior written consent provided that:
9.1.1 the Recipient shall not be prevented from using any general knowledge, experience or skills which were in its possession prior to the commencement of this Agreement ;
9.1.2 the provisions of this clause 9.1 shall not apply to any Confidential Information which:
(a) is in or enters the public domain other than by breach of this Agreement or other act or omissions of the Recipient;
(b) is obtained by a third party who is lawfully authorised to disclose such information; or
(c) is authorised for release by the prior written consent of the Discloser; or
(d) the disclosure of which is required to ensure the compliance of the Recipient with the Freedom of Information Act 2000 (the FOIA).
9.1.3 Nothing in this clause 10.1 shall prevent the Recipient from disclosing Confidential Information where it is required to do so by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by applicable law.
9.1.4 The Discloser authorises the Recipient to disclose the Confidential Information to such person(s) as may be notified to the Discloser in writing by the Recipient from time to time to the extent only as is necessary for the purposes of auditing and collating information so as to ascertain a realistic market price for the goods supplied in accordance with this Agreement, such exercise being commonly referred to as "benchmarking". The Recipient shall use all reasonable endeavours to ensure that such person(s) keeps the Confidential Information confidential and does not make use of the Confidential Information except for the purpose for which the disclosure is made. The Recipient shall not without good reason claim that the lowest price available in the market is the realistic market price.
9.1.5 The Discloser acknowledges that the Recipient is or may be subject to the FOIA. The Discloser notes and acknowledges the FOIA and both the respective Codes of Practice on the Discharge of Public Authorities' Functions and on the Management of Records (which are issued under section 45 and 46 of the FOIA respectively) and the Environmental Information Regulations 2004 as may be amended, updated or replaced from time to time. The Discloser will act in accordance with the FOIA, these Codes of Practice and these Regulations (and any other applicable codes of practice or guidance notified to the Discloser from time to time) to the extent that they apply to the Discloser’s performance under the Contract.
9.1.6 The Discloser agrees that:
9.1.6.1 The provisions of this clause 9.1 are subject to the respective obligations and commitments of the Recipient under the FOIA and both the respective Codes of Practice on the Discharge of Public Authorities' Functions and on the Management of Records (which are issued under section 45 and 46 of the FOIA respectively) and the Environmental Information Regulations 2004;
9.1.6.2 subject to clause 9.1.6.3, the decision on whether any exemption applies to a request for disclosure of recorded information is a decision solely for the Recipient;
9.1.6.3 where the Recipient is managing a request as referred to in clause 9.1.6.2, the Discloser shall co-operate with the Recipient and shall respond within five (5) working days of any request by it for assistance in determining how to respond to a request for disclosure.
9.1.7 The Discloser shall and shall procure that its sub-contractors shall:
9.1.7.1 transfer the any request for information, as defined under section 8 of the FOIA, to the Recipient as soon as practicable after receipt and in any event within five (5) working days of receiving a request for information;
9.1.7.2 provide the Recipient with a copy of all information in its possession or power in the form that the Recipient requires within five (5) working days (or such other period as the Recipient may specify) of the Recipient requesting that Information; and
9.1.7.3 provide all necessary assistance as reasonably requested by the Recipient to enable the Recipient to respond to a request for information within the time for compliance set out in section 10 of the FOIA.
9.1.8 The Recipient may consult the Discloser in relation to any request for disclosure of the Confidential Information in accordance with all applicable guidance.
9.1.9 This clause 10 shall remain in force without limit in time in respect of Confidential Information which comprises Personal Data or which relates to a patient, his or her treatment and/or medical records. Save as aforesaid and unless otherwise expressly set out in this Agreement, this clause 10 shall remain in force for a period of 3 years after the termination or expiry of this Agreement. .
9.1.10 In the event that the Discloser fails to comply with this clause 10.1 , the Recipient reserves the right to terminate this Agreement by notice in writing with immediate effect.
9.2.1 Each party shall comply with the Data Protection Act 1998 ("the 1998 Act") and any other applicable data protection legislation. In particular the NUH agrees to comply with the obligations placed on it by the seventh data protection principle ("the Seventh Principle") set out in the 1998 Act, namely:
(a) to maintain technical and organisational security measures sufficient to comply at least with the obligations imposed by the Seventh Principle;
(b) only to process Personal Data for and on behalf of the Demo Hospital : NHS Trust in accordance with the instructions of the Demo Hospital : NHS Trust and for the purpose of performance of this Agreement and to ensure compliance with the 1998 Act;
(c) to allow the Demo Hospital : NHS Trust to audit its compliance with the requirements of this clause 10.2 on reasonable notice and/or to provide the Authority with evidence of its compliance with the obligations set out in this clause 10.2.
