RESTRICTED
CONTRACTS
POL00028178
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Bird & Bird
90 Fetter Lane
London
EC4A 1JP
Tel: O171. 415.6000.
Fax GRO
Ref: HRS\CCTAG\013\DSSpwy . 5-0
SECRETARY OF STATE FOR
SOCIAL SECURITY
- and -
PATHWAY GROUP LIMITED
INFORMATION TECHNOLOGY
SERVICES AGREEMENT FOR
BRINGING TECHNOLOGY TO
POST OFFICES AND
BENEFITS PAYMENTS
DSS VERSION 5.0
15 May 1996
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Table of Contents
Clauses Page Numbers
RECITALS ate eo ci © 5 0 © 9 Oe He © Hole w HD eH Hw SD a Ew oH HF 9 ew 1
PART 1 : INTRODUCTION ....... ccc ccc cee cece eee e eect cece eens a
Clause 101. Contract Structure ....ccee ees ec ccc s ccc cenesecvees a
Clatise 102. INteGFpretations sacssscs seas gase snes snes sves yous ae 3
Glausé 103. S@verabi lity .ascaca sass osssyoseynsa cise goss sna en 4
Clause 104. Law and Jurisdiction ...... cece eee eee eee ee eee eee 4
Clause 105. Entire Agreement ...... cece cece ee eee cece eee reece 5
Clause 106. General Principles ........ cc eee eee ee eee eee eee eee 5
Clause 107. Condition Precedent ....... cece cece cece ee eee eens 5
PART 2 : PERFORMANCE OF DSS SERVICES AND SUPPLY OF PRODUCTS ..6
Clause 201. Performance of Basic DSS Services .............06- 6
Clause 203. Performance of Additional DSS Services ........... 7
Clause 204. Supply of Basic Products .... eee cece eee eee eee eee 7
Clause 205. Supply of Optional Products ............ cee eee eee 7
Clause 206. Supply of Additional Products .............----00e 8
Clause 207. Supply of DSS Consumables ..........c cece eccccccee 8
Clause 208. CONTRACTOR Consumables ......... cece cece cece eee eee 8
PART 3 : CONSIDERATION ...... eee ee eee cece ccc ence eee eeeeeeee 8
@lause SOL. CHATGES 2 sae nsec cane rans sew ones nes wake Hoes ane we 8
Clatisé 302. Packaging .sssissscssnss eves sees sass anes ster saese 10
Clause SOS, PSYMENE gcc c dass cae ese ease HEE THES THES HDR EBHESS 10
Clause 304. Value Added Tax ...... ccc ee ccc e eee c cece cen eeccnes 11
PART 4 : DEVELOPMENT, IMPLEMENTATION AND PERFORMANCE OF DSS
STEADY STATE SERVICES ......0 cesses sese acess caccneeansanence 11
Clause 401. Transfer of Undertakings (Protection of
Employment) Regulations 1981 ........ cece cece eee eee ence cence 11
Clause 402. DSS Development Services ....... eee eee eee eee eee 12
Clause 403. DSS Operational Trial ..... cece eee ee eee cece ee eee 12
Clause 404. Roll Out of DSS Service Infrastructure and DSS
Steady State SEFVIGES os cses anes stew enw Rane dew Hee He Dee 15
Clause 405. Performance of DSS Steady State Services ........ 15
Clause 406. Inspection of DSS Premises ........ ee cece ee eee eee 16
Clause 407. Marking of Products ....... cece eee ee eee eee eee 16
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Clause 408. Delivery and Acceptance of Products, and DSS
ConsSumableS 2... ccc e cscs ces scccenccsscsscncssnesesssessescese 16
Clause 409. DSS Contingency Services ......... eee cece eee eee 18
Clause 410. Products and ServiceS ....... cece e eee eee ee ee ences 18
Clause 411. Acceptance of DSS Steady State Services ......... 18
PART 5 OWNERSHIP, LICENCES AND RISK ......... ee eeeceeeeeeee 20
Clause 501. Ownership of Hardware ........ ee ee eee ee eee eee eee 20
Clause 502. Ownership of Software .... cc cee eee eee eee ee eee 20
Clause 503. Ownership of Documentation ........ eee cece eee eee 20
Clause 504. Ownership of DSS Data and NINOs................. 20
Clause 505. Ownership of Intellectual Property Rights in the
DSS Service Architecture, Cards, Tokens and Receipts....... 21
Clause 506. Ownership of DSS Consumables ...............-- 00. 23
Clause 507. Licences to use Intellectual Property Rights ....23
Clause 508. Risk in ProductS .....scscccccccsccsccscesccscees 26
Clause 509. Damage to Plant, Tackle and Tools ............... 27
Clause 510. Licences for CONTRACTOR to use Intellectual
Property Rights .... ce c ccc eee ewe ccc eee rece eee eeees 27
PART 6 CONTRACT AND SERVICE MANAGEMENT ......---eeeeeeeeeee 28
Glause 601. MONTCOTING «anew nner snes nace Rone HOw ROR Re A AO SY 28
Clause 602. Management Interfaces and Service Management ....28
Clause 603. Communications . 228
Clause 604. Transfer and Sub-Contracting.... ~29
Clause 605. DSS Responsibilities . 232
Clause 606. Time... +32
Clause 607. Confidentiality ........ =36
Clause 608. Health and Safety Hazards 38
Clause 609. Protection of Personal Data and Social Security
Administration ACE ssscsssceuace ass sees Bees Has eae ESOT ES RESS 39
Glausé 610. PUBLICILY «sass aann dans HHS ARR AAE HAR RE DAK ww 39
Clause 611. CONTRACTOR's Personnel] ........c cece eee ee cree ceee 40
Clause 612. Waiver... . cece cece cece cece cece eee teen ee enees 41
Clause 613. Access to DSS Premises ..... cece cece reece ee eeeee 41
Clause 614. Security Requirements ....... cee eee eee ee eee eee ee 42
Clause 615. CONTRACTOR’s Key Personnel ............. cee e eee 42
PART 7 WARRANTIES AND STANDARDS ...... eee eeccecceccecccnce 42
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Clause 701. Authority and Approval ....... cece eee eee eee eee eee 42
Clause 702. Performance of DSS ServiceS .........c cece ee eeeee 43
Clause 703. Performance of ProductS ......ee eee e eee eee eee eee 43
Clause 704. Intellectual Property Rights ...............-.66. 44
Clause 705. Technical Standards ........ cece cece eee e cece eeeee 44
Clause 706. Statements and Representations ..............-0 45
Clause 707. Disclaimer of Implied Terms ...............e eee 45
PART 8 : REMEDIES ..... cc cece cece cece reece cere ence eeeeeereee 45
Clause B01. BUdLt 0... cece ccc ccc c ene e nen wes eases scescnns 45
Clause 802. Service Credits and Delay .......... cece eee e ee eee 47
Clause 803. Additional Resources ........ ee cece eee ee ee eee eee 48
Clause 804. Recovery of Sums Due ..... cee eee eee eee eee eee 49
Clause 805. Intellectual Property Rights Indemnity.......... 49
Clause 806. Remedies Cumulative +52,
Clause 807. Alternative Dispute Resolution Procedure ~52
Clause 808. Injury to Persons; Loss of Property. 54
Clause 809. Liability.... 54
Clause 810. Limitation of Liability 52)
PART 9 : TERM AND TERMINATION .. 257
Clause 901. Term 2... .seseceeeseenacsncses 57
Clause 902. Termination of DSS Agreement .... edd
Clause 903. Termination of DSS Services 61
Clause 904. Rights on Termination of DSS Agreement .. . 64
Clause 905. Rights on Termination of DSS Services... . 68
Clause 906. Transfer Services 272
PART 10 : MISCELLANEOUS .... ~72
Clause 1001. Corrupt Gifts and Payments of Commission. .72
Clause 1002. Discrimination oo. 0 soeeccise sme aciee esis e nseus cess 74
Clause 1003, Export Of POQUGES sisscsusnossasns enue eiegasuse 74
Clause 1004. Guarantee ... cece cece cers cence sees cesses cescens 74
Clause 1005. Insurance .....cce rece cccscesccscescescescsscees 74
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Schedules Clause Reference
1. DSS Service Environment 702,703
2. Population of Schedules 107
3. Assumptions 102.5
Al. Interpretations 102.1
A2. Policies and Standards 614, 703.1, 705
A3. Audit 801
A4. Contract Management 602
AS. Change Control 101
A6. Approach to Remedies 802
A7. Contract Termination 906
A8. Sub-contractors 604.2
A9. [Not used]
Al0. Ordering, Invoicing and Payment 303
All. Acceptance Procedures 403, 408, 411
Al2. [Not Used]
Al3. Guarantee 1004
A1l4. CONTRACTOR’s Key Personnel 615
A15. Requirements 201
Al6. Solutions 201
Bl. Software 502
B2. Hardware 501
B3. Documentation 503
B4. DSS Consumables 301
B5. DSS Acceptance Criteria 408, 411
B6. Roll Out of DSS Service Infrastructure 404.1
B7. [Not used]
B8. Validation Procedures 504.2
B9. Timetable 606.1
B10. Fraud Management 809
Cl. Optional DSS Services 405.4
Payment Authorisation Service
D1 Service Definition 405.2
D2 Acceptance Criteria 403.2.2
D3 DSS Responsibilities 605
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D4 Roll-out and Implementation 404.4
DS Service Management 602.2
D6 Service Transfer 906.2
D7 Charges 301
D8 Service Levels and Remedies 802.2
D9 DSS Contingency Service 409
Card Management Service
El Service Definition 405.1
E2 Acceptance Criteria 403.2.1
E3 DSS Responsibilities 605
E4 Roll-out and Implementation 404.3
ES Service Management 602.2
E6 Service Transfer 906.1
E7 Charges 301
E8 Service Levels and Remedies 802.2
EQ DSS Contingency Service 409
DSS Operational Trial
Fl Objectives 403.2
F2. Milestones and Plans 403.1
F3. Acceptance 403.1
F4. DSS Operational Trial Responsibilities 403.8
F5. DSS Operational Trial Remedies 802.1
DSS VERSION 5.0
15 May 1996
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THIS AGREEMENT is made the fifteenth day of May 1996
BETWEEN:
(1) The Secretary of State for Social Security, acting
through and on behalf of the Department of Social Security
and on behalf of the Department of Health and Social
Services for Northern Ireland ("DSS");
(2) PATHWAY GROUP LIMITED whose registered office is at
ICL House, Putney, London SW15 ("the CONTRACTOR") .
