Page 1

Dated

2009

(1)

NORTH WEST DEVELOPMENT AGENCY

(2)

[SERVICE PROVIDER]

Contract for the Provision of a Web-Hosted Expenses Management System

[Note: Procurement should only amend the optional parts of this contract. If any other amends are required contact Legal]


[Insert contents page]


DATED

2009

BETWEEN: (1)

NORTH WEST DEVELOPMENT AGENCY of Renaissance House, Centre Park, Warrington, Cheshire WA1 1QN (“the Customer”,) which includes any statutory successors); and

(2)

[INSERT DETAILS] (“the Service Provider”) (insert legal name of Service Provider) trading under the name of [INSERT DETAILS] [(insert principal trading name if different from legal name)] (Company Number [ ]) whose registered office/address is [INSERT ADDRESS].

IT IS AGREED: 1. AGREEMENT TO PURCHASE1 With effect from the Commencement Date the Customer agrees to purchase and the Service Provider agrees to supply the Services on the terms set out in this Contract. 2. CONTRACT The terms and conditions comprised in this Contract, and the Schedules which are annexed to the Contract, and any Subordinate Documentation, shall comprise the contract (the “Contract”) between the Customer and the Service Provider. The Contract shall constitute the entire understanding between the Customer and the Service Provider relating to its subject matter and, save as expressly referred to, supersede all prior representations (other than any fraudulent representations), negotiations or understandings relating to its subject matter.


THE CONTRACT was duly executed on behalf of the Customer and the Service Provider on the date specified above.

SIGNED by

the NORTH WEST DEVELOPMENT AGENCY

)

……………………………………..

)

Authorised Signatory

SIGNED by ) _____________________________

)

Print name

duly authorised for and on behalf of

)

……………………………………..

the Service Provider

)

Signatory to sign here

In the presence of:

)

_____________________________

)

……………………………………..

Print name

)

Witness to sign here


1.

DEFINITIONS 1.1

In this Contract:-

“Acceptance”

means when the Customer confirms to the Service Provider that the Services and Deliverables to be provided under this Contract have met the criteria specified in the Invitation to Tender, Statement of Requirements and Tender Response to the satisfaction of the Customer and “Accepted” shall be construed accordingly;

“Account Manager”

means the individual designated by the Service Provider as the account manager as notified to the Customer and any replacement from time to time;

“Affiliate”

in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time;

“Approval”

means the written consent of the Customer and “Approve” and “Approved” shall be construed accordingly;

“Branding Guide”

means the Customer’s brochure entitled “Branding and Publicity Requirements – A guide for partners delivering Northwest Development Agency funded activities” (a copy of which is available from the Customer upon request from the Service Provider) as amended or replaced from time to time by the Customer;

“Change of Control”

a change of control of a company, and “Control” shall be as defined by Sections 416 and 840 of the Income and Corporation Taxes Act 1988;

“Commencement Date”

means [the date of this Contract]/[insert date]

“Commercially Sensitive Information”

means the information identified as such in writing by the Service Provider to the Customer comprising information of a commercially sensitive nature relating to the Service Provider, its IPR or its business or which the Service Provider has indicated to the Customer that, if disclosed by the Customer, would cause the Service Provider significant commercial disadvantage or material financial loss;

“Confidential Information”

means:(a)

any information which has been designated as confidential by either Party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person, trade secrets, Intellectual Property Rights and know-how of either Party


and all personal data and sensitive personal data within the meaning of the DPA; and (b)

the Commercially Sensitive Information,

and does not include any information which:(i)

was public knowledge at the time of disclosure (otherwise than by a breach of Clause 8.1.26 (Confidentiality));

(ii)

was in the possession of the receiving Party, without restriction as to its disclosure, before receiving it from the disclosing Party;

(iii)

is received from a third party (who lawfully acquired it) without restriction as to its disclosure and/or use; or

(iv)

is independently developed without access to the Confidential Information,

(v)

any information which is ordered to be disclosed by a court or tribunal of competent jurisdiction;

(vi)

any information which is required to be disclosed by Law;

“Contract”

means this agreement;

“Contract Period”

means the period from the Commencement Date to the date of expiry set out in Clause 2.1.9 or such earlier date of termination or partial termination of the Contract in accordance with the provisions of the Contract; OR means the period from the Commencement Date to:(a)

the date of expiry set out in Clause 2.1.9 (Contract Period); or

(b)

following an extension pursuant to Clause 11.1.5(f) (Extension of Initial Contract Period), the date of expiry of the extended period,

or such earlier date of termination or partial termination of the Contract in accordance with the provisions of the Contract; “Contract Price”

means the price/charges exclusive of any applicable VAT, payable to the Service Provider by the Customer under the Contract, as set out in Schedule 1 (Contract Price), for the full and proper performance by the Service Provider of its obligations under the Contract;

“Contracting Authority”

means any contracting authority as defined in Regulation 3 of the Public Contracts Regulations 2006 other than the Customer;

“Crown”

means the government of the United Kingdom (including the


Northern Ireland Assembly and Executive Committee, the Scottish Executive and the National Assembly for Wales), including, but not limited to, government ministers and government departments and particular bodies, persons, commissions or agencies from time to time carrying out functions on its behalf; “Crown Body”

Any department, office or agency of the Crown;

“Customer Data”

a) the data, text, drawings, images or sounds (together with any database made up of any of these) which are embodied in any electronic, magnetic, optical or tangible media, and which are: i)

supplied to the Service Provider by or on behalf of the Customer; or

ii) which the Service Provider is required to generate process, store or transmit pursuant to the Contract, or b) any Personal Data for which the Customer is the Data Controller; “Customer System”

means the Customer’s computing environment (consisting of hardware, software and/or telecommunications networks or equipment) used by the Customer or the Service Provider in connection with the Contract which is owned by or licensed to the Customer by a third party and which interfaces with the Service Provider System or which is necessary for the Customer to receive the Services;

“Default”

means any breach of the obligations of the relevant Party (including but not limited to fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or negligent statement of the relevant Party or the Staff in connection with or in relation to the subject-matter of the Contract and in respect of which such Party is liable to the other;

“Deliverables”

means any document, plan, report, review or any other materials to be provided by or on behalf of the Service Provider pursuant to the Services;

“Disputed Charge”

means a charge which is not valid and/or properly due and/or in respect of which the Services have not been duly and properly provided;

“DPA”

means the Data Protection Act 1998 and any subordinate legislation made under such Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation;


“Environmental Information Regulations”

means the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government department in relation to such regulations;

“Equipment”

means the Service Provider’s equipment, plant, materials and such other items supplied and used by the Service Provider in the performance of its obligations under the Contract;

“FOIA”

means the Freedom of Information Act 2000 and any subordinate legislation made under such Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government department in relation to such legislation;

“Force Majeure”

means any event or occurrence which is outside the reasonable control of the Party concerned and which is not attributable to any act or failure to take preventative action by that Party, including fire; flood; violent storm; pestilence; explosion; malicious damage; armed conflict; acts of terrorism; nuclear, radiological, biological or chemical warfare; or any other disaster, natural or man-made, but excluding:(a)

any industrial action occurring within the Service Provider’s or any sub-contractor’s organisation; or

(b)

the failure by any sub-contractor to perform its obligations under any sub-contract unless this is caused by a Force Majeure event or occurrence;

“Fraud”

means any offence under Laws creating offences in respect of fraudulent acts or at common law in respect of fraudulent acts in relation to the Contract or defrauding or attempting to defraud or conspiring to defraud the Crown;

“Good Industry Practice”

means standards, practices, methods and procedures conforming to the Law and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances;

“Information”

has the meaning given under section 84 of the Freedom of Information Act 2000;

“Information Request”

means a request for Information under the FOIA;

“Initial Contract Period”

means the period from the Commencement Date to the date of expiry set out in clause 2.1.9 (Contract Period), or such earlier date of termination or early termination of the agreement in accordance with the provisions of this Contract;

“Intellectual Property Rights” and “IPRs”

means patents, inventions, trade marks, service marks, logos, design rights (whether registerable or otherwise), applications for


any of the foregoing, copyright, database rights, domain names, trade or business names, moral rights and other similar rights or obligations whether registerable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off; “Invitation to Tender”

means the Customer’s invitation to suppliers for offers to supply it with the Services entitled “Invitation to Tender – North West Development Agency – Supply and Implementation of a Hosted Expenses Management System” dated [insert date], a copy of which is annexed to this Contract at Schedule 2;

“Know-How”

means all ideas, concepts, schemes, conformation, knowledge, techniques and methodology relating to the Services but excluding know how already in the Service Provider’s or the Customer’s possession before the commencement of the Contract;

“Law”

means any applicable Act of Parliament, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, exercise of the royal prerogative, enforceable community right within the meaning of Section 2 of the European Communities Act 1972, regulatory policy, guidance or industry code, judgment of a relevant court of law, or directives or requirements of any Regulatory Body;

“Milestone”

means an event or task described in the Project Plan which, if applicable, must be completed by the relevant Milestone Date;

“Milestone Date”

means the latest date by which the Service Provider must have achieved any Milestone as set out in the Project Plan;

“Month”

means a calendar month;

“Parent Company”

means any company which is the ultimate Holding Company of the Service Provider or any other company of which the ultimate Holding Company of the Service Provider is also the ultimate Holding Company and which is either responsible directly or indirectly for the business activities of the Service Provider or which is engaged by the same or similar business to the Service Provider. The term “Holding Company” shall have the meaning ascribed in Section 736 of the Companies Act 1985 or any statutory re-enactment or amendment thereto;

“Party”

means the Service Provider or the Customer and the term “Parties” shall be construed accordingly;

“Persistent Default”

means two (2) Defaults within the Contract Period;

“Personal Data”

has the meaning given to it by section 1(1) of the DPA;

“Pre-Existing IPR”

means any Intellectual Property Rights vested in or licensed to the Customer or the Service Provider prior to or independently of the performance by the Customer or the Service Provider of their obligations under this Contract and in respect of the Customer


includes, guidance, specifications, instructions, toolkits, plans, data, drawings, databases, patents, patterns, models and designs; “Premises”

means the location where the Services are to be supplied, as set out in the Invitation to Tender;

“Processing”

has the meaning given to it by section 1(1) of the DPA and “Process” and “Processed” will be construed accordingly;

“Project Plan”

means the timetable to be developed and agreed between the Parties from time to time and relating to the development, customisation, implementation, training and delivery of the Services by the Service Provider;

“Project Specific IPRs”

means (a)

IPRs in items created by the Service Provider (or by a third party on behalf of the Service Provider) specifically for the purposes of this Contract including, any Deliverables, the source code and all updates and amendments of these items; and/or

(b)

IPRs arising as a result of the performance of the Service Provider's obligations under this Contract;

“Property”

means the property, other than real or intellectual property, issued or made available to the Service Provider by the Customer in connection with the Contract;

“Purchase Order Number”

means the Customer’s allocated purchase order number for this Contract;

“Quality Standards”

means the quality standards published by BSI British Standards, the National Standards Body of the United Kingdom, the International Organisation for Standardization or other reputable or equivalent body, (and their successor bodies) that a skilled and experienced operator in the same type of industry or business sector as the Service Provider would reasonably and ordinarily be expected to comply with and any other quality standards set out in the Invitation to Tender;

“Regulatory Bodies”

means those government departments and regulatory, statutory and other entities, committees, ombudsmen and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in the Contract or any other affairs of the Customer;

“Replacement Service Provider”

means any third party service provider appointed by the Customer, to supply any services which are substantially similar to any of the Services and which the Customer receives in substitution for any of the Services following the expiry, termination or partial termination of the Contract;


“Request for Information”

means a request for information or an apparent request under the FOIA or the Environmental Information Regulations;

“Security Policy”

means the Customer’s security policy as set out in paragraph 2.5.2.7 of the Invitation to Tender;

“Security Requirements”

means the Customer’s security requirements as set out in the Security Policy;

“Service Level Agreement”

means the service level agreement agreed between the Parties as annexed at Schedule 8 hereto;

“Services”

means the supply and implementation of a web-hosted expenses management system including but not limited to the provision of training, implementation support, software customisation and post implementation maintenance and support as more particularly described in the Invitation to Tender, Statement of Requirements and the Tender Response;

“Service Provider System”

means the information and communications technology system used by the Service Provider in performing the Services including any software, Equipment and related cabling (but excluding the Customer System);

