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INR RELAY Support               Service Level Agreement

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Date of this Agreement                                           01.07.2002 

DEFINITIONS

 

LICENSOR                           Basildon & Thurrock NHS Trust
                                                                Nether Mayne, Basildon, Essex SS16 5NL

LICENSEE                           ................................................................

 

INR RELAY Describes the nature of the service as provided by the Licensor to the Licensee; an automated service for the transmission of INR results, dosing advice and clinic appointments to Licensee’s patients. (A full description is found at www.pacehealthsystems.com).

NORMAL WORKING HOURS 9.00am to 5.00pm between and including Mondays and Fridays, excluding statutory and public holidays

SET UP FEE Fee payable on the signing of this agreement, in consideration for the provision of hardware and software at the Licensee site as detailed in Appendix 1.

SERVICE AND SUPPORT FEES Fees paid following quarterly invoices (1st April, 1St July, 1st October, 1st January) as detailed in Appendix 1.

TELEPHONE DIAGNOSIS AND ASSISTANCE Mechanism of establishing a telephone connection between the licensor’s computer and licensee’s computer to enable the licensor to identify and correct faults by conversation and/or remote control.

CONFIDENTIAL INFORMATION The information concerning INR RELAY and other products or business of the Licensor that is disclosed to the Licensee, whether orally, in writing or by any other means, whether marked as confidential or not except for information in the public domain.

 

1. 1   AGREEMENT

1.1 This Agreement runs indefinitely from the date of this Agreement and will continue until termination as defined in paragraph 13.

1.2 The licensor will provide to the licensee the INR RELAY hardware, software, support and other services as listed in appendix 1 of this agreement.

1.3 Hardware replacement and maintenance at the licensee’s location is the sole responsibility of the licensee.

2.     LICENSE

2.1 Subject to the terms and conditions of this Agreement, The Licensor hereby give the Licensee a non-exclusive license to use the hardware and software and systems the subject of this Agreement for the duration of this Agreement.

3.     FEES AND PAYMENT

3.1 On the signing of this agreement, the Licensee will pay to the Licensor the Set Up Fee, and subsequently will pay the fees set out in Appendix 1 hereto (hereinafter called "the Service and Support Fees ") for the service provided hereunder. Such Service and Support Fees are expressed exclusive of Value Added Tax (VAT) which shall be payable by The Licensee at the rate ruling on the date of invoicing.

3.2 The Service and Support Fees shall be payable within thirty (30) days following the quarterly submission of an invoice from the Licensor to the licensee at the rate prevailing at the time of the invoicing.

3.3 The Licensor shall be entitled to vary the Service and Support Fee by giving not less than three (3) months' written notice to The Licensee, and the variation in the Service and Support Fee shall be effective upon the expiry of such notice.

3.4 The Licensee shall pay any and all charges other than the Service and Support Fee which may arise from time to time on or within thirty (30) days of the due date, in accordance with the terms and conditions of The Licensor. Such charges will not be incurred without an estimate of the charge being given to The Licensee in advance.

3.5 If The Licensee shall fail to pay any Service and Support Fee, or other charge, arising hereunder on within 30 days of the due date The Licensor will be entitled, without prejudice, to suspend the provision of any service and demand the return of all hardware and software until the receipt of the whole support and service fee. Both parties will act in accordance with NHS SYSCON procedures for dispute resolution (SYSCON Version 5 – March 2001, NHS Purchasing and Supply Agency 2001, 1717461v5).

3.6 If the Licensee shall fail to pay any Service and Support Fee, or other charge, arising hereunder within 30 days of the due date The Licensor will be entitled to charge simple interest at an annual rate of 10% calculated from the due date.

 

4. ACCESS TO THE SYSTEM

4.1 Support will normally be provided by modem (using appropriate secured access) or NHSnet access. It is the responsibility of The Licensee to ensure that all equipment used complies with local and national guidelines for the use and security of IT equipment.

4.2 The Licensee shall provide The Licensor with full and unrestricted access to the equipment and, at The Licensee's expense, make available suitable personnel, working space, the facility of and operating time on any applicable system as may reasonably be required by The Licensor to enable the proper performance of the Service.

4.3 The Licensee shall accompany The Licensor personnel whilst present on The Licensee's premises and take all reasonable precautions to ensure the health and safety of such personnel whilst on the premises of The Licensee. Similarly The Licensee shall inform such personnel of any safety and other relevant rules and regulations for the time being applicable to and/or on such premises.

