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FRAMEWORK AGREEMENT

FOR THE LICENCE OF ELECTRONIC LEARNING ENVIRONMENTS AND

ASSOCIATED SERVICES

BETWEEN

THE COMMON SERVICES AGENCY

AND

LEARNPRO LIMITED

File Ref: MP/LW

NHS National Services Scotland Central Legal Office © 2023Anderson House, Breadalbane Street, Bonnington Road, Edinburgh, EH6 5JR

(Tel: 0131 275 7863 / Fax: 0131 275 7990)Website: http://www.show.scot.nhs.uk/clo

INDEX

1. DEFINITIONS.............................................................................................................12. COMMENCEMENT AND DURATION......................................................................103. CO-OPERATION, LIAISON AND DUE DILIGENCE...............................................114. CATALOGUE AND SERVICES...............................................................................115. CALL-OFF CONTRACTS.........................................................................................126. SERVICE LEVELS...................................................................................................137. PAYMENT.................................................................................................................158. CONTRACTOR UNDERTAKINGS...........................................................................159. CONFIDENTIAL INFORMATION.............................................................................1610. DATA PROTECTION............................................................................................2011. TERMINATION......................................................................................................2212. NON-DEFAULT TERMINATION...........................................................................2713. EFFECT OF TERMINATION OR EXPIRY............................................................2814. INDEMNITIES.......................................................................................................2815. LIABILITY.............................................................................................................3016. INSURANCE.........................................................................................................3217. FORCE MAJEURE...............................................................................................3218. ASSIGNATION AND SUB-CONTRACTING........................................................3419. REPRESENTATIVES............................................................................................3520. AUDIT ACCESS....................................................................................................3721. WAIVER................................................................................................................3922. SEVERABILITY....................................................................................................4023. NOTICES...............................................................................................................4024. DISPUTE RESOLUTION......................................................................................4025. CORRUPT GIFTS.................................................................................................4026. CHANGE CONTROL............................................................................................4427. RANKING..............................................................................................................4428. SURVIVAL............................................................................................................4429. ENTIRE AGREEMENT.........................................................................................4530. LAW......................................................................................................................46SCHEDULE: PART 1.......................................................................................................47

SPECIFICATION....................................................................................................................... 47

SCHEDULE: PART 2.......................................................................................................48CATALOGUE AND STANDARD SERVICES CHARGES........................................................48

SCHEDULE: PART 3.......................................................................................................49

CHANGE CONTROL PROCEDURE........................................................................................49

SCHEDULE: PART 4.......................................................................................................61DISPUTE RESOLUTION PROCEDURE...................................................................................61

SCHEDULE: PART 5.......................................................................................................71INSURANCES........................................................................................................................... 71

SCHEDULE: PART 6.......................................................................................................80CALL-OFF CONTRACT...........................................................................................................80

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FRAMEWORK AGREEMENT

between

THE COMMON SERVICES AGENCY(more commonly known as National Services

Scotland), a statutory body constituted pursuant to the National Health Service (Scotland) Act 1978 (as

amended) and having its headquarters at Gyle Square, 1 South Gyle Crescent,

Edinburgh, EH12 9EB (who together with its statutory successors and assignees are known as

“NSS”);

and

learnPro Limited, a company incorporated in the UK under the Companies Acts (Company No.

SC191241) whose registered office is at Fettes Park, West Wing, 496 Ferry Road, Edinburgh, EH5

2DL(the “Contractor”)

WHEREAS:-

A. An advertisement was placed by NSS in the Official Journal of the European

Union, reference OJEU 2013/S 136-236279 in respect of a framework agreement

for the provision of services to NSS and Health Boards.

B. From the expressions of interest and tender responses received, NSS

subsequently selected the Contractor to be eligible to provide the services to

Customers who may wish to call-off the services in the manner and on the terms

described herein.

NOW THEREFORE the parties agree as follows:-

1. DEFINITIONS

1.1 In this Agreement including the Recitals and the Schedule hereto, unless the

context otherwise permits, the following terms shall have the meanings

ascribed to them below:-

“Affiliate” means, in relation to a person, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that person from time to time;


“Agreement” means this framework agreement together with the Schedule;

“Annexes” means the annexes to a Call-Off Contract;

“Business Day” means Monday to Friday excluding public holidays as observed by the Bank of Scotland in Edinburgh;

“Caldicott Report” means the report prepared by Dame Fiona Caldicott which contained recommendations as to the preservation of confidential identifiable information in NHSScotland and which was the subject of two Scottish Executive Circulars namely:

NHS MEL (1999)19; andNHS MEL (1999)48;

“Call-Off Contract” means a contract agreed between a Customer and the Contractor substantially in the form contained in Part 6 of the Schedule (Call-Off Contract);

“Catalogue” means the catalogue contained in Schedule Part 2;

“CCN” means a change control note as detailed in the Change Control Procedure;

“Change Control Procedure”

means the change control procedure set out in Schedule Part 3 (Change Control Procedure);

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

“Charges” means the charges payable to the Contractor pursuant to a Call-Off Contract;

“Client Materials” means items provided to the Contractor by a Customer pursuant to this Agreement;

“Clinical Services” means management responsibility, administration and carrying out of the clinical, medical and other services provided by NSS, or any Health Boards from time to time and which are not Services to be provided by the Contractor under a Call-Off Contract;

“Confidential Information”

means:-

(a) information or data (whether written, oral, visual, electronic, magnetic, digital or in any other form) which has been or is disclosed to the party receiving it (“the Receiving Party”) by or on behalf of any other party (“the Disclosing Party”) and:

(i) relates to the identity, condition or medical history of patients of any NHS entities, or any other personal information where


disclosure is prohibited in terms of Data Protection Act 1998; or

(ii) the disclosure of which would, or would likely to, prejudice substantially the commercial interests of any person (including, without limitation, financial information, any agreed or proposed commercial terms, trade secrets, know-how and other intellectual property); and

(b) all material derived from such information by the Receiving Party, any of its Affiliates and/or any of its professional advisers, agents or sub-contractors;

“Contract Month” means a calendar month;

“Contract Year” means the period of three hundred and sixty five (365) days commencing on 1 April 2014 and each subsequent period of three hundred and sixty five (365) days (or three hundred and sixty six (366) days in the case of any leap year);

“Contractor Default” has the meaning ascribed to it in Clause 11.1;

“Contractor Representative”

means the Contractor representative appointed pursuant to Clause 19.7;

“Contractor Sub-Contractor”

means any sub-contractor engaged by the Contractor to perform any part of its obligations under this Agreement;

“Control” means that an entity possesses directly or indirectly the power to direct or cause the direction of the management and policies of another person, whether through the ownership of voting rights, shares, by contract or otherwise or is otherwise deemed to have control of another person for the purposes of section 840 of the Income and Corporation Taxes Act 1988 and “Controls” and “Controlled” shall be interpreted accordingly;

“Customer” means any of NSS and any Health Board which has entered into a Call-Off Contract in respect of access to the Platform;

“Customer Data” means all Personal Data and Data supplied by or on behalf of NSS or any other Customer to the Contractor or any of its Affiliates, accessed by the Contractor or any of its Affiliates, or otherwise generated by the Contractor or any of its Affiliates from such data;

“Customer Responsibilities”

means the responsibilities of each Customer as detailed in Annex 6 to the Call-Off Contract;


“Data Controller” shall have the meaning given to it in the Data Protection Act 1998;

“Data Protection Legislation”

means the EU Data Directive 95/46/EC, the Directive on Privacy and Electronic Communications 2002/58/EC, the Data Protection Act 1998 (“1998 Act”), the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), and all other applicable laws and regulations relating to processing of personal data and privacy including the guidance in relation to health care published by the Information Commissioner in May 2002;

“Data” means information, text, drawings, diagrams, images, or sounds, which are embodied in any electronic or tangible medium;

“Default Interest Rate” means the base lending rate from time to time charged by the Bank of Scotland;

“Dispute Resolution Procedure”

means the dispute resolution procedure detailed in Schedule Part 4 (Dispute Resolution Procedure);

“Documentation” means such manuals, reports, drawings, specifications, training materials, use policies, plans and other documents that are developed by the Contractor or provided by it in the course of delivering the Services;

“Effective Date” means First April Two thousand and fourteen notwithstanding the date or dates of execution hereof;

“Expiry” means expiry of the Term;

“Force Majeure” shall have the meaning set out in Clause 17.1;

“Good Industry Practice” means using standards, practices, methods and procedures conforming to the Law and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in providing services similar to the Services under the same or similar circumstances;

“Health Board” means any Health Board or Special Health Board constituted pursuant to the National Health Service (Scotland) Act 1978;

“Holding Company” has the meaning given to it in Section 736 of the Companies Act 1985 and Section 1159 of the Companies Act 2006;


“ICT” means information and communication technology systems, hardware or software;

“In Aggregate” means collectively in respect of all Call-Off Contracts concluded by Customers;

“Index” means the Consumer Prices Index for all items expressed as a monthly index relative to 2005=100 published from time to time by the Central Statistics Office the Chancellor of the Exchequer or by the Office for National Statistics (Code D7BT) as appropriate or if the said index ceases to be published or be appropriate such index or other means of assessment of inflation as is most appropriate and agreed between NSS and the Contractor or, in the case of disagreement, pursuant to the Dispute Resolution Procedure;

“Indirect Losses” means any loss of revenue (other than charges due under this Agreement), loss of profits, loss of business or loss of business opportunity (whether such losses arise directly, or indirectly), and any consequential or indirect loss of any nature;

“Insurances” means such insurances as are reasonable in the context of the scope and scale of delivery of the Services and which shall be maintained by the Contractor all in accordance with Schedule Part 5;

“Intellectual Property Rights” or “IPRs”

means rights, title and interest in:

(a) patents;

(b) trade marks, and trade and business names (including service marks);

(c) design rights;

(d) utility models;

(e) copyright (including copyright in software programs);

(f) database rights;

(g) know-how;

(h) trade secrets;

(i) confidential business information;

in each case whether registered or unregistered, registerable or not, and including (i) any pending applications or rights to apply for registrations of any of these rights, and (ii) any similar or analogous rights to any of these rights, whether arising or granted in the United Kingdom or any other jurisdiction;

“Law” means:

(a) any applicable statute or proclamation or any delegated or subordinate legislation;


(b) any enforceable community right within the meaning of section 2(1) European Communities Act 1972;

(c) any applicable guidance, direction, determination or regulations with which the Contractor and/or any Customer is bound to comply to the extent that the same are published and publicly available or the existence or contents of them have been notified to the Contractor by or on behalf of the Contractor and/or any Customer;

(d) any applicable judgement of a relevant court of law which is a binding precedent in Scotland;

in each case in force at any time during the Term in Scotland and during which time the Contractor is providing Services;

“Losses” means any claim, liability, costs, expense, loss, penalty or damage;

“NHS Scotland Requirements”

means, in relation to the Services, Scottish Health Technical Memoranda, all Scottish Executive Letters, Health Service Guidelines, Health Circulars of NHS Scotland, the Caldicott Report, any similar official requests, requirements and guidance having similar status and any policies of NSS and/or any Customer in force at any time during the Term, but only to the extent the same are published and publicly available on-line, are publicly displayed or the existence and contents of them have been notified to the Contractor by NSS or any Customer;

“NHS Specific Change in Law”

means any Change in Law which predominantly affects or predominantly relates to any or all of NSS or any Customer and the provision or operation of healthcare, social care, dental services, ophthalmic services or pharmacy services;

“NHSScotland” means National Health Service Scotland;

“NSS Representative” means the NSS representative appointed pursuant to Clause 19.1;

“Personal Data” has the meaning given to that term in the Data Protection Act 1998;

“Platform” means the e-Learning Platform to be provided by the Contractor as detailed in the Specification;

“Potential Customer” means a Health Board which is not presently party to a Call-Off Contract;

“Prohibited Act” shall have the meaning ascribed to it in Clause 25.1;


“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 Agreement or any other affairs of the Customer and “Regulatory Body” shall be construed accordingly;

“Schedule” means the schedule in six (6) parts annexed hereto;

“Service Deductions” means the deductions which a Customer is entitled to make for failure by the Contractor to achieve the relevant Service Levels, as set out in the relevant Call-Off Contract;

“Service Levels” means any service level(s) set out in the relevant Call-Off Contract;

“Services” means any services detailed in the Specification called off by a Customer under a Call-Off Contract by means of an order from the Catalogue, as detailed in the relevant Call-Off Contract;

“Specification” means the specification forming Part 1 of the Schedule;

“Standard Service Charges”

means the fixed price menu of charges detailed in Part 2 of the Schedule (Standard Service Charges);

“Sub-Contract” means any agreement between the Contractor and the Contractor Sub-Contractor;

“Term” means the period of four (4) years from the Effective Date;

“Termination Date” means the date on which any Termination Notice takes effect in accordance with the provisions of this Agreement or the date of Expiry, as the case may be;

“Termination Notice” means any notice of termination of this Agreement given by either party pursuant to Clause 11 or otherwise lawfully given; and

“TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006.

1.2 As used herein, the masculine includes the feminine, the singular includes

the plural and vice versa.

1.3 This Agreement shall be interpreted according to the following provisions,

unless the context requires a different meaning:


1.3.1 the headings and marginal notes and references to them in this

Agreement shall be deemed not to be part of this Agreement and

shall not be taken into consideration in the interpretation of this

Agreement;

1.3.2 except where the context expressly requires otherwise,

references to Clauses, paragraphs, sub-paragraphs and parts of

the Schedule are references to Clauses, paragraphs,

sub-paragraphs and parts of the Schedule to this Agreement and

references to Sections, Appendices and Attachments (if any) are

references to Sections, Appendices and Attachments to or

contained in this Agreement;

1.3.3 the Schedule to this Agreement is an integral part of this

Agreement and a reference to this Agreement includes a

reference to the Schedule;

1.3.4 words importing persons shall, where the context so requires or

admits, include individuals, firms, partnerships, boards,

corporations, governments, governmental bodies, authorities,

agencies, unincorporated bodies of persons or associations and

any organisations having legal capacity;

1.3.5 where the context so requires, words importing the singular only

also include the plural and vice versa and words importing the

masculine shall be construed as including the feminine or the

neuter or vice versa;

1.3.6 the language of this Agreement is English. All correspondence,

notices, drawings, test reports, certificates, specifications and

information shall be in English. All operating and maintenance


instructions, name plates, identification labels, instructions and

notices to the public and staff and all other written, printed or

electronically readable matter required in accordance with, or for

purposes envisaged by, this Agreement shall be in English;

1.3.7 references to any agreement or document include (subject to all

relevant approvals and any other provisions of this Agreement

concerning amendments to agreements or documents) a

reference to that agreement or document as amended,

supplemented, substituted, novated or assigned;

1.3.8 references to any law are to be construed as references to that

law as from time to time amended or to any law from time to time

replacing, extending, consolidating or amending the same;

1.3.9 references to a public organisation shall be deemed to include a

reference to any successor to such public organisation or any

organisation or entity which has taken over either or both the

functions and responsibilities of such public organisation.

References to other persons shall include their successors and

assignees;

1.3.10 the words in this Agreement shall bear their natural meaning.

The parties have had the opportunity to take legal advice on this

Agreement and no term shall, therefore, be construed contra

proferentem;

1.3.11 reference to “parties” means the parties to this Agreement and

references to “a party” mean one of the parties to this

Agreement;

1.3.12 in construing this Agreement, the rule known as the ejusdem


generis rule shall not apply nor shall any similar rule or approach

to the construction of this Agreement and accordingly general

words introduced or followed by the word “other” or “including”

or “in particular” shall not be given a restrictive meaning

because they are followed or preceded (as the case may be) by

particular examples intended to fall within the meaning of the

general words; and

1.3.13 references to amounts or sums expressed to be “subject to

indexation” are references to amounts or sums which require to

be adjusted whenever the provision containing the amount or

sum is given effect in accordance with this Agreement to reflect

the effects of inflation after that date. The adjustment shall be

measured by changes in the Index published for that Contract

Year as calculated in accordance with the following formula:

Amount or sum x CPI

CPI(n)

where CPI is the value of the Index published or determined with

respect to the month most recently preceding the date when the

provision in question is to be given effect and CPI(n) is the value of

the Index on the Effective Date.

2. COMMENCEMENT AND DURATION

2.1 This Agreement shall commence on the Effective Date and shall continue

throughout the Term unless it has been earlier terminated in accordance with

the provisions of this Agreement. This Agreement may be terminated by

NSS with effect from the second or third anniversaries of the Effective Date,

subject to NSS giving three (3) months’ prior written notice thereof to the

Contractor.


2.2 Each Call-Off Contract entered into prior to or on the Termination Date shall

continue in effect notwithstanding Expiry of this Agreement unless and until

terminated in accordance with the terms thereof.

3. CO-OPERATION, LIAISON AND DUE DILIGENCE

3.1 The Contractor agrees to co-operate and liaise, at its own expense, with

other providers of services to Customers as necessary to ensure successful

performance of this Agreement and delivery by any other provider of services

of its obligations to any Customer.

4. CATALOGUE AND SERVICES

4.1 The Catalogue details the Services to be made available by the Contractor

for purchase by Customers pursuant to concluded Call Off Contracts.

4.2 The Catalogue may only be amended by agreement between the Contractor

and NSS. Subject to Clause 4.3 below, if either party wishes to request a

change to the Catalogue (outside the circumstances provided for in Clause

4.3 below), it will notify the other party in writing. The parties will negotiate in

good faith and without undue delay to agree an appropriate amendment

provided always that it shall be at the sole discretion of NSS, whether or not

to agree to the addition of any new Services proposed by the Contractor.

4.3 Following any changes agreed to the Catalogue pursuant to Clause 4.2 the

Contractor shall provide an amended Catalogue to NSS (incorporating any

agreed revisions) and from the date of receipt of the same Customers may

place orders only from such revised Catalogue. NSS shall distribute and/or

make such amended Catalogue available to Customers. The Catalogue may

be made available through the NHSScotland SHOW website.

4.4 It is expressly stated that no amendments to the Catalogue may be agreed or

effected between the Contractor and any Customer.


4.5 This Clause 4 shall survive termination of the Framework Agreement for the

purposes of administering the Catalogue in terms aforesaid and determining

the prices and basis of a delivery of Services to Customers pursuant to their

Call Off Contracts.

4.6 Any deliverables paid for by a Customer under their Call Off Contract shall be

licensed by the Contractor upon request to all other Customers free of

charge. To avoid doubt, if provision to or use by any such Customer of such

deliverables requires implementation, customisation or support, a Customer

shall only be entitled to receive such Services from the Contractor subject to

completion of a Call Off Contract and submission of orders for such relevant

Services from the Catalogue.

5. CALL-OFF CONTRACTS

5.1 The Contractor undertakes, if requested to do so by a Potential Customer, to

provide the Services to such potential Customer on the basis of the Standard

Service Charges.

5.2 Potential Customers shall be entitled to call-off Services on the basis of the

Standard Service Charges. If they wish to do so they shall prepare a Call-Off

Contract and submit it to the Contractor. The Call-Off Contract shall detail the

type and amount of Services required.

5.3 The Contractor shall agree and execute the Call-Off Contract within seven (7)

Business Days of being requested to do so. Execution of a completed Call-

Off Contract by a Potential Customer shall create a binding contract between

that Potential Customer and the Contractor pursuant to which the Customer

shall then be entitled to receive Services (either at the time of entering into

the Call-Off Contract, or at a later time) and, in return for satisfactory receipt

thereof, shall be obliged to pay the Contractor on the basis of the Standard


Service Charges.

5.4 There shall be no requirement on any Customer to call-off Services. Nothing

in this Agreement shall give rise to any undertaking on the part of NSS or any

Customer or Potential Customer to use the services of the Contractor, or to

call-off Services under this Agreement or to enter into any Call-Off

Agreement. No guarantees of any type are given, or commitment made,

regarding the volume of work which the Contractor might receive under this

Agreement.

5.5 If requested by a Customer, or by NSS, Services shall be delivered to more

than one Customer. If the Contractor considers there is a likelihood that

more than one Customer may benefit from any Services requested by a

Customer, it shall immediately report this to the NSS Representative who

shall be entitled to co-ordinate delivery of such Services from that time.

5.6 To avoid doubt, where Clause 5.5 applies, only one fee shall be payable in

respect of any Services performed or delivered by the Contractor, regardless

of the number of Customers who may or do benefit from the results thereof.

NSS shall determine among the Customers to what extent each Customer

should be required to contribute to any charges levied by the Contractor in

respect of any Services which are of benefit to, and are actually required by

more than one Customer.

5.7 Where Clause 5.5 applies, the Contractor shall not proceed with any request

for Services which are or ought to be first referred to NSS without the

express written authorisation of NSS.

6. SERVICE LEVELS

6.1 The Contractor shall meet the Service Levels in its provision of the Services.

6.2 The Contractor shall report in writing on its performance against the Service


Levels in a manner that allows efficient management review and assessment

by NSS and each Customer in accordance with this Clause 6. The

Contractor will meet with NSS as requested throughout the Term to review

performance under the Call-off Contracts.

6.3 In the case of a failure to meet the Service Levels, the Contractor shall make

payment of any applicable Service Deductions by means of reducing the

Charges payable by the relevant Customer(s) for the Contract Month

following the Contract Month during which the Service Deductions accrued,

failing which the relevant Customer shall be entitled to reduce or deduct any

applicable Service Deductions from any subsequent invoice in respect of

Charges.

6.4 To avoid doubt any Service Deductions which accrue prior to Expiry or the

Termination Date shall be payable on demand by the relevant Contractor

within thirty (30) days to the Customer in respect of which such Service

Deductions accrued, provided that there are no Charges outstanding against

which such Service Deductions can be offset.

6.5 At no charge to NSS or additional charge to the relevant Customer, the

relevant Customer may require the Contractor to (a) re-perform the Services

in relation to which there was a failure to perform and (b) as soon as

practicable, arrange all additional resources as reasonably necessary to

perform its obligations set out in this Agreement and to ensure that the failure

does not recur at any time during the Term, and to provide to the Customer a

plan setting out how the Contractor intends to fulfil this obligation.

6.6 The amount of any Service Deductions which are to be deducted from

payments due to the Contractor shall be calculated in accordance with the

provisions of the relevant Call-Off Contract.


7. PAYMENT

To avoid doubt, no payments shall be made by NSS to the Contractor under

this Agreement. All payments for Services shall be made pursuant to the

Call-Off Contract under which such Services are provided.

8. CONTRACTOR UNDERTAKINGS

8.1 The parties agree that (i) any warranty, representation, undertaking or

indemnity given or made to NSS by the Contractor in terms of this Agreement

shall be deemed for the purpose of this Agreement to have been made to

NSS and all Customers and (ii) for the purpose of calculating any loss, injury,

damages, costs or expenses due by the Contractor, subject to the terms of

this Agreement, arising directly or indirectly out of or in connection with this

Agreement and/or its termination or in respect of any indemnity, warranty,

representation or undertaking in terms of this Agreement, there shall be

deemed to be included by way of addition within such loss, injury, damages,

costs or expenses any or all loss, injury, damages, costs or expenses

suffered or incurred by the Customers under the Call-Off Contracts and as if

the Customers were a party to this Agreement in the stead of NSS and such

obligations were due directly to the Customers.

8.2 In addition to all other undertakings contained herein or implied by Law, the

Contractor warrants that:-

8.2.1 it has the skill and expertise to enter into and perform this

Agreement and all Call-Off Contracts;

8.2.2 where any third party material is utilised or provided in the

performance of the Services, it has the necessary authority to act

on behalf of all such third parties and to grant or procure the grant

of any assignations or licences as required under this Agreement;


8.2.3 it will provide the Services during the Term and until termination

or expiry of the last Call-Off Contract;

8.2.4 it shall comply and ensure the Services comply with the NHS

Scotland Requirements.

8.3 The Contractor may, but only with the express written permission of the

relevant Customer, access and/or utilise data files or other computer

programs used by that Customer. If it does so the Contractor undertakes

that it will ensure that, if it is accessing and/or using any data files or other

computer programs used by a Customer, any system or software it provides

to facilitate or assist with such access and/or use shall be free from all

viruses and other contaminants including but not limited to any codes or

instructions that may be or will be used to access, modify, delete or damage

any data files or other computer programs. For such purposes, the

Contractor undertakes that it will use the most comprehensive and up to date

virus checker.

8.4 The Contractor also warrants that it will not introduce any disabling programs

into any system of any Customer at any time.

8.5 The Contractor shall and shall ensure that the Contractor Sub-Contractor (to

the extent required to fulfil the obligations sub-contracted to them) shall,

effect, maintain and comply, throughout the Term, with the Code of

Connection.

9. CONFIDENTIAL INFORMATION

9.1 The Contractor hereby undertakes that:-

9.1.1 it (and any person employed or engaged by it in connection with

the Agreement and/or a Call-Off Contract) and the Contractor

Sub-Contractor shall use Confidential Information provided by or


accessed from NSS or any Customer or accessed as a result of

access to the systems of NSS or any Customer (each of whose

such information shall be their own respective “Customer

Confidential Information”) only for the purposes of this

Agreement; and

9.1.2 it (and any person employed or engaged by it in connection with

this Agreement and/or a Call-Off Contract) and the Contractor

Sub-Contractor, shall not disclose any Customer Confidential

Information to any third party (including NSS, or any other

Customer) without the prior written consent of NSS or the

relevant Customer (as appropriate).

9.2 The Contractor and the Contractor Sub-Contractor shall not make any use

whatsoever of patient identifiable information other than for the purposes of

this Agreement or disclose such patient identifiable information that may

become available to it to any third party other than as expressly authorised

by the relevant Customer in writing.

9.3 The Contractor’s attention is expressly drawn to the importance of retaining

confidentiality in any and all information relating to patients and any

unauthorised disclosure, or failure by the Contractor to ensure that patient

confidentiality is maintained, shall constitute the Contractor Default incapable

of remedy hereunder.

9.4 The Contractor shall comply with the requirements the National Health

Service in Scotland Circular CEL 25(2011).

9.5 The Contractor shall ensure that all its employees, contractors, agents and

representatives who have access to or handle patient identifiable information

sign a statement in which they undertake to NSS, and to the relevant


Customer to keep all such information confidential. The Contractor shall

inform such employees in writing of the importance of the confidentiality of

patient identifiable information; the principles of protecting patient

confidentiality and that breach of any confidentiality shall be a serious

disciplinary matter. Employees of the Contractor and the Contractor Sub-

Contractor and employees of the Contractor Sub-Contractor shall be required

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

prior to the date of receipt of any Customer Confidential Information. Copies

of all forms and statements so signed shall be sent to NSS or direct to the

relevant Customer if requested by NSS.

9.6 The provisions of this Clause 9 shall not apply to any information (other than

patient identifiable information to which the provisions of Clauses 9.2 to 9.5

above shall apply) which:

9.6.1 is or becomes public knowledge other than by breach of this

Clause 9;

9.6.2 is in the possession of the receiving party without restriction in

relation to disclosure before the date of receipt from the

disclosing party;

9.6.3 is received from a third party who lawfully acquired it and who is

under no obligation restricting its disclosure; or

9.6.4 is independently developed without access to the disclosing

party’s Confidential Information.

9.7 Nothing contained in this Clause 9 shall prevent NSS or any Customer from

disclosing any Confidential Information proprietary to the Contractor:-

9.7.1 wherever disclosure is required by virtue of their status as a

NHSScotland entity to a department, office or agency of Her


Majesty’s Government or to any other NHSScotland entity; or

9.7.2 to any consultant, company or other person engaged by them in

connection with their day to day operations, and provided that the

disclosing party shall have obtained from such consultant,

company or other person engaged by it to whom Confidential

Information is so disclosed, a confidentiality undertaking

substantially in the same terms as contained in this Clause 9.

9.8 No term of this Agreement, whether express or implied (including this Clause

9), shall preclude NSS or any Customer from making public under the

Freedom of Information (Scotland) Act 2002 and/or any codes applicable

from time to time relating to access to public authorities’ information, details

of all matters relating to this Agreement unless (i) such details constitute a

trade secret; (ii) the disclosure of such details would or would be likely to

prejudice substantially the commercial interests of any person (including but

not limited to the Contractor or NSS or any Customer and the amount of any

payments of any type made by NSS or any Customer or any End User to the

Contractor under a Call-Off Contract); or (iii) such details fall within such

other exemption as may be applicable at the discretion of NSS in terms of the

said Act; provided that NSS, or the relevant Customer (as the case may be)

will take all reasonable steps to provide the relevant Contractor with notice of

such intended disclosures prior to making such information public. The

Contractor will facilitate NSS’s compliance and that of any Customer with

their respective obligations under these provisions, and shall comply with any

request from NSS or any Customer for that purpose.

9.9 Nothing in this Clause 9 shall prevent the Contractor, NSS or any Customer

from using data processing techniques, ideas and general know-how which is

not specific to a Project or to a Customer which is gained during the


performance of this Agreement in the furtherance of its normal business, to

the extent that this does not relate to a disclosure of Confidential Information

or an infringement by a party of any Intellectual Property Rights of another

party.

10. DATA PROTECTION

10.1 The Contractor shall comply with the provisions of the Data Protection

Legislation as appropriate in connection with this Agreement including where

appropriate maintaining a valid and up to date data protection notification.

Rights in data

10.2 The Contractor:

10.2.1 acknowledges that it has no rights of ownership in Customer

Data;

10.2.2 shall not delete or remove any copyright notices or other notices

contained within Customer Data; and

10.2.3 shall undertake the obligations set out in this Agreement in such a

manner as to preserve so far as possible the integrity and prevent

any loss, disclosure, theft, manipulation or interception of all

Customer Data.

10.3 The Contractor shall store or process any Customer Data supplied to it

and/or accessed by it for the purposes of this Agreement (as defined in the

1998 Act) only as specifically agreed in advance with NSS or the relevant

Customer. The Contractor shall not transfer any Customer Data out of the

UK unless such transfer has been registered and previously approved in

writing by NSS or relevant Customer provided always that the Contractor

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

of the country in which the Customer Data may be processed (with the


consent of NSS or the relevant Customer) which would prevent the

Contractor from processing the Customer Data or would give rise to a

liability for NSS or any Customer.

10.4 The Contractor hereby warrants and undertakes that it shall not, by any act

or omission (other than as expressly required by NSS pursuant to this

Agreement), cause any breach by NSS or any Customer (having regard to

the nature of the Services and their respective obligations as Data

Controllers) of any Data Protection Legislation.

10.5 The Contractor warrants that it has and undertakes that it will at all times

have in place technical and organisational measures consistent with Good

Industry Practice to protect against accidental or unlawful destruction of

Customer Data or accidental loss, alteration, unauthorised or unlawful

disclosure of or access to the same and security programmes and

procedures consistent with Good Industry Practice in place to ensure that

unauthorised persons will not have access to any Customer Data or to the

data processing equipment used by the Contractor to process any Customer

Data and that any persons it authorises to have access to any Customer

Data will respect and maintain the confidentiality and security of the

Customer Data.

10.6 The Contractor shall provide each Customer, within thirty (30) days of

request, a written description of the technical and organisational measures

referred to in Clause 10.5 in sufficient detail to enable the relevant Customer

to determine whether such measures are sufficient to ensure that they are in

compliance with their obligations under the Data Protection Legislation.

10.7 The Contractor shall, within one month after the date when Customer Data is

no longer required for the purposes of a Call-Off Contract, and on termination

of this Agreement, certify in writing to the relevant Customer that to the best


of the Contractor’s knowledge and belief the original and all copies of all

Customer Data from such Customer received or obtained or accessed by the

Contractor have been returned to the relevant Customer, or destroyed. This

requirement shall apply to all copies of Customer Data in any form whether

partial or complete.

10.8 The Contractor shall make no use whatsoever of Customer Data other than

for the purposes of its performance of its obligations under this Agreement.

10.9 The Contractor shall indemnify NSS and each Customer against any liability

including without prejudice to the foregoing generality any loss, costs,

penalty, expense or damage incurred by each or all of them either directly or

indirectly as a consequence of breach by the Contractor of the provisions of

the 1998 Act or this Clause 10.

11. TERMINATION

Contractor Default

11.1 For the purposes of this Agreement, “Contractor Default” means any of the

following events or circumstances set out in this Clause 11.1:-

11.1.1 the occurrence of any of the following events in respect of the

Contractor, namely:

(a) any moratorium, arrangement or composition with its

creditors (including any voluntary arrangement as defined

in the Insolvency Act 1986) being obtained or entered into

by or in relation to the Contractor or any steps being taken

to obtain or enter the same or any proceedings being

commenced in relation to the Contractor under any law,

regulation or procedure relating to the reconstruction or

adjustment of debts;


(b) a receiver, manager, administrator, sequestrator,

administrative receiver, liquidator or other similar officer, or

other encumbrancer taking possession of or being

appointed over, or any distress, execution, attachment or

other process being levied or enforced (and not being

discharged within five (5) days) upon, against or in respect

of the whole or any material part of the assets, rights or

revenues of the Contractor, or the Contractor failing to

satisfy any judgment debt in whole or in part within 14

days;

(c) the Contractor ceasing or threatening to cease to carry on

the whole or a substantial part of its business, or if the

Contractor is dissolved;

(d) a petition or other form of application being presented or

made at court (and not being discharged within twenty

(20) days), or a resolution being passed or an order being

made for the administration or the winding-up, bankruptcy

or dissolution of the Contractor, or the giving or filing of

notice of intention to appoint or notice of appointment or

presentation of a petition in respect of the appointment of

an administrator, receiver, administrative receiver,

liquidator or similar officer in respect of the Contractor, its

business or assets;

(e) the Contractor is, or is adjudicated or found to be,

insolvent as set out in section 123 of the Insolvency Act

1986 or stops or suspends payments of its debts or is (or


is deemed to be) unable to or has no real prospect of

being able to, or admits inability to pay its debts as they

fall due;

(f) if the Contractor shall suffer any event analogous to the

events set out in Clauses 11.1.1(a) to 11.1.1(e) in any

jurisdiction in which it is incorporated or resident;

11.1.2 termination of two (2) or more Call-Off Contracts by the

Customers which are party thereto following material breach by

the Contractor of the terms thereof.

11.1.3 the Contractor committing any material breach of Clause 9

(Confidentiality);

11.1.4 any material breach of any of the warranties in Clause 10 (Data

Protection) or any series of breaches of such warranties which,

when taken together, amount to a material breach where the

Contractor does not within twenty (20) days of becoming aware of

such breach either implement or procure that procedures are

implemented that are likely, to the reasonable satisfaction of

NSS, to prevent the repetition or continuance of the breach or

breaches in question and which mitigate so far as possible the

effects of the breach or breaches in question;

11.1.5 the occurrence of any Prohibited Act that permits NSS to

terminate this Agreement under Clause 25 (Corrupt Gifts);

11.1.6 the Contractor failing to comply with any of the provisions of

Clause 18 (Assignation and Sub-Contracting);

11.2 The Contractor shall notify NSS and any and all affected Customers in writing

of the occurrence, and details in relation to, any Contractor Default and of


any event or circumstance which is likely, with the passage of time or

otherwise, to constitute or give rise to the Contractor Default, in either case

promptly on the Contractor becoming aware of its occurrence.

11.3 On the occurrence of the Contractor Default, or within a reasonable time after

NSS becomes aware of the same, NSS may:

11.3.1 in the case of any Contractor Default referred to in Clauses 11.1.1

and 11.1.4 terminate this Agreement by notice in writing having

immediate effect;

11.3.2 in the case of any other Contractor Default referred to in Clause

11.1 which is capable of remedy, serve written notice of default on

the Contractor requiring the Contractor to remedy the Contractor

Default referred to in such notice of default (if the same is

continuing) within twenty (20) Business Days of such notice of

default;


11.1 which is not capable of remedy, terminate this Agreement in

its entirety by notice in writing having immediate effect;

11.3.4 in the case of any Contractor Default referred to in Clause 25

(Corrupt Gifts) terminate this Agreement in accordance with this

Clause 11;

11.4 If the Contractor Default notified in a notice of default served under Clause

11.3.2 is not remedied before the expiry of the period referred to in Clause

11.3.2 then NSS may terminate this Agreement by written notice to the

Contractor with immediate effect.

11.5 Any termination of this Agreement shall be notified by NSS to the Customers,

Potential Customers and the Contractor.


11.6 On the occurrence of the Contractor Default, each Customer may, at its

option:-

11.6.1 in the case of any Contractor Default referred to in Clauses 11.1.1

and 11.1.4, terminate any or all then current Call-Off Contracts

with the Contractor to which they are party by providing notice to

that effect to the Contractor, which notice shall have immediate

effect;


11.1 which is capable of remedy, serve written notice of default on

the Contractor requiring such Contractor to remedy the

Contractor Default referred to in such notice (if the same is still

continuing) within twenty (20) Business Days of such notice of

default;


11.1 which is not capable of remedy, terminate any or all then

current Call-Off Contracts with the Contractor to which they are

party in their entirety by notice in writing having immediate effect;

11.7 If the Contractor Default referred to in a notice of default served under Clause

11.6.2 is not remedied before the expiry of the period referred to in Clause

11.6.2 then the relevant Customer which served the notice may terminate the

affected Call-Off Contracts, by written notice to the Contractor with immediate

effect.

11.8 Without prejudice to the other rights or remedies of the Customer the

Contractor shall indemnify NSS and each Customer in respect of all costs

(excluding Indirect Losses) including legal costs on a standard paying basis

incurred by NSS and each Customer in exercising any of its rights under this


Clause 11. NSS and each Customer shall take reasonable steps to mitigate

such costs.

11.9 The rights of NSS and each Customer (to terminate or otherwise) under this

Clause 11 are in addition (and without prejudice) to any other right or remedy

which NSS and each Customer may have to:

11.9.1 claim the amount of loss or damage suffered by NSS and/or any

Customers on account of the acts or omissions of the Contractor

(but excluding any Indirect Losses); or

11.9.2 take any action other than termination of this Agreement.

12. NON-DEFAULT TERMINATION

12.1 If, in the circumstances referred to in Clause 17 (Force Majeure):

12.1.1 the parties have failed to reach agreement on any modification to

this Agreement pursuant to Clause 17.8, within thirty (30) days of

the date on which the party affected serves notice on the other

party in accordance with Clause 17.4; and

12.1.2 the event of Force Majeure continues for thirty (30) days from the

date on which the party affected serves notice on the other party

in accordance with Clause 17.4, then any affected Customer may

at any time afterwards terminate any or all the current Call-Off

Contracts to which they are party which are affected by the said

event of Force Majeure in each case by written notice to the

Contractor having immediate effect, save that any affected

Customer shall not be able to exercise any right of termination

under this Clause 12 if, notwithstanding the event of Force

Majeure, the Contractor is still capable of providing all of the

Services in accordance with the provisions of this Agreement


13. EFFECT OF TERMINATION OR EXPIRY

13.1 Notwithstanding that NSS may have a right to terminate this Agreement

and/or a Customer may have a right to terminate a Call-Off Contract, NSS or

the relevant Customer may elect to continue to treat this Agreement or

relevant Call-Off Contract (as the case may be) as being in full force and

effect, and to enforce its rights under this Agreement.

13.2 In the event of Expiry or termination of this Agreement, and/or in the event of

termination of any Call-Off Contract, the Contractor shall co-operate at all

relevant times with NSS and/or any relevant Customers, in ensuring the

orderly transition of the Services to NSS and/or any relevant Customer,

and/or any replacement supplier(s) or Customer agent(s) (as appropriate).

13.3 No Call-Off Contracts shall be entered into after the Termination Date.

14. INDEMNITIES

14.1 The Contractor shall indemnify and keep NSS and each Customer

indemnified at all times from and against all Losses (excluding Indirect

Losses) sustained by NSS and the Customers in the event of:

14.1.1 any loss of or damage to any property or assets real or personal

(including data, real or personal equipment or property), of NSS

or any Customer, arising by reason of any act or omission of the

Contractor, (including any breach by the Contractor of any of its

obligations under this Agreement, any delictual act or omission

(including negligence) or otherwise);

14.1.2 NSS or any Customer:

(a) not benefiting from any services to be provided by any

other Contractor to NSS or any Customer arising by


reason of any act or omission of the Contractor (including

any breach by the Contractor of any of its obligations

under this Agreement, any delictual act or omission

(including negligence), or otherwise); or

(b) being liable to make any payment to any other Contractor

in circumstances in which it would not have been so liable

save for any act or omission of the Contractor (including

any breach by the Contractor of any of its obligations

under this Agreement, any delictual act or omission

(including negligence), or otherwise);

14.1.3 any loss, misappropriation, destruction, corruption, degradation or

inaccuracy of Data (including any Customer Data) arising by

reason of any act or omission of the Contractor (including any

breach by the Contractor of any of its obligations under this

Agreement);

14.1.4 any breach of any applicable Law or NHS Scotland Requirement

either in effect at the Effective Date or in respect of which the

parties have agreed a Change applicable to the provision of:

(a) the Services by the Contractor; or

(b) Clinical Services (including for the purposes of this

Clause, administration and management) by any

Customer,

arising by reason of any act or omission of the Contractor

(including any breach by the Contractor of any of its obligations

under this Agreement, any delictual act or omission (including


negligence), or otherwise) save where and to the extent that

Losses are caused by the wilful misconduct of NSS, Customers,

their employees, agents or Contractors (save for the Contractor)

or by any breach by NSS, Customers of their respective

obligations under this Agreement, or any applicable NHS

Scotland Requirement;

14.1.5 any breach by the Contractor of Clause 9 (Confidential

Information);

14.1.6 any failure by the Contractor to comply with its obligations

pursuant to Clause 9.8 resulting in NSS or any Customer failing

to comply with its obligations under the Freedom of Information

(Scotland) Act 2002; and

14.1.7 any claim that the Use of any Project Deliverables and/or receipt

of the Services by NSS and/or by any or all Customers infringes

the Intellectual Property Rights of any third party.

14.2 The indemnities set out in Clause 14.1 shall be payable on demand.

15. LIABILITY

Exclusions

15.1 The parties agree that the Service Deductions are not a penalty and are a

genuine pre estimate of the loss likely to be suffered by NSS and/or, the

Customers in respect of the relevant failure of the Contractor to which the

Service Deduction relates.

15.2 NSS and/or any Customer shall be entitled to seek interdict or a decree of

specific performance or any other discretionary remedy of the court.

15.3 Subject to Clause 15.4 (in respect of which the Contractor’s liability will be


unlimited) the aggregate liability of the Contractor in respect of all claims

made by or in respect of NSS arising in each year of this Agreement

(commencing on the Effective Date) whether arising from delict (including

negligence), breach of contract or otherwise under or in connection with this

Agreement shall in no event exceed TWO MILLION POUNDS (£2,000,000)

STERLING.

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

exclusion or limit of liability in respect of:

15.4.1 fraud or fraudulent misrepresentation by either party; and

15.4.2 death or personal injury caused by the breach of duty or

negligence of either party.

15.5 Except as provided in Clause 15.4, neither party shall be liable to the other

under or in connection with this Agreement, whether in contract, delict

(including negligence), misrepresentation (other than where made

fraudulently) , breach of statutory duty or otherwise for:-

15.5.1 Any loss of business, contracts, profits, anticipated savings,

goodwill, or revenue; or

15.5.2 Any indirect or consequential loss whatsoever incurred by the

other, whether or not the possibility of such loss has been

advised in advance.

15.6 Notwithstanding any other provision of this Agreement, the Contractor shall

not be entitled to any relief from its obligations under this Agreement and

neither NSS nor any Customers shall have any liability under this Agreement

or under any Call-Off Contracts, in each case, if and to the extent that the

circumstances giving rise to such relief or liability are caused or contributed

to by the Contractor or any Contractor Sub-Contractor (including, without


limitation, by way of any act, omission, breach or negligence of the

Contractor or any Contractor Sub-Contractor under this Agreement or

otherwise).

16. INSURANCE

16.1 The Contractor shall take out and maintain or procure the maintenance of the

Insurances described in and in accordance with the provisions of Schedule

Part 5 (Insurances).

16.2 The Contractor shall in respect of the Insurances comply with the conditions

and obligations set out in Schedule Part 5 (Insurances).

17. FORCE MAJEURE

17.1 For the purposes of this Agreement, “Force Majeure” means any of the

following events or circumstances:

17.1.1 war, civil war, armed conflict or terrorism;

17.1.2 acts of God, fire, flood or explosion;

17.1.3 national emergency declared by Her Majesty's Government,

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

part of its obligations under this Agreement, provided that the Contractor shall

not be relieved of any express obligations set out in this Agreement (save to

the extent the Contractor is expressly prohibited from performing the same as

a result of the Force Majeure event). Where NSS or one or more Customers

are affected by a national emergency as referred to above the Contractor will

work with NSS and the Customers to enable their systems to be used, and

data to be accessed, as effectively as possible.

17.2 Subject to Clause 17.3 the party claiming relief shall be relieved from liability

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


Majeure it is not able to perform its obligations under this Agreement,

provided that if the party claiming relief is the Contractor, NSS and relevant

Customers shall be entitled to make applicable Service Deductions in respect

of the part of the Services not provided by the Contractor as a result of the

event of Force Majeure.

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

17.3.1 it shall take and continue to take all reasonable steps to eliminate

or mitigate the consequences of such an event upon the

performance of its obligations under this Agreement and resume

performance of its obligations affected by the event of Force

Majeure as soon as practicable and use all reasonable

endeavours to remedy its failure to perform; and

17.3.2 it shall not be relieved from liability under this Agreement to the

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

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

comply with its obligations under Clause 17.3.1.

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

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

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

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

event of Force Majeure.

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

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

period of five (5) days of the notice referred to in Clause 17.1 which shall

contain such relevant information relating to the failure to perform (or delay in

performing) as is available, including the effect of the event of Force Majeure


on the ability of the party to perform, the action being taken in accordance

with Clause 17.3, the date of the occurrence of the event of Force Majeure

and an estimate of the period of time required to overcome it (and/or its

effects).

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

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

performance of its affected obligations can be resumed.

17.7 If, following the issue of any notice referred to in Clause 17.5, the party

claiming relief receives or becomes aware of any further information relating

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

such further information to the other party as soon as reasonably possible.

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

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

or events of Force Majeure. The Dispute Resolution Procedure shall not

apply to a failure of NSS and the Contractor to reach agreement pursuant to

this Clause 17.8.

18. ASSIGNATION AND SUB-CONTRACTING

18.1 This Agreement is personal to the parties hereto and shall be binding and

inure for the benefit of the Contractor and NSS and their respective

successors and permitted assignees or transferees. Subject always to

Clause 18.2 the Contractor shall not assign, novate, sub-contract or

otherwise dispose of this Agreement without the prior written consent of NSS

or any Call-Off Contract or any part thereof without the prior written consent

of NSS or the Customer which is party to the Call-Off Contract.

18.2 The Contractor may sub-contract those pre-approved elements of delivery of

this Agreement and/or any Call-Off Contract to identified sub-contractors


which are approved in writing by NSS or the Customer which is party to the

relevant Call-Off Contract provided always that the Contractor shall remain

responsible to NSS for performance of this Agreement and to Customers for

performance of Call-Off Contracts and shall be responsible for the actions of

any Contractor Sub-Contractor as if it were the Contractor’s own.

19. REPRESENTATIVES

19.1 NSS's Representative shall be Senior Business & Procurement Advisor of

the IT Strategic Sourcing Directorate of the Procurement, Commissioning &

Facilities Strategic Business Unit of NSS or such other person appointed

pursuant to this Clause. NSS's Representative shall exercise the functions

and powers of NSS in relation to this Agreement.

19.2 NSS's Representative shall be entitled at any time, by written notice to the

Contractor, to authorise any other person to exercise the functions and

powers of NSS delegated to him pursuant to this Clause 19, either generally

or specifically. Any act of any such person shall, for the purposes of this

Agreement, constitute an act of NSS's Representative and all references to

NSS's Representative in this Agreement (apart from this Clause 19) shall be

taken as references to such person so far as they concern matters within the

scope of such person's authority.

19.3 NSS may by written notice to the Contractor change NSS's Representative or

any individual authorised by NSS's Representative to exercise its functions

and powers pursuant to Clause 19.2. Any such change shall have effect on

the date specified in the notice.

19.4 During any period when no NSS's Representative has been appointed (or

when NSS's Representative is unable through illness, incapacity or any other

reason whatsoever to carry out or exercise his functions under this


Agreement) NSS shall carry out the functions which would otherwise be

performed by NSS's Representative.

19.5 No act or omission of NSS, NSS's Representative or any officer, employee or

other person engaged by NSS, or any Customer shall, except as otherwise

expressly provided in this Agreement:

19.5.1 in any way relieve or absolve the Contractor from, modify, or act

as a waiver or estoppel of, any liability, responsibility, obligation or

duty under this Agreement; or

19.5.2 in the absence of an express order or authorisation under

Schedule Part 3 (Change Control Procedure), constitute or

authorise a Change.

19.6 Except as previously notified in writing before such act by NSS to the

Contractor, the Contractor and the Contractor's Representative shall be

entitled to treat any act of NSS’s Representative which is authorised by this

Agreement as being expressly authorised by NSS and the Contractor and the

Contractor's Representative shall not be required to determine whether an

express authority has in fact been given.

19.7 Representative of Contractor

The Contractor’s Representative is the Account Manager or such other

person appointed pursuant to this Clause. The Contractor’s Representative

shall have full authority for the purposes of all operational management and

delivery of Services under this Agreement. The Contractor's Representative

may only vary the powers and functions delegated to any such persons (or

delegate any additional powers and functions to such persons or to any other

persons) with NSS's prior written consent of NSS in accordance with the

Change Control Procedure. If at any time the Contractor's Representative


ceases to have full authority to act on behalf of the Contractor for all

purposes of this Agreement, the Contractor shall immediately notify NSS

and, where necessary, shall appoint a suitable replacement, such

replacement to be subject to NSS's prior written approval (such approval not

to be unreasonably withheld or delayed).

20. AUDIT ACCESS

20.1 NSS and Customers may, but not more than once each in any Contract Year,

conduct audits for the following purposes:-

20.1.1 to verify the accuracy of the Payment Charges (and proposed or

actual variations to them in accordance with this Agreement);

20.1.2 to review the integrity, confidentiality and security of all Data;

20.1.3 to review the Contractor’s compliance with this Agreement and

with the Law;

20.1.4 to review any books of account kept by the Contractor in

connection with the provision of the Services;

20.1.5 to carry out, or in connection with the carrying out of the audit and

certification of NSS’s accounts or those of any Customer;

20.1.6 to verify the accuracy and completeness of any management

information delivered or required by this Agreement;

20.1.7 to ensure that the Contractor is complying with the NHSScotland

Requirements; and

20.1.8 to fulfil any other audit requirements that may be required by any

Regulatory Body.

20.2 NSS and each Customer shall use its reasonable endeavours to ensure that

the conduct of each audit does not unreasonably disrupt the Contractor or


delay the provision of the Services. To the extent any audit does disrupt the

Contractor in its provision of the Services, such disruption shall be taken

account of in measuring performance of any affected Service which shall be

operated as though the relevant Service had been performed free from such

disruption.

20.3 Subject to obligations of confidentiality, the Contractor shall on demand

provide NSS and relevant Customers (and/or its agents or representatives)

with all reasonable co-operation and assistance in relation to each audit,

including:-

20.3.1 all information requested by NSS and relevant Customers within

the permitted scope of the audit; and

20.3.2 reasonable access to any locations controlled by the Contractor

and to any equipment used (whether exclusively or non-

exclusively) in the performance of the Services; and

20.3.3 access to the Contractor’s personnel and contractors.

20.4 NSS shall endeavour to (but is not obliged to) provide at least ten (10)

Business Days’ notice of its intention to conduct an audit.

20.5 The rights exercisable under this Clause 20 may be exercised by any one or

more of the Customers or by agents on behalf of NSS or the Customers. In

such event when making arrangements for the audit NSS or relevant

Customers shall advise the Contractor that it will be an agent which conducts

or instructs the audit.

20.6 The parties agree that they shall bear their own respective costs and

expenses incurred in respect of compliance with their obligations under this

Clause 20, unless the audit identifies the Contractor Default in which case

the Contractor shall reimburse the party that instructed the audit for all NSS’s


reasonable costs incurred in the course of the audit.

20.7 If an audit identifies that:-

20.7.1 the Contractor has failed to perform its obligations under this

Agreement and/or under any Call-Off Contract in any material

manner, the said Contractor and NSS shall agree and implement

a remedial plan. If the Contractor’s failure relates to a failure to

provide any information to NSS about actual or proposed Project

Charges then the remedial plan shall include a requirement for

the provision of all such information;

20.7.2 any Customer has overpaid any Project Charges, the relevant

Contractor shall pay to such Customer the amount overpaid

within ten (10) Business Days. The Customer may deduct the

relevant amount from the future Project Charges which may fall

due if the said Contractor fails to make this payment; and

20.7.3 any Customer has underpaid any Project Charges, such

Customer shall pay to the relevant Contractor the amount of the

under-payment less the cost of the audit incurred by NSS if this

was due to the Contractor Default in relation to invoicing, within

twenty (20) Business Days.

