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PART 4 – APPLICABLE TO ALL
17. RECORDS
17.1 Each Party shall maintain such records as required by Data Protection Law in respect of its Processing of PKB Data and as may be reasonably necessary to demonstrate its compliance with this Agreement.
18. REVIEW OF THIS AGREEMENT
18.1 The effectiveness of this Agreement shall be reviewed from time to time at such intervals as may be agreed by the Governance Committee, having consideration to the Permitted Purposes and whether any amendments may be necessary to this Agreement. This review will involve assessing whether:
18.1.1 this Agreement needs to be updated to comply with any amendments to Data Protection Law; and
18.1.2 Personal Data Breaches have been handled in accordance with this Agreement where PKB Data are involved.
19. WARRANTIES
19.1 Each Party represents and warrants to the other Party that:
19.1.1 it has full capacity to enter into and perform this Agreement which has been duly executed by the required corporate action;
19.1.2 entry into and performance of this Agreement does and will not violate or be subject to any restriction in or by any other agreement or obligation.
19.2 The use of PKB Data as permitted by this Agreement does not infringe the rights of any third party.
20. LIMITATION AND EXCLUSION OF LIABILITY
20.1 Each Party’s liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise shall be limited costs incurred by the other parties as a direct result of negligence of the Party, including failure to comply with this Agreement.
20.2 Each Party is responsible for the cost of remedying any non-compliance with Data Protection Laws determined the responsibility of that Party by this Arrangement. Liability under this Arrangement for each Party is limited to that which arises from a breach of Data Protection Laws.
20.3 Any liability arising from processing activity undertaken under this Arrangement shall be determined by the roles and responsibilities of each Party in line with Article 82 of GDPR.
21. TERMINATION
21.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party:
21.1.1 if the other Party commits a material breach of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ninety (90) days after being notified in writing to do so;
21.1.2 if the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
21.1.3 if the other Party is subject to an Insolvency Event;
21.1.4 if there is a change of control of the other Party excluding any intra-group reorganisation (or similar) of such other Party; or
21.1.5 in accordance with clause 29.
21.2 If the Commissioning Contract terminates for any reason this Agreement shall terminate automatically at the same time as the effective date of termination of the Commissioning Contract without any further action required by either Party.
21.3 Each Party’s rights to terminate this Agreement set out in this clause 21 shall not affect any other right or remedy available to it including those arising under this Agreement prior to termination.
22. CONSEQUENCES OF TERMINATION
Upon termination or expiry of this Agreement:
22.1 PKB will permanently delete Patient Record data which has not been accessed by the Providers.
22.2 Return to the Providers a copy of Patient Record data which has been accessed by the Providers, after which it will be permanently deleted.
22.3 For the absence of doubt, Patient Accounts will be retained by PKB in accordance with their role and responsibilities as a Controller.
Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
23. FORCE MAJEURE
Non-performance or delay of either Party will be excused to the extent that performance is caused by any circumstance beyond Party’s reasonable control, including strike, fire, natural disaster, governmental acts, orders or restrictions, failure of suppliers or subcontractors. In such circumstances the affected Party shall be entitled to a reasonable extension of time for performance. If the period of non-performance or delay continues for ninety (90) days, the Party not affected may terminate this Agreement immediately on written notice to the affected Party.
ASSIGNMENT AND OTHER DEALINGS
Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written approval of the other Party, except as expressly permitted by clause 24.2.
A Party may, upon written notice to the other Party and subject to the prior written approval of the other Party (such approval not to be unreasonably withheld or delayed), assign or otherwise transfer this Agreement to any of its affiliates or in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). For clarity, where such assignment or transfer would give rise to a breach of obligations in relation to Data Protection Law or other Applicable Law or may already affect any research ethics approvals or would not be expected in accordance with the common law duty of confidentiality, such grounds shall amongst other matters be considered reasonable for refusing approval to such assignment or transfer. Any assignment or other transfer in violation of this clause will be void.
This Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties.
NOTICES
All notices required or permitted under this Agreement and all requests for approvals, consents and waivers must be delivered by a method providing for proof of delivery. Any notice or request will be deemed to have been given on the date of delivery. Notices and requests must be delivered to the Parties at the addresses on the first page of this Agreement until a different address has been designated by notice to the other Party.
SEVERANCE
If any provision of this Agreement is found to be unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable and this Agreement will otherwise remain in full force and effect.
RELATIONSHIP OF THE PARTIES
The Parties are and will be independent contractors and neither Party has any right, power, or authority to act or create any obligation on behalf of the other Party.
RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
WAIVER
No term or provision of this Agreement will be deemed waived and no breach will be deemed excused, unless such waiver is in writing and signed by the Party claimed to have waived.
COUNTERPARTS
This Agreement may be executed in counterparts (which may be exchanged by facsimile or .pdf copies), each of which will be deemed an original, but all of which together will constitute the same Agreement.
THIRD PARTY RIGHTS
This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
FURTHER ASSURANCE
Each Party shall use reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
COSTS
Each Party shall pay its own costs incurred in connection with the negotiation, preparation, and execution of this Agreement.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous drafts, agreements, arrangements, and understandings between them, whether written or oral, relating to its subject matter.
Each Party acknowledges that in entering into this Agreement it does not rely upon, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. No Party shall have any claim for innocent or negligent misrepresentation based on any statement in this Agreement.
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