Terms & Conditions

CONTRACT FOR THE PROVISION OF SERVICES

based on the NHS terms and conditions for the provision of services (contract version) developed in partnership with Mills & Reeve

This Contract is made on the date set out above subject to the terms set out in the schedules listed below (“Schedules”). The Authority and the Supplier undertake to comply with the provisions of the Schedules in the performance of this Contract.

The Supplier shall supply to the Authority, and the Authority shall receive and pay for, the Services on the terms of this Contract.

The Definitions in Schedule 4 apply to the use of all capitalised terms in this Contract.

Schedules

Schedule 1 Key Provisions

• Application of the Key Provisions

• The Key Provisions at Clauses 2 to 13 of this Schedule 1 shall apply to this

2 Term

• This Contract shall commence on the Commencement Date and the Term of this Contract shall expire 1 year from the Actual Services Commencement The Term may be extended in accordance with Clause 15.2 of Schedule 2 provided that the duration of this Contract shall be no longer than 5 years in total.

3 Contract Managers

• The Contract Manager of the Supplier at the commencement of this Contract is:

Julie Bjune, CEO

• Names and addresses for notices

• Notices served under this Contract are to be delivered to:

• for the Authority:

The Authority’s registered address

• for the Supplier:

CEO, Mediaburst Limited, Mercury House, 117 Waterloo Road, London SE1 8UL, UK

• Management levels for escalation and dispute resolution

• The management levels at which a Dispute may be dealt with as referred to as part of the Dispute Resolution Procedure are as follows:

6 Order of precedence

• Subject always to Clause 10 of Schedule 4, should there be a conflict between any other parts of this Contract the order of priority for construction purposes shall be:

• the provisions on the front page of this Contract;

• Schedule 1: Key Provisions;

• Schedule 6: Commercial Schedule;

• Schedule 5: Specification;

• Schedule 8: Subscription Services;

• Schedule 9: Exit Plan;

• Schedule 2: General Terms and Conditions;

• Schedule 7: Further Authority obligations;

• Schedule 10: Data Protection Protocol;

• Schedule 3: Information Governance Provisions;

• Schedule 4: Definitions and Interpretations;

• the order in which all subsequent schedules, if any, appear; and

• any other documentation forming part of the Contract in the date order in which such documentation was created with the more recent documentation taking precedence over older documentation to the extent only of any

7 Application of TUPE at the commencement of the provision of Services

• The Parties agree that at the commencement of the provision of Services by the Supplier, TUPE and the Cabinet Office Statement shall not apply so as to transfer the employment of any employees of the Authority or a Third Party to the

8 Implementation phase

• Prior to commencement of delivery of the Services, there is an implementation phase and an Implementation Plan will be provided to the Customer therefore all references in Schedule 2 to the Implementation Plan shall

9 Authority obligations

• The Authority’s Obligations are set out in clause 7 of Schedule 2 and Schedule 7.

10 Assignment of Intellectual Property Rights in outputs

• The Supplier confirms and agrees that all Intellectual Property Rights in and to the output developed by the Authority using the Services shall be owned by the The Supplier hereby assigns with full title guarantee by way of present and future assignment all Intellectual Property Rights in and to such outputs. The Supplier shall ensure that all Staff assign any Intellectual Property Rights they may have in and to such outputs to the Supplier to give effect to Clause 10 of this Schedule 1 and that such Staff absolutely and irrevocably waive their moral rights in relation to such outputs. Clause 10 of this Schedule 1 shall continue notwithstanding the expiry or earlier termination of this Contract.

11 Supplier as Data Processor

• The Parties acknowledge that the Authority is the Controller and the Supplier is the Processor in respect of Personal Data Processed under this Contract and that paragraph 2 of Schedule 3 and the provisions of the Data Protection Protocol must be complied with by the Parties as a term of this Contract.

12 Purchase Orders

• The Authority shall issue a Purchase Order to the Supplier in respect of any Services to be supplied to the Authority under this Contract. The Supplier shall comply with the terms of such Purchase Order as a term of this Contract. For the avoidance of doubt, any actions or work undertaken by the Supplier under this Contract prior to the receipt of a Purchase Order covering the relevant Services shall be undertaken at the Supplier’s risk and expense and the Supplier shall only be entitled to invoice for Services covered by a valid Purchase

Schedule 2

General Terms and Conditions

• Provision of Services

• Subject to the Authority purchasing the Message Bundles in accordance with Clause 4, the restrictions set out in Clause 6 and the other terms and conditions of this Contract, the Supplier hereby grants to the Authority a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Term solely for the Authority’s internal business operations.

• The Authority appoints the Supplier and the Supplier agrees to provide the Services:

• promptly and in any event within any time limits as may be set out in this Contract;

• in accordance with all other provisions of this Contract;

• with reasonable skill and care and in accordance with any quality assurance standards as set out in the Key Provisions and/or the Specification;

• in accordance with the Law and with Guidance;

• in accordance with Good Industry Practice;

• in accordance with the Policies; and

• in a professional and courteous

In complying with its obligations under this Contract, the Supplier shall, and shall procure that all Staff shall, act in accordance with the NHS values as set out in the NHS Constitution from time to time.

• The Supplier shall comply with the Implementation Requirements (if any) in accordance with any timescales as may be set out in the Specification. Without limitation to the foregoing provisions of this Clause 3 of this Schedule 2, the Supplier shall, if specified in the Key Provisions, implement the Services fully in accordance with the Implementation Plan. If the Implementation Plan is an outline plan, the Supplier shall, as part of implementation, develop the outline plan into a full plan and agree this with the Authority. Once this is agreed, the Supplier shall comply with the full Implementation Plan.

• The Supplier shall commence delivery of the Services on the Services Commencement

• The Supplier shall comply fully with its obligations set out in the

• The Supplier shall ensure that all relevant consents, authorisations, licences and accreditations required to provide the Services are in place at the Actual Services Commencement Date and are maintained throughout the

• If the Services, or any part of them, are regulated by any regulatory body, the Supplier shall ensure that at the Actual Services Commencement Date it has in place all relevant registrations and shall maintain such registrations during the Term. The Supplier shall notify the Authority forthwith in writing of any changes to such registration or any other matter relating to its registration that would affect the delivery or the quality of

• The Supplier shall notify the Authority forthwith in writing:

• of any pending inspection of the Services, or any part of them, by a regulatory body immediately upon the Supplier becoming aware of such inspection; and

• of any failure of the Services, or any part of them, to meet the quality standards required by a regulatory body, as soon as possible after the Supplier becomes aware of any such failure. This shall include without limitation any informal feedback received during or following an inspection raising concerns of any nature regarding the provision of the

• Following any inspection of the Services, or any part of them, by a regulatory body, the Supplier shall provide the Authority with a copy of any report or other communication published or provided by the relevant regulatory body in relation to the provision of the Services.

• Upon receipt of notice pursuant to Clause 8 of this Schedule 2 or any report or communication pursuant to Clause 1.9 of this Schedule 2, the Authority shall be entitled to request further information from the Supplier and/or a meeting with the Supplier, and the Supplier shall cooperate fully with any such request.

• Where applicable, the Supplier shall implement and comply with the Policies on reporting and responding to all incidents and accidents, including serious incidents requiring investigation, shall complete the Authority’s incident and accident forms in accordance with the Policies and provide reasonable support and information as requested by the Authority to help the Authority deal with any incident or accident relevant to the Services. The Supplier shall ensure that its Contract Manager informs the Authority’s Contract Manager in writing forthwith upon (a) becoming aware that any serious incidents requiring investigation and/or notifiable accidents have occurred; or

(b) the Supplier’s Contract Manager having reasonable cause to believe any serious incidents and/or notifiable accidents requiring investigation have occurred. The Supplier shall ensure that its Contract Manager informs the Authority’s Contract Manager in writing within forty eight (48) hours of all other incidents and/or accidents that have or may have an impact on the Services.

• Notwithstanding the generality of Clause 23 of this Schedule 2, the Supplier shall be relieved from its obligations under this Contract to the extent that it is prevented from complying with any such obligations as a result of events, circumstances or causes beyond its reasonable control including, without limitation, due to any acts, omissions or defaults of the Authority, any Contracting Authority or any of their agents, sub- contractors, employees, customers or patients. To qualify for such relief, the Supplier must notify the Authority promptly (and in any event within ten (10) Business Days) in writing of the occurrence of such act, omission, or default of the Authority together with the potential impact on the Supplier’s obligations

2 Premises, locations and access

• The Services shall be provided at such Authority premises and at such locations within those premises, as may be set out in the Specification or as otherwise agreed by the Parties in writing (“Premises and Locations”).

• Subject to the Supplier and its Staff complying with all relevant Policies applicable to such Premises and Locations, the Authority shall grant reasonable access to the

Supplier and its Staff to such Premises and Locations to enable the Supplier to provide the Services.

• Subject to Clause 4 of this Schedule 2, any access granted to the Supplier and its Staff under Clause 2.2 of this Schedule 2 shall be non-exclusive and revocable. Such access shall not be deemed to create any greater rights or interest than so granted (to include, without limitation, any relationship of landlord and tenant) in the Premises and Locations. The Supplier warrants that it shall carry out all such reasonable further acts to give effect to this Clause 2.3 of this Schedule 2.

• Where, in order to provide the Services, the Supplier requires any greater rights to use or occupy any specific Premises and Locations over and above such reasonable access rights granted in accordance with Clause 2 and Clause 2.3 of this Schedule 2, such further rights shall be limited to any rights granted to the Supplier by the Authority in accordance with any licence and/or lease entered into by the Supplier.

• Where it is provided for by a specific mechanism set out in the Specification, the Authority may increase, reduce or otherwise vary the Premises and Locations in accordance with such mechanism subject to the provisions of any licence or lease entered into by the Parties as referred to at Clause 4 of this Schedule 2. Where there is no such specific mechanism set out in the Specification, any variations to the Premises and Locations where the Services are to be provided shall be agreed by the Parties in accordance with Clause 21 of this Schedule 2. If agreement cannot be reached the matter shall be referred to, and resolved in accordance with, the Dispute Resolution Procedure.

3 Cooperation with third parties

• The Supplier shall, as reasonably required by the Authority, cooperate with any other service providers to the Authority and/or any other third parties as may be relevant in the provision of the

4 Use of Authority equipment

• Unless otherwise set out in the Specification or otherwise agreed by the Parties in writing, any equipment or other items provided by the Authority for use by the Supplier:

• shall be provided at the Authority’s sole discretion;

• shall be inspected by the Supplier in order that the Supplier can confirm to its reasonable satisfaction that such equipment and/or item is fit for its intended use and shall not be used by the Supplier until it has satisfied itself of this;

• must be returned to the Authority within any agreed timescales for such return or otherwise upon the request of the Authority; and

• shall be used by the Supplier at the Supplier’s risk and the Supplier shall upon written request by the Authority reimburse the Authority for any loss or damage relating to such equipment or other items caused by the Supplier (fair wear and tear exempted).

5 Staff and Lifescience Industry Accredited Credentialing Register

• Subject to the requirements of this Contract and any Law, the Supplier shall be entirely responsible for the employment and conditions of service of Staff. The Supplier shall ensure that such conditions of employment are consistent with its obligations under this Contract.

• The Supplier will employ sufficient Staff to ensure that it complies with its obligations under this Contract. This will include, but not be limited to, the Supplier providing a sufficient reserve of trained and competent Staff to provide the Services during Staff holidays or

• The Supplier shall use reasonable endeavours to ensure the continuity of all Staff in the provision of the Services and, where any member of Staff is designated as key to the provision of the Services as set out in the Specification or as otherwise agreed between the Parties in writing, any redeployment and/or replacement of such member of Staff by the Supplier shall be subject to the prior written approval of the Authority, such approval not to be unreasonably withheld or

• The Supplier shall ensure that all Staff are aware of, and at all times comply with, the Policies.

• The Supplier shall:

• employ only those Staff who are careful, skilled and experienced in the duties required of them;

• ensure that every member of Staff is properly and sufficiently trained and instructed;

• ensure all Staff have the qualifications to carry out their duties;

• maintain throughout the Term all appropriate licences and registrations with any relevant bodies (at the Supplier’s expense) in respect of the Staff; and

• ensure all Staff comply with such registration, continuing professional development and training requirements or recommendations appropriate to their role including those from time to time issued by the Department of Health or any relevant regulatory body or any industry body in relation to such Staff.

• Unless otherwise confirmed by the Authority in writing, the Supplier shall ensure full compliance (to include with any implementation timelines) with any Guidance issued by the Department of Health and Social Care and/or any requirements and/or Policies issued by the Authority (to include as may be set out as part of any procurement documents leading to the award of this Contract) in relation to the adoption of, and compliance with, any scheme or schemes to verify the credentials of Supplier representatives that visit NHS premises (to include use of the Lifescience Industry Accredited Credentialing Register). Once compliance with any notified implementation timelines has been achieved by the Supplier, the Supplier shall, during the Term, maintain the required level of compliance in accordance with any such Guidance, requirements and

Explanatory Note: The additional provisions in the NHS standard contract relating to safeguarding and safer recruitment are not applicable to the Florence product, as the

persons involved in the provision of the services will not be working with vulnerable groups.

6 Business continuity

• The Supplier shall use reasonable endeavours to ensure its Business Continuity Plan operates effectively alongside the Authority’s business continuity plan where relevant to the provision of the Services. The Supplier shall also ensure that its Business Continuity Plan complies on an ongoing basis with any specific business continuity requirements, as may be set out in the

• Throughout the Term, the Supplier will ensure its Business Continuity Plan provides for continuity during a Business Continuity Event. The Supplier confirms and agrees such Business Continuity Plan details and will continue to detail robust arrangements that are reasonable and proportionate to:

• the criticality of this Contract to the Authority; and

• the size and scope of the Supplier’s business operations,

regarding continuity of the provision of the Services during and following a Business Continuity Event.