4.4 Similarly tThe Licensor personnel will exercise a responsible approach to the protection and non-disclosure of site and patient specific data.

 

5. THE LICENSOR’s PERFORMANCE

5.1 The Licensor or it’s representatives shall use its reasonable endevours to perform hereunder with reasonable dispatch and in accordance with any dates given or agreed. The Licensor shall not be liable for delay in performing or failure to perform where performance is prevented or interfered with by reason of the occurrence of any event which could reasonably be expected to be beyond its control.

5.2 The Licensor reserves the right to sub-contract services covered by this Agreement to any organisation chosen, e.g. to have proprietary software maintained by the manufacturer. Such action will only be taken with The Licensee’s prior agreement – such agreement not to be unreasonably refused or delayed.

5.3 Telephone Diagnosis and Assistance during at normal working hours.: The Licensor will undertake to:

provide immediate advice to expedite return of the system to an operational state

dispatch any software needed to return the system to an operational state

send, where necessary, a member of the support team, to The Licensee's Laboratory to effect correction of the fault

provide immediate advice to expedite return of the system to an operational state.

dispatch any software needed to return the system to an operational state.

send, where necessary, a member of the support team, to The Licensee's Laboratory to effect correction of the fault.

5.4 Rectification of software defects. Software defects will be referred to the Licensor promptly and The Licensee will be appraised of progress at regular intervals.

5.5 By express agreement, The Licensor reserves the right to take advantage of site visits requested by The Licensee to carry out any preventive maintenance which it may be felt necessary to carry out, located at the same site during the same visit.

5.6 There is no requirement for preventative hardware maintenance. Software housekeeping routines are automated (with the exception of archiving once disk capacity is saturated) such that preventative software maintenance is not required.

5.7 Remote Maintenance. Where faults occur, The Licensor Telephone Diagnosis and Assistance Telephone Support Diagnostics may request the Licensee to connect the system using agreed method of remote access. A remote check of the equipment and software may be carried out for the purpose of:

the investigation and correction of problems

checking and correction of the data base

the remote editing of the necessary files.

5.8 The cost of the remote maintenance telephone communication will in any case be the responsibility of The Licensee.

5.9 The Licensor will provide The Licensee with corrections for reproducible anomalies encountered during the application of the software or will specify the recommended solution. The Licensor will respond to The Licensee's requests and will provide the necessary information where available.

5.10 Where The Licensor distributes corrected or modified versions of the software, the software technical support will only be provided for the latest version distributed.

5.11 Software Updates. The revision of the software within a Version is included free of charge under this Agreement, including the cost of installation and implementation by the The Licensor personnel. New Versions of software may be supplied at The Licensor's discretion. Hardware upgrades are the responsibility of The Licensee. There is no obligation for The Licensee to take new software versions within a specified time period.

5.12 Audit data messages for the information of the The Licensee will be provided, in order that The Licensee can audit the system

5.13 The Licensor will not guarantee that the software will satisfy operating conditions, other than those specified in version specific On-Line Help and manuals, for which these products are intended.

5.14 The licensor will not be responsible for the maintenance of any hardware including cabling or communications.

 

6. THE LICENSEE’s PERFORMANCE

6.1 The Licensee shall :

6.1.1 Appoint named persons responsible for managing the system provided by The Licensor who will be the sole contacts recognised by The Licensor. Any operation carried out by The Licensor at the site within the framework of this Agreement will require the presence at the site of The Licensee's authorised representative or his delegated representative. Those persons are named in Appendix 1.

6.1.2 Provide The Licensor with all documents, programs and devices which may be delivered with the system and which are intended to facilitate testing of the system.

6.1.3 Take all safety measures (such as the protection of files, disconnection of devices outside the system delivered by The Licensor etc) to ensure that The Licensor' officials have access to the equipment and can use them without restriction within the framework of their assignment.

6.2 The Licensee will only allow the system to be used in accordance with written technical manuals and on-line help, and will make all reasonable attempts to prevent unauthorised access and use. The Licensor will not be liable for the provision of support in respect of any modifications or adjustments made by any person other than The Licensor personnel, The Licensor authorised contractors or Licensee staff making use of the system as defined in on-line help or changes previously agreed or authorised by The Licensor.

6.3 The Licensee will not load any other software, unless authorised in writing by The Licensor, onto the hardware provided.