“Staff”

means all persons employed by the Service Provider to perform its obligations under the Contract together with the Service Provider’s servants, agents, suppliers and sub-contractors used in the performance of its obligations under the Contract;

“Staff Vetting Procedures”

means the Customer’s procedures and policies for the vetting of personnel whose role will involve the handling of information which is subject to any relevant security measures, including, but not limited to, the Official Secrets Act 1911 to 1989;

“Statement of Requirements”

means the Customer’s statement of requirements for the Services as set out in Appendix 1 of the Invitation to Tender;

“Subordinate Documentation”

any document included within the definition of “the Contract” by virtue of it being expressly referred to in the Contract and/or in any of the documents incorporated by reference in the Contract;

“Tender Response”

means the document(s) submitted by the Service Provider to the Customer in response to the Invitation to Tender copies of which are annexed at Schedule 3 to this Contract;

“TUPE”

the Transfer of Undertakings (Protection of Employment) Regulations 2006;

“Variation”

has the meaning given to it in Clause 8.1.92 (Variation);

“VAT”

means value added tax in accordance with the provisions of the Value Added Tax Act 1994;

“Working Day”

means any day other than a Saturday or Sunday or public


holiday in England and Wales; and “Working Hours”

2.

means the normal working hours of the Customer as notified to the Service Provider by the Customer from time to time;

INTERPRETATION 2.1

The interpretation and construction of this Contract shall be subject to the following provisions:-

2.1.1

words importing the singular meaning include where the context so admits the plural meaning and vice versa;

2.1.2

words importing the masculine include the feminine and the neuter;

2.1.3

the words “include”, “includes” and “including” are to be construed as if they were immediately followed by the words “without limitation”;

2.1.4

references to any person shall include natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assigns or transferees;

2.1.5

references to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent enactment, modification, order, regulation or instrument as subsequently amended or re-enacted;

2.1.6

unless otherwise expressly stated, references to Clauses are to the Clauses of this Contract and references to Schedules are to the schedules of the Framework Agreement;

2.1.7

headings are included in the Contract for ease of reference only and shall not affect the interpretation or construction of the Contract; and

2.1.8

reference to a Clause is a reference to the whole of that Clause unless stated otherwise.

2.1.9 Contract Period The Contract shall take effect on the Commencement Date and shall expire on the date falling 3 years after the Commencement Date, unless it is otherwise terminated in accordance with the provisions of the Contract or otherwise lawfully terminated, or extended under clause 11.1.5(f) (Extension of Initial Contract Period). 3.

Service Provider’s Status At all times during the Contract Period the Service Provider shall be an independent contractor and nothing in the Contract shall create a contract


of employment, a relationship of agency or partnership or a joint venture between the Parties and, accordingly, neither Party shall be authorised to act in the name of, or on behalf of, or otherwise bind the other Party save as expressly permitted by the terms of the Contract. 4.

Customer’s Obligations Save as otherwise expressly provided, the obligations of the Customer under the Contract are obligations of the Customer in its capacity as a contracting counterparty and nothing in the Contract shall operate as an obligation upon, or in any other way fetter or constrain the Customer in any other capacity, nor shall the exercise by the Customer of its duties and powers in any other capacity lead to any liability under the Contract (howsoever arising) on the part of the Customer to the Service Provider.

5.

Entire Agreement 5.1.1

This Contract constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in it and supersedes, cancels or nullifies any previous agreement between the Parties in relation to such matters.

5.1.2

Each of the Parties acknowledges and agrees that in entering into this Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) other than as expressly set out in this Contract. The only remedy available to either Party for any such statements, representation, warranty or understanding shall be for breach of contract under the terms of this Contract.

5.1.3

Nothing in Clauses 5.1.1 and 5.1.2 shall operate to exclude Fraud or fraudulent misrepresentation.

5.1.4

In the event of and only to the extent of any conflict between the, the clauses of the Contract, the Schedules to this Contract and any document referred to in the clauses of this Contract, the conflict shall be resolved in accordance with the following order of precedence:(a) the clauses of the Contract; (b) the Schedules to this Contract; and (c) any other document referred to in the clauses of the Contract.

5.1.5

The Contract may be executed in counterparts each of which when executed and delivered shall constitute an original but all counterparts together shall constitute one and the same instrument.

5.1.6

No amendment to the Contract will be effective unless it is agreed in writing and signed by the authorised representatives of both Parties and without prejudice to any other provision of the Contract


and for the avoidance of doubt no payment shall be made by the Customer for unauthorised services. 5.1.7 Notices 5.1.8

Except as otherwise expressly provided within the Contract, no notice or other communication from one Party to the other shall have any validity under the Contract unless made in writing by or on behalf of the Party sending the communication.

5.1.9

Any notice or other communication which is to be given by either Party to the other shall be given by letter (sent by hand, post, registered post or by the recorded delivery service), by facsimile transmission or electronic mail (confirmed in either case by letter). Such letters shall be addressed to the other Party as set out in Clause 5.1.10. Provided the relevant communication is not returned as undelivered, the notice or communication shall be deemed to have been given two (2) Working Days after the day on which the letter was posted, or four (4) hours, in the case of electronic mail or facsimile transmission or sooner where the other Party acknowledges receipt of such letters, facsimile transmission or item of electronic mail.

5.1.10

For the purposes of Clause 5.1.9, the address of each Party shall be: (a) for the Customer:Director of Finance Address:

For the attention of: Tel: Fax: Email: (b) for the Service Provider:[

]

Address:

For the attention of: Tel: Fax:


Email: 5.1.11

Either Party may change its address for service by serving a notice in accordance with this clause.

5.1.12 Mistakes in Information The Service Provider shall be responsible for the accuracy of all drawings, documentation and information supplied to the Customer by the Service Provider in connection with the supply of the Services and shall pay the Customer any extra costs occasioned by any discrepancies, errors or omissions therein. 6.

Conflicts of Interest 6.1.1

The Service Provider shall take appropriate steps to ensure that neither the Service Provider nor any Staff is placed in a position where (in the reasonable opinion of the Customer), there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Service Provider or Staff and the duties owed to the Customer under the provisions of the Contract.

6.1.2

The Service Provider shall notify the Customer promptly (and provide full particulars to the Customer) if any conflict referred to in Clause 6.1.1 arises or is reasonably foreseeable.

6.1.3

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

6.1.4

This Clause 6 shall apply during the Contract Period and for a period of two (2) years after expiry of the Contract Period.

6.1.5 Prevention of Fraud 6.1.6

The Service Provider shall take all reasonable steps, in accordance with Good Industry Practice, to prevent any fraudulent activity by Staff and the Service Provider (including its shareholders, members, directors) in connection with the receipt of monies from the Customer.

6.1.7

The Service Provider shall notify the Customer immediately if it has reason to suspect that any fraud has occurred or is occurring or is likely to occur.

6.1.8

If the Service Provider or its Staff commits Fraud in relation to this or any other contract with the Crown (including the Customer) the Customer may:-


(a) terminate the Contract with immediate effect by giving the Service Provider notice in writing and recover from the Service Provider the amount of any loss suffered by the Customer resulting from the termination including the cost reasonably incurred by the Customer of making other arrangements for the supply of the Services and any additional expenditure incurred by the Customer throughout the remainder of the Contract Period; or (b) recover in full from the Service Provider any other loss sustained by the Customer in consequence of any breach of this clause. (C) SUPPLY OF SERVICES (d)

The Services 6.1.9

The Service Provider shall supply the Services during the Contract Period in accordance with the Customer’s requirements as set out in the Contract and in accordance with the Invitation to Tender, the Statement of Requirements, the Tender Response and the Service Level Agreement in consideration for the payment of the Contact Price. The Customer may inspect and examine the manner in which the Service Provider supplies the Services at the Premises during normal business hours on reasonable notice.

6.1.10

If the Customer informs the Service Provider in writing that the Customer reasonably believes that any part of the Services does not meet the requirements of the Contract or differs in any way from those requirements, and this is other than as a result of a Default on the part of the Customer, the Service Provider shall at its own expense re-schedule and carry out the Services in accordance with the requirements of the Contract within such reasonable time as may be specified by the Customer.

6.1.11

Subject to the Customer providing Approval in accordance with Clause 6.1.14 (Provision and Removal of Equipment), timely supply of the Services shall be of the essence of the Contract, including in relation to commencing the supply of the Services within the time agreed or on a specified date and performing any Milestones by the relevant Milestones Date.

6.1.12 Provision and Removal of Equipment 6.1.13

The Service Provider shall provide all the Equipment necessary for the supply of the Services.

6.1.14

The Service Provider shall not deliver any Equipment nor begin any work on the Premises without obtaining the Customer’s prior Approval.

6.1.15

All Equipment brought onto the Premises shall be at the Service Provider’s own risk and the Customer shall have no liability for any loss of or damage to any Equipment unless the Service Provider is able to demonstrate that such loss or damage was caused or


contributed to by the Customer’s Default. The Service Provider shall provide for the haulage or carriage thereof to the Premises and the removal of Equipment when no longer required at its sole cost. Unless otherwise agreed, Equipment brought onto the Premises will remain the property of the Service Provider. 6.1.16

The Service Provider shall maintain all items of Equipment within the Premises in a safe, serviceable and clean condition.

6.1.17

The Service Provider shall, at the Customer’s written request, at its own expense and as soon as reasonably practicable:(a) remove from the Premises any Equipment which in the reasonable opinion of the Customer is either hazardous, noxious or not in accordance with the Contract; and (b) replace such item with a suitable substitute item of Equipment.

6.1.18

On completion of the Services, the Service Provider shall remove the Equipment together with any other materials used by the Service Provider to supply the Services and shall leave the Premises in a clean, safe and tidy condition. The Service Provider is solely responsible for making good any damage to the Premises or any objects contained thereon, other than fair wear and tear, which is caused by the Service Provider or any Staff.

6.1.19 Manner of Carrying Out the Services 6.1.20

The Service Provider shall at all times comply with the Quality Standards, and where applicable shall maintain accreditation with the relevant Quality Standards authorisation body. To the extent that the standard of Services has not been specified in the Contract, the Service Provider shall agree the relevant standard of the Services with the Customer prior to the supply of the Services and in any event, the Service Provider shall perform its obligations under the Contract in accordance with the Law and Good Industry Practice.

6.1.21

The Service Provider shall ensure that all Staff supplying the Services shall do so with all due skill, care and diligence and shall possess such qualifications, skills and experience as are necessary for the proper supply of the Services.

6.1.22

The Service Provider shall and shall ensure that the Staff shall at all times during the Contract Period:(a) faithfully and diligently perform those duties and exercise such powers consistent with them as are from time to time necessary in connection with the provision of the Services; and (b) obey all lawful instructions and reasonable directions of the Customer and perform the Services to the reasonable satisfaction of the Customer.


(c)

Service Provider’s Staff 6.1.23

Access to the Premises shall be limited to such Staff and the Service Provider’s suppliers as are necessary for the Service Provider to fulfil its obligations under the Contract. The Service Provider shall co-operate with others working on the Premises to such extent as the Customer may reasonably require.

6.1.24

The Customer reserves the right to refuse to admit to, or to withdraw permission to remain on, the Premises:(a) for any member of the Staff; or (b) for any person employed or engaged by any member of the Staff, whose admission or continued presence would be, in the reasonable opinion of the Customer, undesirable.

6.1.25

At the Customer’s written request, the Service Provider shall provide a list of the names and business addresses of all persons who may require admission in connection with the Contract to the Premises, specifying the capacities in which they are concerned with the Contract and giving such other particulars as the Customer may reasonably request.

6.1.26

The Service Provider’s Staff, engaged within the boundaries of the Premises, shall comply with such rules, regulations and requirements (including those relating to security arrangements) as may be in force from time to time for the conduct of personnel when at or outside those premises.

6.1.27

If the Service Provider fails to comply with Clause 6.1.25 within two (2) Months of the date of the request and in the reasonable opinion of the Customer, such failure may be prejudicial to the interests of the Crown, then the Customer may terminate the Contract, provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to the Customer.

6.1.28

The decision of the Customer as to whether any person is to be refused access to the Premises and as to whether the Service Provider has failed to comply with Clause 6.1.25 shall be final and conclusive.