• The Supplier shall test its Business Continuity Plan at reasonable intervals, and in any event no less than once every twelve (12) months or such other period as may be agreed between the Parties taking into account the criticality of this Contract to the Authority and the size and scope of the Supplier’s business operations. The Supplier shall promptly provide to the Authority, at the Authority’s written request, copies of its Business Continuity Plan as may be updated or renewed from time to time and reasonable and proportionate documentary evidence that the Supplier tests its Business Continuity Plan in accordance with the requirements of this Clause 3 of this Schedule 2.

Explanatory Note: Mediaburst are unable to provide its customers with the outcome of any tests carried out in relation to its Business Continuity Plan for confidentiality and security reasons.

• The Authority may suggest reasonable and proportionate amendments to the Supplier regarding the Business Continuity Plan at any time. Where the Supplier, acting reasonably, deems such suggestions made by the Authority to be relevant and appropriate, the Supplier will incorporate into the Business Continuity Plan all such suggestions made by the Authority in respect of such Business Continuity Plan. Should the Supplier not incorporate any suggestion made by the Authority into such Business Continuity Plan it will explain the reasons for not doing so to the

• Should a Business Continuity Event occur at any time, the Supplier shall implement and comply with its Business Continuity Plan and provide regular written reports to the Authority on such

• During and following a Business Continuity Event, the Supplier shall use reasonable endeavours to continue to provide the Services in accordance with this

7 The Authority’s obligations

• The Authority will pay the Supplier for the Services in accordance with Clause 9 of this Schedule 2.

• The Authority shall, as appropriate, provide copies of or give the Supplier access to such of the Policies that are relevant to the provision of the

• The Authority shall comply with the Authority’s Obligations, as may be referred to in the Key

• The Authority shall provide the Supplier with any reasonable and proportionate cooperation necessary to enable the Supplier to comply with its obligations under this Contract. The Supplier shall at all times provide reasonable advance written notification to the Authority of any such cooperation necessary in circumstances where such cooperation will require the Authority to plan for and/or allocate specific resources in order to provide such

8 Contract management

• Each Party shall appoint and retain a Contract Manager who shall be the primary point of contact for the other Party in relation to matters arising from this Contract. Should the Contract Manager be replaced, the Party replacing the Contract Manager shall promptly inform the other Party in writing of the name and contact details for the new Contract Manager. Any Contract Manager appointed shall be of sufficient seniority and experience to be able to make decisions on the day to day operation of the Contract. The Supplier confirms and agrees that it will be expected to work closely and cooperate fully with the Authority’s Contract

• Each Party shall ensure that its representatives (to include, without limitation, its Contract Manager) shall attend review meetings on a regular basis to review the performance of the Supplier under this Contract and to discuss matters arising generally under this Contract. Each Party shall ensure that those attending such meetings have the authority to make decisions regarding the day to day operation of the Contract. Review meetings shall take place at the frequency specified in the Specification. Should the Specification not state the frequency, then the review meetings shall take place at the frequency agreed in writing between the

Explanatory Note: Mediaburst are happy to regularly attend review meetings as agreed on an ad-hoc basis but do not see the benefit in fixing the frequency of such meetings at the contract stage. Equally, the reporting provisions in the NHS standard contract are too onerous in the context of the Florence product and the services being provided under this contract.

• The Supplier shall provide such management information as the Authority may request from time to time within seven (7) Business Days of the date of the request. The Supplier shall supply the management information to the Authority in such form as may be specified by the Authority and, where requested to do so, the Supplier shall also provide such management information to another Contracting Authority, whose role it is to analyse such management information in accordance with UK government policy (to include, without limitation, for the purposes of analysing public sector expenditure and planning future procurement activities) (“Third Party Body”). The Supplier confirms and agrees that the Authority may itself provide the Third Party Body with management information relating to the Services purchased, any payments made under this Contract, and any other information relevant to the operation of this Contract.

• Upon receipt of management information supplied by the Supplier to the Authority and/or the Third Party Body, or by the Authority to the Third Party Body, the Parties hereby consent to the Third Party Body and the Authority:

• storing and analysing the management information and producing statistics; and

• sharing the management information or any statistics produced using the management information with any other Contracting

• If the Third Party Body and/or the Authority shares the management information or any other information provided under Clause 4 of this Schedule 2, any Contracting Authority receiving the management information shall, where such management information is subject to obligations of confidence under this Contract and such management information is provided direct by the Authority to such Contracting Authority, be informed of the confidential nature of that information by the Authority and shall be requested by the Authority not to disclose it to any body that is not a Contracting Authority (unless required to do so by Law).

• The Authority may make changes to the type of management information which the Supplier is required to supply and shall give the Supplier at least one (1) month’s written notice of any

9 Price and payment

• The Authority shall on the Commencement Date provide to the Supplier approved purchase order information acceptable to the Supplier and any other relevant valid, up- to-date and complete contact and billing

• The Supplier shall invoice the Authority for the Annual Management Fee and the Annual Subscription Fee on the Commencement Date and on each anniversary of the Commencement Date during the

• If the Authority wishes to purchase a Message Bundle, the Authority shall notify the Supplier and the Supplier shall invoice the Authority for the relevant Message Bundle Fee. Upon receipt of payment, the Supplier shall activate the relevant Message Bundle and the Authority shall be entitled to use the Services up to the Maximum Message Quantity.

• The Authority shall pay the Supplier, as an Additional Charge, for each message processed in excess of the Maximum Message Quantity. The Supplier will invoice the Authority as and when the Additional Charges

• All Message Bundles and any unused message allowances shall automatically expire 12 months after being The Supplier shall be entitled to retain each Message Bundle Fee in full notwithstanding the Authority’s failure to use its full message allowance.

• The Contract Price is exclusive of VAT, which, if properly chargeable, the Authority shall pay at the prevailing rate subject to receipt from the Supplier of a valid and accurate VAT invoice. Such VAT invoices shall show the VAT calculations as a separate line

Explanatory Note: The above payment provisions reflect that the licence to the Florence product is provided on a subscription basis, with pay-as-you-go message bundles.

• The Authority shall verify and pay each valid and undisputed invoice received in accordance with Clauses 2, 9.3 and 9.4 of this Schedule 2 within thirty (30) days of receipt of such invoice at the latest. However, the Authority shall use its reasonable endeavours to pay such undisputed invoices sooner in accordance with any applicable government prompt payment targets. If there is undue delay in verifying the invoice in accordance with this Clause 9.7 of this Schedule 2, the invoice shall be regarded as valid and undisputed for the purposes this Clause 9.7 after a reasonable time has passed.

• Where the Authority raises a query with respect to an invoice the Parties shall liaise with each other and agree a resolution to such query within thirty (30) days of the query being raised. If the Parties are unable to agree a resolution within thirty (30) days the query shall be referred to dispute resolution in accordance with the Dispute Resolution Procedure. For the avoidance of doubt, the Authority shall not be in breach of any of any of its payment obligations under this Contract in relation to any queried or disputed invoice sums unless the process referred to in this Clause 8 of this Schedule 2 has been followed and it has been determined that the queried or disputed invoice amount is properly due to the Supplier and the Authority has then failed to pay such sum within a reasonable period following such determination.

Explanatory Note: Service credits are not applicable in the context of the services being provided under this contract.

• Where the Authority is entitled to receive any sums (including, without limitation, any costs, charges or expenses) from the Supplier under this Contract, the Authority may invoice the Supplier for such sums. Such invoices shall be paid by the Supplier within 30 days of the date of such

• If a Party fails to pay any undisputed sum properly due to the other Party under this Contract, the Party due such sum shall have the right to charge interest on the overdue amount at the applicable rate under the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis from the due date up to the date of actual payment, whether before or after

• Sums payable to Supplier under this Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10 Warranties

• The Supplier warrants and undertakes that:

• it has, and shall ensure its Staff shall have, and shall maintain throughout the Term, all appropriate licences and registrations with the relevant bodies to fulfil its obligations under this Contract;

• it has all rights, consents, authorisations, licences and accreditations required to provide the Services and shall maintain such consents, authorisations, licences and accreditations throughout the Term;

• it has and shall maintain a properly documented system of quality controls and processes covering all aspects of its obligations under this Contract and/or under Law and/or Guidance and shall at all times comply with such quality controls and processes;

• it shall not make any significant changes to its system of quality controls and processes in relation to the Services without notifying the Authority in writing at least twenty one (21) days in advance of such change (such notice to include the details of the consequences which follow such change being implemented);

• where any act of the Supplier requires the notification to and/or approval by any regulatory or other competent body in accordance with any Law and Guidance, the Supplier shall comply fully with such notification and/or approval requirements;

• receipt of the Services by or on behalf of the Authority and use of the deliverables or of any other item or information supplied or made available to the Authority as part of the Services will not infringe any third party rights, to include without limitation any Intellectual Property Rights;

• it will comply with all Law, Guidance, Policies and the Supplier Code of Conduct in so far as is relevant to the provision of the Services;

• it will provide the Services using reasonable skill and care and in accordance with Good Industry Practice and shall fulfil all requirements of this Contract using appropriately skilled, trained and experienced staff;

• unless otherwise set out in the Specification and/or as otherwise agreed in writing by the Parties, it has and/or shall procure all resources, equipment, consumables and other items and facilities required to provide the Services;

• without limitation to the generality of Clause 1.7 of this Schedule 2, it shall comply with all health and safety processes, requirements safeguards, controls, and training obligations in accordance with its own operational procedures, Law, Guidance, Policies, Good Industry Practice, the requirements of the Specification, as relevant to the provision of the Services and the Supplier’s access to the Premises and Locations in accordance with this Contract;

• without prejudice to any specific notification requirements set out in this Contract, it will promptly notify the Authority of any health and safety hazard which has arisen, or the Supplier is aware may arise, in connection with the performance of the Services and take such steps as are reasonably necessary to ensure the health and safety of persons likely to be affected by such hazards;

• any equipment it uses in the provision of the Services shall comply with all relevant Law and Guidance;

• it shall use Good Industry Practice to ensure that any information and communications technology systems and/or related hardware and/or software it uses are free from corrupt data, viruses, worms and any other

computer programs or code which might cause harm or disruption to the Authority’s information and communications technology systems;

• it shall: (i) comply with all relevant Law and Guidance and shall use Good Industry Practice to ensure that there is no slavery or human trafficking in its supply chains; and (ii) notify the Authority immediately if it becomes aware of any actual or suspected incidents of slavery or human trafficking in its supply chains;

• it shall at all times conduct its business in a manner that is consistent with any anti-slavery Policy of the Authority and shall provide to the Authority any reports or other information that the Authority may request as evidence of the Supplier’s compliance with this Clause 1.15 and/or as may be requested or otherwise required by the Authority in accordance with its anti-slavery Policy;

• it will fully and promptly respond to all requests for information and/or requests for answers to questions regarding this Contract, the provision of the Services, any complaints and any Disputes at the frequency, in the timeframes and in the format as requested by the Authority from time to time (acting reasonably);

• it has the right and authority to enter into this Contract and that it has the capability and capacity to fulfil its obligations under this Contract;

• it is a properly constituted entity and it is fully empowered by the terms of its constitutional documents to enter into and to carry out its obligations under this Contract and the documents referred to in this Contract;

• all necessary actions to authorise the execution of and performance of its obligations under this Contract have been taken before such execution;

• there are no pending or threatened actions or proceedings before any court or administrative agency which would materially adversely affect the financial condition, business or operations of the Supplier;

• there are no material agreements existing to which the Supplier is a party which prevent the Supplier from entering into or complying with this Contract;

• it has and will continue to have the capacity, funding and cash flow to meet all its obligations under this Contract; and

• it has satisfied itself as to the nature and extent of the risks assumed by it under this Contract and has gathered all information necessary to perform its obligations under this Contract and all other obligations assumed by

Explanatory Note: The additional warranties in the NHS standard contract are either too onerous and cannot be accepted by Mediaburst, or are not applicable to the services being provided under this contract.

• The warranties in Clause 1 of this Schedule 2 and this Clause 10 of this Schedule 2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised

contractors or agents. If the Services do not conform with the warranties in Clause 1 of this Schedule 2 and/or this Clause 10 of this Schedule 2, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non- conformance promptly, or provide the Authority with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Authority’s sole and exclusive remedy for any breach of the warranties set out in Clause 1 of this Schedule 2 and this Clause 10 of this Schedule 2. Notwithstanding the foregoing, the Supplier:

• does not warrant that the Authority’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Authority’s through the Services will meet the Authority’s requirements; and

• is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Authority acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications

Explanatory Note: The above additional clause has been introduced to reflect the nature of the services being provided under this contract. In particular, the Florence product is reliant upon (a) information technology and utilities; and (b) users using the platform in accordance with the training they have received, both of which Mediaburst has minimal control over.

• The Supplier acknowledges that a failure by the Supplier following the Actual Services Commencement Date to submit accurate invoices and other information on time to the Authority may result in the commissioner of health services, or other entity responsible for reimbursing costs to the Authority, delaying or failing to make relevant payments to the Authority. Accordingly, the Supplier warrants that, from the Actual Services Commencement Date, it shall submit accurate invoices and other information on time to the

• The Supplier warrants and undertakes to the Authority that it shall comply with any eProcurement Guidance as it may apply to the Supplier and shall carry out all reasonable acts required of the Supplier to enable the Authority to comply with such eProcurement

• The Supplier warrants and undertakes to the Authority that, as at the Commencement Date, it has notified the Authority in writing of any Occasions of Tax Non-Compliance or any litigation that it is involved in that is in connection with any Occasions of Tax Non-Compliance. If, at any point during the Term, an Occasion of Tax Non-Compliance occurs, the Supplier shall:

• notify the Authority in writing of such fact within five (5) Business Days of its occurrence; and

• promptly provide to the Authority:

• details of the steps which the Supplier is taking to address the Occasion of Tax Non-Compliance and to prevent the same from recurring, together with any mitigating factors that it considers relevant; and

• such other information in relation to the Occasion of Tax Non- Compliance as the Authority may reasonably

• The Supplier further warrants and undertakes to the Authority that it will inform the Authority in writing immediately upon becoming aware that any of the warranties set out in Clause 10 of this Schedule 2 have been breached or there is a risk that any warranties may be

• Any warranties provided under this Contract are both independent and cumulative and may be enforced independently or collectively at the sole discretion of the enforcing Party.