6.4 The Licensee will be obliged:

to use the software in accordance with the instructions given by The Licensor

to comply with the procedures for operation as specified by The Licensor

to inform The Licensor of the exact circumstances and origin of each fault specified

to observe reasonable discretion regarding keeping confidential all information provided by The Licensor, e.g. documentation, procedures, "know-how" etc, in respect of third parties not required to have access to said information – unless given prior written agreement by the licensor.

6.5 The Licensee shall repay to The Licensor the cost (including all reasonable labour costs) of replacing, repairing or rebuilding any part of any equipment which fails or is damaged or destroyed for any reason other than normal wear and tear or manufacturing defect, excluding any replacement, repairs or rebuilds necessary because of The Licensor’s actions or those of it's sub-contractors.

 

7. EXCLUSIONS

7.1 The Licensor shall not be liable to provide the Support to The Licensee for any equipment at any location other than as described in Appendix 1 hereto. In addition, The Licensee shall notify The Licensor of the transfer of hardware or software to locations other than specified in Appendix 1. The Licensor will not unreasonably withhold support following re-location of the specified equipment. The Licensee shall be responsible for any such transfer. The assistance of The Licensor personnel will be charged at the applicable rate. (Appendix 1).

7.2 The Licensor shall have no liability of whatsoever nature for any damage arising from the failure of The Licensee either to inform The Licensor of any malfunction or to take any reasonable action recommended by The Licensor.

7.3 The Licensor shall have no obligation hereunder to provide or replace any consumable items save at The Licensee's specific request and then only at The Licensee's expense.

7.4 The Licensor shall have no liability whatsoever for the repair of faults or damage whose cause is not attributable to The Licensor, or originates in a system not covered by the Agreement.

 

8. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS

8.1 The Licensee acknowledges that any and all copyrights and other intellectual property rights used or embodied in or in connection with the Software and documentation/manuals in which The Licensor and System Developer has an interest shall under this Agreement be and shall remain the sole property of The Licensor and the System Developer. The Licensee shall not at any time after the completion, expiry or termination of the Agreement in any way question or dispute the ownership by The Licensor and System Developer of any such rights.

8.2 In the event that The Licensor or Software Developer develops new inventions, designs or processes as a result of this Agreement, The Licensee acknowledges the same shall be the property of The Licensor and System Developer unless otherwise agreed in writing by The Licensor and System Developer.

8.3 The Licensor and the System Developer agrees to exercise a responsible approach to the protection and non-disclosure of site and patient specific data.

8.4 The Licensee and it’s employees agree to exercise a responsible approach with respect to information of a potentially commercially sensitive nature pertaining to the The Licensor and System Developer.

 

9. LIMITED WARRANTY

9.1 The Licensor and System Developer warrants that the software will perform substantially in accordance with the accompanying documentation. To the maximum extent permitted by the applicable law, The Licensor and System Developer disclaims all other warranties, either expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to the software and accompanying documentation.

 

10. NO LIABILITY FOR CONSEQUENTIAL DAMAGES

10.1 To the maximum extent permitted by applicable law, The Licensor and Software Developer shall not be liable for any other damages whatsoever (including, without limitation, damages for clinical errors, loss of clinical service, breach of confidentiality or any other pecuniary loss) arising out of the use or inability to use the product, even if The Licensor or Software Developer has been advised of the possibility of such damages. It is the sole responsibility of The Licensee to ensure that the system is producing accurate and timely clinical data. In any case, The Licensor’s and System Developer’s entire liability under the provision of this agreement shall be limited to the Set Up Fee paid for the system as specified in Appendix 1.

11. CONFIDENTIALITY

11.1 In consideration of being given use of the Confidential Information as set out below:

11.1.1 The Licensee shall, and shall procure that its employees and agents shall, keep the Confidential Information strictly confidential and not directly or indirectly reveal, report, copy, part with possession of, license, publish, transfer, communicate or disclose the Confidential Information in any manner whatsoever without the Licensor’s prior written consent.

11.1.2 The Licensee shall ensure that the Confidential Information is stored securely and that access to it is restricted to those of its employees who need such access for the purposes of using the Confidential Information as permitted under this Agreement. The Licensee shall ensure that it informs its employees of the especially confidential nature of the Confidential Information and shall ensure that only employees are given access to the Confidential Information. The Licensee shall not give agents, subcontractors, third parties nor other non-employees access to the Confidential Information.

11.2 The Licensee shall, and shall procure that its employees and agents shall, return to the Disclosing Party all the Confidential Information in the material form on demand and thereupon cease to use all the Confidential Information.