6.1.29 Offers of Employment For the duration of the Contract and for a period of twelve (12) Months thereafter neither the Customer nor the Service Provider shall employ or offer employment to any of the other Party’s staff who have been associated with the procurement and/or the contract management of the Services without that other Party’s prior written consent. 6.2

Representatives


Each Party will nominate in writing upon the signing of the Contract the person who will act as its nominated contact for the purposes of the Contract and who will be responsible for providing any information which may be required by the other party to perform its obligations hereunder. 6.3

Employees and Sub-contractors (a) If an employee or sub-contractor of the Service Provider (or any employee of a sub-contractor of the Service Provider) assigned to the performance of the Contract is judged by the Customer’s representative not to be performing satisfactorily this will be drawn to the attention of the Service Provider’s nominated contact. A clear statement of the required change in performance will be established. If the employee or sub-contractor in question is unable to meet this standard of performance with immediate effect, the Service Provider will at its sole cost and expense replace that person immediately. (b) The Service Provider shall comply with the Staff Vetting Procedures in respect of all Staff employed or engaged in the provision of the Services. The Service Provider confirms that all Staff employed or engaged by the Service Provider at the Commencement Date were vetted and recruited on a basis that is equivalent to and no less strict than the Staff Vetting Procedures. (c) The Service Provider shall provide training on a continuing basis for all Staff employed or engaged in the provision of the Services in compliance with the Contract.

6.4 6.5

PAYMENT AND CONTRACT PRICE

Contract Price 6.5.1

In consideration of the proper performance of the Service Provider’s obligations under the Contract by the Service Provider, the Customer shall pay the Contract Price in accordance with Clause 6.5.3 (Payment and VAT).

6.5.2

The Customer shall, in addition to the Contract Price and following evidence of a valid VAT invoice, pay the Service Provider a sum equal to the VAT chargeable on the value of the Services supplied in accordance with the Contract.

6.5.3 Payment and VAT 6.5.4

In consideration of the Service Provider properly performing its obligations under the Contract, the Service Provider may invoice the Customer the Contract Price in respect of the Services in accordance with the payment profile set out in Schedule 1 (Contract Price). The Contract Price is [inclusive/exclusive] of expenses. For the avoidance of doubt the Services and/or


Deliverables must be Accepted by the Customer before payment becomes due. 6.5.5

The Service Provider shall add VAT to the Contract Price at the prevailing rate as applicable and the Customer shall pay the VAT to the Service Provider following its receipt of a valid VAT invoice.

6.5.6

The Customer shall submit invoices to North West Development Agency, Renaissance House, Centre Park, Warrington, Cheshire, WA1 1QN, marked for the attention of the Director of Finance or such other address as shall from time to time be notified in writing by the Customer to the Service Provider. Each such invoice shall contain all information required by the Customer including the Service Provider’s name and address, the Purchase Order Number, a separate calculation of VAT and an adequate description of the Services provided and the period to which the invoice relates and shall be supported by any other documentation or evidence required by the Customer to substantiate the invoice.

6.5.7

If the Customer considers that the sums, fees and other charges claimed by the Service Provider in any invoice have: (a) been correctly calculated and that such invoice is correct, the invoice shall be approved and payment shall be made by bank transfer (Bank Automated Clearance System (BACS)) or such other method as the Customer may choose from time to time within thirty (30) days of receipt of such invoice; (b) not been calculated correctly and/or if the invoice contains any other error or inadequacy, the Customer shall notify the Service Provider and the Parties shall work together to resolve the error or inadequacy. Upon resolution, the Service Provider shall submit a revised invoice to the Customer.

4.2.3

No payment made by the Customer (including any final payment) or act or omission or approval by the Customer (whether related to payment or otherwise) shall: (c) indicate or be taken to indicate the Customers acceptance or approval of the Services or any part of them or any act or omission of the Service Provider, or otherwise prejudice any rights, powers or remedies which the Customer may have against the Service Provider, or absolve the Service Provider from any obligation or liability imposed on the Service Provider under or by virtue of the Contract; or (d) prevent the Customer from recovering any amount overpaid or wrongfully paid including payments made to the Service Provider by mistake of law or fact. Without prejudice to clause 4.2.5, the Customer shall be entitled to withhold such amount from any sums due or which may become due to the Service Provider or the Customer may recover such amount as a debt.


6.5.8

In the event that the United Kingdom joins the European Economic and Monetary Union, the Customer shall require the Service Provider, at no additional charge, to convert any sums payable in connection with the Contract from sterling to Euros in accordance with EC Regulation Number 1103/97.

6.5.9

The Customer may deduct and set-off from monies due or which may become due to the Service Provider under the Contract or any other contract with the Customer, all damages, costs, charges, expenses, debts, sums or other amounts owing (contingently or otherwise) to or incurred by the Customer arising out of or referable to the Contract or any other contract between the Customer and the Service Provider or the Customer may recover such amounts which are due to it as a debt.

6.5.10

If the Customer receives an invoice which the Customer reasonably believes specifies a Disputed Charge. (a) the Customer shall pay to the Service Provider any part of the Contract Price under that invoice which is not a Disputed Charge; (b) the Customer may withhold payment of the Disputed Charge in that invoice and in that case, the Customer shall promptly (and in any event within thirty (30) days after receipt of the invoice) notify the Service Provider of the nature of the dispute and the Parties shall commence, within five days after the receipt of the Customer’s notice, to resolve the dispute in accordance with the Disputes and Law provisions set out in clause 10; and (c) once the dispute has been resolved, the Customer shall pay any amount due as part of that resolution within thirty (30) days of such resolution.

6.5.11

Where the Service Provider enters into a sub-contract with a supplier or contractor for the purpose of performing its obligations under the Contract, it shall ensure that a provision is included in such a sub-contract which requires payment to be made of all sums due by the Service Provider to the sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice, as defined by the sub-contract requirements.

6.5.12

The Service Provider shall indemnify the Customer on a continuing basis against any liability, including any interest, penalties or costs incurred which is levied, demanded or assessed on the Customer at any time in respect of the Service Provider’s failure to account for or to pay any VAT relating to payments made to the Service Provider under the Contract. Any amounts due under this Clause 4.2.8 shall be paid by the Service Provider to the Customer not less than five Working Days before the date upon which the tax or other liability is payable by the Customer.

6.5.13

The Service Provider shall not suspend the supply of the Services unless the Service Provider is entitled to terminate the Contract


under Clause 16.1.4 (Termination on Default) for failure to pay undisputed sums of money. 6.5.14

Save as set out in clause 4.2.11 or as otherwise provided for in the Contract, all costs, fees, charges and prices referred to in the Contract are exclusive of any sales taxes, duties or any such other additional sums including VAT.

6.5.15

All costs, fees, charges and prices referred to in the Contract are including excise tax, import or other duties and transportation and delivery costs.

6.5.16 Recovery of Sums Due 6.5.17

Wherever under the Contract any sum of money is recoverable from or payable by the Service Provider (including any sum which the Service Provider is liable to pay to the Customer in respect of any breach of the Contract), the Customer may unilaterally deduct that sum from any sum then due, or which at any later time may become due to the Service Provider under the Contract or under any other agreement or contract with the Customer.

6.5.18

Any overpayment by either Party, whether of the Contract Price or of VAT or otherwise, shall be a sum of money recoverable by the Party who made the overpayment from the Party in receipt of the overpayment.

6.5.19

The Service Provider shall make any payments due to the Customer without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Service Provider has a valid court order requiring an amount equal to such deduction to be paid by the Customer to the Service Provider.

6.5.20

All payments due shall be made within a reasonable time unless otherwise specified in the Contract, in cleared funds, to such bank or building society account as the recipient Party may from time to time direct.

6.5.21

STATUTORY OBLIGATIONS AND REGULATIONS

6.5.22 Prevention of Corruption 6.5.23

The Service Provider shall not offer or give, or agree to give, to any employee, agent, servant or representative of the Customer or any other public body or person employed by or on behalf of the Customer or any other public body, any gift or consideration of any kind which could act as an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act in relation to this Contract or any other contract with the Customer or any other public body or person employed by or on behalf of the Customer or any other public body (including its award to the Service Provider, execution or any rights and obligations contained in it), or for showing or refraining from showing favour or disfavour to any person in relation to any such contract. The attention of the Service Provider is drawn to the


criminal offences under the Prevention of Corruption Acts 1889 to 1916. 6.5.24

The Service Provider warrants that it has not paid commission or agreed to pay any commission to the Customer or any other public body or any person employed by or on behalf of the Customer or any other public body in connection with the Contract or any other contract with the Customer or any other public body or person employed by or on behalf of the Customer or any other public body.

6.5.25

If the Service Provider, its Staff or any person Service Provider's behalf, engages in conduct Clauses 6.5.22.1 or 6.5.24 above or commits any the Prevention of Corruption Acts 1889 to 1916 may:-

acting on the prohibited by offence under the Customer

(a) terminate the Contract with immediate effect by giving notice in writing to the Service Provider and recover from the Service Provider the amount of any loss suffered by the Customer resulting from the termination; or (b) recover in full from the Service Provider and the Service Provider shall indemnify the Customer in full from and against any other loss sustained by the Customer in consequence of any breach of this clause, whether or not the Contract has been terminated. (c)

Discrimination and Statutory and Other Regulations 6.5.26

The Service Provider shall not unlawfully discriminate when providing the Services under the Contract either directly or indirectly on such grounds as race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief, or age and without prejudice to the generality of the foregoing the Service Provider shall not unlawfully discriminate within the meaning and scope of the Sex Discrimination Act 1975, the Race Relations Act 1976, the Equal Pay Act 1970, the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Age) Regulations 2006, the Equality Act 2006, the Human Rights Act 1998 or other relevant or equivalent legislation, or any statutory modification or re-enactment thereof.

6.5.27

The Service Provider shall take all reasonable steps to secure the observance of Clause 6.5.26 by all Staff and shall comply with any Customer policy on the matters set out in Clause 6.5.26 as reasonably directed by the Customer.

6.5.28

The Service Provider shall operate an equal opportunities policy. The Service Provider warrants that this policy complies with all legal obligations relating to discrimination in employment and that it shall not treat one group of people less favourably than others because of their colour, race, nationality, ethnic origin, gender,


sexual orientation, disability, age or religion in relation to decisions to recruit, train or promote staff. The Service Provider shall take all reasonable steps to ensure that all servants, employees, or agents of the Service Provider and all sub-contractors employed in the execution of the Contract operate and comply with an equal opportunities policy equivalent to the Service Provider’s. 6.5.29

Evidence shall be provided to the Customer on request of the Service Provider’s equal opportunities policy in relation to the implementation of the Contract and evidence shall be provided as to the implementation of this policy

6.5.30

In providing the Services (taking into account best available techniques not entailing excessive cost and the best practicable means of preventing or counteracting the effects of any noise or vibration) the Service Provider shall also have appropriate regard (insofar as the Service Provider’s activities may impact on the environment) to the need to: (a) preserve and protect the environment and to the need to avoid, remedy and mitigate any adverse effects on the environment; (b) enhance the environment and have regard to the desirability of achieving sustainable development; (c) conserve and safeguard flora, fauna and geological or physiological features of special interest; and (d) sustain the potential of natural and physical resources and the need to safeguard the life-supporting capacity of air, water, soil and ecosystems.

6.5.31

The Service Provider shall comply with all applicable European Union procurement legislation and any implementing measures and any other legislation rules and regulations in connection with the procurement of any of the Services and shall promptly provide to the Customer any information which the Customer may request in order to satisfy itself that the Service Provider has done so. All procurement of any of the Services by the Service Provider shall be based on value for money. In determining how this requirement should be met, the Service Provider must take account of public sector accountability and probity, and shall document the decisionmaking process.

6.5.32

The Service Provider shall take into account its corporate social responsibilities in relation to the carrying out of its business. Evidence shall be provided to the Customer on request of the Service Provider’s policy covering corporate social responsibility and evidence shall be provided as to the implementation of this policy.


6.5.33 The Contracts (Rights of Third Parties) Act 1999 A person who is not party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act. 7.

Environmental Requirements The Service Provider shall, when working on the Premises, perform its obligations under the Contract in accordance with the Customer’s environmental policy, which is to conserve energy, water, wood, paper and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the release of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment.

8.

Health and Safety 8.1.1

The Service Provider shall promptly notify the Customer of any health and safety hazards which may arise in connection with the performance of its obligations under the Contract. The Customer shall promptly notify the Service Provider of any health and safety hazards which may exist or arise at the Premises and which may affect the Service Provider in the performance of its obligations under the Contract.