11 Intellectual property

• The Supplier warrants and undertakes to the Authority that either it owns or is entitled to use and will continue to own or be entitled to use all Intellectual Property Rights used in the development and provision of the Services and/or necessary to give effect to the Services and/or to use any deliverables, matter or any other output supplied to the Authority as part of the

• Unless specified otherwise in the Key Provisions and/or in the Specification, the Supplier hereby grants to the Authority, for the Term, an irrevocable, royalty-free, non- exclusive licence to use any deliverables, material or any other output supplied to the Authority in any format as part of the Services in the course of the Authority’s normal business For the avoidance of doubt, unless specified otherwise in the Key Provisions and/or in the Specification, the Authority shall have no rights to commercially exploit (e.g. by selling to third parties) any deliverables, matter or any other output supplied to the Authority in any format as part of the Services.

12 Indemnity

• Subject at all times to Clause 13 of this Schedule 2, the Supplier shall be liable to the Authority for, and shall indemnify and keep the Authority indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings in respect of:

• any injury or allegation of injury to any person, including injury resulting in death;

• any loss of or damage to property (whether real or personal); and/or

• any breach of Clause 1.6 and/or Clause 11 of this Schedule 2,

that arise or result from the Supplier’s negligent acts or omissions or breach of contract in connection with the performance of this Contract including the provision of the Services, except to the extent that such loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings have been caused by any act or omission by, or on behalf of, or in accordance with the instructions of, the Authority, any Contracting Authority or any of their agents, sub-contractors, employees, customers or patients.

• In relation to all third party claims against the Authority, which are the subject of any indemnity given by the Supplier under this Contract, the Authority shall:

• notify the Supplier in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 1 of this Schedule 2 (“IPRs Claim”);

• subject to Clause 3 of this Schedule 2:

• allow the Supplier, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Supplier shall obtain the Authority’s prior approval of any settlement terms, such approval not to be unreasonably withheld;

• provide the Supplier with such reasonable assistance regarding the IPRs Claim as is required by the Supplier, subject to reimbursement by the Supplier of the Authority’s costs so incurred; and

• not, without prior consultation with the Supplier, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Supplier considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Authority into

• The Supplier hereby acknowledges that the Authority may be restricted from transferring the conduct of IPR Claims to the Supplier. Such restrictions may include, without limitation, any restrictions:

• relating to any legal, regulatory, governance, information governance, or confidentiality obligations on the Authority; and/or

• relating to the Authority’s membership of any indemnity and/or risk pooling arrangements.

Such transfer shall be subject to the Parties agreeing appropriate terms for such conduct of the third party claim by the Supplier (to include, without limitation, the right of the Authority to be informed and consulted on the ongoing conduct of the claim following such transfer and any reasonable cooperation required by the Supplier from the Authority).

13 Limitation of liability

• Nothing in this Contract shall exclude or restrict the liability of either Party:

• for death or personal injury resulting from its negligence;

• for fraud or fraudulent misrepresentation; or

• in any other circumstances where liability may not be limited or excluded under any applicable

• For the avoidance of doubt the obligations of the Supplier are in respect the provision of a communication system by which a patient can submit and receive information in

relation to their healthcare needs. Except as expressly and specifically provided in this Contract:

• the Authority assumes sole responsibility for results obtained from the use of the Services by the Authority and its Authorised Users, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors, omissions or delays in any information, instructions or scripts provided to the Supplier by the Authority or its Authorised Users in connection with the Services (including, but not limited to, in relation to the creation and use of protocols and/or clinical pathways) or any actions taken by the Supplier at the direction of the Authority or its Authorised Users;

• all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract; and

• the Services are provided to the Customer on an “as is”

• Subject to Clauses 1, 13.2 and 13.4 of this Schedule 2, the total liability of each Party under or in connection with this Contract whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall be limited in aggregate to the lesser of: (a) £500,000; or (b) one hundred and twenty five percent (125%) of the total Contract Price paid or payable by the Authority to the Supplier for the Services.

Explanatory Note: The liability cap set out in the NHS standard contract are not proportionate to services being provided under this contract.

• Neither Party shall be liable to the other Party in respect of any:

• Special, indirect consequential or pure economic loss, costs, damages, charges or expenses;

• Loss of profits or revenues;

• Loss of sales or business;

• Loss of agreements or contracts;

• Loss of anticipated savings;

• Loss of use or corruption of software, data or information; or

• Loss of or damage to

Explanatory Note: The categories of excluded losses have been updated to better reflect the nature of the services being provided under this contract. The Florence product is a communications system and Mediaburst are not providing health care services to the customer or its patients.

• Each Party shall at all times take all reasonable steps to minimise and mitigate any loss for which that Party is entitled to bring a claim against the other pursuant to this Contract.

• Clause 13 of this Schedule 2 shall survive the expiry of or earlier termination of this Contract for any

14 Insurance

• Subject to Clauses 2 and 14.3 of this Schedule 2 and unless otherwise confirmed in writing by the Authority, as a minimum level of protection, the Supplier shall put in place and/or maintain in force at its own cost with a reputable commercial insurer, insurance arrangements in respect of employer’s liability, public liability and professional indemnity in accordance with Good Industry Practice with the minimum cover per claim of the greater of five million pounds (£5,000,000) or any sum as required by Law unless otherwise agreed with the Authority in writing. These requirements shall not apply to the extent that the Supplier is a member and maintains membership of each of the indemnity schemes run by the NHS Litigation Authority.

• Without limitation to any insurance arrangements as required by Law, the Supplier shall put in place and/or maintain the different types and/or levels of indemnity arrangements explicitly required by the Authority, if specified in the Key

• Provided that the Supplier maintains all indemnity arrangements required by Law, the Supplier may self insure in order to meet other relevant requirements referred to at Clauses 1 and 14.2 of this Schedule 2 on condition that such self insurance arrangements offer the appropriate levels of protection and are approved by the Authority in writing prior to the Commencement Date.

• The amount of any indemnity cover and/or self insurance arrangements shall not relieve the Supplier of any liabilities under this It shall be the responsibility of the Supplier to determine the amount of indemnity and/or self insurance cover that will be adequate to enable it to satisfy its potential liabilities under this Contract. Accordingly, the Supplier shall be liable to make good any deficiency if the proceeds of any indemnity cover and/or self insurance arrangement is insufficient to cover the settlement of any claim.

• The Supplier warrants that it shall not take any action or fail to take any reasonable action or (in so far as it is reasonable and within its power) permit or allow others to take or fail to take any action, as a result of which its insurance cover may be rendered void, voidable, unenforceable, or be suspended or impaired in whole or in part, or which may otherwise render any sum paid out under such insurances repayable in whole or in

• The Supplier shall from time to time and in any event within ten (10) Business Days of written demand provide documentary evidence to the Authority that insurance arrangements taken out by the Supplier pursuant to Clause 14 of this Schedule 2 and the Key Provisions are fully maintained and that any premiums on them and/or contributions in respect of them (if any) are fully

• Upon the expiry or earlier termination of this Contract, the Supplier shall ensure that any ongoing liability it has or may have arising out of this Contract shall continue to be the subject of appropriate indemnity arrangements for the period of one (1) year from

termination or expiry of this Contract or until such earlier date as that liability may reasonably be considered to have ceased to exist.

15 Term and termination

• This Contract shall commence on the Commencement Date and, unless terminated earlier in accordance with the terms of this Contract or the general law, shall continue until the end of the

• This Contract shall automatically renew for successive periods of 12 months unless:

• either Party notifies the other Party of termination, in writing, at least 30 days before the relevant anniversary of the Actual Services Commencement Date; or

• otherwise terminated in accordance with the provisions of this Contract,

provided that this Contract shall be no longer than the total term specified in the Key Provisions.

Explanatory Note: The services are provided as a 12-month rolling licence to the Florence product. The customer can purchase message bundles during the term of the licence.

• In the case of a breach of any of the terms of this Contract by either Party that is capable of remedy including, subject to Clause 8 of this Schedule 2, any breach of any payment obligations under this Contract), the non-breaching Party may, without prejudice to its other rights and remedies under this Contract, issue a Breach Notice and shall allow the Party in breach the opportunity to remedy such breach in the first instance via a remedial proposal put forward by the Party in breach (“Remedial Proposal”) before exercising any right to terminate this Contract in accordance with Clause 15.4(ii) of this Schedule 2. Such Remedial Proposal must be agreed with the non-breaching Party (such agreement not to be unreasonably withheld or delayed) and must be implemented by the Party in breach in accordance with the timescales referred to in the agreed Remedial Proposal. Once agreed, any changes to a Remedial Proposal must be approved by the Parties in writing. Any failure by the Party in breach to:

• put forward and agree a Remedial Proposal with the non-breaching Party in relation to the relevant default or breach within a period of ten (10) Business Days (or such other period as the non-breaching Party may agree in writing) from written notification of the relevant default or breach from the non- breaching Party;

• comply with such Remedial Proposal (including, without limitation, as to its timescales for implementation, which shall be thirty (30) days unless otherwise agreed between the Parties); and/or

• remedy the default or breach notwithstanding the implementation of such Remedial Proposal in accordance with the agreed timescales for implementation,

shall be deemed, for the purposes of Clause 15.4(ii) of this Schedule 2, a material breach of this Contract by the Party in breach not remedied in accordance with an agreed Remedial Proposal.

• Either Party may terminate this Contract by issuing a Termination Notice to the other Party if such other Party commits a material breach of any of the terms of this Contract which is:

• not capable of remedy; or

• in the case of a breach capable of remedy, which is not remedied in accordance with a Remedial

• The Authority may terminate this Contract forthwith by issuing a Termination Notice to the Supplier if:

• the Supplier, or any third party guaranteeing the obligations of the Supplier under this Contract, ceases or threatens to cease carrying on its business; suspends making payments on any of its debts or announces an intention to do so; is, or is deemed for the purposes of any Law to be, unable to pay its debts as they fall due or insolvent; enters into or proposes any composition, assignment or arrangement with its creditors generally; takes any step or suffers any step to be taken in relation to its winding-up, dissolution, administration (whether out of court or otherwise) or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) otherwise than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation; has a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer appointed (in each case, whether out of court or otherwise) in respect of it or any of its assets; has any security over any of its assets enforced; or any analogous procedure or step is taken in any jurisdiction;

• the Supplier undergoes a change of control within the meaning of sections 450 and 451 of the Corporation Tax Act 2010 (other than for an intra-group change of control) and where such change of control relates to a transfer to a Restricted Person;

• the Supplier purports to assign, novate, create a trust in or otherwise transfer or dispose of this Contract in breach of Clause 1 of this Schedule 2;

• pursuant to and in accordance with the Key Provisions and Clauses 6, 23.8; 25.2; 25.4 and 29.2 of this Schedule 2; or

• the warranty given by the Supplier pursuant to Clause 5 of this Schedule 2 is materially untrue, the Supplier commits a material breach of its obligation to notify the Authority of any Occasion of Tax Non-Compliance as required by Clause 10.5 of this Schedule 2, or the Supplier fails to provide details of proposed mitigating factors as required by Clause 10.5 of this Schedule 2 that in the reasonable opinion of the Authority are acceptable.

definition of “Restricted Person” for further detail.

• If the Authority, acting reasonably, has good cause to believe that there has been a material deterioration in the financial circumstances of the Supplier and/or any third party guaranteeing the obligations of the Supplier under this Contract when compared to any information provided to and/or assessed by the Authority as part of any procurement process or other due diligence leading to the award of this Contract to the Supplier, the following process shall apply:

• the Authority may (but shall not be obliged to) give notice to the Supplier requesting adequate financial or other security and/or assurances for due performance of its material obligations under this Contract on such reasonable and proportionate terms as the Authority may require within a reasonable time period as specified in such notice;

• a failure or refusal by the Supplier to provide the financial or other security and/or assurances requested in accordance with Clause 6 of this Schedule 2 in accordance with any reasonable timescales specified in any such notice issued by the Authority shall be deemed a breach of this Contract by the Supplier and shall be referred to and resolved in accordance with the Dispute Resolution Procedure; and

• a failure to resolve such breach in accordance with such Dispute Resolution Procedure by the end of the escalation stage of such process shall entitle, but shall not compel, the Authority to terminate this Contract in accordance with Clause 4(i) of this Schedule 2.

In order that the Authority may act reasonably in exercising its discretion in accordance with Clause 15.6 of this Schedule 2, the Supplier shall provide the Authority with such reasonable and proportionate up-to-date financial or other information relating to the Supplier or any relevant third party entity upon request.

• The Authority may terminate this Contract by issuing a Termination Notice to the Supplier where:

• the Contract has been substantially amended to the extent that the Public Contracts Regulations 2015 require a new procurement procedure;

• the Authority has become aware that the Supplier should have been excluded under Regulation 57(1) or (2) of the Public Contracts Regulations 2015 from the procurement procedure leading to the award of this Contract;

• the Contract should not have been awarded to the Supplier in view of a serious infringement of obligations under European law declared by the Court of Justice of the European Union under Article 258 of the Treaty on the Functioning of the EU; or

• there has been a failure by the Supplier and/or one its Sub-contractors to comply with legal obligations in the fields of environmental, social or labour Law. Where the failure to comply with legal obligations in the fields of environmental, social or labour Law is a failure by one of the Supplier’s Sub- contractors, the Authority may request the replacement of such Sub- contractor and the Supplier shall comply with such request as an alternative to the Authority terminating this Contract under this Clause 7.4.