9.2.2 The NUH shall obtain prior agreement of the Demo Hospital : NHS Trust, such agreement not to be unreasonably withheld or delayed, to store or process Personal Data for the purpose of performing the NUH’s obligations under this Agreement at sites outside the United Kingdom.
9.2.3 Each party agrees to indemnify and keep indemnified the other party against all claims and proceedings and all liability, loss, costs and expenses incurred in connection therewith by the other party as a result of any claim made or brought by any individual or other legal Person in respect of any loss, damage or distress caused to that individual or other legal Person as a result of its unauthorised processing, unlawful processing, destruction of and/or damage to any Personal Data processed by it, its employees or agents in the performance of this Agreement or as otherwise agreed between the Parties.
9.2.4 Both parties agree to use all reasonable efforts to assist each other to comply with the 1998 Act. For the avoidance of doubt, this includes the NUH providing the Demo Hospital : NHS Trust with reasonable assistance in complying with subject access requests served on the Demo Hospital : NHS Trust under Section 7 of the 1998 Act and the NUH consulting with the Demo Hospital : NHS Trust prior to the disclosure by the NUH of any Personal Data in relation to such requests.
9.2.5 For the avoidance of doubt failure to comply with sub-clause 9.2 may constitute a material breach of this Agreement without prejudice to the right of either party to determine that any other breach of this Agreement constitutes a material breach. In the event of such breach, the party who is not in breach may terminate this Agreement under the provisions of clause 11.2.
9.3.1 Each party undertakes that it shall not:
9.3.1.1 discriminate directly or indirectly or by way of victimisation or harassment against any person on racial grounds within the meaning of the Race Relations Act 1976 (as amended) (“the 1976 Act”) contrary to Part II (Discrimination in the Field of Employment) and/or Part III (Discrimination in Other Fields) of the 1976 Act;
9.3.1.2 contravene Part IV (Other Unlawful Acts) of the 1976 Act.
9.3.2 Each party shall notify the other party immediately of any investigation of or proceedings against it under the 1976 Act and shall cooperate fully and promptly with any requests of the person or body conducting such investigation or proceedings, including allowing access to any documents or data required, attending any meetings and providing any information requested.
9.3.3 Each party shall indemnify the other party against all costs, claims, charges, demands, liabilities, damages, losses and expenses incurred or suffered by the other party arising out of or in connection with any investigation conducted or any proceedings brought under the 1976 Act due directly or indirectly to any act or omission by it, its agents, employees or sub-contractors.
9.3.4 The NUH shall impose on any sub-contractor obligations substantially similar to those imposed on the NUH by this Clause 9.3.
9.3.5 In addition to its obligations under this Clause 11 relating to race equality, each party shall:
9.3.5.1 ensure that it complies with all current employment legislation and in particular, does not unlawfully discriminate within the meaning of the Race Relations Act 1976 (as amended), the Equal Pay Act 1970, the Sex Discrimination Act 1975 (as amended), the Disability Discrimination Act 1995 (as amended), the Part Time Workers (Prevention of Less Favorable Treatment) Regulations 2000, the Fixed Term Employees (Prevention of Less Favorable Treatment) Regulations 2002, the Equality Act 2006, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Equality Act (Sexual Orientation) Regulations 2007, the Employment Equality (Sex Discrimination) Regulations 2005, the Employment Equality (Age) Regulations 2006, or any other relevant legislation relating to discrimination in the employment of employees for the purpose of providing the System and any Deliverables. The NUH shall take all reasonable steps (at its own expense) to ensure that any employees employed in the provision of the Services do not unlawfully discriminate within the meaning of this Clause 9.3 and shall impose on any sub-contractor obligations substantially similar to those imposed on the Contractor by this Clause 9.3; and
9.3.5.2 in the management of its affairs and the development of its equality and diversity policies, each party shall co-operate with the other party in light of obligations to comply with statutory equality duties. The NUH shall take such steps as the Demo Hospital : NHS Trust considers appropriate to promote equality and diversity, including race equality, equality of opportunity for disabled people, gender equality, and equality relating to religion and belief, sexual orientation and age in the provision of the Services.