8.1.2

While on the Premises, the Service Provider shall comply with any health and safety measures implemented by the Customer in respect of Staff and other persons working there.

8.1.3

The Service Provider shall notify the Customer immediately in the event of any incident occurring in the performance of its obligations under the Contract on the Premises where that incident causes any personal injury or damage to property which could give rise to personal injury.

8.1.4

The Service Provider shall comply with the requirements of the Health and Safety at Work etc. Act 1974 and any other acts, orders, regulations and codes of practice relating to health and safety, which may apply to Staff and other persons working on the Premises in the supply of the Services under the Contract.

8.1.5

The Service Provider shall ensure that its health and safety policy statement (as required by the Health and Safety at Work etc Act 1974) is made available to the Customer on request.

8.1.6 Criminal Records Bureau 8.1.7

Where specified by the Customer the Service Provider shall procure that in respect of all potential Staff or persons supplying any of the Services (each a “Named Employee”) before a Named Employee enters the Premises:-


(a) each Named Employee is questioned as to whether he or she has any convictions; and where appropriate to the Services being provided; (b) the results are obtained of a check of the most extensive available kind made with the Criminal Records Bureau in accordance with Part V of the Police Act 1997 in respect of each Named Employee. The check for each Named Employee shall include:(i)

a search of the list held pursuant to the Protection of Children Act 1999 where the supply of the Services may involve contact with children; and/or

(ii)

a search of the list held pursuant to Part VII of the Care Standards Act 2000 where the supply of Services may involve contact with vulnerable adults (as defined in that Act).

(c) a copy of the results of such check are notified to the Customer. 8.1.8

The Service Provider shall procure that no person who discloses any convictions, or who is found to have any convictions following the results of a Criminal Records Bureau check, is employed or engaged by the Service Provider or on the Service Provider’s behalf without the Customer’s prior written consent (such consent not to be unreasonably withheld or delayed).

8.1.9

The Service Provider shall procure that the Customer is notified of any member of Staff who, subsequent to his/her commencement of employment as a member of Staff, receives a conviction or whose previous convictions become known to the Service Provider (or any employee of a sub-contractor involved in the supply of the Services). The Parties agree that where such notification is made it shall be reasonable for the Customer to withhold access to the Premises from the member of Staff concerned, pursuant to Clause 6.1.22(c) (Service Provider’s Staff).

8.1.10 Security Clearance 8.1.11

Where specified by the Customer, the Service Provider shall be responsible for ensuring that all Staff are security cleared to the level required by the Security Requirements not less than 5 Working Days before such person begins to perform the Services.

8.1.12

The Customer shall issue a pass for all Staff who are security cleared to an appropriate level for the Premises in accordance with Clause 8.1.11 on or before the date when such member of Staff is required to enter onto the Premises in order to perform the Services. Passes shall remain the property of the Customer and shall be surrendered on demand or on termination or expiry of this Contract.


8.1.13

A member of Staff not in possession of a pass who is required by the Service Provider or any sub-contractor to provide the Services urgently shall be allowed temporary access to the Premises on the condition that the Service Provider ensures, or procures that any sub-contractor shall ensure, that such individual is accompanied at all times while on the Premises by a member of Staff who has been issued with a pass in accordance with Clause 8.1.11.

8.1.14

Without prejudice to the provisions of Clauses 8.1.11 to 8.1.13 inclusive, the Customer may refuse any member of Staff admission to the Premises or require the removal of any member of Staff from the Premises in accordance with Clause 6.1.22(c) if such member of Staff is not in possession of a pass pursuant to Clause 8.1.12 or accompanied in accordance with Clause 8.1.13.

8.1.15

PROTECTION OF INFORMATION

8.1.16 Data Protection Act 8.1.17

In this clause 6.1 references to “Data Subject”, “Data Controller” and “Data Processor” are to be interpreted as defined in the DPA.

8.1.18

With respect to the Parties' rights and obligations under the Contract, the parties agree that the Customer is the Data Controller and that the Service Provider is the Data Processor.

8.1.19

The Service Provider shall: (a) process the Personal Data only in accordance with instructions from the Customer (which may be specific instructions or instructions of a general nature as set out in the Contract or as otherwise notified by the Customer to the Service Provider during the term of the Contract); (b) process the Personal Data only to the extent, and in such manner, as is necessary for the provision of the Services or as is required by Law or any Regulatory Body; (c) implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected; (d) take reasonable steps to ensure the reliability of any Staff who have access to the Personal Data; (e) obtain prior written consent from the Customer in order to transfer the Personal Data to any sub-contractors or Affiliates for the provision of the Services;


(f) ensure that all Staff required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this clause 6.1; (g) ensure that none of the Staff publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Customer; (h) notify the Customer (within five (5) Working Days) if it receives: (i) a request from a Data Subject to have access to that person's Personal Data; or (ii) a complaint or request relating to the Customer's obligations under the DPA; (i)

provide the Customer with full cooperation and assistance in relation to any complaint or request made, including by: (i)

providing the Customer with full details of the complaint or request;

(ii)

complying with a data access request within the relevant timescales set out in the DPA and in accordance with the Customer's instructions;

(iii) providing the Customer with any Personal Data it holds in relation to a Data Subject (within the timescales required by the Customer); and (iv) providing the Customer with requested by the Customer; (j)

any

information

permit the Customer or the Customer’s representative (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit, the Service Provider's data Processing activities (and/or those of its agents, subsidiaries and sub-contractors) and comply with all reasonable requests or directions by the Customer to enable the Customer to verify and/or procure that the Service Provider is in full compliance with its obligations under the Contract;

(k) provide a written description of the technical and organisational methods employed by the Service Provider for processing Personal Data (within the timescales required by the Customer); and (l)

not Process Personal Data outside the European Economic Area without the prior written consent of the Customer and, where the Customer consents to a transfer, to comply with: (i)

the obligations of a Data Controller under the Eighth Data Protection Principle set out in Schedule 1 of the


Data Protection Act 1998 by providing an adequate level of protection to any Personal Data that is transferred; and (ii)

any reasonable instructions notified to it by the Customer.

8.1.20

The Service Provider shall comply at all times with the DPA and shall not perform its obligations under the Contract in such a way as to cause the Customer to breach any of its applicable obligations under the DPA.

8.1.21

The Service Provider shall fully indemnify the Customer in respect of any loss, destruction or unauthorised disclosure of, or unauthorised access to, personal data by the Service Provider or its personnel or as a result of any failure to comply with the provisions of this clause 6.1.

8.1.22

The provisions of this clause 6.1 shall survive termination of the Contract

8.1.23 Official Secrets Acts 1911 to 1989, Section 182 of the Finance Act 1989 8.1.24

The Service Provider shall comply with and shall ensure that its Staff comply with, the provisions of:(a) the Official Secrets Acts 1911 to 1989; and (b) Section 182 of the Finance Act 1989.

8.1.25

In the event that the Service Provider or its Staff fail to comply with this clause, the Customer reserves the right to terminate the Contract by giving notice in writing to the Service Provider.

8.1.26 Confidential Information 8.1.27

Each Party shall:(a) treat all Confidential Information belonging to the other Party as confidential and safeguard it accordingly; and (b) not disclose any Confidential Information belonging to the other Party to any other person without the prior written consent of the other Party, except to such persons and to such extent as may be necessary for the performance of either Party’s obligations under the Contract or except where disclosure is otherwise expressly permitted by the provisions of the Contract.

8.1.28

The Service Provider shall ensure that its Staff, professional advisors and consultants are aware of the Service Provider’s confidentiality obligations under the Contract and shall use its best endeavours to ensure that its staff, professional advisors and


consultants comply with the Service Provider's confidentiality obligations under this Contract. 8.1.29

The Service Provider shall not use any Confidential Information it receives from the Customer otherwise than for the purposes of the Contract.

8.1.30

Nothing in Clauses 8.1.27 to 8.1.29 shall prevent the Customer disclosing any Confidential Information obtained from the Service Provider:(a) for the purpose of the examination and certification of the Customer’s accounts; or (b) for the purpose of any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Customer has used its resources; or (c) to any Crown Body, government department or any other Contracting Authority and the Service Provider hereby acknowledges that all Crown Bodies, government departments or Contracting Authorities receiving such Confidential Information may further disclose the Confidential Information to other Crown Bodies, government departments or 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 Crown Body, government department or any Contracting Authority; or (d) to any consultant, contractor or other person engaged by the Customer or any person conducting an Office of Government and Commerce gateway review; provided that in disclosing information under sub-paragraphs (c) and (d) the Customer discloses only the information which is necessary for the purpose concerned and requests that the information is treated in confidence and that a confidentiality undertaking is given where appropriate.

8.1.31

Nothing in Clauses 8.1.27 to 8.1.29 shall prevent either Party from:(a) using any techniques, ideas or Know-How gained during the performance of its obligations under the Contract in the course of its normal business, to the extent that this does not result in a disclosure of the other Party’s Confidential Information or an infringement of the other Party’s Intellectual Property Rights, or (b) disclosing Confidential Information which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA or the Environmental Information Regulations.


8.1.32

In the event that the Service Provider fails to comply with Clauses 8.1.27 to 8.1.29, the Customer reserves the right to terminate the Contract with immediate effect by notice in writing.

8.1.33

Clauses 8.1.27 to 8.1.32 are without prejudice to the application of the Official Secrets Acts 1911 to 1989 to any Confidential Information.

8.1.34

In order to ensure that no unauthorised person gains access to any Confidential Information or any data obtained in the supply of the Services under the Contract, the Service Provider undertakes to maintain adequate security arrangements that meet the requirements of professional standards and best industry practice.

8.1.35

The Service Provider will immediately notify the Customer of any breach of security in relation to Confidential Information and all data obtained in the supply of the Services under the Contract and will keep a record of such breaches. The Service Provider will use its best endeavours to recover such Confidential Information or data however it may be recorded. This obligation is in addition to the Service Provider’s obligations under Clauses 8.1.27 to 8.1.29. The Service Provider will co-operate with the Customer in any investigation that the Customer considers necessary to undertake as a result of any breach of security in relation to Confidential Information or data.

8.1.36

The Service Provider shall, at its own expense, alter any security systems at any time during the Contract Period at the Customer’s request if the Customer reasonably believes the Service Provider has failed to comply with Clause 8.1.34.

8.1.37

For the avoidance of doubt, clause 6.4 shall take precedence over this clause 6.3 to the extent of any inconsistency.

8.1.38

The provisions of this clause 6.3 shall survive the termination of the Contract.

8.1.39 Freedom of Information 8.1.40

The Service Provider acknowledges that the Customer: (a) is subject to the FOIA and agrees to assist and co-operate with the Customer to enable the Customer to comply with its obligations under the FOIA; and (b) may be obliged under the FOIA to disclose Information without consulting or obtaining consent from the Service Provider and, subject to the provisions of this clause 6.4, may ultimately at its discretion disclose such Information.

8.1.41

Without prejudice to the generality of clause 6.4.1, the Service Provider shall and shall procure that its sub-contractors (if any) shall:


(a) transfer to the Customer each Information Request relevant to the Contract that it or they (as the case may be) receive as soon as practicable and in any event within two (2) Working Days of receiving such Information Request; and (b) the Service Provider shall at its own cost provide and procure that its sub-contractors provide all necessary assistance required by the Customer in order to allow the Customer to comply with any Information Request within the period that Customer is obliged to respond; and (c) without limitation to the foregoing, in relation to Information held by the Service Provider (or sub-contractors) on behalf of the Customer, provide the Customer (at the Service Provider’s own cost) with details about and/or copies of all such Information that the Customer requests and such details and/or copies shall be provided within five (5) Working Days of a request from the Customer (or such other period as the Customer may reasonably specify) and in such forms as the Customer may reasonably specify; and (d) the Service Provider shall ensure that all Information produced in the course of the Contract and/or the Services is retained for disclosure and shall permit the Customer to inspect such records as required from time to time. 8.1.42

The Customer shall be responsible for determining in its absolute discretion and notwithstanding any other provision in the Contract or any other contract whether the Information is exempt in accordance with the FOIA and for determining what Information will be disclosed in response to an Information Request in accordance with the FOIA. The Service Provider shall not itself respond to any person making an Information Request, save to acknowledge receipt, unless expressly authorised to do so by the Customer.