• The Supplier may terminate this Contract by issuing a Termination Notice to the Authority if the Stoke CCG Licence is terminated or

Explanatory Note: Mediaburst operate under the Stoke CCG Licence. If this licence is no longer in place, Mediaburst cannot continue to provide the service and therefore must be able to terminate the contract.

• If the Authority novates this Contract to any body that is not a Contracting Authority, from the effective date of such novation, the rights of the Authority to terminate this Contract in accordance with Clause 5.1 to Clause 15.5.3 of this Schedule 2 shall be deemed mutual termination rights and the Supplier may terminate this Contract by issuing a Termination Notice to the entity assuming the position of the Authority if any of the circumstances referred to in such Clauses apply to the entity assuming the position of the Authority.

16 Consequences of expiry or early termination of this Contract

• Upon expiry or earlier termination of this Contract, the Authority agrees to pay the Supplier for the Services which have been completed by the Supplier in accordance with this Contract prior to expiry or earlier termination of this Contract.

• Immediately following expiry or earlier termination of this Contract, the provisions of the Exit Plan shall come into effect, the Supplier and the Authority shall comply with their obligations under the Exit Plan and on satisfactory completion of the Exit Plan (or where reasonably so required by the Authority before such completion):

• all data, excluding Personal Data, documents and records (whether stored electronically or otherwise) relating in whole or in part to the Services, including without limitation relating to patients or other service users, and all other items provided on loan or otherwise to the Supplier by the Authority shall be delivered by the Supplier to the Authority provided that the Supplier shall be entitled to keep copies to the extent that: (a) the content does not relate solely to the Services; (b) the Supplier is required by Law and/or Guidance to keep copies; or (c) the Supplier was in possession of such data, documents and records prior to the Commencement Date; and

• any Personal Data Processed by the Supplier on behalf of the Authority shall be returned to the Authority or destroyed in accordance with the relevant provisions of the Data Protection

Explanatory Note: Mediaburst have a standard Exit Plan for the Florence product which is built into its technical processes. A copy of the Exit Plan is set out at Schedule 9.

• The Supplier shall retain all data relating to the provision of the Services that are not transferred or destroyed pursuant to Clause 1 of this Schedule 2 for the period set out in Clause 24.1 of this Schedule 2.

• The Supplier shall cooperate fully with the Authority or, as the case may be, any replacement supplier during any re-procurement and handover period prior to and following the expiry or earlier termination of this Contract. This cooperation shall extend to providing access to all information relevant to the operation of this Contract, as reasonably required by the Authority to achieve a fair and transparent re- procurement and/or an effective transition without disruption to routine operational requirements.

• Immediately upon expiry or earlier termination of this Contract any licence or lease entered into in accordance with the Key Provisions shall automatically

• The expiry or earlier termination of this Contract for whatever reason shall not affect any rights or obligations of either Party which accrued prior to such expiry or earlier termination.

• The expiry or earlier termination of this Contract shall not affect any obligations which expressly or by implication are intended to come into or continue in force on or after such expiry or earlier

17 Staff information and the application of TUPE at the end of the Contract

• Upon the day which is no greater than nine (9) months before the expiry of this Contract or as soon as the Supplier is aware of the proposed termination of the Contract, the Supplier shall, within twenty eight (28) days of receiving a written request from the Authority and to the extent permitted by Law, supply to the Authority and keep updated all information required by the Authority as to the terms and conditions of employment and employment history of any Supplier Personnel (including all employee liability information identified in regulation 11 of TUPE) and the Supplier shall warrant such information is full, complete and

• No later than twenty eight (28) days prior to the Subsequent Transfer Date, the Supplier shall or shall procure that any Sub-contractor shall provide a final list to the Successor and/or the Authority, as appropriate, containing the names of all the Subsequent Transferring Employees whom the Supplier or Sub-contractor expects will transfer to the Successor or the Authority and all employee liability information identified in regulation 11 of TUPE in relation to the Subsequent Transferring Employees.

• If the Supplier shall, in the reasonable opinion of the Authority, deliberately not comply with its obligations under Clauses 1 and 17.2 of this Schedule 2, the Authority may withhold payment under Clause 9 of this Schedule 2.

• Subject at all times to Clause 13 of this Schedule 2, the Supplier shall be liable to the Authority for, and shall indemnify and keep the Authority indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings that arise or result from any deficiency or inaccuracy in the information which the Supplier is required to provide under Clauses 1 and 17.2 of this Schedule 2.

• Subject to Clauses 6 and 17.7 of this Schedule 2, during the period of nine (9) months preceding the expiry of this Contract or after notice of termination of this Contract has been served by either Party, the Supplier shall not, and shall procure that any Sub-contractor shall not, without the prior written consent of the Authority, such consent not to be unreasonably withheld or delayed:

• make, propose or permit any material changes to the terms and conditions of employment or other arrangements of any of the Supplier Personnel;

• increase or seek to increase the emoluments (excluding cost of living increases awarded in the ordinary course of business) payable to any of the Supplier Personnel;

• replace any of the Supplier Personnel or increase the total number of employees providing the Services;

• deploy any person other than the Supplier Personnel to perform the Services;

• terminate or give notice to terminate the employment or arrangements of any of the Supplier Personnel;

• increase the proportion of working time spent on the Services by any of the Supplier Personnel; or

• introduce any new contractual term or customary practice concerning the making of any lump sum payment on the termination of employment of any of the Supplier

• Clause 5 of this Schedule 2 shall not prevent the Supplier or any Sub-contractor from taking any of the steps prohibited in that Clause in circumstances where the Supplier or Sub-contractor is required to take such a step pursuant to any changes in legislation or pursuant to a collective agreement in force at that time.

• Where the obligations on the Supplier under Clause 17 of this Schedule 2 are subject to the Data Protection Legislation, the Supplier will, and shall procure that any Sub- contractor will, use its best endeavours to seek the consent of the Supplier Personnel to disclose any information covered under the Data Protection Legislation and utilise any other exemption or provision within the Data Protection Legislation which would allow such

• Having as appropriate gained permission from any Sub-contractor, the Supplier hereby permits the Authority to disclose information about the Supplier Personnel to any Interested Party provided that the Authority informs the Interested Party in writing of the confidential nature of the

• The Parties agree that where a Successor or the Authority provides the Services or services which are fundamentally the same as the Services in the immediate or subsequent succession to the Supplier or Sub-contractor (in whole or in part) on expiry or early termination of this Contract (howsoever arising) TUPE, the Cabinet Office Statement and Fair Deal for Staff Pensions may apply in respect of the subsequent provision of the Services or services which are fundamentally the same as the Services. If TUPE, the Cabinet Office Statement and Fair Deal for Staff Pensions apply then Clause 11 to Clause 17.14 of this Schedule 2 shall apply.

• If on the termination or at the end of the Contract TUPE does not apply, then all Employment Liabilities and any other liabilities in relation to the Supplier Personnel shall remain with the Supplier or Sub-contractor as appropriate. Subject at all times to Clause 13 of this Schedule 2, the Supplier will, and shall procure that any Sub- contractor shall, indemnify and keep indemnified the Authority in relation to any Employment Liabilities arising out of or in connection with any allegation or claim raised by any Supplier

• In accordance with TUPE, and any other policy or arrangement applicable, the Supplier shall, and will procure that any Sub-contractor shall, comply with its obligations to inform and consult with the appropriate representatives of any of its employees affected by the subsequent transfer of the Services or services which are fundamentally the same as the

• The Supplier will and shall procure that any Sub-contractor will on or before any Subsequent Transfer Date:

• pay all wages, salaries and other benefits of the Subsequent Transferring Employees and discharge all other financial obligations (including reimbursement of any expenses and any contributions to retirement benefit schemes) in respect of the period between the Transfer Date and the Subsequent Transfer Date;

• account to the proper authority for all PAYE, tax deductions and national insurance contributions payable in respect of the Subsequent Transferring Employees in the period between the Transfer Date and the Subsequent Transfer Date;

• pay any Successor or the Authority, as appropriate, the amount which would be payable to each of the Subsequent Transferring Employees in lieu of accrued but untaken holiday entitlement as at the Subsequent Transfer Date;

• pay any Successor or the Authority, as appropriate, the amount which fairly reflects the progress of each of the Subsequent Transferring Employees towards achieving any commission, bonus, profit share or other incentive payment payable after the Subsequent Transfer Date wholly or partly in respect of a period prior to the Subsequent Transfer Date; and

• subject to any legal requirement, provide to the Successor or the Authority, as appropriate, all personnel records relating to the Subsequent Transferring Employees including, without prejudice to the generality of the foregoing, all records relating to national insurance, PAYE and income tax. The Supplier shall for itself and any Sub-contractor warrant that such records are accurate and up to

• Subject at all times to Clause 13 of this Schedule 2, the Supplier will and shall procure that any Sub-contractor will indemnify and keep indemnified the Authority and/or a Successor in relation to any Employment Liabilities arising out of or in connection with any claim arising from:

• the Supplier’s or Sub-contractor’s failure to perform and discharge its obligations under Clause 12 of this Schedule 2;

• any act or omission by the Supplier or Sub-contractor in respect of the Subsequent Transferring Employees occurring on or before the Subsequent Transfer Date;

• any allegation or claim by any person who is not a Subsequent Transferring Employee but who alleges that their employment should transfer or has transferred to the Successor or the Authority, as appropriate;

• any emoluments payable to a person employed or engaged by the Supplier or Sub-contractor (including without limitation all wages, accrued holiday pay, bonuses, commissions, PAYE, national insurance contributions, pension contributions and other contributions) payable in respect of any period on or before the Subsequent Transfer Date;

• any allegation or claim by any of the Subsequent Transferring Employees on the grounds that the Successor or Authority, as appropriate, has failed to continue a benefit provided by the Supplier or Sub-contractor as a term of such Subsequent Transferring Employee’s contract as at the Subsequent Transfer Date where it was not reasonably practicable for the Successor or Authority, as appropriate, to provide an identical benefit but where the Successor or Authority, as appropriate, has provided (or offered to provide where such benefit is not accepted by the Subsequent Transferring Employee) an alternative benefit which, taken as a whole, is no less favourable to such Subsequent Transferring Employee; and

• any act or omission of the Supplier or any Sub-contractor in relation to its obligations under regulation 13 of TUPE, or in respect of an award of compensation under regulation 15 of TUPE except to the extent that the liability arises from the Successor’s or Authority’s failure to comply with regulation 13(4) of

• The Supplier will, or shall procure that any Sub-contractor will, on request by the Authority provide a written and legally binding indemnity in the same terms as set out in Clause 13 of this Schedule 2 to any Successor in relation to any Employment Liabilities arising up to and including the Subsequent Transfer Date.

• Subject at all times to Clause 13 of this Schedule 2, the Supplier will indemnify and keep indemnified the Authority and/or any Successor in respect of any Employment Liabilities arising from any act or omission of the Supplier or Sub-contractor in relation to any other Supplier Personnel who is not a Subsequent Transferring Employee arising during any period whether before, on or after the Subsequent Transfer

• If any person who is not a Subsequent Transferring Employee claims or it is determined that their contract of employment has been transferred from the Supplier or any Sub-contractor to the Authority or Successor pursuant to TUPE or claims that their employment would have so transferred had they not resigned, then:

• the Authority will, or shall procure that the Successor will, within seven (7) days of becoming aware of that fact, give notice in writing to the Supplier;

• the Supplier may offer (or may procure that a Sub-contractor may offer) employment to such person within twenty eight (28) days of the notification by the Authority or Successor;

• if such offer of employment is accepted, the Authority will, or shall procure that the Successor will, immediately release the person from their employment; and

• if after the period in Clause 16.2 of this Schedule 2 has elapsed, no such offer of employment has been made or such offer has been made but not accepted, the Authority will, or shall procure that the Successor will (whichever is the provider of the Services or services of the same or similar nature to the Services), employ that person in accordance with its obligations and duties under TUPE and shall be responsible for all liabilities arising in respect of any such person after the Subsequent Transfer Date.

18 Complaints

• To the extent relevant to the Services, the Supplier shall have in place and operate a complaints procedure which complies with the requirements of the Local Authority Social Services and National Health Service Complaints (England) Regulations

• Each Party shall inform the other of all complaints from or on behalf of patients or other service users arising out of or in connection with the provision of the Services within twenty four (24) hours of receipt of each complaint and shall keep the other Party updated on the manner of resolution of any such

19 Sustainable development

• The Supplier shall comply in all material respects with applicable environmental and social and labour Law requirements in force from time to time in relation to the Services. Where the provisions of any such Law are implemented by the use of voluntary agreements, the Supplier shall comply with such agreements as if they were incorporated into English law subject to those voluntary agreements being cited in the Specification. Without prejudice to the generality of the foregoing, the Supplier shall:

• comply with all Policies and/or procedures and requirements set out in the Specification in relation to any stated environmental and social and labour requirements, characteristics and impacts of the Services and the Supplier’s supply chain;

• maintain relevant policy statements documenting the Supplier’s significant labour, social and environmental aspects as relevant to the Services being provided and as proportionate to the nature and scale of the Supplier’s business operations; and

• maintain plans and procedures that support the commitments made as part of the Supplier’s significant labour, social and environmental policies, as referred to at Clause 1.2 of this Schedule 2.

• The Supplier shall meet reasonable requests by the Authority for information evidencing the Supplier’s compliance with the provisions of Clause 19 of this Schedule 2.

20 Electronic services information

• Where requested by the Authority, the Supplier shall provide the Authority the Services Information in such manner and upon such media as agreed between the Supplier and the Authority from time to time for the sole use by the

• The Supplier warrants that the Services Information is complete and accurate as at the date upon which it is delivered to the Authority and that the Services Information shall not contain any data or statement which gives rise to any liability on the part of the Authority following publication of the same in accordance with Clause 20 of this Schedule 2.

