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).

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.

2.1 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.

3.1 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.

 

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.

 

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.