8.1.43

The Service Provider acknowledges that (notwithstanding the provisions of clause 6.4) the Customer may, acting in accordance with the Department of Constitutional Affairs’ Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000 (“the Code”), be obliged under the FOIA, or the Environmental Information Regulations to disclose information concerning the Service Provider or the Services: (a) in certain circumstances without consulting the Service Provider; or (b) following consultation with the Service Provider and having taken their views into account;


provided always that where clause 6.4.4(b) applies the Customer shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Service Provider advanced notice, or failing that, to draw the disclosure to the Service Provider’s attention after any such disclosure.

8.1.44

The Service Provider acknowledges that any Commercially Sensitive Information provided to the Customer is of indicative value only and that the Customer may be obliged to disclose it in accordance with clause 6.4.4.

8.1.45

The provisions of this clause 6.4 shall survive termination of the Contract.

8.1.46 Publicity, Media and Official Enquiries 8.1.47

The Service Provider shall not without the prior written consent of the Customer advertise or publicly announce that it is undertaking work for the Customer.

8.1.48

All planned media and external communications (such as press releases), relating to the work under the Contract must be approved by the Customer in writing prior to release, and the Customer reserves the right in its absolute discretion to provide material for inclusion in such communications.

8.1.49

The Customer shall provide the media contact and respond to all media requests regarding the Contract, unless a prior arrangement is made in writing with the Service Provider.

8.1.50

Promotional work shall be carried out by the Customer, unless a prior arrangement is made with the Service Provider. The Customer shall, in its absolute discretion, have final approval over all materials published, broadcast or delivered.

8.1.51

The Service Provider shall: (a) (if required by the Customer) comply fully at all times with the provisions of the Branding Guide; and (b) acknowledge the receipt of payment from the Customer in such manner as the Customer may from time to time require to enable the Customer to publicise its involvement in the Contract in accordance with the Branding Guide.

8.1.52

The Customer does not permit companies or individuals to undertake promotional activity based on their appointment to Customer panels or for paid-for services, and only reviews this policy in exceptional circumstances. Before undertaking any promotional activity, the Service Provider must contact the Customer’s press office in the first instance where a member of the team will provide advice. All press releases related to the Customer must be approved by the press office, as stipulated


clearly within the Branding Guide. Without prior approval by the press office, press releases cannot be issued. 8.1.53 Intellectual Property Rights 8.1.54

Save as granted elsewhere under this Contract, neither the Customer nor the Service Provider shall acquire any right, title or interest in the other’s Pre-Existing IPR.

8.1.55

The Service Provider shall not, and shall procure that the Staff shall not, (except when necessary for the performance of the Contract) without prior Approval, use or disclose any Customer Pre-Existing IPR or the Project Specific IPRs to any third party.

8.1.56

All title to and all rights and interest in the Project Specific IPRs shall vest in the Customer. The Service Provider hereby assigns to the Customer, with full title guarantee, title to and all rights and interest in the Project Specific IPRs and/or shall procure that the first owner of the Project Specific IPRs also does so.

8.1.57

The assignment under Clause 8.1.56 shall either take effect on the date of the Contract or as a present assignment of future rights that will take effect immediately on the coming into existence of the relevant Project Specific IPRs, as appropriate.

8.1.58

The Service Provider shall waive or procure a waiver of any moral rights in any copyright works assigned to the Customer under this Contract.

8.1.59

If requested to do so by the Customer, the Service Provider shall without charge to the Customer execute all documents and do all such further acts as the Customer may require to perfect the assignment under Clause 8.1.56 or shall procure that the owner of the Project Specific IPRs does so on the same basis.

8.1.60

The Customer hereby grants to the Service Provider a nonexclusive, revocable, non assignable licence to use the Customer’s Pre-Existing IPR and the Project Specific IPRs during the Contract Period for the sole purpose of enabling the Service Provider to provide the Services.

8.1.61

To the extent that this is necessary solely to enable the Customer to obtain the full benefits of ownership of the Project Specific IPRs, the Service Provider hereby grants to the Customer and shall procure that any relevant third party licensor shall grant to the Customer a perpetual, irrevocable, non-exclusive, assignable, royalty-free and global licence to use, sub-license and/or commercially exploit any Service Provider Pre-Existing IPR or IPRs owned by a third party that are embedded in or which are an integral part of the Project Specific IPRs.

8.1.62

The Service Provider shall obtain Approval before using any material, in relation to the performance of its obligations under the Contract which is or may be subject to any third party Intellectual Property Rights. The Service Provider shall procure that the owner


of the rights grants to the Customer a non-exclusive licence, or if itself a licensee of those rights, shall grant to the Customer an authorised sub-licence, to use, reproduce, modify, develop and maintain the material. Such licence or sub-licence shall be nonexclusive, perpetual, royalty free and irrevocable and shall include the right for the Customer to sub-license, transfer, novate or assign to any other third party supplying services to the Customer. 8.1.63

The Service Provider shall, during and after the Contract Period, indemnify and keep indemnified in full and hold the Customer and the Crown harmless from and against all actions, suits, claims, demands, losses, charges, damages, costs and expenses, including legal costs, and other liabilities which the Customer or the Crown may suffer or incur as a result of any claim that the performance by the Service Provider of the Services and/or the possession or use by the Customer of the Deliverables infringes or allegedly infringes a third party's Intellectual Property Rights (“Claim�) except where the Claim arises from:(a) items or materials based upon designs supplied by the Customer; or (b) the use of data supplied by the Customer which the Service Provider is not required to verify under any provision of the Contract.

8.1.64

The Customer shall notify the Service Provider in writing of the Claim and the Customer shall not make any admissions which may be prejudicial to the defence or settlement of the Claim. The Service Provider shall at its own expense conduct all negotiations and any litigation arising in connection with the Claim provided always that the Service Provider:(a) shall consult the Customer on all substantive issues which arise during the conduct of such litigation and negotiations; (b) shall take due and proper account of the interests of the Customer; and (c) shall not settle or compromise the Claim or refuse to settle or compromise a claim without the Customer’s prior written consent (such consent not to be unreasonably withheld or delayed).

8.1.65

If a Claim is made in connection with the Contract or in the reasonable opinion of the Service Provider is likely to be made, the Service Provider shall immediately notify the Customer and, at its own expense and subject to the consent of the Customer (not to be unreasonably withheld or delayed), use its best endeavours to:(a) modify the relevant part of the Services or the Deliverables without reducing the performance or functionality of the same, or substitute alternative Services or Deliverables of equivalent performance and functionality, so as to avoid the infringement or the alleged infringement, provided that the


provisions herein shall apply with any necessary changes to such modified Services or Deliverables or to the substitute Services or Deliverables; or (b) procure a licence to use and supply the Services or the Deliverables, which are the subject of the alleged infringement, on terms which are acceptable to the Customer, and in the event that the Service Provider is unable to comply with Clauses 8.1.65(a) or 8.1.65(b) within 20 Working Days of receipt of the Service Provider’s notification the Customer may terminate the Contract with immediate effect by notice in writing and the Service Provider shall, upon demand, refund the Customer with all monies paid in respect of the Services or Deliverable that is subject to the Claim. 8.1.66

In the event that a modification or substitution in accordance with Clause 8.1.65(a) is not possible so as to avoid the infringement, or the Service Provider has been unable to procure a licence in accordance with Clause 8.1.65(b) the Customer shall be entitled to delete the relevant Service from this Contract.

8.1.67

This Clause 8.1.53 sets out the entire financial liability of the Service Provider with regard to the infringement of any Intellectual Property Right as a result of the availability of the Services or the provision of the Deliverables hereunder. This shall not affect the Service Provider's financial liability for other Defaults or causes of action that may arise hereunder.

8.1.68

The provisions of this clause 6.6 shall survive termination of the Contract.

8.1.69 Audit and the National Audit Office 8.1.70

The Service Provider shall keep and maintain (and shall procure that its sub-contractors keep and maintain) until six (6) years after the date of termination or expiry (whichever is the earlier) of this Contract (or for such period as may be agreed between the Parties), full and accurate records and accounts of the operation of this Contract including the Services provided under it and the amounts paid by the Customer.

8.1.71

The Service Provider shall keep the records and accounts referred to in Clause 8.1.70 above in accordance with good accountancy practice.

8.1.72

The Service Provider shall on request afford the Customer, the Customer's representatives and/or the National Audit Office (“Auditors”) such access to such records and accounts as may be required by the Customer from time to time and the right to inspect and take copies of or extracts from such records.

8.1.73

The Service Provider shall provide such records and accounts (together with copies of the Service Provider’s published accounts)


during the Contract Period and for a period of six (6) years after the expiry of the Contract Period to the Customer and its internal and external auditors. 8.1.74

The Customer shall use reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt the Service Provider or delay the provision of the Services, save insofar as the Service Provider accepts and acknowledges that control over the conduct of Audits carried out by the National Audit Office is outside of the control of the Customer.

8.1.75

Subject to the Customer's rights of confidentiality, the Service Provider shall on demand provide the Auditors with all reasonable co-operation and assistance in relation to each audit, including:(a) all information requested by the Customer within the scope of the audit; (b) reasonable access to sites controlled by the Service Provider and to equipment used in the provision of the Services; and (c) access to the Staff.

8.1.76

The Parties agree that they shall bear their own respective costs and expenses incurred in respect of compliance with their obligations under this Clause 8.1.69, unless the audit reveals a material Default by the Service Provider in which case the Service Provider shall reimburse the Customer for the Customer's reasonable costs incurred in relation to the audit.

8.1.77

The provisions of this clause 6.7 shall survive termination of the Contract.

8.1.78

CONTROL OF THE CONTRACT

8.1.79 Transfer and Sub-Contracting 8.1.80

The Service Provider shall not assign, novate, sub-contract, transfer or in any other way dispose of the Contract or any part of it without the prior written consent of the Customer which may be refused or granted subject to such conditions as the Customer sees fit.

8.1.81

In the event that the Service Provider is permitted to sub-contract any or all of its obligations under the Contract the Service Provider shall: (a) not be relieved from any of its liabilities or obligations hereunder by engaging the sub-contractor; (b) be and shall remain solely responsible and liable to the Customer for any breach of Contract or act or omission of a sub-contractor or any performance, non-performance, partperformance or delay in performance of any of the Services


and/or obligations by any sub-contractor to the same extent as if such breach or act or omission had been committed by the Service Provider; (c) ensure that all applicable rights, duties and obligations of the Service Provider are included in any contract that the Service Provider has or may enter into with any of its subcontractors; and (d) be and shall remain solely responsible for all and any payments to be made to any of its sub-contractors. 8.1.82

Where the Customer gives its consent to sub-contracting under clause 7.1.1, the Customer may as a condition of giving its consent to the Service Provider require direct warranties, undertakings, guarantees or indemnities from such sub-contractor concerning the provision of the Services and its compliance with the obligations set out in the Contract in all respects. The Service Provider shall not remove any sub-contractor involved in the performance of any part of the Services, without the previous consent in writing of the Customer.

8.1.83

The Service Provider shall use all reasonable endeavours to ensure that any sub-contract entered into with a sub-contractor shall include the same or materially similar contractual obligations as in the Contract.

8.1.84

Where the Customer has consented to the placing of subcontracts, copies of each sub-contract shall, at the request of the Customer, be sent by the Service Provider to the Customer as soon as is reasonably practicable.

8.1.85

The Customer may novate, assign or otherwise transfer the Contract (in whole or in part).

8.1.86

Within ten (10) Working Days of a written request from the Customer, the Service Provider shall at its own expense execute such agreement as the Customer may reasonably require to give effect to any such transfer of all or part of its rights and obligations under the Contract to one or more persons nominated by the Customer.

8.1.87 Waiver 8.1.88

The failure of either Party to insist upon strict performance of any provision of the Contract, or the failure of either Party to exercise, or any delay in exercising, any right or remedy shall not constitute a waiver of that right or remedy and shall not cause a diminution of the obligations established by the Contract.

8.1.89

No waiver shall be effective unless it is expressly stated to be a waiver and communicated to the other Party in writing in accordance with Clause 5.1.7 (Notices).


8.1.90

A waiver of any right or remedy arising from a breach of the Contract shall not constitute a waiver of any right or remedy arising from any other or subsequent breach of the Contract.