• If the Services Information ceases to be complete and accurate, the Supplier shall promptly notify the Authority in writing of any modification or addition to or any inaccuracy or omission in the Services

• The Supplier grants the Authority a perpetual, non-exclusive, royalty free licence to use and exploit the Services Information and any Intellectual Property Rights in the

Services Information for the purpose of illustrating the range of goods and services (including, without limitation, the Services) available pursuant to the Authority’s contracts from time to time. Subject to Clause 20.5 of this Schedule 2, no obligation to illustrate or advertise the Services Information is imposed on the Authority, as a consequence of the licence conferred by this Clause 20.4 of this Schedule 2.

• The Authority may reproduce for its sole use the Services Information provided by the Supplier in the Authority’s services catalogue from time to time which may be made available on any NHS communications networks in electronic format and/or made available on the Authority’s external website and/or made available on other digital media from time to

• Before any publication of the Services Information (electronic or otherwise) is made by the Authority, the Authority will submit a copy of the relevant sections of the Authority’s services catalogue to the Supplier for approval, such approval not to be unreasonably withheld or delayed. For the avoidance of doubt the Supplier shall have no right to compel the Authority to exhibit the Services Information in any services catalogue as a result of the approval given by it pursuant to this Clause 6 of this Schedule 2 or otherwise under the terms of this Contract.

• If requested in writing by the Authority, and to the extent not already agreed as part of the Specification, the Supplier and the Authority shall discuss and seek to agree in good faith arrangements to use any Electronic Trading

21 Change management

• The Supplier acknowledges to the Authority that the Authority’s requirements for the Services may change during the

• Subject to Clause 3 of this Schedule 2, any change to the Services or other variation to this Contract shall only be binding once it has been agreed in writing and signed by an authorised representative of both Parties.

• Any change to the Data Protection Protocol shall be made in accordance with the relevant provisions of that

22 Dispute resolution

• During any Dispute, including a Dispute as to the validity of this Contract, it is agreed that the Supplier shall continue its performance of the provisions of the Contract (unless the Authority requests in writing that the Supplier does not do so).

• In the case of a Dispute arising out of or in connection with this Contract the Supplier and the Authority shall make every reasonable effort to communicate and cooperate with each other with a view to resolving the Dispute and follow the procedure set out in Clause 3 of this Schedule 2 as the first stage in the Dispute Resolution Procedure.

• If any Dispute arises out of the Contract either Party may serve a notice on the other Party to commence formal resolution of the Dispute. The Parties shall first seek to resolve the Dispute by escalation in accordance with the management levels as set out in Clause 5 of the Key Provisions. Respective representatives at each level, as set out in Clause 5 of the Key Provisions, shall have five (5) Business Days at each level during which they will use their reasonable endeavours to resolve the Dispute before escalating the matter to the next levels until all level have been

Level 1 will commence on the date of service of the Dispute Notice. The final level of the escalation process shall be deemed exhausted on the expiry of five (5) Business Days following escalation to that level unless otherwise agreed by the Parties in writing.

• If the procedure set out in Clause 3 of this Schedule 2 above has been exhausted and fails to resolve such Dispute, as part of the Dispute Resolution Procedure, the Parties will attempt to settle it by mediation. The Parties, shall acting reasonably, attempt to agree upon a mediator. In the event that the Parties fail to agree a mediator within five (5) Business Days following the exhaustion of all levels of the escalation procedure at Clause 22.3 of this Schedule 2, the mediator shall be nominated and confirmed by the Centre for Effective Dispute Resolution, London.

• The mediation shall commence within twenty eight (28) days of the confirmation of the mediator in accordance with Clause 4 of this Schedule 2 or at such other time as may be agreed by the Parties in writing. Neither Party will terminate such mediation process until each Party has made its opening presentation and the mediator has met each Party separately for at least one hour or one Party has failed to participate in the mediation process. After this time, either Party may terminate the mediation process by notification to the other Party (such notification may be verbal provided that it is followed up by written confirmation). The Authority and the Supplier will cooperate with any person appointed as mediator providing them with such information and other assistance as they shall require and will pay their costs, as they shall determine or in the absence of such determination such costs will be shared equally.

• Nothing in this Contract shall prevent:

• the Authority taking action in any court in relation to any death or personal injury arising or allegedly arising in connection with the provision of the Services; or

• either Party seeking from any court any interim or provisional relief that may be necessary to protect the rights or property of that Party or that relates to the safety of patients and other service users or the security of Confidential Information, pending resolution of the relevant Dispute in accordance with the Dispute Resolution

• Clause 22 of this Schedule 2 shall survive the expiry of or earlier termination of this Contract for any

23 Force majeure

• Subject to Clause 2 of this Schedule 2 neither Party shall be liable to the other for any failure to perform all or any of its obligations under this Contract nor liable to the other Party for any loss or damage arising out of the failure to perform its obligations to the extent only that such performance is rendered impossible by a Force Majeure Event.

• The Supplier shall only be entitled to rely on a Force Majeure Event and the relief set out in Clause 23 of this Schedule 2 and will not be considered to be in default or liable for breach of any obligations under this Contract if:

• the Supplier has fulfilled its obligations pursuant to Clause 6 of this Schedule 2;

• the Force Majeure Event does not arise directly or indirectly as a result of any wilful or negligent act or default of the Supplier; and

• the Supplier has complied with the procedural requirements set out in Clause 23 of this Schedule 2.

• Where a Party is (or claims to be) affected by a Force Majeure Event it shall use reasonable endeavours to mitigate the consequences of such a Force Majeure Event upon the performance of its obligations under this Contract, and to resume the performance of its obligations affected by the Force Majeure Event as soon as practicable.

• Where the Force Majeure Event affects the Supplier’s ability to perform part of its obligations under the Contract the Supplier shall fulfil all such contractual obligations that are not so affected and shall not be relieved from its liability to do

• If either Party is prevented or delayed in the performance of its obligations under this Contract by a Force Majeure Event, that Party shall as soon as reasonably practicable serve notice in writing on the other Party specifying the nature and extent of the circumstances giving rise to its failure to perform or any anticipated delay in performance of its

• Subject to service of such notice, the Party affected by such circumstances shall have no liability for its failure to perform or for any delay in performance of its obligations affected by the Force Majeure Event only for so long as such circumstances continue and for such time after they cease as is necessary for that Party, using its reasonable endeavours, to recommence its affected operations in order for it to perform its obligations.

• The Party claiming relief shall notify the other in writing as soon as the consequences of the Force Majeure Event have ceased and of when performance of its affected obligations can be

• If the Supplier is prevented from performance of its obligations as a result of a Force Majeure Event, the Authority may at any time, if the Force Majeure Event subsists for thirty (30) days or more, terminate this Contract by issuing a Termination Notice to the Supplier.

• Following such termination in accordance with Clause 8 of this Schedule 2 and subject to Clause 23.10 of this Schedule 2, neither Party shall have any liability to the other.

• Any rights and liabilities of either Party which have accrued prior to such termination in accordance with Clause 8 of this Schedule 2 shall continue in full force and effect unless otherwise specified in this Contract.

24 Records retention and right of audit

• Subject to any statutory requirement, the Supplier shall keep secure and maintain for the Term and six (6) years afterwards, or such longer period as may be agreed between the Parties, full and accurate records of all matters relating to this

• Where any records could be relevant to a claim for personal injury such records shall be kept secure and maintained for a period of twenty one (21) years from the date of expiry or earlier termination of this

• The Authority shall have the right to audit the Supplier’s compliance with this The Supplier shall permit or procure permission for the Authority or its authorised representative during Normal Business Hours, having given advance written notice of no less than ten (10) Business Days, reasonable access to any premises and facilities, books and records reasonably required to audit the Supplier’s compliance with its obligations under this Contract at the Authority for this purpose provided:

• the Parties (each acting reasonably and consent not to be unreasonably withheld or delayed) shall agree any specific policies or other steps with which the Authority or its designated auditor shall comply (including to protect the security and confidentiality of other customers, to ensure the Supplier is not placed in breach of any other arrangement with any other customer and so as to comply with the remainder of this Clause 2 of this Schedule 2);

• such audits, inspections or information requests shall be limited to one in any consecutive 12 month period;

• the Authority shall promptly (and in any event within one (1) Business Day) report any non-compliance identified by the audit, inspection or release of information to the Supplier;

• the Authority shall ensure that all information obtained or generated by the Authority or its designated auditor in connection with such information requests, inspections and audits is kept strictly confidential (save for disclosure required by Law); and

• the Authority shall ensure that each person acting on its behalf in connection with such audit or inspection (including the personnel of any third party auditor) shall not by any act or omission cause or contribute to any damage, destruction, loss or corruption of or to any systems, equipment or data in the control or possession of the Supplier whilst conducting any such audit or inspection.

• Should the Supplier Sub-contract any of its obligations under this Contract, the Authority shall have the right to audit and inspect such third party. The Supplier shall procure permission for the Authority or its authorised representative during Normal Business Hours no more than once in any twelve (12) months, having given advance written notice of no less than ten (10) Business Days, reasonable access to any premises and facilities, books and records used in the performance of the Supplier’s obligations under this Contract that are Sub-contracted to such third party. The Supplier shall cooperate with such audit and inspection and accompany the Authority or its authorised representative if requested provided that the Authority shall ensure that the audit does not unreasonably disrupt the Supplier’s commercial

• Any audits carried out pursuant to Clause 3 or 24.4 of this Schedule 2 shall be at the Authority’s sole cost and risk.

• The Supplier shall grant to the Authority or its authorised representative, such access to those records as they may reasonably require in order to check the Supplier’s compliance with this Contract for the purposes of:

• the examination and certification of the Authority’s accounts; or

• any examination pursuant to section 6(1) of the National Audit Act 1983 of the economic efficiency and effectiveness with which the Authority has used its resources.

Explanatory Note: Mediaburst requires additional safeguards to protect against audits becoming unduly burdensome and/or interrupting its commercial operations.

• The Comptroller and Auditor General may examine such documents as they may reasonably require which are owned, held or otherwise within the control of the Supplier and may require the Supplier to provide such oral and/or written explanations as they consider necessary. Clause 24 of this Schedule 2 does not constitute a requirement or agreement for the examination, certification or inspection of the accounts of the Supplier under sections 6(3)(d) and 6(5) of the National Audit Act

• The Supplier shall provide reasonable cooperation to the Authority, its representatives and any regulatory body in relation to any audit, review, investigation or enquiry carried out in relation to the subject matter of this

• The Supplier shall provide all reasonable information as may be reasonably requested by the Authority to evidence the Supplier’s compliance with the requirements of this Contract.

25 Conflicts of interest and the prevention of fraud

• The Supplier shall take appropriate steps to ensure that neither the Supplier nor any Staff are placed in a position where, in the reasonable opinion of the Authority, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Supplier and the duties owed to the Authority under the provisions of this Contract. The Supplier will disclose to the Authority full particulars of any such conflict of interest which may

• The Authority reserves the right to terminate this Contract immediately by notice in writing and/or to take such other steps it deems necessary where, in the reasonable opinion of the Authority, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Supplier and the duties owed to the Authority under the provisions of this Contract. The actions of the Authority pursuant to this Clause 2 of this Schedule 2 shall not prejudice or affect any right of action or remedy which shall have accrued or shall subsequently accrue to the Authority.

• The Supplier shall take all reasonable steps to prevent Fraud by Staff and the Supplier (including its owners, members and directors). The Supplier shall notify the Authority immediately if it has reason to suspect that any Fraud has occurred or is occurring or is likely to

• If the Supplier or its Staff commits Fraud the Authority may terminate this Contract and recover from the Supplier the amount of any direct loss suffered by the Authority resulting from the

26 Equality and human rights

• The Supplier shall:

• ensure that (a) it does not, whether as employer or as provider of the Services, engage in any act or omission that would contravene the Equality Legislation, and (b) it complies with all its obligations as an employer or provider of the Services as set out in the Equality Legislation and take reasonable endeavours to ensure its Staff do not unlawfully discriminate within the meaning of the Equality Legislation;

• in the management of its affairs and the development of its equality and diversity policies, cooperate with the Authority in light of the Authority’s obligations to comply with its statutory equality duties whether under the Equality Act 2010 or The Supplier shall take such reasonable and proportionate steps as the Authority considers appropriate to promote equality and diversity, including race equality, equality of opportunity for disabled people, gender equality, and equality relating to religion and belief, sexual orientation and age; and

• the Supplier shall impose on all its Sub-contractors and suppliers, obligations substantially similar to those imposed on the Supplier by Clause 26 of this Schedule 2.

• The Supplier shall meet reasonable requests by the Authority for information evidencing the Supplier’s compliance with the provisions of Clause 26 of this Schedule 2.

27 Notice

• Subject to Clause 5 of Schedule 2, any notice required to be given by either Party under this Contract shall be in writing quoting the date of the Contract and shall be delivered by hand or sent by prepaid first class recorded delivery or by email to the person referred to in the Key Provisions or such other person as one Party may inform the other Party in writing from time to time.

• A notice shall be treated as having been received:

• if delivered by hand within Normal Business Hours when so delivered or, if delivered by hand outside Normal Business Hours, at the next start of Normal Business Hours; or

• if sent by first class recorded delivery mail on a normal Business Day, at 00 am on the second Business Day subsequent to the day of posting, or, if the notice was not posted on a Business Day, at 9.00 am on the third Business Day subsequent to the day of posting; or

• if sent by email, if sent within Normal Business Hours when so sent or, if sent outside Normal Business Hours, at the next start of Normal Business Hours provided the sender has either received an electronic confirmation of delivery or has telephoned the recipient to inform the recipient that the email has been sent.

28 Assignment, novation and Sub-contracting

• The Supplier shall not, except where Clause 5 of this Schedule 2 applies, assign, novate, create a trust in, or in any other way dispose of the whole or any part of this

Contract without the prior consent in writing of the Authority such consent not to be unreasonably withheld or delayed.

• Subject to Paragraphs 12 and 1.13 of the Data Protection Protocol, the Supplier may not sub-contract any of its obligations under this Contract without the prior written consent of the Authority, such consent not to be unreasonably withheld or delayed or conditioned.

• As at the Commencement Date, the Authority’s consent is hereby given in respect of the Supplier subcontracting the Subscription Services and the whole or any part of the Services to

Explanatory Note: Mediaburst work alongside SH in providing the services and must be able to sub-contract any part of the services to SH. In particular, if purchased, the Subscription Services will be delivered by SH.

• If the Supplier Sub-contracts any of its obligations under this Contract, every act or omission of the Sub-contractor shall for the purposes of this Contract be deemed to be the act or omission of the Supplier and the Supplier shall be liable to the Authority as if such act or omission had been committed or omitted by the Supplier

• Notwithstanding Clause 1 of this Schedule 2, the Supplier may assign to a third party (“Assignee”) the right to receive payment of any sums due and owing to the Supplier under this Contract for which an invoice has been issued. Any assignment under this Clause 28.5 of this Schedule 2 shall be subject to:

• all related rights of the Authority in relation to the recovery of sums due but unpaid;

• the Authority receiving notification of the assignment and the date upon which the assignment becomes effective together with the Assignee’s contact information and bank account details to which the Authority shall make payment;

• the provisions of Clause 9 of this Schedule 2 continuing to apply in all other respects after the assignment which shall not be amended without the prior written approval of the Authority; and

• payment to the Assignee being full and complete satisfaction of the Authority’s obligation to pay the relevant sums in accordance with this Contract.

• Any authority given by the Authority for the Supplier to Sub-contract any of its obligations under this Contract shall not impose any duty on the Authority to enquire as to the competency of any authorised Sub-contractor. The Supplier shall ensure that any authorised Sub-contractor has the appropriate capability and capacity to perform the relevant obligations and that the obligations carried out by such Sub-contractor are fully in accordance with this Contract.

• Where the Supplier enters into a Sub-contract in respect of any of its obligations under this Contract relating to the provision of the Services, the Supplier shall use reasonable endeavours to include provisions in each such Sub-contract, unless otherwise agreed with the Authority in writing, which:

• contain at least equivalent obligations as set out in this Contract in relation to the performance of the Services to the extent relevant to such Sub- contracting;

• contain at least equivalent obligations as set out in this Contract in respect of confidentiality, information security, data protection, Intellectual Property Rights, compliance with Law and Guidance and record keeping;

• contain a prohibition on the Sub-contractor Sub-contracting, assigning or novating any of its rights or obligations under such Sub-contract without the prior written approval of the Authority (such approval not to be unreasonably withheld or delayed);

• requires the Supplier or other party receiving services under the contract to consider and verify invoices under that contract in a timely fashion;

• provides that if the Supplier or other party fails to consider and verify an invoice in accordance with Clause 7.5 of this Schedule 2, the invoice shall be regarded as valid and undisputed for the purpose of Clause 28.7.6 after a reasonable time has passed;

• requires the Supplier or other party to pay any undisputed sums which are due from it to the Sub-contractor within a specified period not exceeding thirty

(30) days of verifying that the invoice is valid and undisputed;

• permitting the Supplier to terminate, or to procure the termination of, the relevant Sub-contract where the Supplier is required to replace such Sub- contractor in accordance with Clause 8 of this Schedule 2; and

• requires the Sub-contractor to include a clause to the same effect as this Clause 7 of this Schedule 2 in any Sub-contract which it awards.

• Where the Authority considers that the grounds for exclusion under Regulation 57 of the Public Contracts Regulations 2015 apply to any Sub-contractor, then:

• if the Authority finds there are compulsory grounds for exclusion, the Supplier shall ensure, or shall procure, that such Sub-contractor is replaced or not appointed; or

• if the Authority finds there are non-compulsory grounds for exclusion, the Authority may require the Supplier to ensure, or to procure, that such Sub- contractor is replaced or not appointed and the Supplier shall comply with such a

• The Supplier shall pay any undisputed sums which are due from it to a Sub-contractor within thirty (30) days of verifying that the invoice is valid and undisputed. Where the Authority pays the Supplier’s valid and undisputed invoices earlier than thirty (30) days from verification in accordance with any applicable government prompt payment targets, the Supplier shall use its reasonable endeavours to pay its relevant Sub- contractors within a comparable timeframe from verifying that an invoice is valid and undisputed.

• The Authority shall upon written request have the right to review any Sub-contract entered into by the Supplier in respect of the provision of the Services and the Supplier

shall provide a certified copy of any Sub-contract within five (5) Business Days of the date of a written request from the Authority. For the avoidance of doubt, the Supplier shall have the right to redact any confidential pricing information in relation to such copies of Sub-contracts.

• The Authority may at any time transfer, assign, novate, sub-contract or otherwise dispose of its rights and obligations under this Contract or any part of this Contract and the Supplier warrants that it will carry out all such reasonable further acts required to effect such transfer, assignment, novation, sub-contracting or If the Authority novates this Contract to any body that is not a Contracting Authority, from the effective date of such novation, the party assuming the position of the Authority shall not further transfer, assign, novate, sub-contract or otherwise dispose of its rights and obligations under this Contract or any part of this Contract without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed by the Supplier.

29 Prohibited Acts

• The Supplier warrants and represents that:

• it has not committed any offence under the Bribery Act 2010 or done any of the following (“Prohibited Acts”):

• offered, given or agreed to give any officer or employee of the Authority any gift or consideration of any kind as an inducement or reward for doing or not doing or for having done or not having done any act in relation to the obtaining or performance of this or any other agreement with the Authority or for showing or not showing favour or disfavour to any person in relation to this or any other agreement with the Authority; or

• in connection with this Contract paid or agreed to pay any commission other than a payment, particulars of which (including the terms and conditions of the agreement for its payment) have been disclosed in writing to the Authority; and

• it has in place adequate procedures to prevent bribery and corruption, as contemplated by section 7 of the Bribery Act

• If the Supplier or its Staff (or anyone acting on its or their behalf) has done or does any of the Prohibited Acts or has committed or commits any offence under the Bribery Act 2010 with or without the knowledge of the Supplier in relation to this or any other agreement with the Authority:

• the Authority shall be entitled:

• to terminate this Contract and recover from the Supplier the amount of any loss resulting from the termination;

• to recover from the Supplier the amount or value of any gift, consideration or commission concerned; and

• to recover from the Supplier any other loss or expense sustained in consequence of the carrying out of the Prohibited Act or the commission of the offence under the Bribery Act 2010;

• any termination under Clause 2.1 of this Schedule 2 shall be without prejudice to any right or remedy that has already accrued, or subsequently accrues, to the Authority; and

• notwithstanding the Dispute Resolution Procedure, any Dispute relating to:

30 General

• the interpretation of Clause 29 of this Schedule 2; or

• the amount or value of any gift, consideration or commission,

shall be determined by the Authority, acting reasonably, and the decision shall be final and conclusive.

• Each of the Parties is independent of the other and nothing contained in this Contract shall be construed to imply that there is any relationship between the Parties of partnership or of principal/agent or of employer/employee nor are the Parties hereby engaging in a joint venture and accordingly neither of the Parties shall have any right or authority to act on behalf of the other nor to bind the other by agreement or otherwise, unless expressly permitted by the terms of this

• Failure or delay by either Party to exercise an option or right conferred by this Contract shall not of itself constitute a waiver of such option or

• The delay or failure by either Party to insist upon the strict performance of any provision, term or condition of this Contract or to exercise any right or remedy consequent upon such breach shall not constitute a waiver of any such breach or any subsequent breach of such provision, term or

• Any provision of this Contract which is held to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions of this Contract and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other

• Each Party acknowledges and agrees that it has not relied on any representation, warranty or undertaking (whether written or oral) in relation to the subject matter of this Contract and therefore irrevocably and unconditionally waives any rights it may have to claim damages against the other Party for any misrepresentation or undertaking (whether made carelessly or not) or for breach of any warranty unless the representation, undertaking or warranty relied upon is set out in this Contract or unless such representation, undertaking or warranty was made

• Each Party shall bear its own expenses in relation to the preparation and execution of this Contract including all costs, legal fees and other expenses so

• The rights and remedies provided in this Contract are independent, cumulative and not exclusive of any rights or remedies provided by general law, any rights or remedies provided elsewhere under this Contract or by any other contract or document. In this Clause 7 of this Schedule 2, right includes any power, privilege, remedy, or proprietary or security interest.

• Unless otherwise expressly stated in this Contract, a person who is not a party to this Contract shall have no right to enforce any terms of it which confer a benefit on such person except that a Successor and/or a Third Party may directly enforce any indemnities or other rights provided to it under this Contract. No such person shall be entitled to object to or be required to consent to any amendment to the provisions of this Contract.

• This Contract, any variation in writing signed by an authorised representative of each Party and any document referred to (explicitly or by implication) in this Contract or any variation to this Contract, contain the entire understanding between the Supplier and the Authority relating to the Services to the exclusion of all previous agreements, confirmations and understandings and there are no promises, terms, conditions or obligations whether oral or written, express or implied other than those contained or referred to in this Contract. Nothing in this Contract seeks to exclude either Party’s liability for Fraud. Any tender conditions and/or disclaimers set out in the Authority’s procurement documentation leading to the award of this Contract shall form part of this Contract.

• This Contract, and any Dispute or claim arising out of or in connection with it or its subject matter (including any non-contractual claims), shall be governed by, and construed in accordance with, the laws of England and

• Subject to Clause 22 of this Schedule 2, the Parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any Dispute or claim that arises out of or in connection with this Contract or its subject

• All written and oral communications and all written material referred to under this Contract shall be in

Schedule 3

Information and Data Provisions

• Confidentiality

• In respect of any Confidential Information it may receive directly or indirectly from the other Party (“Discloser”) and subject always to the remainder of Clause 1 of this Schedule 3, each Party (“Recipient”) undertakes to keep secret and strictly confidential and shall not disclose any such Confidential Information to any third party without the Discloser’s prior written consent provided that:

• the Recipient shall not be prevented from using any general knowledge, experience or skills which were in its possession prior to the Commencement Date;

• the provisions of Clause 1 of this Schedule 3 shall not apply to any Confidential Information:

• which is in or enters the public domain other than by breach of this Contract or other act or omissions of the Recipient;

• which is obtained from a third party who is lawfully authorised to disclose such information without any obligation of confidentiality;

• which is authorised for disclosure by the prior written consent of the Discloser;

• which the Recipient can demonstrate was in its possession without any obligation of confidentiality prior to receipt of the Confidential Information from the Discloser; or

• which the Recipient is required to disclose purely to the extent to comply with the requirements of any relevant stock

• Nothing in Clause 1 of this Schedule 3 shall prevent the Recipient from disclosing Confidential Information where it is required to do so by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by applicable Law, including the Freedom of Information Act 2000 (“FOIA”), Codes of Practice on Access to Government Information, on the Discharge of Public Authorities’ Functions or on the Management of Records (“Codes of Practice”) or the Environmental Information Regulations 2004 (“Environmental Regulations”).

• The Authority may disclose the Supplier’s Confidential Information:

• on a confidential basis, to any Contracting Authority (the Parties agree that all Contracting Authorities receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other Contracting Authorities on the basis that the information is confidential and is not to be disclosed to a third party which is not part of any Contracting Authority);

• on a confidential basis, to any consultant, contractor or other person engaged by the Authority and/or the Contracting Authority receiving such information;

• to any relevant party for the purpose of the examination and certification of the Authority’s accounts;

• to any relevant party for any examination pursuant to section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Authority has used its resources;

• to Parliament and Parliamentary Committees or if required by any Parliamentary reporting requirements; or

• on a confidential basis to a proposed successor body in connection with any proposed or actual, assignment, novation or other disposal of rights, obligations, liabilities or property in connection with this Contract;

and for the purposes of this Contract, references to disclosure “on a confidential basis” shall mean the Authority making clear the confidential nature of such information and that it must not be further disclosed except in accordance with Law or this Clause 1.3 of this Schedule 3.

• The Supplier may only disclose the Authority’s Confidential Information, and any other information provided to the Supplier by the Authority in relation this Contract, to the Supplier’s Staff or professional advisors who are directly involved in the performance of or advising on the Supplier’s obligations under this Contract. The Supplier shall ensure that such Staff or professional advisors are aware of and shall comply with the obligations in Clause 1 of this Schedule 3 as to confidentiality and that all information, including Confidential Information, is held securely, protected against unauthorised use or loss and, at the Authority’s written discretion, destroyed securely or returned to the Authority when it is no longer required. The Supplier shall not, and shall ensure that the Staff do not, use any of the Authority’s Confidential Information received otherwise than for the purposes of performing the Supplier’s obligations in this Contract.

• For the avoidance of doubt, save as required by Law or as otherwise set out in this Schedule 3, the Supplier shall not, without the prior written consent of the Authority (such consent not to be unreasonably withheld or delayed), announce that it has entered into this Contract and/or that it has been appointed as a Supplier to the Authority and/or make any other announcements about this

• Clause 1 of this Schedule 3 shall remain in force:

• without limit in time in respect of Confidential Information which comprises Personal Data or which relates to national security; and

• for all other Confidential Information for a period of three (3) years after the expiry or earlier termination of this Contract unless otherwise agreed in writing by the

2 Data protection

• The Parties acknowledge their respective duties under Data Protection Legislation and shall give each other all reasonable assistance as appropriate or necessary to enable each other to comply with those duties. For the avoidance of doubt, the Supplier shall take reasonable steps to ensure it is familiar with the Data Protection Legislation and

any obligations it may have under such Data Protection Legislation and shall comply with such obligations.

• Where the Supplier is Processing Personal Data under or in connection with this Contract, the Parties shall comply with the Data Protection

• The Supplier and the Authority shall ensure that Personal Data is safeguarded at all times in accordance with the Law, and this obligation will include (if transferred electronically) only transferring Personal Data (a) if essential, having regard to the purpose for which the transfer is conducted; and (b) that is encrypted in accordance with any international data encryption standards for healthcare, and as otherwise required by those standards applicable to the Authority under any Law and Guidance (this includes, data transferred over wireless or wired networks, held on laptops, CDs, memory sticks and tapes).

• Where, as a requirement of this Contract, the Supplier is Processing Personal Data relating to patients and/or service users as part of the Services, the Supplier shall:

• complete and publish an annual information governance assessment using the NHS Data Security and Protection Toolkit (“DSPT”);

• achieve a “standards met” assessment against the requirements in the DSPT;

• nominate an information governance lead able to communicate with the Supplier’s board of directors or equivalent governance body, who will be responsible for information governance and from whom the Supplier’s board of directors or equivalent governance body will receive regular reports on information governance matters including, but not limited to, details of all incidents of data loss and breach of confidence;

• report all incidents of data loss and breach of confidence in accordance with Department of Health and/or the NHS England and/or Health and Social Care Information Centre guidelines;

• put in place and maintain policies that describe individual personal responsibilities for handling Personal Data and apply those policies vigorously;

• put in place and maintain a policy that supports its obligations under the NHS Care Records Guarantee (being the rules which govern information held in the NHS Care Records Service, which is the electronic patient/service user record management service providing authorised healthcare professionals access to a patient’s integrated electronic care record);

• put in place and maintain agreed protocols for the lawful sharing of Personal Data with other NHS organisations and (as appropriate) with non-NHS organisations in circumstances in which sharing of that data is required under this Contract;

• where appropriate, have a system in place and a policy for the recording of any telephone calls in relation to the Services, including the retention and disposal of those recordings;

• at all times comply with any information governance requirements and/or processes as may be set out in the Specification; and

• comply with any new and/or updated requirements, Guidance and/or Policies notified to the Supplier by the Authority from time to time (acting reasonably) relating to the Processing and/or protection of Personal

• Where any Personal Data is Processed by any Sub-contractor of the Supplier in connection with this Contract, the Supplier shall procure that such Sub-contractor shall comply with the relevant obligations set out in Clause 2 of this Schedule 3, as if such Sub-contractor were the

• The Authority consents to the Supplier appointing third-party processors of Personal Data under this Contract in accordance with Paragraphs 1.12 and 1.13 of the Data Protection Protocol. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 6 of this Schedule 3. The Supplier shall not appoint any further third-party processors without the prior written consent of the Authority, such consent not to be unreasonably withheld or delayed.

Explanatory Note: Mediaburst are required to enter into non-negotiable agreements with third-party processors such as telecommunications utility providers. Such third parties are integral to the delivery of the services and therefore must be able to enter into such agreements. Mediaburst will maintain a list of such third-party processors which will be available via its website.

• Freedom of Information and Transparency

• The Parties acknowledge the duties of Contracting Authorities under the FOIA, Codes of Practice and Environmental Regulations and shall give each other all reasonable assistance as appropriate or necessary to enable compliance with those

• The Supplier shall assist and cooperate with the Authority to enable it to comply with its disclosure obligations under the FOIA, Codes of Practice and Environmental Regulations. The Supplier agrees:

• that this Contract and any recorded information held by the Supplier on the Authority’s behalf for the purposes of this Contract are subject to the obligations and commitments of the Authority under the FOIA, Codes of Practice and Environmental Regulations;

• that the decision on whether any exemption to the general obligations of public access to information applies to any request for information received under the FOIA, Codes of Practice and Environmental Regulations is a decision solely for the Authority;

• that where the Supplier receives a request for information under the FOIA, Codes of Practice and Environmental Regulations and the Supplier itself is subject to the FOIA, Codes of Practice and Environmental Regulations it will liaise with the Authority as to the contents of any response before a response to a request is issued and will promptly (and in any event within two (2)

Business Days) provide a copy of the request and any response to the Authority;

• that where the Supplier receives a request for information under the FOIA, Codes of Practice and Environmental Regulations and the Supplier is not itself subject to the FOIA, Codes of Practice and Environmental Regulations, it will not respond to that request (unless directed to do so by the Authority) and will promptly (and in any event within two (2) Business Days) transfer the request to the Authority;

• that the Authority, acting in accordance with the Codes of Practice issued and revised from time to time under both section 45 of FOIA, and regulation 16 of the Environmental Regulations, may disclose information concerning the Supplier and this Contract; and

• to assist the Authority in responding to a request for information, by processing information or environmental information (as the same are defined in FOIA and the Environmental Regulations) in accordance with a records management system that complies with all applicable records management recommendations and codes of conduct issued under section 46 of FOIA, and providing copies of all information requested by the Authority within five (5) Business Days of that request and without

• The Parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the FOIA, Codes of Practice and Environmental Regulations, the content of this Contract is not Confidential

• Notwithstanding any other term of this Contract, the Supplier consents to the publication of this Contract in its entirety (including variations), subject only to the redaction of information that is exempt from disclosure in accordance with the provisions of the FOIA, Codes of Practice and Environmental

• In preparing a copy of this Contract for publication under Clause 4 of this Schedule 3, the Authority may consult with the Supplier to inform decision making regarding any redactions but the final decision in relation to the redaction of information will be at the Authority’s absolute discretion.

• The Supplier shall assist and cooperate with the Authority to enable the Authority to publish this Contract.

• Where any information is held by any Sub-contractor of the Supplier in connection with this Contract, the Supplier shall procure that such Sub-contractor shall comply with the relevant obligations set out in Clause 3 of this Schedule 3, as if such Sub-contractor were the

• Information Security

• Without limitation to any other information governance requirements set out in this Schedule 3, the Supplier shall:

• notify the Authority forthwith of any information security breaches (including without limitation any potential or actual breaches of confidentiality or actual information security breaches) in line with the Authority’s information governance Policies; and

• fully cooperate with any audits or investigations relating to information security and any privacy impact assessments undertaken by the Authority and shall provide full information as may be reasonably requested by the Authority in relation to such audits, investigations and

• Where required in accordance with the Specification, the Supplier will ensure that it puts in place and maintains an information security management plan appropriate to this Contract, the type of Services being provided and the obligations placed on the Supplier. The Supplier shall ensure that such plan is consistent with any relevant Policies, Guidance, Good Industry Practice and with any relevant quality standards as may be set out in the Key Provisions and/or the

5 Costs

• Notwithstanding any other provisions of this Contract, the Supplier shall be entitled to recover its reasonable costs and expenses suffered or incurred as a result of providing assistance and/or complying with requests made by the Authority in relation to information security breaches, which are caused or contributed to by any default, whether by act or omission of the Authority, or on the part of any of its employees, agents, sub-consultants, suppliers, patients clients or any other third party engaged by the

Explanatory Note: Mediaburst are willing to assist the customer in dealing with security breaches, however it must be entitled to recover its reasonable costs and expenses for doing so in the event such data breach is attributable to a fault of the customer or its third parties.

Schedule 4

Definitions and Interpretations

• Definitions

• In this Contract the following words shall have the following meanings unless the context requires otherwise:

• References to any Law shall be deemed to include a reference to that Law as amended, extended, consolidated, re-enacted, restated, implemented or transposed from time to

• References to any legal entity shall include any body that takes over responsibility for the functions of such

• References in this Contract to a “Schedule”, “Appendix”, “Paragraph” or to a “Clause” are to schedules, appendices, paragraphs and clauses of this

• References in this Contract to a day or to the calculation of time frames are references to a calendar day unless expressly specified as a Business

• Unless set out in the Commercial Schedule as a chargeable item and subject to Clause 6 of Schedule 2, the Supplier shall bear the cost of complying with its obligations under this Contract.

• The headings are for convenience only and shall not affect the interpretation of this

• Words denoting the singular shall include the plural and vice

• Where a term of this Contract provides for a list of one or more items following the word “including” or “includes” then such list is not to be interpreted as an exhaustive list. Any such list shall not be treated as excluding any item that might have been included in such list having regard to the context of the contractual term in question. General words are not to be given a restrictive meaning where they are followed by examples intended to be included within the general

• Where there is a conflict between the Supplier’s responses to the Authority’s requirements (the Supplier’s responses being set out in Schedule 5) and any other part of this Contract, such other part of this Contract shall

• Where a document is required under this Contract, the Parties may agree in writing that this shall be in electronic format

• Where there is an obligation on the Authority to procure any course of action from any third party, this shall mean that the Authority shall use its reasonable endeavours to procure such course of action from that third

• Any guidance notes in grey text do not form part of this

• Any explanatory notes highlighted in blue do not form part of this

• Any Breach Notice issued by a Party in connection with this Contract shall not be invalid due to it containing insufficient information. A Party receiving a Breach Notice (“Receiving Party”) may ask the Party that issued the Breach Notice (“Issuing Party”) to provide any further information in relation to the subject matter of the Breach Notice that it may reasonably require to enable it to understand the Breach Notice and/or to remedy the breach. The Issuing Party shall not unreasonably withhold or delay the provision of such further information as referred to above as may be requested by the Receiving Party but no such withholding or delay shall invalidate the Breach

• Any terms defined as part of a Schedule or other document forming part of this Contract shall have the meaning as defined in such Schedule or

Schedule 5

Specification

Florence is a web application and texting service used to reinforce a mutually agreed healthcare plan between a patient and a healthcare provider; and enables patients to text in and record self-reported healthcare information using their own mobile phones.

The system was developed by Stoke Clinical Commissioning Group in collaboration with the Supplier to encourage patients to adhere to their treatment plans, particularly for long-term conditions.

Florence enables patients to input their vital statistics using their own mobile phones via SMS. On receipt of the text message, Florence automatically matches the patient-submitted data to a template configured by a clinical user for the purpose of tracking a health condition. As output, Florence will send a response pre-configured by a clinician to the patient and an alert to an email address if the data matches simple criteria set by the clinician within a template.

Roles

The Supplier will at no additional cost to the Authority, provide the Authority with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided, as set out below:

• Helpdesk – provide help and advice on the Florence platform technical functionality by telephone, email and Zendesk. They also provide updates on new product developments to Florence users and together with any planned/unplanned system maintenance, including updates on outages at mobile network level. The helpdesk can be contacted by telephone on 0345 50 50 120 or by email at hello@mediaburst.co.uk. The Supplier does not provide helpdesk support to patients

• Technical Team – provide the technical platform, logic and architecture Florence runs They will investigate clinician and/or administrator reported queries via the Florence database and logging where necessary. In the event of any extended maintenance period or telecommunication network outage to the inbound shortcode, the technical team will provide alternative contact numbers directly to the patients on the Florence service.

Florence user levels

Users can interact with Florence in different ways depending on their user status: 1 Administrators (including data input)

• Administrators can add clinician’s details (name/email address/mobile), groups (such as named surgeries, or midwives), and protocols (health conditions such as COPD, diabetes, )

• Protocols in Florence will be developed by the

• The Administrator will assign clinicians to groups and protocols to groups but cannot see any details outside of clinician’s contact details, groups contact details and protocols. They cannot access patient

• Clinicians (including data input)

• Clinicians can add patients to Florence (Name, mobile, NHS number)

• They can also add protocols to a patient. The list of protocols available to them depends on which protocols the administrator added to their

• They are able to customise certain elements of the protocol per

• When patients text in readings, clinicians can view graphs of their reading data. They can also download data readings per patient

• A Clinician can view their ‘own’ patient details, and details of patients in the same ‘group’. They cannot see other

• Patients (including data input)

• Once a patient has been added to Florence, they will receive a text asking them to opt

• Only when they have replied YES/opted in will they be able to start using Florence to send their readings to.

• Any protocols added to a patient will not send text messages to the patient until they opt in

• Patients can opt out and will stop receiving any further messages by texting in “STOP”

• Protocols can be set for reminders and to expect and accept patient readings via text message. If a patient doesn’t text in as expected, protocols can be set to send

Subscription Services

The Supplier will provide the Subscription Services in consideration of the Annual Subscription Fee.

Schedule 6

Commercial Schedule

Schedule 7

Further Authority obligations

1. Further Authority obligations

• The Authority shall:

• co-operate with the Supplier in all matters relating to the Services;

• provide the Supplier with access to such reports as the Authority and the Supplier agree are necessary for the purposes of this Contract (acting reasonably);

• provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Authority’s premises, office accommodation, data and other facilities as required by the Supplier;

• maintain a back up service to supply appropriate alternative services to its own clients in the event the Supplier is unable to supply the Services for any reason whatsoever;

• provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Authority or third party) reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete;

• notify the Supplier as soon as reasonably practicable of any operational event that would prevent the Supplier from carrying out the Services under this Contract;

• ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Contract and shall be responsible for any Authorised User’s breach of this Contract;

• ensure that all equipment owned or operated by the Authority is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;

• ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

• obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services before the date on which the Services are to

• The Authority shall not:

• except as may be allowed by any Law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Contract:

• attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or

• attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

• access all or any part of the Services in order to build a product or service which competes with the Services; or

• use the Services to provide services to third parties; or

• use the Services for the purposes of spamming in whole or in part; or

• license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or

• attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Clause 1 of this Schedule 7; or

• introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information

• The Authority is responsible for configuring its own information technology, computer programmes and hardware in order to access the Services, for maintaining licences in relation to its software and operating systems for accessing the Services and should use their own Virus protection software. The Supplier is not responsible for any failure to access the Services as a result of the incompatibility of the Authority’s computer programmes or

• The Authority is responsible for forecasting its text messaging requirements and purchasing Message Bundles with a Maximum Message Quantity appropriate to such requirements. Notwithstanding that the Supplier may notify the Authority if it reasonably believes the Authority may meet its Maximum Message Quantity, the Supplier shall have no liability under this Contract for any Losses which are caused or contributed to by any failure to access the Services relating to the Authority’s failure to purchase an appropriate Message Bundle for its

• The Authority is solely responsible for the appropriate use, and the Administrator’s and Authorised Users’ appropriate use, of the

• The Authority warrants that each Authorised User will:

• keep confidential any user name or password to any other person or permit anyone else to access the Services using their user name or password;

• be an employee, consultant or patient of the Authority, save where the Supplier has given written permission;

• not use the Services for anything other than their intended purpose, as determined by the Supplier and including, but not limited to the requirements of this Clause 1 of this Schedule 7; and

• not use the Services for any purpose which the Supplier, acting in its sole discretion, believes to be offensive, defamatory, discriminatory, intended to deceive others, promoting or constituting any illegal activity, likely to damage, disable, impair or compromise the Services or the Supplier’s systems or otherwise not an intended use,

and the Supplier reserves the right, without liability or prejudice to its other rights to the Authority, to disable the Authority’s access to any material that breaches the provisions of this Clause 1.6 of this Schedule 7.

• The Authority warrants that the Administrator shall:

• send User Authentication Emails only to individuals who meet the requirements of this Clause 1 of this Schedule 7;

• keep, and ensure that Authorised Users keep, confidential any user name and password assigned to them and shall be responsible for protecting and securing said user names and passwords;

• maintain accurate and up-to-date records of the Authorised Users; and

• prevent, so far as is reasonably possible, any unauthorised or improper use of the Services, including any use which is contrary to this Clause 1 of this Schedule 7.

Schedule 8

Subscription Services

SH shall provide independent reviews, case studies and evidence of how Florence can change lives, from the collaborative NHS members community. SH shares best practice on getting started with protocols and provides training in using Florence (training charged at day rates). Community members also receive detailed analysis reports on Florence usage from SH.

Schedule 9

Exit Plan

Schedule 10

Data Protection Protocol

Table A – Processing, Personal Data and Data Subjects

Definitions

The definitions and interpretative provisions at Schedule 4 (Definitions and Interpretations) of the Contract shall also apply to this Protocol. Additionally, in this Protocol the following words shall have the following meanings unless the context requires otherwise:

1 DATA PROTECTION

• The Parties acknowledge that for the purposes of the Data Protection Legislation, the Authority is the Controller and the Supplier is the Processor. The only Processing that the Supplier is authorised to do is listed in Table A of this Protocol by the Authority and may not be determined by the

• The Supplier shall notify the Authority promptly if it considers that any of the Authority’s instructions infringe the Data Protection

• The Supplier shall provide all reasonable assistance to the Authority in the preparation of any Data Protection Impact Assessment prior to commencing any Such assistance may, at the discretion of the Authority, include:

• a systematic description of the envisaged Processing operations and the purpose of the Processing;

• an assessment of the necessity and proportionality of the Processing operations in relation to the Services;

• an assessment of the risks to the rights and freedoms of Data Subjects; and

• the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of Personal Data.

• The Supplier shall, in relation to any Personal Data Processed in connection with its obligations under this Contract:

• process that Personal Data only in accordance with Table A of this Protocol, unless the Supplier is required to do otherwise by Law. If it is so required the Supplier shall promptly notify the Authority before Processing the Personal Data unless prohibited by Law;

• ensure that it has in place Protective Measures, which have been reviewed and approved by the Authority as appropriate to protect against a Data Loss Event having taken account of the:

• nature of the data to be protected;

• harm that might result from a Data Loss Event;

• state of technological development; and

• cost of implementing any measures;

• ensure that:

• the Supplier Personnel do not Process Personal Data except in accordance with this Contract (and in particular Table A of this Protocol);

• it takes all reasonable steps to ensure the reliability and integrity of any Supplier Personnel who have access to the Personal Data and ensure that they:

• are aware of and comply with the Supplier’s duties under this Protocol;

• are subject to appropriate confidentiality undertakings with the Supplier or any Sub-processor;

• are informed of the confidential nature of the Personal Data and do not publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Authority or as otherwise permitted by this Contract; and

• have undergone adequate training in the use, care, protection and handling of Personal Data;

• not transfer Personal Data outside of the UK unless the prior written consent of the Authority has been obtained (save in respect of patients who may be located outside of the UK at the time of the Supplier providing the Services in which case the provision of the patients’ mobile number to the Supplier shall constitute the instructions of the Authority and no separate written consent shall be required) and the following conditions are fulfilled:

• the Authority or the Supplier has provided appropriate safeguards in relation to the transfer (whether in accordance with Article 46 of the UK GDPR or Article 37 of the Law Enforcement Directive (Directive (EU) 2016/680)) as determined by the Authority;

• the Data Subject has enforceable rights and effective legal remedies;

• the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred (or, if it is not so bound, uses its best endeavours to assist the Authority in meeting its obligations); and

• the Supplier complies with any reasonable instructions notified to it in advance by the Authority with respect to the Processing of the Personal Data;

• at the written direction of the Authority, delete or return Personal Data (and any copies of it) to the Authority on termination or expiry of the Contract unless the Supplier is required by Law to retain the Personal

• Subject to Clause 6 of this Protocol, the Supplier shall notify the Authority as soon as reasonably practicable if it:

• receives a Data Subject Access Request (or purported Data Subject Access Request);

• receives a request to rectify, block or erase any Personal Data;

• receives any other request, complaint or communication relating to either Party’s obligations under the Data Protection Legislation;

• receives any communication from the Information Commissioner or any other regulatory authority in connection with Personal Data Processed under this Contract; or

• receives a request from any third party for disclosure of Personal Data where compliance with such request is required or purported to be required by Law.

• In respect of any Data Loss Event involving Personal Data Processed under this Contract, the Supplier shall, without undue delay (and in any event within 48 hours of becoming aware of the Data Loss Event):

• notify the Authority of the Data Loss Event; and

• provide the Authority with details of the Data Loss

Explanatory Note: The timescales in the NHS standard contract are unreasonable and disproportionate. Mediaburst will notify the customer of any Data Loss Event within at least 48 hours of becoming aware of such event and the customer will have sufficient time to report to the relevant supervisory authority (if required).

• The Supplier’s obligation to notify under Clauses 5 and 1.6 of this Protocol shall include the provision of further information to the Authority in phases, as details become available.

• Taking into account the nature of the Processing, the Supplier shall provide the Authority with full assistance in relation to either Party’s obligations under Data Protection Legislation and any complaint, communication or request made under Clause 1.5 of this Protocol (and insofar as possible within the timescales reasonably required by the Authority) including by promptly providing:

• the Authority with full details and copies of the complaint, communication or request;

• such assistance as is reasonably requested by the Authority to enable the Authority to comply with a Data Subject Access Request within the relevant timescales set out in the Data Protection Legislation;

• the Authority, at its request, with any Personal Data it holds in relation to a Data Subject;

• assistance as requested by the Authority following any Data Loss Event;

• assistance as requested by the Authority with respect to any request from the Information Commissioner’s Office, or any consultation by the Authority with the Information Commissioner’s

• The Supplier shall maintain complete and accurate records and information to demonstrate its compliance with this Protocol. This requirement does not apply where the Supplier employs fewer than 250 staff, unless:

• the Authority determines that the Processing is not occasional;

• the Authority determines the Processing includes special categories of data as referred to in Article 9(1) of the UK GDPR or Personal Data relating to criminal convictions and offences referred to in Article 10 of the UK GDPR; and

• the Authority determines that the Processing is likely to result in a risk to the rights and freedoms of Data

• The Supplier shall, on request by the Authority, in accordance with Data Protection Legislation, make available to the Authority or its designated auditor such information as is reasonably necessary to demonstrate the Supplier’s compliance with its obligations under this Protocol and Article 28 of the UK GDPR (and under any Data Protection Legislation equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Authority or its designated auditor for this purpose provided:

• the Authority gives the Supplier reasonable prior notice of such audit or inspection;

• the Authority pays the Supplier’s reasonable costs in allowing any audit or inspection (unless such audit or inspection is required by a Supervisory Authority or due to a breach by the Supplier of this Data Protection Protocol);

• the Parties (each acting reasonably and consent not to be unreasonably withheld or delayed) shall agree the timing, scope and duration of the audit, inspection or information release together with any specific policies or other steps with which the Authority or its designated auditor shall comply (including to protect the security and confidentiality of other customers, to ensure the Supplier is not placed in breach of any other arrangement with any other customer and so as to comply with the remainder of this Clause

1.10 of this Protocol);

• such audits, inspections or information requests shall be limited to one in any consecutive 12 month period, unless otherwise required by a Supervisory Authority or if the Authority (acting reasonably) believes the Supplier is in breach of this Protocol;

• the Authority shall promptly (and in any event within one Business Day) report any non-compliance identified by the audit, inspection or release of information to the Supplier;

• the Authority shall ensure that all inforation obtained or generated by the Authority or its designated auditor in connection with such information requests, inspections and audits is kept strictly confidential (save for disclosure required by Law);

• the Authority shall ensure that any such audit or inspection is undertaken during Normal Business Hours, with minimal disruption to the businesses of the Supplier and each Sub-processor; and

• the Authority shall ensure that each person acting on its behalf in connection with such audit or inspection (including the personnel of any third party auditor) shall not by any act or omission cause or contribute to any damage, destruction, loss or corruption of or to any systems, equipment or data in the control or possession of the Supplier or any Sub- processor whilst conducting any such audit or

Explanatory Note: Mediaburst requires additional safeguards to protect against audits becoming unduly burdensome and/or interrupting its commercial operations.

• The Supplier shall designate a Data Protection Officer if required by the Data Protection

• Subject to Clause 13 of this Protocol, before allowing any Sub-processor to Process any Personal Data related to this Contract, the Supplier must:

• notify the Authority in writing of the intended Sub-processor and Processing;

• obtain the written consent of the Authority;

• enter into a written agreement with the Sub-processor which give effect to the terms set out in this Protocol such that they apply to the Sub-processor; and

• provide the Authority with such information regarding the Sub-processor as the Authority may reasonably

• The Authority hereby consents to the Supplier appointing those third-parties listed on the Supplier’s website at the Commencement Date as Sub-processors under this Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the Sub-processor into a written agreement substantially on that third party’s standard terms of business. The Supplier shall notify the Authority of any changes to the list of Sub-processors and the Authority may object to such change within 10 days of notification.

Explanatory Note: Mediaburst are required to enter into non-negotiable agreements with third-party processors such as telecommunications utility providers. Such third parties are integral to the delivery of the services and therefore must be able to enter into such agreements. Mediaburst will maintain a list of such third-party processors which will be available via its website.

• The Supplier shall remain fully liable for all acts or omissions of any Sub-processor.

• Notwithstanding any other provisions of this Protocol or this Contract, the Supplier shall be entitled to recover its reasonable costs and expenses suffered or incurred as a result of providing assistance and/or complying with requests made by the Authority in relation to Data Loss Events and/or Personal Data Breaches, which are caused or contributed to by any default, whether by act or omission of the Authority, or on the part of any of its employees, agents, sub-consultants, suppliers, patients clients or any other third party engaged by the

Explanatory Note: Mediaburst are willing to assist the customer in dealing with Data Loss Events and/or Personal Data Breaches, however it must be entitled to recover its

reasonable costs and expenses for doing so in the event such data breach is attributable to a fault of the customer or its third parties.

• The Authority may, at any time on not less than 30 Business Days’ notice, revise this Protocol by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when incorporated by attachment to this Contract).

• The Parties agree to take account of any guidance issued by the Information Commissioner’s Office. The Authority may on not less than 30 Business Days’ notice to the Supplier amend this Protocol to ensure that it complies with any guidance issued by the Information Commissioner’s

• The Supplier shall comply with any further instructions with respect to Processing issued by the Authority by written notice. Any such further written instructions shall be deemed to be incorporated into Table A above from the date at which such notice is treated as having been received by the Supplier in accordance with Clause 2 of Schedule 2 of the Contract.

• Subject to Clauses 16, 1.17, and 1.18 of this Protocol, any change or other variation to this Protocol shall only be binding once it has been agreed in writing and signed by an authorised representative of both Parties.

2 CLAIMS AND COMPENSATION

• Subject to Clause 13 of Schedule 2, the Supplier shall indemnify the Authority for Data Protection Losses (howsoever arising, whether in contract, tort (including negligence) or otherwise) under or in connection with this Contract:

• only to the extent caused by the processing of Personal Data related to this Contract and directly resulting from the Supplier’s breach of this Contract; and

• in no circumstances to the extent that any Data Protection Losses (or the circumstances giving rise to them) are caused or contributed to by any default, whether by act or omission of the Authority, or on the part of any of its employees, agents, sub-consultants, suppliers, patients clients or any other third party engaged by the

• If a Party receives a compensation claim from a person relating to processing of Personal Data related to this Contract, it shall promptly provide the other Party with notice and full details of such claim. The Party with conduct of the action shall:

• make no admission of liability nor agree to any settlement or compromise of the relevant claim without the prior written consent of the other Party (which shall not be unreasonably withheld or delayed); and

• consult fully with the other Party in relation to any such action but the terms of any settlement or compromise of the claim will be exclusively the decision of the party that is responsible under this Contract for paying the compensation.

• The Parties agree that the Authority shall not be entitled to claim back from the Supplier any part of any compensation paid by the Authority in respect of such damage to the

extent that the Authority is liable to indemnify or otherwise compensate the Supplier in accordance with this Contract.

• This Clause 2 of this Protocol is intended to apply to the allocation of liability for Data Protection Losses as between the Parties, including with respect to compensation to Data Subjects, notwithstanding any provisions under Data Protection Legislation to the contrary, except:

• to the extent not permitted by Law (including Data Protection Legislation); and

• that it does not affect the liability of either party to any Data

Explanatory Note: The allocation of liability between the parties is required as, under the UK GDPR, both data controllers and data processor can be liable to supervisory authorities and data subjects.