20.8 The provisions of this Clause 20 shall survive the Expiry or termination of this

Agreement for a period of twelve (12) months.

21. WAIVER

Failure or neglect by one party to enforce at any time any of the provisions

hereof shall not be construed nor shall be deemed to be a waiver of that

party’s right hereunder nor in any way affect the validity of the whole or any

part of this Agreement nor prejudice that party’s right to take subsequent


action.

22. SEVERABILITY

In the event that any of these terms, conditions or provisions shall be

determined by any competent authority to be invalid, unlawful or

unenforceable to any extent, such term, condition or provision shall to that

extent be severed from the remaining terms, conditions and provisions which

shall continue to be valid to the fullest extent permitted by law.

23. NOTICES

Any notice to be given by any party to another may be sent by recorded

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

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

in writing and if so sent shall be deemed to be served three (3) days following

the date of posting.

24. DISPUTE RESOLUTION

In the event of any dispute or difference between the parties arising pursuant

to this Agreement the parties shall refer such matter to the Dispute

Resolution Procedure.

25. CORRUPT GIFTS

25.1 The term “Prohibited Act” means:

25.1.1 offering, giving or agreeing to give to NSS, any Health Board or

any other public body or to any person employed by or on behalf

of NSS, any Health Board or any other public body any gift or

consideration of any kind as an inducement or reward:

(a) for doing or not doing (or for having done or not having

done) any act in relation to the obtaining or performance


of this Agreement or any other agreement with NSS, any

Health Board or any other public body; or

(b) for showing or not showing favour or disfavour to any

person in relation to this Agreement or any other

agreement with NSS, any Health Board or any other

public body;

25.1.2 entering into this Agreement or any other agreement with NSS,

any Health Board or any other public body in connection with

which commission has been paid or has been agreed to be paid

by the Contractor or on its behalf, or to its knowledge, unless

before the relevant agreement is entered into particulars of any

such commission and of the terms and conditions of any such

agreement for the payment of such commission have been

disclosed in writing to NSS;

25.1.3 committing any offence:

(a) under the Prevention of Corruption Acts 1889-1916;

(b) under any Law creating offences in respect of fraudulent

acts; or

(c) at common law, in respect of fraudulent acts in relation to

this Agreement or any other agreement with NSS, any

Health Board or any other public body; or

25.1.4 defrauding or attempting to defraud or conspiring to defraud NSS,

any Health Board or any other public body.

25.2 The Contractor warrants that in entering into this Agreement it has not

committed any Prohibited Act.


25.3 If the Contractor (or anyone employed by or acting on behalf of them)

commits any Prohibited Act, then NSS shall be entitled to act in relation to

that Contractor’s participation in this Agreement in accordance with Clauses

25.4.1 to 25.4.5 below.

25.4 If a Prohibited Act is committed by the Contractor or by an employee not

acting independently of the Contractor (here meaning that the employee acts

under the authority of or with the knowledge of any one or more directors of

the Contractor), then NSS may terminate the Agreement with immediate

effect by giving written notice to the Contractor;

25.4.1 if the Prohibited Act is committed by an employee of the

Contractor acting independently of the Contractor, then NSS may

give written notice to the Contractor of termination and the

Agreement will terminate, unless within twenty (20) Business

Days of receipt of such notice the Contractor terminates the

employee's employment and (if necessary) procures the

performance of the relevant part of the Services by another

person;

25.4.2 if the Prohibited Act is committed by the Contractor Sub-

contractor or by an employee of that Contractor Sub-contractor

not acting independently of that Contractor Sub-contractor (here

meaning that the employee acts under the authority of or with the

knowledge of any one or more directors of the said Contractor

Sub-contractor) then NSS may give written notice to the

Contractor of termination and the Agreement will terminate,

unless within twenty (20) Business Days of receipt of such notice

the Contractor terminates the relevant Sub-Contract and procures

the performance of the relevant part of the Services by another


person, where relevant, in accordance with Clause 18);

25.4.3 if the Prohibited Act is committed by an employee of the

Contractor Sub-contractor acting independently of that Contractor

Sub-contractor, then NSS may give notice to the Contractor of

termination and the Agreement will terminate, unless within

twenty (20) Business Days of receipt of such notice the

Contractor procures the termination of the employee's

employment and (if necessary) procures the performance of the

relevant part of the Services by another person;

25.4.4 if the Prohibited Act is committed by any other person not

specified in Clause 25.4.1 to 25.4.3 above, then NSS may give

notice to the Contractor of termination and the Agreement will

terminate unless within twenty (20) Business Days the Contractor

procures the termination of such person's employment and of the

appointment of their employer (where such person is not

employed by the Contractor or the Contractor Sub-contractor of

the Contractor) and (if necessary) procures the performance of

the relevant part of the Services by another person; and

25.4.5 any notice of termination under this Clause 25.4 shall specify:

(a) the nature of the Prohibited Act;

(b) the identity of the party who NSS believes has committed

the Prohibited Act; and

(c) the date on which the Agreement will terminate in

accordance with the applicable provisions of this Clause

25.4.


25.5 Without prejudice to its other rights or remedies under this Clause 25, NSS

shall be entitled to recover from the Contractor:

25.5.1 the amount or value of any such gift, consideration or

commission; and

25.5.2 any other loss sustained in consequence of any breach of this

Clause 25.

25.6 Nothing contained in this Clause 25 shall prevent the Contractor from paying

any proper commission or bonus to its employees within the agreed terms of

their employment.

25.7 The Contractor shall notify NSS of the occurrence (and details) of any

Prohibited Act promptly on the Contractor becoming aware of its occurrence.

25.8 Where the Contractor is required to replace any Contractor Sub-Contractor

pursuant to this Clause 25, the provisions of Clause 11.1 (Contractor Default)

shall apply and be construed accordingly.

26. CHANGE CONTROL

Any Changes to this Agreement shall be effected through the Change

Control Procedure.

27. RANKING

27.1 In the event of any conflict or ambiguity between the provisions of this

Agreement and any Call-Off Contract the provisions of each such respective

document shall rank and prevail in the following order:-

27.1.1 this Agreement; and

27.1.2 the Call-Off Contract;

28. SURVIVAL


Termination or Expiry shall not affect the continuing rights and obligations of

the Contractor and NSS which expressly or by implication are intended to

survive termination including without limitation any Call-Off Contracts entered

into by Customers prior to the Termination Date.

29. ENTIRE AGREEMENT

This Agreement contains all the terms which the parties have agreed in

relation to the subject matter of this Agreement and supersedes any prior

written or oral agreements, representations or understandings between the

parties in relation to such subject matter, provided that nothing contained

herein shall operate or be construed as to limit or exclude either party’s

liability for fraud or fraudulent misrepresentation.


30. LAW

The parties hereby agree that this Agreement shall be governed and

construed in accordance with Scots law and the parties submit to the

exclusive jurisdiction of the Scottish Courts: IN WITNESS WHEREOF these

presents typewritten on this and the preceding forty five (45) pages together

with the Schedule are executed as follows:-

For and on behalf of the Common Services Agency

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

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

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

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

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

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

For and on behalf of learnPro Limited

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

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

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

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

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

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


This is the Schedule referred to in the foregoing Agreement between the Common Services Agency and learnPro Limited

SCHEDULE: PART 1

SPECIFICATION

[-]


SCHEDULE: PART 2

CATALOGUE AND STANDARD SERVICES CHARGES

[-]


SCHEDULE: PART 3

CHANGE CONTROL PROCEDURE

1. DEFINITIONS

In this Schedule Part 3, unless the context otherwise requires, the following

words shall have the following meanings:

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

“Change Authorisation” has the meaning given to it in paragraph 3.6 of Schedule Part 3;

“Change Control Note” and “CCN” has the meaning given to them in paragraph 3.1 of Schedule Part 3;

“Mandatory Change” has the meaning given to it in paragraph 5.2 of Schedule Part 3;

“Notice of Change” means prior written notice of any Change given by NSS in accordance with this Schedule Part 3;

“Urgent Change” has the meaning given to it in paragraph 4.1 of this Schedule Part 3.

2. GENERAL PRINCIPLES

2.1 All parties shall conduct discussions relating to proposed Changes in good

faith and no party shall act unreasonably in implementing the Change

Control Procedure set out in this Schedule Part 3 (“CCP”).

2.2 Changes may either be initiated by NSS or the Contractor. These

Changes may be unique to this Agreement or give rise to consequent

changes that need to be implemented by other integrated Contractors.

2.3 All Changes proposed by NSS and within the overall scope of the

Framework Agreement must be carried out by the Contractor save in the

circumstances set out in paragraph 2.5.


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

requested pursuant to this Schedule Part 3 in relation to a proposed

Change. Until such time as a written Change Authorisation has been

signed and issued by NSS in accordance with paragraph 3.6 of this

Schedule Part 3, the parties shall, unless otherwise expressly agreed in

writing, continue to perform this Agreement in accordance with the existing

terms of the Agreement.

2.5 NSS shall not be entitled to require the Contractor to implement any

Change (including specifically any Mandatory Change) which:

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

person;

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

Law; or

(c) the Contractor can demonstrate to NSS's reasonable satisfaction,

is impossible to carry out technically provided that the Contractor

may not rely on this exception where:

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

must have the technical capacity and flexibility required by

the proposed Change; or

(ii) such proposed Change could reasonably be undertaken by

a supplier of services similar to the Services.

2.6 If the Contractor reasonably believes that any Change proposed by a

Notice of Change received from NSS falls within the provisions of

paragraph 2.5 of this Schedule Part 3 then it shall inform NSS in writing of

its reasons for this belief within five (5) Business Days of receipt and shall

not be obliged to submit a CCN in relation to such NSS Notice of Change.


If NSS disagrees with the Contractor's conclusion, the matter will be

addressed in accordance with the Dispute Resolution Procedure.

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

procedures set out in the CCN shall apply (as relevant) and the plan for

implementing the Change shall apply, unless otherwise specified by NSS.

3. PROCEDURES

3.1 NSS may issue a Notice of Change to the Contractor at any time. Any

such NSS Notice of Change shall include sufficient details of the required

Change to enable the Contractor to prepare a change control note

containing the information set out in paragraph 3.3 (“Change Control

Note” or “CCN”) in relation to it. The Contractor shall provide the CCN to

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

Notice of Change or such other date as is agreed between the parties and

is reasonable given the nature of the Change requested.

3.2 A recommendation for a Change by the Contractor shall be submitted as a

CCN to NSS's Representative. The Contractor shall request from NSS

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

giving NSS reasonable time to respond, and the Contractor shall provide

sufficient information to enable NSS to respond to any such request

submitted by it to NSS.

3.3 Each CCN shall be in as close a form as is appropriate in the

circumstances to the style annexed hereto and shall contain (but need not

be limited to):

(a) the title of the Change;

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

recommendation for the Change;


(c) NSS sponsor of the Change and Contractor lead for the Change;

(d) the reason for the Change;

(e) full details of the Change, including any specifications and any

agreement reached between the parties as to how any equipment

will be amortised over the remainder of the Term;

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

appropriate) which shall be calculated in accordance with

paragraph 3.9;

(g) any acceptance testing to apply and/or the acceptance criteria for

the Change;

(h) an implementation plan for the Change;

(i) the impact of the Change on other aspects of the Agreement and

the Documentation, including, without limitation:

(i) any timetable previously agreed with NSS;

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

resource issues) and the Contractor’s ability to meet its

obligations under the Agreement;

(iii) on the provision of services to NSS by any other IT

Contractor, including any required modification to any parts

of NSS's IT infrastructure;

(iv) the terms of the Agreement, including amendments

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

Change and a plan for implementing the Change;

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

implement any proposed Change; and


(vi) such other information as NSS may reasonably request.

3.4 For each CCN submitted to NSS's Representative, the parties shall follow

the procedure set out below:

(a) the Contractor shall allocate a sequential number to the CCN;

(b) NSS shall evaluate the CCN and as appropriate, within ten (10)

Business days of receiving the CCN, either:

(i) request further information or further discussions with the

Contractor and then either approve or reject any modified

CCN;

(ii) approve the CCN;

(iii) notify the Contractor of rejection of the CCN;

(iv) require the Contractor to modify the CCN in which event the

Contractor shall make such modifications within five (5)

Business Days of the request. NSS may approve or reject

a modified CCN and the remaining provisions of this

paragraph 3 shall apply.

3.5 If the CCN is given initial approval by NSS's Representative, one copy of it

in its agreed form for the Contractor shall be:

(a) prepared for signature on behalf of the Contractor and NSS;

(b) provided to the Contractor for its signature; and

(c) once signed, returned by the Contractor to NSS for signature by

the appropriate person as described in paragraph 6 of this

Schedule Part 3.

3.6 When the CCN signed by the Contractor under paragraph 3.5 of this

Schedule Part 3 is signed on behalf of NSS in accordance with paragraph


6 of this Schedule Part 3, this shall constitute a Change Authorisation and

shall constitute a variation to the Agreement.

3.7 Any dispute in relation to any Change or any CCN or to the application of,

or compliance with, this Change Control Procedure (including whether the

Change is correctly classified as an Urgent Change) shall be resolved in

accordance with the Dispute Resolution Procedure set out in Schedule

Part 4 (Dispute Resolution Procedure).

3.8 If the Contractor does not intend to use its own resources to implement

any proposed Change it shall comply with Good Industry Practice with the

objective of ensuring that it obtains best value for money (taking into

account all relevant circumstances including, in particular, the requirement

that NSS should not be worse off as a result of the implementation of the

Change) when procuring any work, services, supplies, materials or

equipment required in relation to the Change.

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

Changes.

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

default by the Contractor shall be paid for by the Contractor.

3.11 All parties shall bear their own costs in relation to the investigation,

preparation and agreement of each Notice of Change and Change Control

Note.

3.12 NSS shall create and maintain a register of all CCNs signed in accordance

with paragraph 3.6 hereof.

4. URGENT CHANGES

4.1 The following types of Change are Urgent Changes:


(a) in the case of NSS:

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

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

need to be dealt with urgently; and

(b) in the case of the Contractor, Changes which in the reasonable

opinion of the Contractor need to be dealt with urgently.

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

the relevant NSS Notice of Change or CCN (as the case may be) a

statement that the Change is an Urgent Change (and a brief statement of

the grounds for classifying it as an Urgent Change).

4.3 In the case of an Urgent Change requested by any party, NSS may

specify that it wishes the Contractor to produce a CCN within two (2)

Business Days unless otherwise agreed. Such agreement shall not be

unreasonably withheld. Any queries regarding the Urgent Change shall

be discussed and agreed between the parties and incorporated into the

CCN. The Contractor shall implement the Urgent Changes in accordance

with the relevant NSS Notice of Change and CCN as soon as reasonably

practicable.

5. MANDATORY CHANGES

5.1 Upon NSS becoming aware of the occurrence of an event requiring a

Mandatory Change, NSS may issue a Notice of Change in respect of such

Mandatory Change. If NSS does not issue a NSS Notice of Change for a

Mandatory Change the Contractor shall also be entitled to initiate a CCN

for such Mandatory Change.

5.2 The following types of Changes are Mandatory Changes:


(a) where the Change is necessary to enable the Contractor or the

Services to comply with any change in Law;

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

in accordance with the Service Levels.

5.3 Upon receipt of a NSS Notice of Change in respect of a Mandatory

Change, the Contractor shall, within five (5) Business Days of such receipt

(or such other timescale as may be agreed between the parties having

due regard to the operational urgency of the Mandatory Change) provide

the relevant CCN to NSS.

6. FORM OF CHANGE AUTHORISATIONS

Unless otherwise agreed by NSS’s Representative in writing, the Contractor may

not proceed with any Change until the relevant Change Authorisation, which shall

have the relevant CCN attached to it, has been issued and executed by NSS in

accordance with the prescribed limits and authorisations set out in NSS's Change

Authorisation and sign off procedure, as notified to the Contractor from time to

time.


APPENDIX

CONTROL NOTE DOCUMENTATION

Contract:NSS Framework Agreement for Licence of Electronic Learning

Environments and Associated Services

Document: Change Control Note (Number [ ])

Last Amended: Day, Month, Year

Version Date Status

[ ] dd/mm/yy Draft/Final, etc.

Comment:


STYLE CCN

Change Control Note No: [ ]

This Change Control Note when completed and agreed between the Common Services Agency (“NSS”) and

learnPro Limited (“Contractor”) shall constitute a Change to the Framework Agreement between NSS and

the Contractor for the Licence of electronic learning environments and associated services (“Agreement”).

Title of Change Requested

CCN No

Date of Recommendation

Description of Change (Requirement)

Reason for Change

Category of Change - see guidance notes 5 and 6

Originator of CCN

NSS Sponsor

Contractor Lead

Acceptance Criteria – including Milestones

If reference is being made in the CCN to provision of Contractor staff the wording which should be used is “competent and appropriately skilled staff”


Implementation Plan annexed to CCN – if no plan Implementation Details

Yes / No (Delete as appropriate)

Service Levels

Legal Detail any licences or third party agreements required to give effect to the change.

List of Attachments This list should include any documents referred to in the CCN

CCN Issue Date This offer is valid for 30 Business Days from the date of this offer.

Expiry Date Date by which CCN must be concluded failing which it will lapse. Once concluded services will be delivered as set out in and for the duration specified in the final CCN

Approvals Required NSS

Signed by ....................................................................................

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

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

Date ....................................................................................

Approvals Required Contractor

Signed by ....................................................................................

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

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

Date ....................................................................................

Words and phrases used in this Change Control Note shall have the meaning given to

them in the Agreement.

The contents of this Change Control Note comprise all the additional terms to be

associated with the Change.

The Agreement, including any previous Change Control Notes, shall remain effective

and unaltered except as amended by this Change Control Note.


The Contractor shall not be entitled to any additional payment in respect of the Change

except for the charges or payment approved by NSS set out in this Change Control

Note.


SCHEDULE: PART 4

DISPUTE RESOLUTION PROCEDURE

1. DEFINITIONS

In Part A of this Schedule Part 4, unless the context otherwise requires, the

following words shall have the following meaning:

“Dispute Notice” has the meaning given to it in paragraph 5 of this Schedule Part 4;

“Dispute” means any dispute, controversy, or claim which arises or occurs between the parties in relation to any thing or matter arising out of or in connection with this Agreement;

“Expert Determination” has the meaning given to it in paragraph 5 of this Part 4 of the Schedule;

“Management” has the meaning given to it in paragraph 3.2 of this Schedule Part 4;

“Management Referral Notice”

has the meaning give to it in paragraph 3.2 of this Schedule Part 4;

“Procedure Initiation Notice”

has the meaning given to it in paragraph 3.2 of this Schedule Part 4.

2. APPLICATION

2.1 Any Dispute shall be resolved in accordance with this Dispute Resolution

Procedure except where it has been excluded from this procedure by an

express term of this Agreement.

2.2 Nothing in this Dispute Resolution Procedure shall prevent the parties

from seeking from any court of competent jurisdiction an interim order

restraining any other party from doing any act or compelling any other

party to do any act.

3. ESCALATION

3.1 Any Dispute which arises between the Contractor and NSS shall be


referred by notice in writing to the other ("Procedure Initiation Notice")

in the first instance to NSS’ NISG Director and the Contractor’s Managing

Director.

3.2 If the individuals identified at paragraph 3.1 above fail to reach agreement

on the Dispute any party may refer the Dispute to the NSS Chief

Executive (or his nominee) and the Contractor’s Chief Executive (or his

nominee) (“Management”) by service of a Management referral notice

(“Management Referral Notice”).

4. MANAGEMENT REFERRAL

4.1 Within ten (10) Business Days of service of the Management Referral

Notice the Management shall meet at a mutually agreed time and place or

failing Agreement within twelve (12) days of the service of the

Management Referral Notice at a time and place specified by the party

serving notice provided such place is at a neutral location within Scotland

and that the meeting is to take place within Business Hours. All parties

may bring a representative to the meeting.

5. EXPERT DETERMINATION

5.1 If the Dispute is not resolved between the parties through the procedures

set out in paragraph 2 to 4 above then any party may by notice (“Dispute

Notice”) refer the Dispute to determination by an expert (“Expert

Determination”) in accordance with this paragraph 5 to an Expert

selected in accordance with paragraphs 6 below and, if appropriate, the

Contractor shall be entitled to conjoin any Sub-Contractor to the Dispute

subject to a process in accordance with this Schedule Part 4.

6. APPOINTMENT

6.1 Where the parties have agreed upon the identity of an Expert who


confirms his readiness and willingness to embark upon the resolution of

the Dispute within seven (7) days of service of the Dispute Notice, then

that person shall be the Expert.

6.2 Where the parties have not so agreed upon an Expert, or where such

person has not so confirmed his willingness to act, then any party may

apply to the President of the Law Society of Scotland for a nomination.

The following procedure shall apply:-

(a) The application shall be in writing, accompanied by a copy of the

Agreement or other evidence of the Agreement of the parties and a

copy of the written notice requiring Dispute resolution.

(b) The President of the Law Society of Scotland shall endeavour to

secure the appointment of an Expert and the referral to him of the

dispute within 7 days from the notice requiring Dispute resolution.

(c) Any person so appointed, and not any person named in the

Agreement whose readiness or willingness is in question, shall be

the Expert.

(d) The President of the Law Society of Scotland shall have the power

by written notice to the parties to replace the Expert with another

nominated person if and when it appears necessary to him to do

so. The President of the Law Society of Scotland shall consider

whether to exercise such power if any party shall represent to him

that the Expert is not acting impartially, or that the Expert is

physically or mentally incapable of conducting the resolution of the

Dispute, or that the Expert is failing with necessary despatch to

proceed with the resolution of the Dispute or make his

determination. In the event of a replacement under this paragraph


6.2(d) of this Schedule Part 4, directions and decisions of the

previous Expert shall remain in effect unless reviewed and

replaced by the new Expert, and all timescales shall be

recalculated from the date of the replacement.

6.3 Where an Expert has already been appointed in relation to another

dispute arising out of the Agreement, the President of the Law Society of

Scotland may appoint either the same or a different person as Expert.

7. AGREEMENT

7.1 An agreement to refer any Dispute to Expert Determination shall be

treated as an offer made by each of the parties to the Law Society of

Scotland and to any Expert to abide by the provisions of this Schedule

Part 4, which offer may be accepted by conduct by appointing an Expert

or embarking upon the resolution of the Dispute respectively.

8. SCOPE OF THE DISPUTE RESOLUTION

8.1 The scope of the resolution of the Dispute shall be the matters identified in

the notice requiring dispute resolution, together with:-

(a) any further matters which all parties agree should be within the

scope of the resolution of the Dispute,

(b) any further matters which the Expert determines must be included

in order that the resolution of the Dispute may be effective and/or

meaningful.

8.2 The Expert may rule upon his own substantive jurisdiction, and as to the

scope of the resolution of the Dispute.

9. ROLE OF THE EXPERT

9.1 Decisions of the Expert shall be binding until the dispute is finally


determined by legal proceedings, or by agreement between the parties.

9.2 Wherever possible, the decision of the Expert shall reflect the legal

entitlements of the parties. Where it appears to the Expert impossible to

reach a concluded view upon the legal entitlements of the parties within

the practical constraints of a rapid economical Dispute resolution process,

his decision shall represent his fair and reasonable view, in light of the

facts and the law insofar as they have been ascertained by the Expert, of

how the disputed matter should lie unless and until resolved by litigation or

by agreement.

9.3 The Expert shall have the like power to open up and review any

certificates or other things issued or made pursuant to the Agreement as

would a court.

9.4 The Expert shall act fairly and impartially, but shall not be obliged or

empowered to act as though he were an arbiter.

10. CONDUCT OF THE DISPUTE

10.1 The Expert shall establish the procedure and timetable for the resolution

of the Dispute.

10.2 Without prejudice to the generality of paragraph 10.1 of this Schedule Part

4, the Expert may if he thinks fit:-

(a) Require the delivery of written statements of case,

(b) Require any party to produce a bundle of key documents (other

than documents that would be privileged from production to a

court), whether helpful or otherwise to that party’s case, and to

draw such inference as may seem proper from any imbalance in

such bundle that may become apparent,


(c) Require the delivery to him and/or the other parties of copies of

any documents other than documents that would be privileged

from production to a court,

(d) Limit the length of any written or oral submission,

(e) Request the attendance before him for questioning of any party or

employee or agent of any party,

(f) Make site visits,

(g) Make use of his own specialist knowledge,

(h) Obtain advice from specialist consultants, provided that at least

one of the parties so requests or consents,

(i) Review and revise any of his own previous directions,

(j) Conduct the resolution of the Dispute inquisitorially, and take the

initiative in ascertaining the facts and the law,

10.3 The Expert shall exercise such powers with a view of fairness and

impartiality, giving each party a reasonable opportunity, in light of the

timetable, of putting his case and dealing with that of his opponents.

10.4 The Expert may not:

(a) Require any advance payment of or security for his fees,

(b) Receive any written submissions from one party that are not also

made available to the others,

(c) Refuse any party the right at any hearing or meeting to be

represented by a representative of that party’s choosing who is

present,

(d) Act or continue to act in the face of a conflict of interest.


10.5 The Expert shall reach a decision within twenty eight (28) days of referral

or such longer period as is agreed by the parties after the dispute has

been referred to him. The Expert shall be entitled to extend the said

period of 28 days by up to 14 days with the consent of the parties.

10.6 The parties shall be jointly responsible for the Expert’s fees and expenses

including those of any specialist consultant appointed under paragraph

10.2(h). Subject always to paragraph 10.7, in his decision, the Expert

shall have the discretion to make directions with regard to those fees and

expenses. If no such directions are made, the parties shall bear such fees

and expenses in equal shares, and if any party has paid more than such

equal share, that party shall be entitled to contribution from other parties

accordingly.

10.7 Where a Dispute relating to any adjustment to the Charges is referred to

the Expert the parties shall bear their own and shall each be responsible

for a one half share of the Expert’s fees and expenses and the Expert

shall have no discretion to make any alternative award of expenses.

11. DECISIONS

11.1 The Expert may in any decision direct the payment of such compound or

simple interest as may be commercially reasonable.

11.2 All decisions shall be in writing.

12. IMMUNITY, CONFIDENTIALITY AND NON-COMPELLABILITY

12.1 Neither the Law Society of Scotland, nor its President, nor deputy, nor the

Expert nor any employee or agent of any of them shall be liable for

anything done or not done in the discharge or purported discharge of his

functions as Expert, whether in negligence or otherwise, unless the act or

omission is in bad faith.


12.2 The resolution of the Dispute and all matters arising in the course thereof

are and will be kept confidential by the parties except insofar as necessary

to implement or enforce any decision of the Expert or as may be required

for the purpose of any subsequent proceedings.

12.3 In the event that any party seeks to challenge or review any decision of

the Expert in any subsequent litigation, the Expert shall not be joined as a

party to, nor shall be cited or otherwise required to give evidence or

provide his notes in such litigation.

13. COURT APPLICATION

13.1 No party shall, save in case of bad faith on the part of the Expert, make

any application to the courts whatsoever in relation to the conduct of the

resolution of the Dispute or the decision of the Expert until such time as

the Expert has made his decision, or refused to make a decision, and until

the party making the application has complied with any such decision.

13.2 The Expert shall only reach his decision after holding an oral hearing, and

with or without having endeavoured to facilitate an agreement between

the parties.

13.3 Upon becoming aware that the dispute is the same or arises out of

substantially the same facts as a Dispute which has previously been

referred to the Dispute Resolution Procedure under the Agreement, the

Expert shall immediately resign giving the reasons for such resignation

and notifying both parties in writing accordingly.

14. IMPLEMENTATION OF DECISIONS

14.1 Every decision of the Expert shall be implemented without delay. The

parties shall be entitled to such reliefs and remedies as are set out in the

decision, and shall be entitled to summary enforcement thereof,


regardless of whether such decision is or is to be the subject of any

challenge or review. No party shall be entitled to raise any right of set-off

counterclaim or abatement in connection with any enforcement

proceedings. The parties agree and bind themselves to each other to

docquet every decision with their consent and to registration of the

Expert's decision in the Books of Council and Session for execution.

14.2 All information, data or documentation disclosed or delivered by a party to

the Expert in consequence of or in connection with his appointment

hereunder shall be treated as confidential by the Expert and each party to

the resolution of the Dispute (save as otherwise agreed between the

parties) and shall be returned to the owner on completion of the resolution

of the Dispute proceedings. Such information, data or documentation may

not be adduced by the other party in any subsequent proceedings relating

to the same or a different Dispute.

14.3 Neither party shall make any application whatsoever to a competent court

in relation to the conduct of the resolution of the Dispute or the decision of

the Expert after a period of ninety (90) days has passed from the date of

the decision of the Expert.

14.4 Neither party shall make any application whatsoever to a competent court

in relation to the conduct of the resolution of the Dispute or the decision of

the Expert unless it shall involve the pursuit of a claim or a counterclaim of

a monetary value in excess of £100,000 (Index Linked from the Effective

Date) or in the case of claims or counterclaims of a lesser monetary value

arising out of the same facts and circumstances an aggregate monetary

value in excess of £100,000 (Index Linked from the Effective Date).

14.5 In that event that a competent court varies or overrules the decision of the

Expert, then the judgment of the competent court shall be entitled to take


into account the effect on the party making the application of having to

comply with that decision of the Expert.


SCHEDULE: PART 5

INSURANCESDEFINITIONS

In this Schedule, unless the context otherwise requires:-

“EEA” means European Economic Area;

“Insurance” means such insurance as is reasonable in the context of the scope and scale of delivery of the Services which shall be at least to the level shown in the insurance schedule forming Appendix 1 to this Schedule Part 5 and which shall be maintained by the Contractor;

“Insurer” means the persons providing the Insurance;

“Prudent Contractor” means in respect of the Insurances a prudent contractor performing services of a type and size to those undertaken by the Contractor under this Agreement.

INSURANCE UNDERTAKINGS

1. The Contractor shall maintain the Insurances in full force and effect at all times

from the Effective Date until six (6) years after termination or expiry of the

Agreement.

2. The Insurances shall be maintained from time to time on terms no less favourable

than those generally available to a Prudent Contractor in respect of risks insured

in the international insurance market from time to time.

3. The Insurances shall be maintained with EEA, Isle of Man or US authorised

insurers who are, in the reasonable opinion of NSS, at all times of good financial

standing and reputation.

4. The Contractor shall procure that nothing is done which would entitle any Insurer

to cancel, rescind or suspend any insurance or cover, or to treat any Insurance,

cover or claim as avoided in whole or part, and shall forthwith notify NSS on


becoming aware of any fact, circumstance or matter which has caused, or is

reasonably likely to cause, any Insurer to give notice to cancel, rescind, suspend

or avoid any Insurance, or any cover or claim under any Insurance in whole or in

part.

5. The Contractor shall procure that within ten (10) Business Days after the Effective

Date, and within fifteen (15) Business Days after the renewal of every Insurance,

a letter is provided from the insurance brokers who arranged the Insurances

addressed to, and in form satisfactory to, NSS confirming that, to the best of its

knowledge and belief, after making appropriate enquiries, the Insurances are in

full force and effect, that they conform to the requirements of this Agreement, and

that all premiums due in respect of them have been paid.

6. The Contractor shall promptly notify NSS in writing in the event of becoming

aware that any risk which the Contractor is required to insure under this

Agreement is no longer insured (or is liable to cease to be insured) or of any

intention on the part of any Insurer to cancel, rescind, suspend or avoid any

Insurance in whole or in part.

7. NSS shall be entitled to receive such evidence of the existence and terms of all

Insurances, and evidence of timely payment of premiums (confirmation in the

form of a broker’s letter), as it may from time to time request.


APPENDIX 1









SCHEDULE: PART 6

CALL-OFF CONTRACT

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