8.1.91 Variation 8.1.92

The Customer may from time to time during the Contract Period by written notice to the Service Provider request a variation to the Services provided that such variation does not amount to a material change to it. Such a change is hereinafter called a “Variation�. Following such notice, the Customer and the Service Provider shall enter into good faith negotiations (for a period of not more than thirty (30) Working Days from the date thereof or where, in the reasonable opinion of the Customer, the Variation is necessary as a matter of urgency due to circumstances outside the Parties’ control, such shorter period as the Customer shall direct) to agree the Variation and any variation in the Contract Price that, in all the circumstances, properly and fairly reflects the nature and extent of the proposed Variation. If the Parties are unable to agree such matters within such period, the Customer may by written notice to the Service Provider:(a) agree that the Parties shall continue to perform their obligations under the Contract without the Variation; or (b) terminate the Contract with immediate effect.

8.1.93

If the Parties agree the Variation and any variation in the Contract Price within the relevant period set out in Clause 8.1.92, the Service Provider shall carry out such Variation and be bound by the same provisions so far as is applicable, as though such Variation was stated in the Contract. Until such time as any Variation is formally agreed between the Parties, the Service Provider will, unless agreed otherwise in writing, continue to perform and be paid as if such variation had not been required. For the avoidance of doubt the Service Provider agrees that the preparation of any quotations provided as part of the good faith negotiations to be conducted pursuant to clause 7.3.1 will be free of charge and will not cause any delay in performing its obligations under the Contract.

8.1.94

Any such Variation shall be communicated in writing by the Customer to the Service Provider in accordance with Clause 5.1.7 (Notices). All Variations shall form an addendum to the Contract.

8.1.95 Severability 8.1.96

If any provision of this Contract is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Contract had been executed with the invalid provision eliminated.

8.1.97

In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Contract, the Customer


and the Service Provider shall immediately commence good faith negotiations to remedy such invalidity. If such negotiation is unsuccessful the Parties may elect to resolve the matter by reference to the provisions of Clause 10 (Disputes and Law). 8.1.98 Remedies in the event of inadequate performance 8.1.99

Where a complaint is received about the standard of Services or about the manner in which any Services have been supplied or work has been performed or about the materials or procedures used or about any other matter connected with the performance of the Service Provider’s obligations under the Contract, then the Customer shall take all reasonable steps to ascertain whether the complaint is valid. If the Customer so decides, it may uphold the complaint, or take further action in accordance with Clause 16 (Termination on Default) of the Contract.

8.1.100 In the event that the Customer is of the reasonable opinion that there has been a material breach of the Contract by the Service Provider, or the Service Provider’s performance of its obligations under the Contract has failed to meet the requirements set out in the Invitation to Tender and Tender Response, then the Customer may, without prejudice to its rights under Clause 16 (Termination on Default) of the Contract, do any of the following:(a) without terminating the Contract, itself supply or procure the supply of part of the Services until such time as the Service Provider shall have demonstrated to the reasonable satisfaction of the Customer that the Service Provider will once more be able to supply such part of the Services in accordance with the Contract and the Invitation to Tender and Tender Response; (b) without terminating the whole of the Contract, terminate the Contract in respect of part of the Services only (whereupon a corresponding reduction in the Contract Price shall be made) and thereafter itself supply or procure a third party to supply such part of the Services; (c) terminate, in accordance with Clause 16 (Termination on Default), the whole of the Contract; and/or (d) charge the Service Provider for and the Service Provider shall pay any cost reasonably incurred by the Customer and any reasonable administration costs in respect of the supply of any part of the Services by the Customer or a third party to the extent that such costs exceed the payment which would otherwise have been payable to the Service Provider for such part of the Services and provided that the Customer uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement Services. 8.1.101 If the Service Provider fails to supply any of the Services in accordance with the provisions of the Contract and such failure is capable of remedy, then the Customer shall instruct the Service


Provider to remedy the failure and the Service Provider shall at its own cost and expense remedy such failure (and any damage resulting from such failure) within ten (10) Working Days or such other period of time as the Customer may direct. 8.1.102 In the event that:(a) the Service Provider fails to comply with Clause 8.1.101 and the failure is materially adverse to the interests of the Customer or prevents the Customer from discharging a statutory duty; or (b) the Service Provider persistently fails to comply with Clause 8.1.101, the Customer reserves the right to terminate the Contract with immediate effect by giving the Service Provider notice in writing. 9.

Not Used

10.

Remedies Cumulative Except as otherwise expressly provided by the Contract, all remedies available to either Party for breach of the Contract are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

11.

Monitoring of Contract Performance 11.1.1

Each Party shall nominate a liaison manager who shall be the primary contact for all communication between the Customer and the Service Provider relating to the management of the Services.

11.1.2

Service review meetings shall be held: (a) on a 6-monthly basis from the date of execution of the Contract, unless otherwise agreed by the Parties; and (b) at any time at the written request of the Customer, giving not less than five (5) Working Days’ notice to the Service Provider.

11.1.3

The Service Provider shall, no less than three (3) Working Days prior to a schedule review meeting, submit a proposed agenda for that meeting to the Customer together with details of service provision and performance against Service Levels in respect of the period under review.

11.1.4

Attendees at the service review meetings shall be both Parties’ liaison managers as a minimum, and any further representatives of either Party which that Party proposes to the other no later than 1 Working Day prior to the meeting.


11.1.5

Service review meeting agendas shall include the following as a minimum: (a) review of service provision; (b) review of issues; (c) proposed Variations; (d) on-going development of the Services; and (e) review of the efficacy of the Service Level Agreement.

(f)

Extension of Initial Contract Period Subject to the satisfactory performance of its obligations under the Contract by the Service Provider during the Initial Contract Period the Customer may at its absolute discretion, by giving written notice to the Service Provider of not less than one (1) Month prior to the last day of the Initial Contract Period, extend the Contract for a further period of up to 12 months. The provision of the Contract will apply throughout any such extended period.

12. LIABILITIES 13.

Liability, Indemnity and Insurance 13.1.1

Nothing in this Contract shall be construed to limit or exclude either Party's liability for:(a) death or personal injury caused by its negligence or that of its Staff; or (b) fraud or fraudulent misrepresentation by it or its Staff; (c) any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; (d) any claim under Clause 15; or (e) any claim under the indemnity in Clause 8.1.63 or in respect of any breach of Clause 8.1.26, or any other mater which, by Law, may not be limited or excluded.

13.1.2

Subject to Clause 13.1.4, the Service Provider shall indemnify and keep the Customer indemnified in full from and against all claims, proceedings, actions, damages, costs, expenses and any other liabilities which may arise out of, or in consequence of, the supply, or late or purported supply, of the Services or the performance or non-performance by the Service Provider of its obligations under the Contract or the presence of the Service Provider or any Staff on the Premises, including in respect of any death or personal injury, loss of or damage to property, financial


loss arising from any advice given or omitted to be given by the Service Provider, or any other loss which is caused directly or indirectly by any act or omission of the Service Provider. The Service Provider shall not be responsible for any injury, loss, damage, cost or expense if and to the extent that it is caused by the negligence or wilful misconduct of the Customer or by breach by the Customer of its obligations under the Contract. 13.1.3

Except as provided in clause 8.1.1 the entire liability of the Customer under or in connection with this Contract shall not exceed the sum of ÂŁ199,999.99.

13.1.4

Subject to Clause 13.1.1, in no event shall either Party be liable to the other for any:(a) loss of profits; (b) loss of business; (c) loss of revenue; (d) loss of or damage to goodwill; and/or (e)

loss of savings (whether anticipated or otherwise); and/or

(f) any indirect or consequential loss or damage. 13.1.5

The Customer may, amongst other things, recover as a direct loss:(a) any additional operational and/or administrative expenses arising from the Service Provider's Default; (b) any wasted expenditure or charges rendered unnecessary and/or incurred by the Customer arising from the Service Provider's Default; and (c) the additional cost of procuring replacement services for the remainder of the Contract Period following termination of the Contract as a result of a Default by the Service Provider.

13.1.6

Nothing in this Contract shall impose any liability on the Customer in respect of any liability incurred by the Service Provider to any other person, but this shall not be taken to exclude or limit any liability of the Customer to the Service Provider that may arise by virtue of either a breach of the Contract or by negligence on the part of the Customer, or the Customer's employees, servants or agents.

13.1.7

The Service Provider shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Service Provider, arising out of the Service Provider’s performance of its obligations under the Contract,


including death or personal injury, loss of or damage to property or any other loss. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the Service Provider. Such insurance shall be maintained for the duration of the Contract Period and for a minimum of six (6) years following the expiration or earlier termination of the Contract and shall include, without limitation, the following types of cover: (a) employer’s liability with a minimum limit of £5,000,000 for any one claim in any one policy year; (b) public liability with a minimum limit of £5,000,000 for any one claim in any one policy year; (c) product liability with a minimum limit of £5,000,000 for an aggregate of claims in any one policy year; and (d) any other risks against which it is usual to insure in the business of the type carried out by the Services Provider. 13.1.8

NOT USED.

13.1.9

The Service Provider shall give the Customer, on request, copies of all insurance policies referred to in this clause or a broker’s verification of insurance to demonstrate that the appropriate cover is in place, together with receipts or other evidence of payment of the latest premiums due under those policies.

13.1.10 If, for whatever reason, the Service Provider fails to give effect to and maintain the insurances required by the provisions of the Contract the Customer may make alternative arrangements to protect its interests and may recover the costs of such arrangements from the Service Provider. 13.1.11 The provisions of any insurance or the amount of cover shall not relieve the Service Provider of any liabilities under the Contract. It shall be the responsibility of the Service Provider to determine the amount of insurance cover that will be adequate to enable the Service Provider to satisfy any liability referred to in Clause 13.1.2. 13.1.12 The exclusions from and limitations of liability set out in this clause 8 shall be considered severably. The validity or unenforceability of any paragraph or sub-paragraph of this clause 8 shall not affect the validity or enforceability of any other paragraph or subparagraph of this clause 8. 13.1.13 The provisions of this clause 8.1 shall survive termination of the Contract. 13.1.14

Professional Indemnity

The Service Provider shall effect and maintain a professional indemnity insurance policy during the Contract Period and shall ensure that all agents, professional consultants and sub-contractors involved in the supply of the Services effect and maintain appropriate professional


indemnity insurance during the Contract Period. To comply with its obligations under this clause and as a minimum, the Service Provider shall ensure professional indemnity insurance held by the Service Provider and by any agent, sub-contractor or consultant involved in the supply of the Services has a limit of indemnity of not less than five million pounds sterling (ÂŁ5,000,000) for each individual claim or such higher limit as the Customer may reasonably require (and as required by law) from time to time. Such insurance shall be maintained for a minimum of six (6) years following the expiration or earlier termination of the Contract. 14.

Taxation, National Insurance and Employment Liability The Parties acknowledge and agree that this Contract constitutes a contract for the provision of Services and not a contract of employment. The Service Provider shall at all times indemnify the Customer and keep the Customer indemnified in full from and against all claims, proceedings, actions, damages, costs, expenses, liabilities and demands whatsoever and howsoever arising by reason of any circumstances whereby the Customer is alleged or determined to have been assumed or imposed with the liability or responsibility for the Staff (or any of them) as an employer of the Staff and/or any liability or responsibility to HM Revenue or Customs as an employer of the Staff whether during the Contract Period or arising from termination or expiry of this Contract.

15.

Warranties and Representations 15.1.1

The Service Provider warrants and represents that:(a) it has full capacity and authority and all necessary consents (including where its procedures so require, the consent of its Parent Company) to enter into and perform its obligations under the Contract; (b) the Contract is executed by a duly authorised representative of the Service Provider; (c) in entering the Contract it has not committed any Fraud; (d) as at the Commencement Date, all information, statements and representations contained in the Tender Response for the Services are true, accurate and not misleading save as may have been specifically disclosed in writing to the Customer prior to execution of the Contract and it will advise the Customer of any fact, matter or circumstance of which it may become aware which would render any such information, statement or representation to be false or misleading; (e) no claim is being asserted and no litigation, arbitration or administrative proceeding is presently in progress or, to the best of its knowledge and belief, pending or threatened against it or its assets which will or might affect its ability to perform its obligations under the Contract;


(f) it is not subject to any contractual obligation, compliance with which is likely to have an adverse effect on its ability to perform its obligations under the Contract; (g) no proceedings or other steps have been taken and not discharged (nor, to the best of its knowledge, are threatened) for the winding up of the Service Provider or for its dissolution or for the appointment of a receiver, administrative receiver, liquidator, manager, administrator or similar officer in relation to any of the Service Provider’s assets or revenue; (h) it owns, has obtained or is able to obtain valid licences for all Intellectual Property Rights that are necessary for the performance of its obligations under the Contract; (i)

the Services shall be provided and carried out by appropriately experienced, qualified and trained Staff with all due skill, care and diligence;

(j)

in the three (3) years prior to the date of the Contract: (i)

it has conducted all financial accounting and reporting activities in compliance in all material respects with the generally accepted accounting principles that apply to it in any country where it files accounts;

(ii)

it has been in full compliance with all applicable securities and tax laws and regulations in the jurisdiction in which it is established; and

(k) it has not done or omitted to do anything which could have an adverse effect on its assets, financial condition or position as an ongoing business concern or its ability to fulfil its obligations under the Contract; (l)

it will obtain at its own expense all licences, powers and consents necessary to perform its obligations under the Contract;

(m) its obligations under the Contract shall be performed: (i)

in a timely and professional manner in accordance with Good Industry Practice using reasonable skill and care;

(ii)

in accordance with the Customer’s policies as notified by the Customer and amended from time to time, including but not limited to the Customer’s information security policy and data disposal policy and software asset management policy, which policies the Customer shall supply to the Service Provider on request;


(iii)

15.1.2

in compliance with all Laws, rules, regulations (including but not limited to the Waste Electrical and Electronic Equipment Regulations 2006 and the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2006), decrees and other ordinances issued by any supra-governmental, governmental, state or other authority which are applicable to the performance of its obligations under or in connection with the Contract.

The Service Provider warrants, represents and undertakes for the duration of the Contract that: (a) all personnel used to provide the Services will be vetted in accordance with Good Industry Practice; (b) it has and will continue to hold all necessary (if any) regulatory approvals from the Regulatory Bodies necessary to perform the Service Provider's obligations under this Contract; (c) it has and will continue to have all necessary rights in and to any software and/or IPRs, or any other materials made available by the Service Provider and/or its sub-contractors to the Customer necessary to perform the Service Provider's obligations under the Contract; (d) in performing its obligations under the Contract, all software used by or on behalf of the Service Provider will: (i)

be currently supported versions of that software; and

(ii)

perform in all material respects in accordance with its specification.

(e) the Exit Plan will contain all necessary information and explanation required for suitably qualified employees of the Customer or of the Replacement Service Provider to be able to use the software and to perform the Services on termination or expiry; and (f) the Service Provider System and assets used in the performance of the Services will be free of all encumbrances [except‌insert details of any exceptions re equipment leases etc.]; (g) it shall at all times comply with the Law in carrying out its obligations under the Contract. 15.1.3

If the Service Provider is notified by the Customer of any failure to comply with the warranties in clauses 8.4.1 and 8.4.2 then the Service Provider shall promptly and with minimal interruption to the business of the Customer, and at the Service Provider’s own expense take all action necessary to correct such failure.


15.2 Guarantee If so required by the Customer, any Service Provider which has a parent company will procure that within fourteen (14) days of the date hereof its ultimate parent company shall enter into a guarantee and indemnity in the form required by the Customer.

15.3 DEFAULT, DISRUPTION AND TERMINATION 15.4 Termination on insolvency and change of control 15.4.1

The Customer may terminate the Contract with immediate effect by giving notice in writing where the Service Provider is a company and in respect of the Service Provider: (a) a proposal is made for a voluntary arrangement within Part I of the Insolvency Act 1986 or of any other composition scheme or arrangement with, or assignment for the benefit of, its creditors; or (b) a shareholders’ meeting is convened for the purpose of considering a resolution that it be wound up or a resolution for its winding-up is passed (other than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation); or (c) a petition is presented for its winding up (which is not dismissed within 14 days of its service) or an application is made for the appointment of a provisional liquidator or a creditors’ meeting is convened pursuant to section 98 of the Insolvency Act 1986; or (d) a receiver, administrative receiver or similar officer is appointed over the whole or any part of its business or assets; or (e) an application order is made either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given; or (f) it is or becomes insolvent within the meaning of section 123 of the Insolvency Act 1986; or (g) being a “small company” within the meaning of section 247(3) of the Companies Act 1985, a moratorium comes into force pursuant to Schedule A1 of the Insolvency Act 1986; or (h) it has any distraint, execution or other process levied or enforced on any of its property;


15.4.2

(i)

it ceases or appears in the reasonable opinion of the Customer likely or is threatening to cease to trade

(j)

any event similar to those listed in 9.1.1 (a)-(i) occurs under the law of any other jurisdiction.

The Service Provider shall notify the Customer immediately if the Service Provider undergoes a Change of Control. The Customer may terminate the Contract by notice in writing with immediate effect within six (6) months of: (a) being notified that a Change of Control has occurred; or (b) where no notification has been made, the date that the Customer becomes aware of the Change of Control, but shall not be permitted to terminate where an Approval was granted prior to the Change of Control.

9.1.3

16.

The Customer shall be entitled to terminate the Contract immediately upon giving notice in writing to the Service Provider if the Service Provider commits any of the money laundering offences under the Money Laundering Regulations 2003.

Termination on Default 16.1.1

The Customer may terminate the Contract by giving written notice to the Service Provider with immediate effect if the Service Provider commits a Default and if:(a) the Service Provider has not remedied the Default to the satisfaction of the Customer within fifteen (15) Working Days, or such other period as may be specified by the Customer, after issue of a written notice specifying the Default and requesting it to be remedied; or (b) the Default is not, in the opinion of the Customer, capable of remedy; or (c) the Default is a material breach of the Contract.

16.1.2

The Customer may terminate the Contract by giving written notice to the Service Provider with immediate effect if the Service Provider commits a Persistent Default.

16.1.3

In the event that through any Default of the Service Provider, data transmitted or processed in connection with the Contract is either lost or sufficiently degraded as to be unusable, the Service Provider shall be liable for the cost of reconstitution of that data and shall provide a full credit in respect of any charge levied for its transmission and shall reimburse the Customer for any costs charged in connection with such Default of the Service Provider.

16.1.4

If the Customer fails to pay the Service Provider undisputed sums of money when due, the Service Provider shall notify the Customer


in writing of such failure to pay. If the Customer fails to pay such undisputed sums within ninety (90) Working Days of the date of such written notice, the Service Provider may terminate the Contract in writing with immediate effect, save that such right of termination shall not apply where the failure to pay is due to the Customer exercising its rights under Clauses 6.5.17 (Recovery of Sums Due). 16.1.5 Break Without prejudice to the Customer’s right to terminate under clauses 9.1 and 9.2, or as otherwise set out in the Contract or at common law, the Customer shall have the right to terminate the Contract at any time and without cause by giving 28 days written notice to the Service Provider. The Customer shall remain liable to the Service Provider for payment of all costs in relation to all Services properly provided in accordance with the Contract up to and including the date of termination provided that the Customer shall have no liability in respect of any costs incurred after the expiry of the notice period. Once the Customer has given notice in accordance with this clause 9.4 the Customer may extend the period of notice at any time before its expires, subject to agreement on the level of Services to be provided by the Service Provider during the period of extension. 16.2 Without prejudice to clause 9.3 and for the avoidance of doubt the Customer shall not be obliged to pay any cancellation charge or other compensation to the Service Provider (including, without limitation, in respect of any redundancy payments for the Service Provider’s employees or loss of profits) by reason solely of the termination of the Contract by the Customer. 9.4A To the extent that the Customer has a right to terminate the Contract under this clause 9 then, as an alternative to termination, the Customer may by giving notice to the Service Provider require the Service Provider to provide part only of the Services with effect from the date (the “Change Date”) notified by the Customer whereupon the provision of the remainder of the Services will cease and the definition of the Services shall be amended accordingly. The Contract Price applicable with effect from the Change Date will be adjusted proportionately or, if in the Customer’s opinion a proportionate adjustment would not be reasonable, in such manner as the Customer may determine. 16.3 Consequences of Expiry or Termination 16.3.1

Upon termination of the Contract (howsoever caused): (a) the Service Provider shall, at no further cost to the Customer: (i)

take all such steps as shall be necessary to agree with the Customer a plan for the orderly handover of the Services to the Customer or its Replacement Service Provider, such that the Services can be carried on with the minimum of interruption and inconvenience to the Customer and to effect such


handover including providing the Customer with all such information as it may reasonably need in order to perform or have performed the Services; and (ii)

by a mutually agreed date return to the Customer any payments which it may have made in respect of the Services which have not been delivered or performed as at the termination date and any materials incorporating any Confidential Information of the Customer and or destroy or erase any Confidential Information of, or relating to, the Customer contained in any materials prepared by or on behalf of the Service Provider or recorded in any memory device and return all Customer Data and property materials and account for any damaged or lost property and/or materials.

16.3.2

Where the Customer terminates the Contract under Clause 16 (Termination on Default) and then makes other arrangements for the supply of Services, the Customer may recover from the Service Provider the cost reasonably incurred of making those other arrangements and any additional expenditure incurred by the Customer throughout the remainder of the Contract Period. The Customer shall take all reasonable steps to mitigate such additional expenditure. Where the Contract is terminated under Clause 16 (Termination on Default), no further payments shall be payable by the Customer to the Service Provider until the Customer has established the final cost of making those other arrangements.

16.3.3

Where the Customer terminates the Contract under Clause 16.1.5 (Break), (subject to Clause 12), the Customer shall indemnify the Service Provider against any commitments, liabilities or expenditure which would otherwise represent an unavoidable loss by the Service Provider by reason of the termination of the Contract, provided that the Service Provider takes all reasonable steps to mitigate such loss. Where the Service Provider holds insurance, the Service Provider shall reduce its unavoidable costs by any insurance sums available. The Service Provider shall submit a fully itemised and costed list of such loss, with supporting evidence, of losses reasonably and actually incurred by the Service Provider as a result of termination under Clause 16.1.5 (Break).

16.3.4

The Customer shall not be liable under Clause 9.5.3 to pay any sum which:(a) was claimable under insurance held by the Service Provider, and the Service Provider has failed to make a claim on its insurance, or has failed to make a claim in accordance with the procedural requirements of the insurance policy; or (b) when added to any sums paid or due to the Service Provider under the Contract, exceeds the total sum that would have been payable to the Service Provider if the


Contract had not been terminated prior to the expiry of the Contract Period. 16.3.5

Save as otherwise expressly provided in the Contract:(a) termination or expiry of the Contract shall be without prejudice to any rights, remedies or obligations accrued under the Contract prior to termination or expiration and nothing in the Contract shall prejudice the right of either Party to recover any amount outstanding at such termination or expiry; and (b) termination of the Contract shall not affect the continuing rights, remedies or obligations of the Customer or the Service Provider under Clauses 6.5.3 (Payment and VAT), 6.5.16 (Recovery of Sums Due), 6.5.22 (Prevention of Corruption), 8.1.16 (Data Protection Act), 8.1.23 (Official Secrets Acts 1911 to 1989, Section 182 of the Finance Act 1989), 8.1.26 (Confidential Information), 8.1.39 (Freedom of Information), 8.1.53 (Intellectual Property Rights), 8.1.69 (Audit and the National Audit Office), 10 (Remedies Cumulative), 13 (Liability, Indemnity and Insurance), 13.1.14 (Professional Indemnity), 16.3 (Consequences of Termination), 16.3.13 (Recovery upon Termination) and 16.3.21 (Governing Law).

16.3.6

The Customer shall be entitled to use or have used on its behalf all Know-How and Intellectual Property Rights owned or controlled by the Service Provider used in or in connection with the provision of the Services free of charge for the purposes of completion and use, amendment, modification and/or enhancement of the Services as envisaged by the Contract after such completion.

16.3.7

Without prejudice to the application or otherwise of TUPE in respect of the transfer of the Contract or any of the Services provided hereunder as envisaged by this clause 9, the Service Provider shall fully indemnify and keep indemnified the Customer against all claims demands, proceedings, actions, damages, costs (including legal and other professional fees) expenses and other liabilities which the Customer may suffer, sustain, incur, pay or be put to by reason of: (a) any failure by the Service Provider to comply with its obligations under TUPE; (b) any claims, demands, proceedings, actions, damages, costs (including legal and other professional fees) expenses and other liabilities by or on behalf of any of the employees of the Service Provider arising from or in connection with their employment or its termination on or prior to the date of termination or expiry of the Contract; (c) any claims, demands, proceedings, actions, damages, costs (including legal and other professional fees) expenses and other liabilities arising from the actions of any trade union,


employee representative or body of employees or their representatives in respect of any of the employees of the Service Provider in connection with any failure of the Service Provider in connection with the Contract on or prior to the date of termination or expiry of the Contract; (d) any act or omission prior to the date of termination or expiry of the Contract which, by virtue of TUPE, is deemed to be an act or omission of the Customer. (e)

Disruption 16.3.8

The Service Provider shall take reasonable care to ensure that in the performance of its obligations under the Contract it does not disrupt the operations of the Customer, its employees or any other contractor employed by the Customer.

16.3.9

The Service Provider shall immediately inform the Customer of any actual or potential industrial action, whether such action be by their own employees or others, which affects or might affect its ability at any time to perform its obligations under the Contract.

16.3.10 In the event of industrial action by the Staff, the Service Provider shall seek the Customer’s Approval to its proposals for the continuance of the supply of the Services in accordance with its obligations under the Contract. 16.3.11 If the Service Provider’s proposals referred to in Clause 16.3.10 are considered insufficient or unacceptable by the Customer acting reasonably then the Contract may be terminated with immediate effect by the Customer by notice in writing. 16.3.12 If the Service Provider is temporarily unable to fulfil the requirements of the Contract owing to disruption of normal business by direction of the Customer, an appropriate allowance by way of extension of time will be approved by the Customer. In addition, the Customer will reimburse any additional expense reasonably incurred by the Service Provider as a direct result of such disruption. 16.3.13

Recovery upon Termination

16.3.14 At the end of the Contract Period (howsoever arising) the Service Provider shall immediately deliver to the Customer upon request all Property (including but not limited to materials, documents, information, access keys) used in the performance of its obligations under the Contract in its possession or under its control or in the possession or under the control of any permitted suppliers or sub-contractors and in the event that the Service Provider fails to do so, the Customer may recover possession thereof and the Service Provider grants a licence to the Customer or its appointed agents to enter (for the purposes of such recovery) any premises of the Service Provider or its permitted suppliers or sub-contractors where any such items may be held.


16.3.15 At the end of the Contract Period (howsoever arising) and/or after the Contract Period the Service Provider shall provide assistance to the Customer and the Replacement Service Provider appointed by the Customer to continue or take over the performance of the Service Provider’s obligations under the Contract in order to ensure an effective handover of all work then in progress. Where the end of the Contract Period arises due to the Service Provider’s Default, the Service Provider shall provide such assistance free of charge. Otherwise the Customer shall pay the Service Provider’s reasonable costs of providing the assistance and the Service Provider shall take all reasonable steps to mitigate such costs. 16.3.16 At the end of the Contract Period (howsoever arising):(a) the licence granted pursuant to Clause 8.1.60 shall automatically terminate without the need to serve notice; and (b) the Service Provider shall deliver up to the Customer in a format to be advised by the Customer, all copies of the most up to date and complete version of the source code that is in or under the Service Provider's power, custody or control. (c)

Force Majeure 16.3.17 Neither Party shall be liable to the other Party for any delay in performing, or failure to perform, its obligations under the Contract (other than a payment of money) to the extent that such delay or failure is a result of Force Majeure. Notwithstanding the foregoing, each Party shall use all reasonable endeavours to continue to perform its obligations under the Contract for the duration of such Force Majeure. However, if such Force Majeure prevents either Party from performing its material obligations under the Contract for a period in excess of 6 Months, either Party may terminate the Contract with immediate effect by notice in writing. 16.3.18 Any failure or delay by the Service Provider in performing its obligations under the Contract which results from any failure or delay by an agent, sub-contractor or supplier shall be regarded as due to Force Majeure only if that agent, sub-contractor or supplier is itself impeded by Force Majeure from complying with an obligation to the Service Provider. 16.3.19 If either Party becomes aware of a Force Majeure event or occurrence which gives rise to or which is likely to give rise to any such failure or delay on its part as described in Clause 16.3.17 it shall immediately notify the other by the most expeditious method then available and shall inform the other of the period during which it is estimated that such failure or delay shall continue.


16.3.20 DISPUTES AND LAW 16.3.21

Governing Law and Jurisdiction

Subject to the provisions of Clause 17 the Contract shall be governed by and interpreted in accordance with English law and the Parties submit to the jurisdiction of the English courts. 17.

Dispute Resolution 17.1.1

The Parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Contract within twenty (20) Working Days of either Party notifying the other of the dispute and such efforts shall involve the escalation of the dispute to those persons named in Clause 5.1.7 (Notices).

17.1.2

Nothing in this dispute resolution procedure shall prevent the Parties from seeking from any court of competent jurisdiction an interim order restraining the other Party from doing any act or compelling the other Party to do any act.

17.1.3

If the dispute cannot be resolved by the Parties pursuant to Clause 17.1.1 the Parties shall refer it to mediation pursuant to the procedure set out in Clause 17.1.5 unless (a) the Customer considers that the dispute is not suitable for resolution by mediation; or (b) the Service Provider does not agree to mediation.

17.1.4

The obligations of the Parties under the Contract shall not be suspended, cease or be delayed by the reference of a dispute to mediation (or arbitration) and the Service Provider and the Staff shall comply fully with the requirements of the Contract at all times.

17.1.5

The procedure for mediation and consequential relating to mediation are as follows:

provisions

(a) a neutral adviser or mediator (“the Mediator”) shall be chosen by agreement between the Parties or, if they are unable to agree upon a Mediator within ten (10) Working Days after a request by one Party to the other or if the Mediator agreed upon is unable or unwilling to act, either Party shall within ten (10) Working Days from the date of the proposal to appoint a Mediator or within ten (10) Working Days of notice to either Party that he is unable or unwilling to act, apply to the Centre for Effective Dispute Resolution (“CEDR”) to appoint a Mediator. (b) The Parties shall within ten (10) Working Days of the appointment of the Mediator meet with him in order to agree a programme for the exchange of all relevant information and the structure to be adopted for negotiations to be held. If considered appropriate, the Parties may at any stage seek assistance from CEDR to provide guidance on a suitable procedure.


(c) Unless otherwise agreed, all negotiations connected with the dispute and any settlement agreement relating to it shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings. (d) If the Parties reach agreement on the resolution of the dispute, the agreement shall be reduced to writing and shall be binding on the Parties once it is signed by their duly authorised representatives. (e) Failing agreement, either of the Parties may invite the Mediator to provide a non-binding but informative opinion in writing. Such an opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings relating to the Contract without the prior written consent of both Parties. (f) If the Parties fail to reach agreement in the structured negotiations within sixty (60) Working Days of the Mediator being appointed, or such longer period as may be agreed by the Parties, then any dispute or difference between them may be referred to the Courts. 17.2

Arbitration

17.2.1

In the event that a dispute between the Parties or a claim by one party against the other is not resolved, the Parties may refer the matter to arbitration.

17.2.2

The Party seeking to initiate the arbitration shall give a written “Notice of Arbitration� to the other Party. The Notice of Arbitration shall specifically state: (a)

that the dispute is referred to arbitration; and

(b)

the particulars of this Service Provision Agreement.

17.2.3

In the event that the Parties do not agree to refer the matter to arbitration, then any dispute or difference between them may be referred to the courts.

17.2.4

Unless otherwise agreed in writing by the Parties, the provisions of the Arbitration Act 1996 shall govern the arbitration commenced pursuant to this paragraph 17.2.

17.2.5

Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination, if referred to arbitration in accordance with this paragraph 17.2 shall be resolved by arbitration under the Rules of the London Court of International Arbitration, which rules are deemed to be incorporated.

17.2.6

It is agreed between the Parties that for the purposes of the arbitration, the arbitrator shall have the power to make provisional awards as provided for in Section 39 of the Arbitration Act 1996.


17.2.7

For the avoidance of doubt it is agreed by the Parties that the arbitration process and anything said, done or produced in or in relation to the arbitration process (including any awards) shall be confidential between the Parties, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise. No report relating to anything said, done or produced in or in relation to the arbitration process may be made beyond the tribunal, the Parties, their legal representatives and any person necessary to the conduct of the proceedings, without the concurrence of all the Parties to the arbitration.

17.2.8

The Parties shall each bear their own costs in relation to any reference made to the arbitrator and the fees and all other costs of the arbitrator shall be borne jointly in equal proportions by the Parties unless otherwise directed by the arbitrator.

18. INFORMATION SECURITY 18.1 The Service Provider represents that it currently follows industry best practices as a means to prevent any compromise of its information systems, computer networks or data files (“Systems”) by unauthorised users, viruses or malicious computer programs (“Malicious Functionalities”) which could in turn be propagated via computer networks, e-mail, magnetic media or other means to the Customer. The Service Provider agrees immediately to give the Customer notice if the security of its Systems are breached or about to be breached or compromised in any way. 18.2 The Service Provider agrees to apply appropriate internal information security practices, including, but not limited to, using appropriate firewall and antivirus software; maintaining said countermeasures, operating systems and other applications with up-to-date virus definitions and security patches; installing and operating security mechanisms in the manner in which they were intended sufficient to ensure the Customer will not be impacted nor operations disrupted; and permitting only authorised users access to computer systems and applications. 18.3 The Service Provider specifically agrees to use antivirus tools to remove known Malicious Functionalities from any e-mail message or data transmitted to the Customer; prevent the transmission of attacks on the Customer via the network connections between the Customer and the Service Provider; and prevent unauthorised access to Customer systems via the Service Provider’s networks and access codes. 18.4 Subject to reasonable notice, the Service Provider will provide the Customer’s information security audit team or their agents an opportunity to conduct a security audit of the Service Provider’s Systems that are applicable to the services provided to the Customer by the Service Provider. 18.5 The Service Provider shall comply, and shall procure the compliance of the Staff, with the Security Policy and the Security Plan and the Service Provider shall ensure that the Security Plan


produced by the Service Provider fully complies with the Security Policy. 18.6 The Customer shall notify the Service Provider of any changes or proposed changes to the Security Policy. 18.7 If the Service Provider believes that a change or proposed change to the Security Policy will have a material and unavoidable cost implication to the Services it may submit a request for a Variation. In doing so, the Service Provider must support its request by providing evidence of the cause of any increased costs and the steps that it has taken to mitigate those costs. Any change to the Contract Price shall then be agreed in accordance with clause 7.3. 18.8 Until and/or unless a Variation is agreed by the Customer pursuant to clause 7.3 the Service Provider shall continue to perform the Services in accordance with its existing obligations. 18.9 Notwithstanding clause 11.3, if Malicious Functionalities are found, the Parties shall co-operate to reduce the effect of the Malicious Functionalities and, particularly if Malicious Functionalities cause loss of operational efficiency or loss or corruption of Customer Data, assist each other to mitigate any losses and to restore the Services to their desired operating efficiency. 18.10 Any cost arising out of the actions of the parties taken in compliance with the provisions of clause 11.9 shall be borne by the Parties as follows: 18.10.1 by the Service Provider where the Malicious Functionalities originate from the Service Provider Software, the Third Party Software or the Customer Data (whilst the Customer Data was under the control of the Service Provider); and 18.10.2 by the Customer if the Malicious Functionalities originate from the Customer software or the Customer Data (whilst the Customer Data was under the control of the Customer). 12 ESCROW The Service Provider agrees that within thirty (30) days of signing the Contract it shall at its own cost promptly enter into an escrow agreement with the Customer and NCC Escrow International Limited in such form as specified by the Customer. In addition and upon request by the Customer the Service Provider hereby agrees to co-operate in carrying out full verification testing as defined in and in accordance with the terms of the escrow agreement entered into. 13 BUSINESS CONTINUITY & DISASTER RECOVERY/SECURITY/EXIT AND MANAGEMENT The Service Provider shall at all times comply with the provisions of Schedule 5 (Business Continuity and Disaster Recovery Provisions); Schedule 6 (Security Requirements and Plan); and Schedule 7 (Exit Management).


SCHEDULE 1 CONTRACT PRICE


SCHEDULE 2 INVITATION TO TENDER


SCHEDULE 3 TENDER RESPONSE


SCHEDULE 4 ESCROW AGREEMENT


SCHEDULE 5 BUSINESS CONTINUITY AND DISASTER RECOVERY PROVISIONS


SCHEDULE 6 SECURITY REQUIREMENTS AND PLAN


SCHEDULE 7 EXIT MANAGEMENT


SCHEDULE 8 SERVICE LEVEL AGREEMENT

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