10. LIMITATION OF LIABILITY
10.1 This clause 10 sets out the entire financial liability of the NUH (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Demo Hospital : NHS Trust in respect of:
(a) any breach of this Agreement;
(b) any use made by the Demo Hospital : NHS Trust of the Services or the Software; and
(c) any representation, statement or negligent act or omission arising under or in connection with this Agreement.
10.2 Except as expressly and specifically provided in this Agreement:
(a) the Demo Hospital : NHS Trust assumes sole responsibility for results obtained from the use of the Software by the Demo Hospital : NHS Trust, and for conclusions drawn from such use. The NUH shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the NUH by the Demo Hospital : NHS Trust in connection with the Software, or any actions taken by the NUH at the Demo Hospital : NHS Trust's direction; and
(b) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
10.3 Nothing in this Agreement shall operate to limit or exclude the liability of either party:
(a) for death or personal injury caused by the NUH's negligence; or
(b) for fraud or fraudulent misrepresentation.
10.3 Neither party shall be liable to the other party for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising.
10.4 The NUH's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid by the Demo Hospital : NHS Trust for the Software during the preceding Year.
11. TERM AND TERMINATION
11.1 This Agreement shall commence on the Commencement Date and shall continue for an initial period of one Year (unless otherwise terminated as provided in this clause 11). After such initial Year, this Agreement shall automatically renew for Yearly periods, unless either party notifies the other, in writing, at least six months before the end of the then current Year.
11.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach.
11.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate;
(b) each party shall return and make no further use of any property, materials and other items (and all copies of them) belonging to the other party;
(c) the NUH may destroy or otherwise dispose of any of the Demo Hospital : NHS Trust Data in its possession unless the NUH receives, no later than ten days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to the Demo Hospital : NHS Trust of the then most recent back-up of the Demo Hospital : NHS Trust Data. The NUH shall use reasonable commercial efforts to deliver the back-up to the Demo Hospital : NHS Trust within 30 days of its receipt of such a written request, provided that the Demo Hospital : NHS Trust has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Demo Hospital : NHS Trust shall pay all reasonable expenses incurred by the NUH in returning or disposing of Demo Hospital : NHS Trust Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
12. FORCE MAJEURE
Neither party shall have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its operations, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the NUH or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of its sub-contractors, provided that the other party is notified of such an event and its expected duration.
13. ENTIRE AGREEMENT
This Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
14. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
15. GOVERNING LAW AND JURISDICTION
15.1 This Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
15.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.
This Agreement has been entered into on the date stated at the beginning of it.
Schedule 1 Specification
Functional Specification
Schedule 2 Maintenance and Support
1. TRAINING
The NUH shall provide training on the functionality of netFormulary within 60 days of receipt of the Software. To the extent that the Demo Hospital : NHS Trust is interested in taking additional training, it shall request a quotation therefore from the NUH and the NUH shall provide a quotation to the Demo Hospital : NHS Trust in writing within 30 days. The Demo Hospital : NHS Trust has a further 30 days to accept or reject such quotation.
2. MAINTENANCE EVENTS
The NUH shall use all reasonable endeavours to ensure that maintenance of the Software shall not be performed during normal business hours, unless otherwise agreed with Demo Hospital : NHS Trust. The NUH may however interrupt the Software to perform emergency maintenance. In addition, the NUH may interrupt the Software outside normal business hours for unscheduled maintenance, provided that it has given the Demo Hospital : NHS Trust at least two days' advance notice. The NUH shall at all times endeavour to keep any service interruptions to a minimum.
3. MAINTENANCE
3.1 Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Specification
3.2 The NUH shall maintain the Software. Should the Demo Hospital : NHS Trust determine that the Software includes a defect, the Demo Hospital : NHS Trust may at any time file error reports. During maintenance periods, the NUH may, at its discretion, install error corrections and apply patches to the hosted systems. The NUH shall use all reasonable efforts to avoid unscheduled downtime for Software maintenance.
4. TECHNICAL SUPPORT SERVICES
4.1 The NUH shall provide the Demo Hospital : NHS Trust with technical support services to Registered Users by way of telephone or email during normal business hours.
4.2 Any support calls as a result of a bug within the netFormulary application will be fixed free of charge. Issues where investigation is required, the outcome of which shows user error, will be charged at £60/hour.
4.3 Wherever possible NUH recommends that Remote Access is given via NHSnet (N3) to enable faster assistance to all support requests.
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