12. PERSONAL DATA 

12.1 Both parties warrant that they will duly observe all their obligations under the Data Protection Act 1998 and any subordinate legislation relating thereto which arise in connection with the Agreement.

13. TERMINATION

13.1 The Licensor shall be entitled at any time and without prejudice to any of its other rights either under this Agreement or at law to terminate this Agreement upon giving one months notice in writing to The Licensee upon the happening of any of the following events:

13.1.1 The Licensee fails to observe or perform any of the terms and conditions hereof on its part to be observed or performed, including without prejudice to the generality of the foregoing any failure by The Licensee to pay any Service and Support Fee or other sum payable hereunder within sixty (60) days of the due date thereof;

13.1.2 The bankruptcy or liquidation of The Licensee or the appointment of a receiver over the whole or part of its undertaking and/or assets or the inability of The Licensee to pay its debts within the meaning of Section 223 of the Companies Act 1948;

13.1.3 The Licensee makes or seeks to make any composition or arrangement with its creditors or if any distress or execution is levied upon any of its assets.

13.2  Either party may terminate the Agreement by giving the other party three months written notice of termination. In such an event, The Licensee shall be liable for loss of installation and Set Up Fee, return of all supplied hardware and all copies of software and documentation.

14. NOTICES

14.1  Any notice or invoice required or authorised to be given hereunder may be served by pre-paid first class post, as the case may be, addressed to The Licensor at the address first above written and to The Licensee at the address first above written or such other address as either party shall notify to the other from time to time in writing. Such notices or invoices shall be deemed to have been served or received four days after and excluding the day of posting and proof that notices or invoices were properly addressed and posted shall constitute conclusive evidence of service or receipt.

15. LAW

15.1 This Agreement shall be constituted in accordance with and governed in all aspects by English law.

16.   WAIVERS

16.1 No time or indulgence granted by The Licensor or the System Developer to The Licensee shall operate to waive any of its rights or remedies hereunder.

17.   PUBLICITY

17.1 Except with the written consent of the other party, which shall not be unreasonably withheld or delayed, neither party shall make any press announcements or publicise the Agreement or service in any way.

18.    ENTIRE AGREEMENT

18.1 This Agreement, together with Appendices attached represents the entire agreement between the parties hereto on the subject matter hereof and supercedes all previous agreements or arrangements. No modification or alteration hereto shall have effect unless the same is agreed in writing between the parties hereto.

19.    FORCE MAJEURE

19.1 No party shall be in breach of this Agreement if there is any or total failure of performance of it’s duties and obligations occasioned by any act of God, fire, act of government, war, civil commotion, embargo, strike or prevention or hindrance of obtaining raw materials, by software viruses, or failure of the telephone network, internet, or postal services which is beyond the control of any of the parties.

20.   HEADINGS

20.1 The headings used herein are for ease of reference only and shall not affect the construction or interpretation hereof.

Appendix 1 

Location of licensee’s service:

DETAILS OF HARDWARE AND SOFTWARE CONFIGURATION PROVIDED AT LICENSEE SITE:

DESKTOP PERSONAL COMPUTER

MODEM

PCANYWHERE 10.0 SINGLE USER LICENSE

WORDPERFECT 8.0 SINGLE USER LICENSE

INR RELAY CLIENT SOFTWARE

 

 

SET-UP FEE £3500.00

 

Service and Support Fees:

SERVICE FEES

Charged in accordance with the schedule below (excluding VAT):

Each telephone communication with Licensee’s patient:   £0.24

Each Fax communication with Licensee’s patient £0.24

Each Printed letter created £0.00

Each printed letter created and posted to Licensee’s patient address £0.47

Each email sent to Licensee’s patient’s email address £0.05

 

SUPPORT FEES:

Normal Working Hours and within three calendar months of this agreement: £0.00 per hour or part Normal Working Hours and after three months of the date of this agreement:                                                £50.00 per hour or part

           Saturdays and Sundays                                             £150.00 per hour or part

           Monday to Friday from 17.00-22.00                            £100-00 per hour or part

          Any Day 22.00 - 09.00 exceptional circumstances      £200-.00 per hour or part

Value Added Tax (VAT) when applicable, shall be payable by The Licensee at the rate ruling at the date of invoice. (VAT is not applicable to NHS clients)


Named Contacts

Licensor Contacts Pathology IT Manager: Robert Duck

Licensee Contacts: Consultant:

Senior Chief BMS:

Chief BMS: