[Note:- This schedule contains agreements that the parties or their employees, agents, etc may be required to sign by clauses of the Contract.]
I1 Escrow agreement
[If any Contractor Software is to be held in escrow it will be identified in schedule B as escrow programs in accordance with sub-clause 23.2.1.
If any escrow programs are identified, an escrow agent will be named here and an escrow agreement included here. If neither is included, the Default will be that the NCC will be appointed as escrow agent and the NCC agreement specified in sub-clause 23.2.2 will be applied.].
I2 Deed of Novation
AGREED FORM DEED OF NOVATION
THIS DEED OF NOVATION is made the …………. day of ………200[ ] BETWEEN:
(1) [ ] NATIONAL HEALTH SERVICE TRUST of [ ] (the “Authority”). [The NHS party will depend on which NHS entity was the original contracting party with the contractor ]
(2) [ ] LIMITED of [ ](registered under number [ ]) whose registered office is [ ] (the “Contractor”);
(3) [ ] LIMITED of [ ] (registered under number [ ]) whose registered office is [ ] (the “Service Provider”); and
WHEREAS:
(A) Pursuant to the provisions of Clause [6.3.5] of the Contract (as defined below), the Authority may novate the rights and obligations of the Authority under the Contract to any LSP (as defined below) identified by the Authority from time to time;
(B) The Service Provider is an LSP;
(C) Clause [6.3.5] of the Contract also provides that the Contractor has already agreed to the novation of its rights and obligations to an LSP and appointed the Authority as its agent for the purposes of execution of this Deed; and
(D) The Parties (as defined below) wish to novate the Authority’s rights and obligations under the Contract as further provided by the terms of this Deed.
NOW IT IS AGREED as follows:
1. Interpretation
In this Deed, the following terms shall bear the meanings set out opposite them:
“Contract” means the contract for the provision of managed information technology services reference [ ] between the Contractor and the Authority and executed on [ ];
“Deed” means this deed of novation;
"Effective Date" means [the date of this Deed];
"Event of Insolvency" means the making of a winding up order or administration order;
"LSP" means any person that at any time provides information technology services as part of the National IT Programme for the NHS; and
“Parties” means the Authority, the Contractor and the Service Provider.
2. Novation
2.1 In respect of the period from the Effective Date to the occurrence of any Event of Insolvency in relation to the Service Provider (the “Novation Period”) but subject to Clause 2.3:
2.1.1 the Service Provider undertakes to the Contractor and to the Authority to perform, discharge and observe all the obligations and liabilities on the part of the Authority under the Contract as fall to be performed, discharged or observed after the Effective Date as if the Service Provider were named in the Contract in place of the Authority with effect from the Effective Date;
2.1.2 in consideration of the Service Provider's undertaking in sub-Clause 2.1.1, the Contractor releases and discharges the Authority from all claims, demands, duties, obligations and liabilities whatsoever in respect of the Contract arising on or after the Effective Date; and 2.1.3 the Contractor undertakes to the Service Provider to perform, discharge and observe all the
obligations and liabilities on the part of the Contractor under the Contract and acknowledges that the Service Provider shall be entitled to the rights and benefits of the Contract as if the Service Provider were named in the Contract in place of the Authority with effect from the Effective Date.
2.2 The Service Provider shall notify the Contractor in writing of its address and contact details for the purposes of Clause [4] (Communications under the Contract). For the Novation Period, the Authority's Authorised Officer under the Contract shall be replaced by the Service Provider's Authorised Officer and the Service Provider shall notify the Contractor in writing of the identity of its Authorised Officer.
2.3 If an Event of Insolvency occurs in relation to the Service Provider, the provisions of Clause 2.1 and 2.2 shall cease to apply in respect of the period on and from the date on which the Event of Insolvency occurs (but shall continue to bind the Service Provider and the Contractor in respect of the period prior to that date) so that the Authority and the Contractor shall, with effect from the date of the Event of Insolvency and in respect only of the period on and from that date, have the same rights and obligations in relation to one another under the Contract as if Clause 2.1 had not had effect.
2.4 Save as amended by this Clause 2 of this Deed, the Contract shall continue in full force and effect.
2.5 The Authority or its agent shall have the right to require the Service Provider and the Contractor to novate the Contract from the Service Provider back to the Authority or to any other LSP identified by the Authority or its agent from time to time. The Contractor and the Service Provider agree to enter into a deed of novation of the Contract to any such LSP on the terms and conditions set out in this Deed (a "Further Deed of Novation"). The Service Provider irrevocably appoints the Authority or its agent as its agent for the purpose of execution of the Further Deed of Novation.
3. Additional Provisions
3.1 The Parties undertake to promptly execute all further deeds, agreements and documents as may be reasonably necessary in order to effect and/or clarify the relationship between the Parties.
3.2 Whole agreement:
3.2.1 This Deed and the documents referred to in it contain the whole agreement between the Parties relating to the transactions contemplated by this Deed and supersede all previous agreements between the Parties relating to those transactions.
3.2.2 Subject to Clause 3.2.3, each Party acknowledges that in entering into this Deed it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Deed and the documents referred to in it) made by or on behalf of any other Party before the date of this Deed. Each Party waives all rights and remedies which, but for this Clause 3.2, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
3.2.3 Nothing in Clause 3.2.2 limits or excludes any liability for fraud.
3.3 It is agreed for the purposes of the Contracts (Rights of Third Parties) Act 1999 that this Deed is not intended to and does not confer on any person who is not a party to this Deed any rights to enforce any provisions contained in this Deed.
3.4 This Deed shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction in relation to the subject matter hereof.
IN WITNESS WHEREOF the Parties have executed this Deed on the date set out above.
THE CORPORATE COMMON SEAL OF [ ] ) NATIONAL HEALTH SERVICE TRUST ) was hereunto executed in the presence of )
……….
Chairman
……….
Signatory Full Name
……….
Chief Executive
……….
Signatory Full Name
Executed as a deed )
by [CONTRACTOR] )
acting by [DIRECTOR] ) ………
and [DIRECTOR/SECRETARY] ) ………
Executed as a deed )
by [SERVICE PROVIDER] )
acting by [DIRECTOR] ) ………
and [DIRECTOR/SECRETARY] ) ………