RECITALS
WHEREAS:
(a) DSS and Post Office Counters Ltd (“POCL”) (collectively
“the AUTHORITIES”) wish to contract for the design,
development, integration and establishment of the Service
Infrastructure (as defined herein) and for the Services
(as defined herein);
(b) The AUTHORITIES and the CONTRACTOR have entered into an
Agreement on the same date herewith (“the AUTHORITIES'
Agreement”) for the supply of the Service Infrastructure
and the provision of certain of the Services which are of
common interest to both AUTHORITIES;
(c) DSS and the CONTRACTOR wish to contract for the provision
of the DSS Services (as defined herein).
NOW THEREFORE IT IS HEREBY AGREED as follows:
PART 1 : INTRODUCTION
Clause 101. Contract Structure
101.1 The Related Agreements
This agreement forms part of a suite of three related
agreements between the parties (“the Related Agreements”)
comprising:
(a) a separate agreement between DSS, POCL and the
CONTRACTOR (“the AUTHORITIES’ Agreement”) ;
(b) this agreement between DSS and the CONTRACTOR
(“the DSS Agreement”); and
(c) a separate agreement between POCL and _ the
CONTRACTOR (“the POCL Agreement”) .
101.2 Precedence of the Related Agreements
In the event of and to the extent only of any conflict or
inconsistency between the provisions of the AUTHORITIES’
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Agreement and the provisions of the DSS Agreement, the
provisions of the AUTHORITIES’ Agreement shall prevail.
101.3 Amendments to Clauses, Schedules and Annexes of the
DSS Agreement
The provisions of the DSS Agreement may not be amended
unless such amendment is approved on behalf of the parties
at the appropriate levels of authority as follows:
(a) except as provided by paragraph (b) below, and
subject to the change control procedures specified in
Schedule A5 of the AUTHORITIES’ Agreement, amendments
to the Clauses, Schedules and Annexes of the DSS
Agreement must be approved by the BA Project Director
or his successor on behalf of DSS and by the Managing
Director or his successor on behalf of the
CONTRACTOR;
(b) any amendment to the Clauses, Schedules or Annexes of
the DSS Agreement which conflicts or is inconsistent
with the Double Key Requirements in Schedule B4 of
the AUTHORITIES’ Agreement or of the Double Key
Solutions in Schedule BS of the AUTHORITIES’
Agreement in whole or in part shall be subject to the
approval of all three parties thereto in accordance
with Clause 101.3.1 (a) thereof.
101.4 Other Changes
Changes in connection with the DSS Agreement which do not
require any amendment to the DSS Agreement may be approved
by the BA/POCL Procurement Manager or his successor on
behalf of DSS and by the Managing Director or his
successor on behalf of the CONTRACTOR in accordance with
the change control procedures specified in Schedule A5 of
the DSS Agreement.
101.5 Failure by the AUTHORITIES to Perform Obligations
Under the Related Agreements
The CONTRACTOR shall not be liable to DSS for any failure
to perform or delay in performing its obligations
hereunder where the CONTRACTOR proves that such failure or
delay has been caused directly by the failure of DSS or
POCL to perform any of its obligations under the Related
Agreements. This Clause shall not apply to Clause 808,
which shall be governed by the specific rule stated in
Clause 809.2.
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Clause 102. Interpretations
102.1 As used in the DSS Agreement:
102.1.1 the terms and expressions set out in
Schedule Al shall have the meanings ascribed
therein;
102.1.2 the masculine includes the feminine and the
neuter; and
102.1.3 the singular includes the plural and vice
versa.
102.2 A reference 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
statute, enactment, order, regulation or instrument or as
contained in any subsequent re-enactment thereof.
102.3 Headings are included in the DSS Agreement for ease
of reference only and shall not affect the interpretation
or construction of the DSS Agreement.
102.4 References in this DSS Agreement to Clauses, Parts
and Schedules are, unless otherwise provided, references
to the clauses, parts, and schedules of the DSS Agreement.
102.5 In the event and to the extent only of any conflict
or inconsistency between the Clauses and Schedule Al and
the Schedules (other than Schedule Al), the Clauses and
Schedule Al shall prevail. In the event and to the extent
only of any conflict or inconsistency between the
Schedules (other than Schedule Al), the provisions of
Schedules 2, A2 to All, A13 and A14 shall prevail over
those of all other Schedules (other than Schedule Al), the
provisions of Schedule A15 shall prevail over those of all
other such Schedules, and the provisions of Schedule A16
shall prevail over those of the other Schedules except
those of the Schedules listed above. Notwithstanding the
foregoing, if and only to the extent that Schedule 3
expressly states that a particular requirement in Schedule
A15 will be met in a particular form, manner or quantity,
or at a particular time or place, the terms set out in
Schedule 3 will prevail. Moreover, for the avoidance of
doubt, DSS acknowledges that a particular solution in
Schedule A16 shall not be treated as being in conflict or
inconsistent with any requirement in Schedule A15 merely
because the solution states that the requirement will be
met in a particular form, manner, quantity, time or place.
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102.6 The Recitals are not legally binding, but are
intended as a guide to the interpretation and construction
of the DSS Agreement.
Clause 103. Severability
If any provision of the DSS Agreement is held invalid,
illegal or unenforceable for any reason by any court or
regulatory body of competent jurisdiction, such provision
shall be severed and the remainder of the provisions
hereof shall continue in full force and effect as if the
DSS Agreement had been executed with the invalid illegal
or unenforceable provision eliminated. In the event of a
holding of invalidity so fundamental as to prevent the
accomplishment of the purpose of the DSS Agreement, DSS
and the CONTRACTOR shall immediately commence good faith
negotiations to remedy such invalidity. However, if DSS
and the CONTRACTOR fail to conclude such negotiations
within a reasonable period of time, the DSS Agreement
shall terminate without further liability to any party
(subject to Clause 902.7).
Clause 104. Law and Jurisdiction
104.1 The DSS Agreement shall be considered as a contract
made in England and according to English Law and, subject
to Clause 807, shall be subject to the exclusive
jurisdiction of the English Courts to which the parties
hereby submit.
104.2 Except as specified in Clause 101, the DSS Agreement
is binding on DSS and its successors and permitted
assignees and on the CONTRACTOR and the CONTRACTOR's
successors and permitted assignees.
Clause 105. Entire Agreement
This DSS Agreement and the applicable provisions of the
AUTHORITIES’ Agreement constitute the entire understanding
between the parties relating to the subject matter of the
DSS Agreement and, save as may be expressly referred to or
referenced herein, supersede all prior representations,
agreements, negotiations or understandings with respect
thereto, whether oral or in writing, except in respect of
any fraudulent misrepresentation made by either party.
Clause 106. General Principles
106.1 The CONTRACTOR shall offer all reasonable assistance
to DSS in preventing fraudulent use of the DSS Services
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and DSS Service Infrastructure by DSS employees and
Agents.
106.2 The DSS Services and the DSS Service Infrastructure
shall be provided in accordance with and comply with all
relevant applicable industry standards as specified in
Schedule A2.
106.3 For the avoidance of doubt, the CONTRACTOR shall
ensure migration of appropriate automated systems without
any reduction in existing service or security levels to
DSS’s customers.
Clause 107. Condition Precedent
The parties hereto shall have no obligation or liabilities
hereunder until successful completion of the process of
extrapolation and transposition of Schedules 3, A6, Bl to
BS, B7, B8 and CS of the AUTHORITIES’ Agreement and of
clarification of Schedule Bl of the AUTHORITIES’ Agreement
in accordance with Clause 201 of the AUTHORITIES’
Agreement. The Schedules listed in Schedule 2 shall be
populated from Schedules 3, A6, B1 to B5, B7, B8 and C5 of
the AUTHORITIES’ Agreement as specified in Schedule 2.
PART 2 : PERFORMANCE OF DSS SERVICES AND SUPPLY OF PRODUCTS
Clause 201. Performance of Basic DSS Services
201.1 The CONTRACTOR shall be responsible for meeting the
requirements specified in Schedule A15 in accordance with
the Solutions specified in Schedule A16 by performing the
Basic DSS Services referred to in Clause 201.2. However,
for the avoidance of doubt, and subject to Clause 102.5,
the parties acknowledge that DSS’s acceptance of the
CONTRACTOR’ s solutions in Schedule Al6, and their
agreement to the service descriptions contained in the
relevant Schedules of the DSS Agreement, shall not relieve
the CONTRACTOR of its obligation to meet the requirements
specified in Schedule A15, as modified by Schedule 3.
201.2 The CONTRACTOR shall perform the following Basic DSS
Services in accordance with all applicable provisions
hereof:
201.2.1 the DSS Development Services pursuant to
Clause 402;
201.2.2 the roll out Services pursuant to Clause
404;
201.2.3 the DSS Steady State Services pursuant to
Clause 405;
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201.2.4 the management Services pursuant to Clause
602;
201.2.5 the DSS Contingency Services pursuant to
Clause 409; and
201.2.6 the Transfer Services pursuant to Clause
906.
Clause 202. Performance of Optional DSS Services
DSS shall have the option, exercisable on prior written
notice thereof as specified in Schedule Cl to _ the
CONTRACTOR, of obtaining the following Optional DSS
Services:
202.1 The Optional DSS Services identified as
such in Schedule A6 of the AUTHORITIES’ Agreement.
Such Optional Dss Services shall be performed in
accordance with all applicable provisions hereof.
Clause 203. Performance of Additional DSS Services
The CONTRACTOR undertakes to perform at any time during
the term of the DSS Agreement such Additional DSS Services
as may be agreed by it and DSS in accordance with the
provisions of Clause 101.3 for the purposes contemplated
by the Related Agreements and within the scope of the
Advertisement. Such Additional DSS Services shall be
performed in accordance with all applicable provisions of
the DSS Agreement.
Clause 204. Supply of Basic Products
204.1 To support the performance of the DSS Services, the
CONTRACTOR shall supply the following Basic Products in
accordance with all applicable provisions hereof:
204.1.1 all of the Products comprising the DSS
Service Infrastructure;
204.1.2 the Documentation.
204.2 The CONTRACTOR warrants that the Documentation
comprises:
(a) a complete set of operating manuals; and
(b) a complete set of manuals for the DSS Service
Architecture (which for the avoidance of doubt
shall not include the DSS Service Architecture
Design Document).
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Clause 205. Supply of Optional Products
DSS shall have the option, exercisable on written notice
thereof as specified in Schedules Bl and B2 to the
CONTRACTOR, of obtaining all or any of the following
Optional Products:
205.31 items of the same type as the elements of
the Service Infrastructure to be provided by the
CONTRACTOR for use on the Premises (other than any
Public Service Telecommunications Network
Equipment) .
The Optional Products shall be supplied in accordance with
all applicable provisions hereof.
Clause 206. Supply of Additional Products
The CONTRACTOR undertakes to supply at any time during the
term of DSS Agreement such Additional Products as may be
agreed by it and DSS in accordance with the provisions of
Clause 101.3 for the purposes contemplated by the Related
Agreements and within the scope of the Advertisement.
Such Additional Products shall be supplied in accordance
with all applicable provisions hereof.
Clause 207. Supply of DSS Consumables
DSS shall have the option of obtaining all or any of the
DSS Consumables in such quantities as may be reasonably
required by DSS by giving the CONTRACTOR not less than
thirty (30) days prior written notice thereof. The DSS
Consumables shall be supplied in accordance with all
applicable provisions hereof.
Clause 208. CONTRACTOR Consumables
The CONTRACTOR shall at its own expense provide all
CONTRACTOR Consumables which are required for the
performance of the DSS Services.
PART 3 : CONSIDERATION
Clause 301. Charges
301.1 Basic DSS Services
The Charges for the Basic DSS Services shall be calculated
in accordance with the Common Charging Mechanism in
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Schedule A6 of the AUTHORITIES’ Agreement and _ the
provisions of Schedules D7 or E7 (as appropriate).
301.2 Optional DSS Services
The Charges for any Optional DSS Services shall be
calculated in accordance with the Common Charging
Mechanism or such other mechanism as may be specified to
apply thereto in Schedule A6 of the AUTHORITIES’ Agreement
and the provisions of Schedules D7 or E7 (as appropriate).
301.3 Additional DSS Services
Whenever possible, the Charges for any Additional DSS
Services shall be calculated in accordance with the
Common Charging Mechanism or such other mechanism as may
be specified to apply thereto in Schedule A6 of the
AUTHORITIES’ Agreement. Where it is agreed that this is
not possible, such Charges shall be calculated in
accordance with such alternative provisions as may be
agreed by the parties and specified in Schedule A6 of the
AUTHORITIES’ Agreement.
301.4Basic Products
The Charges for the supply of the Basic Products shall be
included within the Common Charging Mechanism in Schedule
A6 of the AUTHORITIES’ Agreement.
301.5 Optional Products
The Charges for the supply of any Optional Products shall
either (a) be included within the Common’ Charging
Mechanism or such other mechanism as may be specified to
apply to Optional DSS Services in Schedule A6 or the
AUTHORITIES’ Agreement or (b), if not so included, shall
be calculated in accordance with the CONTRACTOR’s then
current list prices less the discount specified in
Schedule A6 of the AUTHORITIES’ Agreement, but shall in no
event exceed the prices then generally offered in the
United Kingdom for such products on similar terms.
301.6 Additional Products
The Charges for the supply of any Additional Products
shall either (a) be included within the Common Charging
Mechanism or such other mechanism as may be specified to
apply to Additional DSS Services in Schedule A6 or the
AUTHORITIES’ Agreement or (b), if not so included, shall
be calculated in accordance with the CONTRACTOR's then
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current list prices, but shall in no event exceed the
prices then generally offered in the United Kingdom for
such products on similar terms.
301.7 DSS Consumables
The Charges for the supply of any DSS Consumables shall be
as specified in Schedule B4.
301.8 Variation of Charges
The Charges for Basic DSS Services, Optional DSS Services
and Additional DSS Services shall be subject to annual
variation in accordance with the procedures set out in
Schedule A6 of the AUTHORITIES’ Agreement.
Clause 302. Packaging
No additional charge shall be made for packaging used by
the CONTRACTOR. All such packaging shall be removed by
the CONTRACTOR at no additional cost when no longer
required.
Clause 303. Payment
303.1 In consideration of the supply of the Products and
the performance of the DSS Services in accordance with the
provisions of the DSS Agreement DSS shall pay the Charges
in accordance with the invoicing and payment procedure
specified in Schedule A10.
303.2 Payment of Charges in relation to the DSS Services
performed hereunder shall be made within thirty (30) days
of receipt by DSS (at its nominated address for invoices)
of a valid invoice, in accordance with the provisions of
Schedule A10, from the CONTRACTOR.
303.3 In the event that the CONTRACTOR, in accordance with
the terms of the DSS Agreement, enters into a _ supply
contract or a sub-contract in connection with the DSS
Agreement, the CONTRACTOR shall ensure that a term is
included in the supply contract or a sub-contract which
requires the CONTRACTOR to pay all sums due thereunder to
the relevant supplier or sub-contractor within a specified
period, not to exceed thirty (30) days, from the date of
receipt of a valid invoice as defined by the terms of the
supply contract or sub-contract (as appropriate).
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Clause 304. Value Added Tax
It is hereby agreed that the Charges are exclusive of
Value Added Tax, which DSS shall pay to the CONTRACTOR at
the rate and in the manner prescribed by law from time to
time, subject to the production by the CONTRACTOR of a
valid tax invoice giving the requisite details of the
taxable supply.
PART 4 : DEVELOPMENT, IMPLEMENTATION AND PERFORMANCE OF DSS
STEADY STATE SERVICES
Clause 401. Transfer of Undertakings (Protection of
Employment) Regulations 1981
401.1 In the event that, by virtue of the application for
whatever reason of the Transfer of Undertakings
(Protection of Employment) Regulations 1981 (as amended or
replaced from time to time) to the assumption of
responsibility by the CONTRACTOR for the provision of all
or any part of the Services hereunder, there is
transferred to the CONTRACTOR any contract of employment
of any employee of DSS and provided that the CONTRACTOR:
(i) shall not have offered employment to such employee or
otherwise have encouraged him to seek or to claim
employment with the CONTRACTOR; and
(ii) shall have notified the DSS in writing of the
CONTRACTOR’s intention to terminate the employment of
such employee at least fourteen (14) days before
terminating such employment; and
(iii) shall immediately after such notification to DSS have
given DSS reasonable opportunity to offer such
employee reemployment with DSS; and
(iv) shall have terminated the employment of such employee
as soon after the date on which the CONTRACTOR first
became aware of the transfer to it of his employment
as permitted under the relevant contract of
employment,
DSS subject always to the CONTRACTOR’s proper observance
of its obligations under this Clause, shall fully
indemnify the CONTRACTOR from and against any and all
liabilities and obligations which the CONTRACTOR may incur
in connection therewith (including any liabilities and
obligations accruing, prior to such transfer of
employment, in relation to _ personal injury, sexual
discrimination and any liabilities and obligations arising
after such transfer of employment on the subsequent
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termination of employment by the CONTRACTOR of any such
employees so transferred to it).
401.2 In the event of any claim or demand being made or
action brought to which Clause 401.1 applies, DSS shall be
promptly notified thereof and DSS shall at its own expense
conduct all negotiations for settlement of the same and
any legal proceedings that may rise therefrom. The
CONTRACTOR, its sub-contractors, agents and employees
shall at the request of DSS afford all reasonable
assistance for the purpose of contesting any such claim or
demand or action and shall be repaid any reasonable
expense incurred in so doing and shall not make any
admissions which may be prejudicial to the defence of any
such claim or demand or action.
Clause 402. DSS Development Services
402.1 The CONTRACTOR shall perform the following DSS
Development Services:
402.1.1 development of Optional DSS Services as
described in Schedule Cl;
402.1.2 development of the Card Management Service
as described in Schedule El;
402.1.3 development of the Payment Authorisation
Service as described in Schedule D1;
402.1.4 development of the DSS Service Architecture
Design Document; and
402.1.5 development of the DSS Contingency Services
as described in Schedules D9 and E9.
Clause 403. DSS Operational Trial
403.1 The CONTRACTOR shall, during the DSS Operational
Trial Period, make available the DSS Operational Trial
System (which for the purposes of this Clause 403 shall
include the DSS Service Architecture Design Document) for
the DSS Operational Trial as set out in Schedules Fl to F5
to be performed in accordance with the timetable set out
in Schedule F2. DSS shall be entitled to subject all
Basic DSS Services and Optional DSS Services to the DSS
Operational Trial, but in relation to Optional DSS
Services, the rights of termination granted pursuant to
this Clause shall apply only to the particular Optional
DSS Service being tested.
403.2 The objectives of the DSS Operational Trial shall be
as specified in Schedule Fl. The DSS Operational Trial
Criteria:
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403.2.1 for the Card Management Service shall be as
set out in Schedule E2;
403.2.2 for the Payment Authorisation Service shall
be as set out in Schedule D2; and
403.2.3 for the DSS Contingency Services shall be
as set out in Schedules D9 and E9.
403.3 DSS shall accept the DSS Operational Trial System in
accordance with the DSS Operational Trial Procedures.
403.4 The DSS Operational Trial shall be recorded as
successful and the CONTRACTOR notified accordingly where
all the DSS Operational Trial Criteria are met in
accordance with the DSS Operational Trial Procedures.
403.5 The DSS Operational Trial shall be recorded as
unsuccessful and the CONTRACTOR notified accordingly where
any of the DSS Operational Trial Criteria are not met in
accordance with the DSS Operational Trial Procedures.
403.6 If the DSS Operational Trial, in respect of the DSS
Operational Trial System, has not been recorded as
successful pursuant to Clause 403.4 by the end of the DSS
Operational Trial Period, DSS shall have the right
without prejudice to its other rights and remedies:
403.6.1 to accept such part of the DSS Operational
Trial System as DSS may decide and pay a pro-rated
Charge therefor or such other charge as may be
agreed between the parties;
403.6.2 to extend the DSS Operational Trial Period
for up to two (2) consecutive additional periods of
the same duration or of such shorter duration as DSS
may notify to the CONTRACTOR, during which the
CONTRACTOR shall use reasonable endeavours’ to
correct the deficiency or Acceptance Incident which
caused the DSS Operational Trial to be recorded as
unsuccessful; or
403.6.3 (subject to Clause 403.10) to terminate
this DSS Agreement or the relevant DSS Services in
accordance with Clause 902.2 or 903.2 (as
appropriate).
For the purposes of the foregoing, the “relevant” DSS
Services mean the DSS Services in respect of which the DSS
Operational Trial has been recorded as unsuccessful.
403.7 In the event that DSS extends the DSS Operational
Trial Period for a period pursuant to Clause 403.6.2 and
the DSS Operational Trial has not been recorded as
successful by the end of that period, DSS shall have the
right without prejudice to its other rights and remedies:
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403.7.1 to accept such part of the DSS Operational
Trial System as DSS may decide and pay a pro-rated
Charge therefor or such other charge as may be
agreed between the parties;
403.7.2 to extend the DSS Operational Trial Period
for a further period in accordance with Clause
403.6.2 up to a maximum of three (3) consecutive
periods in total; or
403.7.3 (subject to Clause 403.10) to terminate
this DSS Agreement or the relevant DSS Services in
accordance with Clause 902.2 or 903.2 (as
appropriate).
For the purposes of the foregoing, the “relevant” DSS
Services mean the DSS Services in respect of which the DSS
Operational Trial has been recorded as unsuccessful.
403.8 DSS will perform the DSS Trial Responsibilities as
set out in Schedule F4.
403.9 For the avoidance of doubt, the CONTRACTOR
acknowledges that successful completion of acceptance
testing of any part of the DSS Operational Trial Systems
shall not relieve it of its obligation to continue to
perform the DSS Services in accordance with all applicable
provisions hereof.
403.10Notwithstanding the foregoing provisions of this
Clause, DSS shall have no right of termination of the DSS
Agreement in relation to failure of the DSS Operational
Trial System successfully to complete the DSS Operational
Trial, except in accordance with Schedules A111 and F5.
Clause 404. Roll Out of DSS Service Infrastructure and DSS
Steady State Services
404.1 The CONTRACTOR shall implement the DSS Service
Infrastructure in accordance with the provisions and the
timetable in Schedule Bé. Elements of the DSS Service
Infrastructure shall be subject to DSS Acceptance Testing
in accordance with Clause 408.
404.2 DSS may on prior written notice defer implementation
of any part of the DSS Service Infrastructure and of any
of the DSS Steady State Services until successful
completion of the Operational Trial under the AUTHORITIES’
Agreement.
404.3 The CONTRACTOR shall implement the Card Management
Service in accordance with the timetable in, and
provisions of, Schedule E4. Elements of the Card
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Management Service shall be subject to DSS Acceptance
Testing in accordance with Clause 411.
404.4 The CONTRACTOR shall implement the Payment
Authorisation Service in accordance with the timetable in,
and the provisions of, Schedule D4. Elements of the
Payment Authorisation Service shall be subject to DSS
Acceptance Testing in accordance with Clause 411.
Clause 405. Performance of DSS Steady State Services
The CONTRACTOR shall, from the Operational Trial
Acceptance Date (as defined in the AUTHORITIES’
Agreement), perform the following DSS Steady State
Services:
405.1 the Card Management Service, in accordance
with the provisions of Schedule El; and
405.2 the Payment Authorisation Service, in
accordance with the provisions of Schedule Dl;
405.3 the DSS Contingency Services, in accordance
with the provisions of Schedules D9 and E9; and
405.4 any Optional DSS Services ordered pursuant
to Clause 202 in accordance with the provisions of
Schedule Cl.
Clause 406. Inspection of DSS Premises
406.1 The CONTRACTOR confirms that it has been offered the
opportunity to inspect the DSS Premises in order to
satisfy itself that the DSS Premises are suitable for the
installation and operation of the Products in the DSS
Service Infrastructure and the supply of the DSS Services.
However, the CONTRACTOR does not warrant that the use of
the Products when installed will comply with applicable
Health and Safety legislation, or that the DSS Premises
will comply with such legislation, only that installation
work carried out by the CONTRACTOR and the Products as
installed in their immediately surrounding environment
will so comply. The CONTRACTOR shall not be liable for
any delay or Default directly caused by any delay or
failure in obtaining any third party consents or licences
which are necessary to permit such installation.
406.2 DSS shall only be liable to pay for the CONTRACTOR’s
costs for changes to the DSS Premises strictly necessary
to install the Products to enable the CONTRACTOR to
perform the DSS Services, and shall be chargeable pursuant
to the charging structure in Schedule A6 of the
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AUTHORITIES’ Agreement. The CONTRACTOR will minimise such
installation and operation costs.
Clause 407. Marking of Products
The CONTRACTOR shall ensure that each Product in the DSS
Service Infrastructure is clearly marked with a functional
title or code so that it can be readily identified in the
relevant Documentation and related to its proper place in
the DSS Service Infrastructure.
Clause 408. Delivery and Acceptance of Products, and DSS
Consumables
408.1 The CONTRACTOR shall deliver any Products, and DSS
Consumables to an authorised representative of DSS at
times and locations to be mutually agreed between the
CONTRACTOR and DSS (such agreement not to be unreasonably
withheld or delayed). Any Software supplied as a Product
will be delivered in object code.
408.2 DSS shall accept the relevant Product or DSS
Consumables in accordance with the DSS Acceptance
Procedures contained in Schedule All. The DSS Acceptance
Criteria for Basic Products shall be as specified in
Schedule B5.
408.3 A DSS Acceptance Test shall be recorded as
successful and the CONTRACTOR notified accordingly where
all the DSS Acceptance Criteria are met in accordance with
the DSS Acceptance Procedures.
408.4 A DSS Acceptance Test shall be recorded as
unsuccessful and the CONTRACTOR notified accordingly where
any of the DSS Acceptance Criteria are not met in
accordance with the DSS Acceptance Procedures.
408.5 If the DSS Acceptance Procedures, in respect of the
relevant Product or DSS Consumable have not been recorded
as successful pursuant to Clause 408.3 by the end of the
DSS Acceptance Period, DSS shall have the right, without
prejudice to its other rights and remedies (excluding the
right to terminate the DSS Agreement under Clause 902.2 or
any DSS Services under Clause 903.2) either:
408.5.1 to accept such items of the relevant
Products or DSS Consumables as DSS may decide and
(where appropriate) pay a pro-rated Charge therefor
or such other charge as may be agreed between the
parties; or
408.5.2 to extend the DSS Acceptance Period for a
period or periods, specified by DSS, during which
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the CONTRACTOR shall use reasonable endeavours to
correct the deficiency or Acceptance Incident which
caused the DSS Acceptance Procedure to be recorded
as unsuccessful.
408.6 In the event that DSS extends the DSS Acceptance
Period for a period pursuant to Clause 408.5.2 and the DSS
Acceptance Procedures have not been recorded as successful
by the end of that period, DSS shall have the right,
without prejudice to its other rights and remedies
(excluding the right to terminate the DSS Agreement under
Clause 902.2 or any DSS Services under Clause 903.2):
408.6.1 to accept such items of the relevant
Products or DSS Consumables as DSS may decide and
(where appropriate) pay a pro-rated Charge therefor
or such other charge as may be agreed between the
parties; or
408.6.2 to extend the DSS Acceptance Period for a
further period in accordance with Clause 408.5.2; or
408.6.3 to reject the relevant Product or DSS
Consumable, in which case the CONTRACTOR shall
return to DSS any payment made in respect of the
relevant Optional or Additional Product or DSS
Consumable, or, in the case of Basic Products, shall
provide replacement Basic Products or repair the
relevant Basic Products (as agreed by the parties,
such agreement not to be unreasonably withheld or
delayed), in which case such replacement or repaired
Basic Products shall be subject to DSS Acceptance
Testing in accordance with this Clause 408.
Clause 409. DSS Contingency Services
The CONTRACTOR shall perform the DSS Contingency Services
in accordance with the provisions of Schedules D9 and E9.
Clause 410 Products and Services
The CONTRACTOR shall not introduce any product or service
into the DSS Service Infrastructure or DSS Services, nor
make any change to any Products or DSS Services, without
DSS’s prior written consent, in accordance with Schedule
AS.
Clause 411. Acceptance of DSS Steady State Services
411.1 DSS shall accept the elements of the DSS Steady
State Services in accordance with the DSS Acceptance
Procedures contained in Schedule All. The DSS Acceptance
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Criteria for DSS Steady State Services shall be as
specified in Schedules D2 and E2, as appropriate.
411.2 The DSS Acceptance Test in relation to any such
element shall be recorded as successful and the CONTRACTOR
notified accordingly where all the DSS Acceptance Criteria
are met in accordance with DSS Acceptance Procedures.
411.3 The DSS Acceptance Test in relation to any such
element shall be recorded as unsuccessful and _ the
CONTRACTOR notified accordingly where the relevant DSS
Acceptance Criteria are not met in accordance with the DSS
Acceptance Procedures.
411.4 If the DSS Acceptance Test, in respect of the
relevant element of the DSS Steady State Services has not
been recorded as successful pursuant to Clause 411.2 by
the end of the DSS Acceptance Period, DSS shall have the
right, without prejudice to its other rights and remedies
(excluding the right to terminate the DSS Agreement under
Clause 902.2 or any DSS Services under Clause 903.2),
either:
411.4.1 to accept such part of the DSS Steady State
Services as DSS may decide and pay a pro-rated
Charge therefor or such other charge, as may be
agreed between the parties; or
411.4.2 to extend the DSS Acceptance Period for a
period or periods, specified by DSS, during which
the CONTRACTOR shall use reasonable endeavours to
correct the deficiency or Acceptance Incident which
caused the DSS Acceptance Test to be recorded as
unsuccessful.
411.5 In the event that DSS extends the DSS Acceptance
Period for a period pursuant to Clause 411.4.2 and the
DSS Acceptance Procedures have not been recorded as
successful by the end of that period, DSS shall have the
right, without prejudice to its other rights and remedies
(excluding the right to terminate the DSS Agreement under
Clause 902.2 or any DSS Services under Clause 903.2);
411.5.1 to accept such part of the DSS Steady State
Services as DSS may decide and pay a pro-rated
Charge therefor or such other charge, as may be
agreed between the parties; or
411.5.2 to extend the DSS Acceptance Period for a
further period in accordance with Clause 411.4.2.
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PART 5 : OWNERSHIP, LICENCES AND RISK
Clause 501. Ownership of Hardware
Ownership of the Hardware shall either vest in DSS upon
acceptance thereof or shall remain in the CONTRACTOR (or
its licensors), as specified in Schedule B2. However, DSS
shall not acquire title to any Intellectual Property
Rights in the Hardware.
Clause 502. Ownership of Software
Ownership of the media on which such Software is supplied
by the CONTRACTOR shall either vest in DSS upon acceptance
thereof or shall remain in the CONTRACTOR (or its
licensors), as specified in Schedule Bl. However, DSS
shall not acquire title to any Intellectual Property
Rights in the Software, other than Specially Written
Software, the Intellectual Property Rights to which are
specified in Schedule Bl as vesting in DSS, the ownership
to which shall vest in DSS upon acceptance thereof.
Clause 503. Ownership of Documentation
503.1 Ownership of the media on which such Documentation
is supplied by the CONTRACTOR shall vest in DSS. However,
DSS shall not acquire title to the Intellectual Property
Rights in the Documentation.
Clause 504. Ownership of DSS Data and NINOs
504.1 The CONTRACTOR acknowledges that the DSS Data is the
property of the Crown and DSS hereby reserves all
Intellectual Property Rights which may subsist in the DSS
Data. The CONTRACTOR shall not delete or remove any
copyright notices contained within or relating to the DSS
Data.
504.2 The CONTRACTOR shall preserve the integrity of the
DSS Data once the CONTRACTOR has received such DSS Data
shall prevent any corruption or loss of the DSS Data, and
shall comply with the validation procedures set out in
Schedule B8 as such procedures may be updated and amended
from time to time. The CONTRACTOR shall not be liable for
any loss or corruption of DSS Data nor for any failure to
perform the DSS Services if it can prove that such loss or
corruption or failure to perform any DSS Services was
caused by DSS Data which was lost or corrupted before the
CONTRACTOR received it, and that the CONTRACTOR has
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complied with the validation procedures in relation to
such DSS Data.
504.3 In the event that the DSS Data is corrupted or lost
in the course of providing the Services DSS shall have the
option, in addition to any other remedies that may be
available to it either under the DSS Agreement or
otherwise, to elect either of the following remedies:
504.3.1 DSS may require the CONTRACTOR at its own
expense to restore or procure the restoration of the
DSS Data; or
504.3.2 DSS may itself restore or procure
restoration of the DSS Data, and shall be repaid by
the CONTRACTOR any reasonable expenses so incurred.
504.4 The CONTRACTOR acknowledges that each NINO is the
property of the Secretary of State for Social Security.
The CONTRACTOR shall only use the NINOs in performing the
DSS Services.
504.5 DSS Data constitutes Confidential Information and
may not be reproduced without DSS’s prior written consent
except as necessary to perform the DSS Services.
Clause 505. Ownership of Intellectual Property Rights in the
DSS Service Architecture, Cards, Tokens and Receipts
505.1 The CONTRACTOR acknowledges that ownership of the
Cards (and of any tokens issued in lieu thereof) and of
all Intellectual Property Rights in the livery (including
without limitation text and graphics) of the Cards (and in
any tokens issued in lieu thereof) vests in the Secretary
of State for Social Security as soon as such Cards are
liveried. All other Intellectual Property Rights in the
Cards remain in the CONTRACTOR or its licensors. The
CONTRACTOR will at the request and expense of DSS execute
all such documents and do all such further acts as DSS may
require in order to perfect the Secretary of State for
Social Security's title to the Cards (and in any tokens
issued in lieu thereof) and the Intellectual Property
Rights in the livery (including without limitation text
and graphics) of the Cards (and in any tokens issued in
lieu thereof). The CONTRACTOR hereby grants a perpetual,
royalty-free, non-exclusive and irrevocable licence, or
shall procure the grant of a sub-licence or of a direct
licence from the ultimate licensor, using all reasonable
endeavours to ensure that such sub-licence or direct
licence is perpetual, royalty-free, non-exclusive and
(subject to Clause 507.11) irrevocable, to DSS permitting
DSS or a replacement contractor, to use the Cards and the
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procedures related to the Cards for the purposes of the
Related Agreements (and equivalent purposes) and for no
other purposes. For the avoidance of doubt, the
procedures in relation to which the Intellectual Property
Rights are licensed by this Clause shall not be deemed to
include any procedures relating to the manufacture,
personalisation or distribution of the Cards. Subject to
such licence or sub-licence, the CONTRACTOR reserves for
itself and its licensors all Intellectual Property Rights
in the procedures related to the Cards.
505.2 In particular, the CONTRACTOR shall not do anything
to prejudice the security of the DSS Services, including
the Cards (and any tokens issued in lieu thereof).
505.3 Ownership of all benefit receipts issued at post
offices, and of the Intellectual Property Rights therein,
shall vest in DSS. DSS shall be entitled to determine the
storage, availability and disposal of such benefits
receipts, in accordance with the provisions of Schedules
D1 and El.
505.4 Ownership of any Intellectual Property Rights in
the overall design of the DSS Service Architecture (as set
out in the DSS Service Architecture Design Document) which
arise as a result of the performance of the DSS Services
shall vest in the CONTRACTOR. The CONTRACTOR shall not do
anything which would disclose to any third party any
element of DSS’s security procedures. Any use by the
CONTRACTOR of the overall design of the DSS Service
Architecture within the United Kingdom for purposes other
than in connection with the Related Agreements shall be
subject to the prior written agreement of DSS on
reasonable commercial terms (such agreement not to be
unreasonably withheld or delayed).
Clause 506. Ownership of DSS Consumables
Ownership of any DSS Consumables supplied hereunder shall
vest in DSS upon acceptance thereof in accordance with
Clause 408.3.
Clause 507. Licences to use Intellectual Property Rights
507.1 In consideration of the payment of the relevant
Charges the CONTRACTOR hereby grants, or shall procure
that the owner of the Intellectual Property Rights in the
Specially Written Software and the Documentation (other
than the Specially Written Software and Documentation in
which ownership of the Intellectual Property Rights vests
in DSS pursuant to Clause 502) grants to DSS a perpetual,
royalty-free, irrevocable (subject to Clause 507.11) and
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non-exclusive licence to Use the relevant Specially
Written Software and to use, copy and modify the
Documentation solely in connection with the Services.
507.2 [Not Used].
507.3 In consideration of the payment of the relevant
Charges the CONTRACTOR hereby grants to DSS a royalty-
free, non-exclusive licence to Use the CONTRACTOR's
Software. Such licence to Use the CONTRACTOR's Software
shall, subject to Clause 507.11, be perpetual and
irrevocable. In the case of any CONTRACTOR's Software for
which the Charges are periodic, the licence to Use shall
subsist, subject to Clause 507.11, until the expiry of
written notice by DSS terminating such licence. DSS’s
licence to use such CONTRACTOR’s Software shall be subject
to any additional terms and conditions specified in
Schedule Bl which do not detract from the rights granted
to DSS hereunder.
507.4 In consideration of the payment of the relevant
Charges in respect of Third Party Software supplied
hereunder, the CONTRACTOR shall:
507.4.1 use all reasonable efforts to procure the
right to grant to DSS a perpetual, royalty-free,
irrevocable (subject to Clause 507.11) and non-
exclusive sub-licence to Use such Third Party
Software, subject to Clause 507.6 and Clause 507.7,
and, by the entering into of this DSS Agreement
shall grant such sub-licence; or
507.4.2 if the CONTRACTOR is unable to procure the
right to grant the sub-licence referred to in Clause
507.4.1 the CONTRACTOR shall procure, prior to the
commencement of the DSS Operational Trial Period (or
in respect of Optional Products or Additional
Products, the DSS Acceptance Period), that the third
party grants to DSS a royalty-free and non-exclusive
licence to Use the Third Party Software, subject to
Clause 507.6 and Clause 507.7 and shall use all
reasonable endeavours to ensure that such licence is
perpetual and (subject to Clause 507.11)
irrevocable;
DSS’s licence or sub-licence to use such Third Party
Software shall be subject to any additional terms and
conditions imposed by the licensor, provided that any
terms of any sub-licence granted under sub-Clause 507.4.1
or any licence granted under sub-Clause 507.4.2 shall not
detract from the rights granted to the DSS hereunder.
507.5 In consideration of the payment of the relevant
Charges the CONTRACTOR hereby grants to DSS, or _ shall
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procure prior to the commencement of any use by DSS, that
the relevant Third Party grants to DSS, a royalty-free
non-exclusive licence to use the Internal Code in
connection with the Hardware of which it forms an integral
part. Such licence to use the Internal Code shall,
subject to Clause 507.11, be perpetual and irrevocable.
On the sale or transfer of an item of Hardware of which
Internal Code is an integral part, DSS’s licence to use
such Internal Code in combination with the said item of
Hardware shall pass to the purchaser or other transferee
of the said item of Hardware. DSS shall take all
reasonable steps to ensure that the purchaser or
transferee of the said item of Hardware agrees to comply
with the licence to use the Internal Code that was
previously enjoyed by DSS.
507.6 DSS shall be entitled to engage a third party to Use
the Specially Written Software and to Use the CONTRACTOR's
Software, (and the CONTRACTOR shall use reasonable
endeavours to enable DSS to engage a third party to use
Internal Code and Third Party Software) subject to and in
accordance with this DSS Agreement on behalf of DSS
provided that such third party shall have entered into a
confidentiality undertaking in accordance with
Clause 607.5.2.
507.7 DSS shall be entitled to copy the appropriate
CONTRACTOR's Software, Internal Code and Third Party
Software in order to create as many archival or back-up
copies of the same as are necessary. When copying
Software DSS shall include the original machine readable
copyright notice, and a label affixed to the media
identifying the Software and = stating: "This medium
contains an authorised copy of copyrighted software which
is the property of [the CONTRACTOR or the Third Party
Software Owner]."
507.8 The CONTRACTOR shall place the Source Code of the
Deposited Software in escrow with the NCC on the basis of
the appropriate standard agreement or on such other terms
as DSS, the CONTRACTOR, the Third Party Software Owner (if
applicable) and the NCC shall agree. Such escrow
agreement to be entered into within thirty (30) days of
the date of this DSS Agreement.
507.9 The CONTRACTOR hereby grants to DSS, a perpetual,
royalty-free, irrevocable (subject to Clause 507.11) and
non-exclusive licence to Use, reproduce, modify, adapt and
enhance (and to authorise a third party to Use, reproduce,
modify, adapt and enhance) the Source Code version of the
Deposited Software. However, the foregoing licence shall
only become effective if DSS becomes entitled to obtain
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access to the Source Code version of the Deposited
Software pursuant to the source code escrow agreement
referred to in Clause 507.8 and the licence shall be
subject to any restrictions contained herein in respect of
the object code version of the Deposited Software.
507.10Subject to any necessary consents (which the
CONTRACTOR shall use all reasonable endeavours to obtain)
any licence or sub-licence granted by the CONTRACTOR to
DSS hereunder shall be transferable in accordance with the
provisions of Clause 604.3.2.
507.11The CONTRACTOR may at any time by notice in writing
terminate any licence granted under Clause 505.1, Clause
507.1, Clause 507.3, Clause 507.4, Clause 507.5, Clause
507.9, Clause 904.1.2, or Clause 905.1.2 if DSS is in
Default of its obligations under the relevant Clause in
relation to such licence and DSS shall fail to remedy such
Default within thirty (30) days of written notice to DSS
specifying the Default and requiring its remedy. Upon
termination of the relevant licence, DSS shall cease to
use any Software which is the subject matter of such
licence and shall either return or destroy all copies of
such Software, as directed by the CONTRACTOR, and, in the
case of the procedures related to the Cards, shall cease
to use all procedures which are the subject matter of such
licence.
Clause 508. Risk in Products
508.1 Risk in the Products (other than Cards) shall pass
to DSS upon acceptance thereof or shall remain with the
CONTRACTOR, as specified in Schedules Bl and B2. Risk in
Cards shall remain with the CONTRACTOR.
508.2 Notwithstanding the provisions of Clause 508.1, DSS
shall be liable for any loss of or damage to any Products
or part thereof supplied under this DSS Agreement while it
is at the DSS Premises prior to acceptance of the Products
if such loss or damage is occasioned by the negligence or
wilful acts or omissions of DSS.
508.3 The CONTRACTOR shall, on being so ordered by DSS,
with all possible speed make good any loss or damage
affecting the Products, whether such loss or damage arises
in the circumstances referred to in Clause 508.2 or
otherwise, and shall notwithstanding such loss or damage
proceed with and complete the installation of the DSS
Service Infrastructure (where appropriate) and the
performance of the DSS Services in accordance with the DSS
Agreement. DSS shall pay the costs of making good unless
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the loss or damage is occasioned by the Default of the
CONTRACTOR.
Clause 509. Damage to Plant, Tackle and Tools
509.1 All plant, tackle and tools at the DSS Premises
provided by or on behalf of the CONTRACTOR shall stand at
the risk and be in the sole charge of the CONTRACTOR.
509.2 The CONTRACTOR shall be required to remove all such
plant, tackle and tools which it brings to the DSS
Premises.
509.3 The CONTRACTOR shall ensure that all such plant,
tackle and tools shall meet minimum safety standards
required by law.
Clause 510. Licences for CONTRACTOR to use Intellectual
Property Rights
510.1 DSS hereby grants to the CONTRACTOR a non-exclusive
licence to use any software included within the DSS
Transferred Assets, the DSS Leased Assets and the Software
in which the Intellectual Property Rights vest in DSS for
the term of this DSS Agreement solely for the purposes of
performing the DSS Services and for no other purposes.
The CONTRACTOR shall be entitled to copy such software for
operational purposes in accordance with the foregoing
licence and in order to make DSS back up copies of such
software. Upon termination of the DSS Agreement or upon
the CONTRACTOR ceasing to use such software, the
CONTRACTOR shall either return or destroy all copies of
such software as directed by DSS.
510.2 Neither the CONTRACTOR, nor any sub-contractor, nor
any other person, shall have a lien on any Products owned
by DSS for any sum due to the CONTRACTOR, sub-contractor
or other person and the CONTRACTOR shall take all
reasonable steps to ensure that the title of DSS and the
exclusion of any such lien are brought to the notice of
all sub-contractors and other persons dealing with any
such Products.
PART 6 : CONTRACT AND SERVICE MANAGEMENT
Clause 601. Monitoring
DSS shall be entitled to monitor the performance by the
CONTRACTOR of its obligations under the DSS Agreement in
accordance with the procedures set out in Schedule A4.
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Clause 602. Management Interfaces and Service Management
602.1 The parties shall establish the management
interfaces set out in Schedule A4. All contract
management of the DSS Agreement shall be performed in
accordance with the provisions of Schedule A4.
602.2 In relation to the Card Management Service and the
Payment Authorisation Service, the DSS Services shall be
managed in accordance with the provisions of Schedules D5
and E5 respectively. The CONTRACTOR shall provide the
contract management services specified in Schedules D5 and
ES. In respect of the DSS Contingency Services and the
Transfer Services, the DSS Services shall be managed in
accordance with the provisions of Schedules D5 and ES.
Clause 603. Communications
603.1 Except as otherwise expressly provided no
communication from one party to another shall have any
validity under the DSS Agreement unless made in writing by
or on behalf of DSS or the CONTRACTOR, as the case may be.
603.2 Any notice or other communication whatsoever which
any party hereto is required or authorised by the DSS
Agreement to give or make to another shall be given or
made either by post in a prepaid letter, or by telex or by
facsimile transmission confirmed by post in a _ prepaid
letter, addressed to such other party in the manner
referred to in Clause 603.3 below and if that letter is
not returned as being undelivered that notice or
communication shall be deemed for the purposes of the DSS
Agreement to have been given or made after two days, for a
letter, or four hours, for a telex or facsimile
transmission.
603.3 For the purposes of Clause 603.2 above the address
of each party shall be:
603.3.1 For DSS:
3rd Floor
Terminal House
52 Grosvenor Gardens
London
SW1W OAB
For the attention of
Andrew Stott
Telephone
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Facsimile
603.3.2 For the CONTRACTOR:
Pathway Group Limited
Forest Road
Feltham
Middlesex
TW13 7EJ
For the attention of
J H Bennett
Telephone
GRO
603.4 Any party may change its address for service by
notice as provided in this Clause 603.
Facsimile}
Clause 604. Transfer and Sub-Contracting
604.1 The DSS Agreement is personal to the CONTRACTOR.
The CONTRACTOR shall not assign, novate, sub-contract or
otherwise dispose of the DSS Agreement or any part thereof
without the previous written consent of DSS.
604.2 DSS hereby consents to the CONTRACTOR's’ sub-
contracting of its obligations specified in Schedule A8 to
the respective sub-contractors specified therein at the
date hereof. Additional or substitute sub-contractors may
be approved from time to time in accordance with Clause
604.1 after the date hereof, in which case Schedule A8
shall be amended accordingly. Notwithstanding any sub-
contracting permitted in the DSS Agreement, the CONTRACTOR
shall remain primarily responsible for the acts and
omissions of its sub-contractors committed by them in the
course of performing or purporting to perform any of the
DSS Services on the CONTRACTOR’s behalf as though such
acts and omissions were its own.
604.3 Subject to Clause 604.5, DSS shall be entitled to:
604.3.1 assign, novate or otherwise dispose of its
rights and obligations under the DSS Agreement or
any part thereof (including, where appropriate,
requiring the grant by the CONTRACTOR or its
licensors of a direct licence of any Software other
than Third Party Software, and requiring the
CONTRACTOR to use all reasonable endeavours to
procure the grant of a direct licence of any Third
Party Software) to any contracting authority (as
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defined in Regulation 3(1) of the Public Services
Contracts Regulations 1993) (a "Contracting
Authority"); or
604.3.2 novate the DSS Agreement to any other body
(including but not limited to any private sector
body) which performs any of the functions that
previously had been performed by DSS;
provided that any such assignment, novation or other
disposal pursuant to Clause 604.3.1 or 604.3.2 shall not
increase the burden of the CONTRACTOR's obligations
pursuant to the DSS Agreement.
604.4 If the DSS Agreement is novated to a body which is
not a Contracting Authority pursuant to Clause 604.3.2 (in
the remainder of this Clause such a body is referred to as
the "transferee"):
604.4.1 the transferee shall only be able to
assign, novate or otherwise dispose of its rights
and obligations under the DSS Agreement or any part
thereof with the previous consent in writing of the
CONTRACTOR;
604.4.2 the rights acquired by the transferee
relating to the Use of the Software shall not extend
beyond the activities previously performed by DSS
and, in particular, the transferee shall not be
entitled to perform any service bureau or facilities
management services utilising the Software for any
third party.
604.4.3 the rights of the transferee under Clause
611 shall cease; and
604.4.4 the following Clauses shall be varied from
the date of the novation or the date of the change
of status (as appropriate) as set out below as if
the DSS Agreement had been amended by the parties in
accordance with Clause 101.3:
(a) in Clause 804, the words “or with any
department, office or agency of the Crown"
shall be deleted;
(b) in Clause 607.1, the words "to the Crown, or
its respective servants or agents is the
property of the Crown” shall be replaced
with "to DSS or its servants or agents is
the property of DSS”;
(c) in Clause 1001.1.1, the words "on Her
Majesty's Service (which term shall include
all persons employed or engaged by the Crown
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and all persons providing services to the
Crown)” in the second line shall be replaced
with "employed or engaged by DSS or acting
on its behalf" and the reference to "Her
Majesty's Service" in the sixth line shall
be replaced with "DSS";
(d) in Clause 1001.1.2, the words "on
Her Majesty's Service" shall be replaced
with "employed by DSS or acting on its
behalf"; and
(e) in Clause 1001.2, the words "for Her
Majesty's Service" shall be replaced with
"with DSS”.
604.5 DSS shall be entitled to disclose, to the extent
necessary for the purposes of the Related Agreements, to
any transferee any Confidential Information of the
CONTRACTOR which relates to the performance of the DSS
Services by the CONTRACTOR. In such circumstances DSS
shall authorise the transferee to use such Confidential
Information only for purposes relating to the performance
of the DSS Services and for no other purposes and, for the
avoidance of doubt, the transferee shall be bound by the
confidentiality undertaking contained herein in relation
to such Confidential Information.
Clause 605. DSS Responsibilities
Subject to the provisions of Clause 607, DSS undertakes to
provide at its own cost and expense to the CONTRACTOR, all
information, services, facilities and responses designated
as DSS Responsibilities in Schedules D3 and E3. DSS shall
use all reasonable endeavours to perform such DSS
Responsibilities in accordance with any agreed timetable
specified in Schedule B9 or elsewhere herein.
Clause 606 Time
606.1 Timetable
606.1.1 The CONTRACTOR shall perform the DSS
Services in accordance with any timescales specified
in Schedule B9 or elsewhere herein as “contractual
milestones”, and shall use all reasonable endeavours
to perform the DSS Services in accordance with any
other timescales specified in Schedule B9 or
elsewhere herein, which shall be treated as “target
dates”. In the event of failure to meet any target
date, the CONTRACTOR shall provide DSS with a method
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statement showing how it intends to recover any time
lost. For the avoidance of doubt, time shall not be
of the essence in relation to any contractual
milestone unless notice is served in accordance with
Clause 606.4.
606.1.2 Before DSS exercises its option for any
Optional DSS Service, and DSS and the CONTRACTOR
agree on the supply of any Additional DSS Service,
DSS and the CONTRACTOR shall agree a timetable for
the performance of such DSS Services and such
timetable shall be incorporated into the DSS
Agreement as an additional Schedule in accordance
with Clause 101.3.
606.2 Extension of Time
606.2.1 If the performance of the DSS Agreement by
the CONTRACTOR be delayed by reason of Default by
DSS or by its employees or authorised agents, the
CONTRACTOR shall be entitled to a reasonable
extension of time and to any reasonable additional
costs and expenses which it can show were directly
incurred by the CONTRACTOR as a result of the
delay. The CONTRACTOR shall notify DSS in writing
within three (3) working days of becoming aware of
such Default.
606.2.2 If the performance of the DSS Agreement by
either party be delayed by reason of any force
majeure event (as defined in Clause 606.3), both
parties shall be entitled to a reasonable extension
of time subject to there being no entitlement to any
additional costs or expenses incurred as a result of
the delay. The party so delayed shall notify the
other party in writing within one (1) working day of
becoming aware of the force majeure event.
606.3 Force Majeure
606.3.1 For the purposes of the DSS Agreement the
expression "Force Majeure" shall mean any cause
affecting the performance by a party hereto of its
obligations arising from acts, events, omissions,
happenings or non-happenings beyond its reasonable
control including (but without limiting the
generality thereof) (i) Governmental Regulations
(subject to Clause 606.5), (ii) fire, (iii) flood,
or (iv) any disaster or an industrial dispute
affecting a third party. Any act, event, omission,
happening or non-happening will only be considered
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Force Majeure if it is not attributable to the
wilful act, neglect or failure to take reasonable
precautions of the affected party, its agents or
employees, and only if a substitute third party is
not reasonably available (having regard, without
limitation, to the cost and quality of such
substitute) to perform the affected obligation. In
no event shall any fraudulent act or omission by any
third party or party relating to the DSS Services
for which the CONTRACTOR is liable under Clause
809.1 constitute a Force Majeure event.
606.3.2 Neither party hereto shall in any
circumstances be liable to the other party hereto
for any loss of any kind whatsoever including but
not limited to any damages or abatement of Charges
whether directly or indirectly caused to or incurred
by the other party by reason of any failure or delay
in the performance of its obligations under the DSS
Agreement which is due to Force Majeure.
Notwithstanding the foregoing, each party shall use
all reasonable endeavours to continue to perform, or
resume performance of, such obligations under the
DSS Agreement for the duration of such Force Majeure
event. In the case of the CONTRACTOR, the parties
shall agree an orderly process for such continuation
or resumption of performance (such consent not to be
unreasonably withheld or delayed), and the
CONTRACTOR shall comply with such procedure. The
CONTRACTOR shall remain liable to perform the DSS
Contingency Services, save where such DSS
Contingency Services are themselves also affected by
Force Majeure, in which case the CONTRACTOR shall
be required to use all reasonable endeavours to
perform such DSS Contingency Services.
606.3.3 If the CONTRACTOR shall become aware of
circumstance of Force Majeure which give rise to or
which are likely to give rise to any such failure or
delay on its part it shall forthwith notify DSS
within one (1) working day and shall inform DSS of
the period which it is estimated that such failure
or delay shall continue. If DSS shall become aware
of circumstances of Force Majeure which give rise to
any such failure or delay on its part, it shall
forthwith notify the CONTRACTOR within one (1)
working day and shall inform the CONTRACTOR of the
period which it is estimated that such failure or
delay shall continue.
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606.3.4 It is expressly agreed that any failure by
the CONTRACTOR to perform, or any delay by the
CONTRACTOR in performing, its obligations under the
DSS Agreement which results from any failure or
delay in the performance of its obligations by any
person, firm or company with which the CONTRACTOR
shall have entered into any contract, supply
arrangement or sub-contract or otherwise shall be
regarded as a failure or delay due to Force Majeure
only in the event that such person firm or company
shall itself be prevented from or delayed in
complying with its obligations under such contract,
supply arrangement or sub-contract or otherwise as a
result of circumstances of Force Majeure and there
is no person, firm or company reasonably available
(having regard, without limitation, to the cost and
quality of such substitute) to perform the affected
obligation.
606.3.5 [Not used]
606.3.6 If any Force Majeure event prevents any
party from performing its obligations hereunder for
a period in excess of ninety (90) consecutive days,
DSS may, after consulting with the CONTRACTOR and
taking into account the CONTRACTOR’ s views,
terminate the DSS Agreement or the DSS Service
affected by the Force Majeure event in accordance
with Clause 902.1.6 or 903.1.6.
606.4 Time of the Essence
Where DSS after undue delay by the CONTRACTOR notifies the
CONTRACTOR that time is of the essence of the DSS
Agreement and any of its obligations stated in such notice
shall not have been performed by the CONTRACTOR by any
reasonable date stated in the notice, DSS may terminate
the DSS Agreement in accordance with Clause 902.2.3, or
the relevant DSS Service in accordance with Clause
903.3.3. In relation to the timescales specified herein,
DSS may only give notice making time of the essence in
relation to timescales specified herein as “contractual
milestones”.
606.5 Political Risk
Notwithstanding the provisions of Clause 606.3, a change
of, or new, Government Regulation:
(a) shall not excuse DSS from performing its obligations to
meet any minimum revenue guarantees applicable under
Schedule A6 of the AUTHORITIES’ Agreement and, without
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limitation to the foregoing, if the due date for the
application of such minimum revenue guarantees (or any
agreed extension thereof) is delayed directly as a
result of any change in, or new, Governmental
Regulation, DSS agrees to meet such minimum revenue
guarantees from the date when they would have come into
effect but for such change in, or new, Governmental
Regulation;
(b) shall not entitle DSS to terminate the DSS Agreement
under Clause 606.3.6, and any such purported
termination shall be treated as a termination for
convenience in accordance with Clause 902.6; and
(c) shall not require the CONTRACTOR to perform any
additional obligations, or any reduced or modified
obligations resulting in increased cost to the
CONTRACTOR, without its agreement in accordance with
Clause 101.3.
Clause 607. Confidentiality
607.1 Without prejudice to the application of the Official
Secrets Acts 1911 to 1989 (where relevant) to any
Confidential Information the CONTRACTOR acknowledges that
any Confidential Information (other than its own
Confidential Information) obtained from or relating to the
Crown, or its respective servants or agents, is the
property of the Crown.
607.2 The CONTRACTOR hereby agrees that (other than as
required by law):
607.2.1 the CONTRACTOR (and any person employed or
engaged by the CONTRACTOR in connection with the DSS
Agreement in the course of such employment or
engagement) shall only use Confidential Information
of DSS for the purposes of the DSS Agreement;
607.2.2 the CONTRACTOR (and any person employed or
engaged by the CONTRACTOR in connection with the DSS
Agreement in the course of such employment or
engagement) shall not disclose any Confidential
Information of DSS to any third party (except its
approved sub-contractors as listed in Schedule A8)
without the prior written consent of DSS (DSS shall
from time to time notify the CONTRACTOR of items of
DSS information which are not to be treated as
Confidential Information in relation to POCL);
607.2.3 the CONTRACTOR shall take all necessary
precautions to ensure that all Confidential
Information of DSS is treated as confidential and
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not disclosed (save as aforesaid) or used other than
for the purposes of the DSS Agreement by the
CONTRACTOR's employees, servants, agents or
sub-contractors including, without limitation,
obtaining from any such agent or sub-contractor a
signed confidentiality undertaking on substantially
the same terms as are contained in this Clause; and
607.2.4 without prejudice to the generality of the
foregoing neither the CONTRACTOR nor any person
engaged by the CONTRACTOR whether as a servant or a
consultant or otherwise shall use the Confidential
Information of DSS for the solicitation of business
from any third party by the CONTRACTOR or by such
servant or consultant or by any third party.
607.3 DSS (other than as required by law):
607.3.1 shall treat as confidential all
Confidential Information, obtained from the
CONTRACTOR, including but not limited to the Source
Code of the Specially Written Software (other than
Specially Written Software in which ownership of the
Intellectual Property Rights vests in DSS, pursuant
to Clause 502); and
607.3.2 shall not, subject to Clause 607.5,
disclose to any third party without the prior
written consent of the CONTRACTOR any Confidential
Information obtained from the CONTRACTOR.
607.4 The provisions of Clauses 607.1, 607.2 and 607.3
shall not apply to any information which:
607.4.1 is or becomes public knowledge other than
by breach of this Clause 607; or
607.4.2 is in the possession of the receiving party
without restriction in relation to disclosure before
the date of receipt from the disclosing party.
607.4.3 is received from a third party who lawfully
acquired it and who is under no- obligation
restricting its disclosure.
607.4.4 is independently developed without access
to the Confidential Information.
607.5 Nothing in this Clause shall be deemed or construed
to prevent DSS from disclosing any Confidential
Information relating to the DSS Agreement obtained from
the CONTRACTOR to the extent necessary for purposes
connected with the Related Agreements:
607.5.1 to any other department, office or agency
of Her Majesty's Government, provided that DSS has
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required that such information is treated as
confidential by such departments, offices and
agencies, and their servants or agents, including
requiring servants or agents to enter into a
confidentiality undertaking where appropriate; and
607.5.2 to any third party (in which case DSS shall
notify the CONTRACTOR of such disclosure), provided
that DSS shall have taken reasonable steps to ensure
that the third party shall observe substantially the
same terms as are contained in this Clause,
including without limitation, obtaining a signed
confidentiality undertaking between the third party
and DSS or the CONTRACTOR.
607.6 Nothing in this Clause 607 shall prevent the
CONTRACTOR or DSS from using data processing techniques,
ideas and know-how gained during the performance of the
DSS Agreement in the furtherance of its normal business,
to the extent that this does not relate to a disclosure of
Confidential Information or an infringement by DSS or the
CONTRACTOR of any Intellectual Property Right.
Clause 608. Health and Safety Hazards
608.1 The CONTRACTOR shall notify DSS of any health and
safety hazards in relation to DSS Premises owned by or
leased to DSS which may arise in connection with the
performance of the DSS Agreement.
608.2 DSS shall notify the CONTRACTOR of any known health
and safety hazards which may exist or arise at the DSS
Premises owned by or leased to DSS and which may affect
the CONTRACTOR. The CONTRACTOR shall draw these hazards
to the attention of its employees and sub-contractors or
any persons engaged by the CONTRACTOR in the performance
of the DSS Agreement at such DSS Premises.
608.3 The CONTRACTOR shall inform all persons engaged in
the performance of the DSS Agreement at the DSS Premises
owned by or leased to DSS of all such hazards and shall
instruct such persons in connection with any necessary
associated safety measures.
Clause 609. Protection of Personal Data and Social Security
Administration Act
609.1 The CONTRACTOR's attention is hereby drawn to the
Data Protection Act 1984.
609.2 Both parties warrant that they will duly observe all
their obligations under the Data Protection Act which
arise in connection with the DSS Agreement.
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609.3 Section 123 of the Social Security Administration
Act 1992 shall apply to this DSS Agreement. It is an
offence for any person to disclose any information
obtained while carrying out administrative work where that
information relates to a particular person. Both parties
warrant that they will duly observe all their obligations
under the Social Security Administration Act 1992 which
arise in connection with the DSS Agreement.
Clause 610. Publicity
610.1 Except with the written consent of DSS (which shall
not be unreasonably withheld or delayed), the CONTRACTOR,
shall not make any press announcements about or publicise
the DSS Agreement in any way. DSS shall consult the
CONTRACTOR before making any press announcement about or
publicising the DSS Agreement, other than pursuant to any
legal obligation or in any internal publication of DSS.
610.2 The CONTRACTOR shall take all reasonable steps to
ensure the observance of the provisions of Clause 610.1 by
all its servants, employees, agents, consultants and sub-
contractors.
610.3 The CONTRACTOR shall have no right to use the brand
or logo of any part of DSS without DSS’s prior written
consent. The CONTRACTOR shall do nothing to injure such
logos and brands or the reputation of DSS and, if it uses
such brands or logos, it shall take all reasonable steps
to enable DSS to protect such logos and brands and the
reputation of DSS but in no event less than the steps it
would take in relation to its own logos, brands and
reputation.
610.4 DSS shall have no right to use the brand or logo of
the CONTRACTOR or its subcontractors without the
CONTRACTOR’s prior written consent. DSS shall do nothing
to injure such logos and brands or the reputation of the
CONTRACTOR or its subcontractors and, if it uses such
brands or logos, it shall take all reasonable steps to
enable the CONTRACTOR and its sub-contractors to protect
such logos and brands and the reputation of the CONTRACTOR
and its sub-contractors but in no event less than the
steps it would take in relation to its own logos, brands
and reputation.
Clause 611. CONTRACTOR's Personnel
611.1 DSS reserves the right under the DSS Agreement to
refuse to admit to any premises occupied by or on behalf
of the Crown (which expression shall in this Clause 611
include all persons employed or engaged by the Crown and
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all persons other than the CONTRACTOR and its’ sub-
contractors providing services to the Crown) any person
employed or engaged by the CONTRACTOR, or by a
sub-contractor, whose admission would be, in the
reasonable opinion of DSS, undesirable.
611.2 If and when directed by DSS, the CONTRACTOR shall
provide a list of the names and addresses of all persons
who it is expected may require admission in connection
with the performance of the DSS Agreement to any premises
occupied by or on behalf of the Crown, specifying the
capacities in which they are concerned with the DSS
Agreement and giving such other particulars as DSS may
reasonably require. The CONTRACTOR shall comply with any
reasonable directions issued by the designated
representative of DSS as to which persons may be admitted
to such premises and at what times.
611.3 If and when directed by DSS, the CONTRACTOR shall
secure that any person employed or engaged by the
CONTRACTOR or by a sub-contractor, who is specified in the
direction or is one of a class of persons who may be so
specified, shall sign a statement that he understands that
the Official Secrets Acts 1911 to 1989 apply to him both
during the term of and after the expiry or termination of
the Related Agreements.
611.4 The CONTRACTOR's representatives, engaged within the
boundaries of a Crown establishment, 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 that
establishment and when outside that establishment.
611.5 The decision of DSS as to whether any person is to
be refused admission to any premises occupied by or on
behalf of the Crown shall be final and conclusive.
Clause 612. Waiver
612.1 The failure of either party to insist upon strict
performance of any provision of the DSS Agreement, or the
failure of either party to exercise any right or remedy to
which it is entitled hereunder, shall not constitute a
waiver thereof and shall not cause a diminution of the
obligations established by the DSS Agreement.
612.2 A waiver of any Default shall not constitute a
waiver of any subsequent Default.
612.3 No waiver of any of the provisions of the DSS
Agreement shall be effective unless it is expressly stated
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to be a waiver and communicated to the other parties in
writing in accordance with the provisions of Clause 603.
Clause 613. Access to DSS Premises
613.1 Any land or DSS_ Premises (including temporary
buildings) made available to the CONTRACTOR by DSS in
connection with the DSS Agreement shall be made available
to the CONTRACTOR on such terms and conditions as may be
agreed between the CONTRACTOR and DSS. The CONTRACTOR
shall have the use of such land or DSS Premises as
licensee and shall vacate the same upon the termination or
expiry of the DSS Agreement or at such earlier date as DSS
may reasonably determine.
613.2 DSS shall be responsible for maintaining the
security of such land or DSS Premises in accordance with
its standard security requirements. The CONTRACTOR shall
comply with all reasonable security requirements of DSS
while on the DSS Premises, and shall procure that all of
its employees, agents and subcontractors shall likewise
comply with such requirements. DSS shall provide the
CONTRACTOR upon request copies of its written security
procedures and shall afford the CONTRACTOR upon request
with an opportunity to inspect its physical security
arrangements.
Clause 614. Security Requirements
The CONTRACTOR shall comply with the security requirements
as set out in Schedule A2.
Clause 615. CONTRACTOR’s Key Personnel
The parties acknowledge that the CONTRACTOR’ s key
personnel specified in Schedule Al4 are essential to the
fulfilment of its obligations hereunder. The CONTRACTOR
undertakes to use all reasonable endeavours to ensure that
such key personnel are not removed or replaced during the
term hereof. However, in the event that any of its key
personnel becomes unavailable for any reason (including
without limitation death, injury, sickness promotion or
resignation), the CONTRACTOR shall have the right upon
giving thirty (30) days’ notice in writing (or such
shorter period of notice as may be reasonably practicable)
to DSS to replace such an individual with another
individual whose abilities and qualifications are
appropriate for the services to be performed by such
individual.
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PART 7 : WARRANTIES AND STANDARDS
Clause 701. Authority and Approval
The CONTRACTOR warrants and represents that it has full
capacity and authority and all necessary consents
(including but not limited to, where its procedures so
require, the consent of its Parent Company) to enter into
and to perform the DSS Agreement and that the DSS
Agreement is executed by a duly authorised representative
of the CONTRACTOR.
Clause 702. Performance of DSS Services
The CONTRACTOR warrants and represents that:
702.1 the DSS Services shall be supplied and rendered by
appropriately experienced, qualified and trained personnel
with all reasonable skill, care and diligence;
702.2 the CONTRACTOR shall discharge its obligations under
the DSS Agreement with all reasonable skill, care and
diligence including but not limited to good industry
practice and (without limiting the generality of this
Clause) in accordance with the best of its own established
internal procedures;
702.3 the DSS Services shall be performed in compliance
with all applicable laws, enactments, orders, regulations,
and other similar instruments;
702.4 the DSS Services shall be performed in accordance
with all applicable service levels in the DSS Agreement;
702.5 the DSS Services shall be fully integrated within
the Dss Service Architecture and the Service
Infrastructure;
702.6 the DSS Services shall be performed in accordance
with all applicable provisions of the DSS Service
Architecture Design Document or the Service Architecture
Design Document;
702.7 the DSS Services shall be compatible with the DSS
Service Environment as at the date hereof, as set out in
Schedule 1;
702.8 the DSS Services shall be performed in such a way as
to cause a minimum of disruption to the business of DSS.
Clause 703. Performance of Products
The CONTRACTOR warrants and represents that:
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703.1 at the DSS Operational Trial Acceptance Date, the
DSS Operational Trial System shall meet the DSS
Operational Trial Criteria and the regulations and
standards specified in Schedule A2;
703.2 during the term of the DSS Agreement all components
of the DSS Service Infrastructure shall operate in
accordance with their respective technical specifications
except that, for the avoidance of doubt, it is agreed that
DSS shall have no remedy for breach of this warranty in
relation to errors or interruptions to DSS Services
covered by paragraph 4.1(a) of Schedule A6);
703.3 DSS shall acquire title to the Products in which it
is to acquire title under Clauses 501, 502 and 503 free
from all encumbrances and DSS shall have the right to
quiet possession of such Products supplied hereunder;
703.4 the Basic Products will be compatible with the DSS
Service Environment as at the date hereof, as specified in
Schedule 1 and the Service Environment; and
703.5 all Optional and Additional Products and DSS
Consumables shall be compatible with the DSS Service
Infrastructure, the Service Infrastructure and the DSS
Service Environment.
Clause 704. Intellectual Property Rights
The CONTRACTOR warrants and represents that:
704.1 DSS’s use and operation of the Products and the DSS
Service Architecture and the provision of the DSS Services
shall not infringe any Intellectual Property Rights of any
third party;
704.2 the CONTRACTOR has the full capacity and authority
to grant the licences referred to in Clause 507;
704.3 it can comply with Clauses 904.1.3, 904.1.4, 905.1.3
and 905.1.4.
Clause 705. Technical Standards
The CONTRACTOR warrants and represents that:
705.1 the DSS Services shall comply with, and be provided
in accordance with, the policies and standards specified
in Schedule A2 and all components and equipment used in
the course of the provision of the DSS Services shall
operate in accordance with their technical specifications;
705.2 the provision of the DSS Services shall not cause
electrical interference beyond the limits laid down in the
relevant standard specified in Schedule A2, provided that
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for the purpose of this Clause 705.2 the DSS Services
shall be deemed to include the operation of any testing
and monitoring instruments used in connection with the
provision of the DSS Services.
Clause 706. Statements and Representations
The CONTRACTOR warrants and_ represents that all
statements and representations made to DSS in connection
with tendering for and entering into the DSS Agreement
are, to the best of its knowledge, information and belief,
true and accurate at the time of making such statements
and representations and that, from the date of execution
hereof, it will advise DSS of any fact, matter or
circumstance of which it may become aware which would
render any such statement or representation to be false or
misleading.
Clause 707. Disclaimer of Implied Terms
Except as expressly stated in the DSS Agreement, all
terms, warranties and conditions, whether express or
implied by statute, common law or otherwise (including but
not limited to satisfactory quality and fitness for
purpose) are hereby excluded to the extent permitted by
law.
PART 8 : REMEDIES
Clause 801. Audit
801.1 The CONTRACTOR shall keep or cause to be kept the
Records.
801.2 The CONTRACTOR shall grant or procure the grant to
DSS, any statutory or regulatory auditors of DSS and their
respective authorised agents the right of reasonable
access to the Records and shall provide all reasonable
assistance at all times for six (6) years after the
creation of the relevant Records for the purposes of
carrying out an audit of the CONTRACTOR's compliance with
the DSS Agreement including all activities, Charges,
performance, security and integrity in connection
therewith. Each party shall bear its own expenses
incurred pursuant to this Clause. On termination, the
CONTRACTOR shall within a reasonable time to be agreed by
the parties transfer the Records to DSS or a replacement
contractor, as instructed by DSS. The CONTRACTOR shall
thereafter be excused from any further liability under
this Clause in relation to such Records.
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801.3 Without prejudice to the foregoing, in the event of
an investigation into suspected fraudulent activity or
other impropriety by the CONTRACTOR or any third party
the DSS reserves for itself, any statutory or regulatory
auditors of DSS and their respective authorised agents or
any Crown body the right of immediate access to the
Records described in Clause 801.1 and Clause 801.2 above
and the CONTRACTOR agrees to render all necessary
assistance to the conduct of such investigation at all
times during the currency of the DSS Agreement or at any
time thereafter.
801.4 Whenever DSS requires it, and solely for the
purposes of enabling DSS’s accounting officer to meet his
obligations under the Exchequer and Audit Departments Act
1866, the CONTRACTOR:
801.4.1 shall disclose to DSS whatever information
DSS requires concerning the prices DSS has paid or
may have to pay under the DSS Agreement; and
801.4.2 shall produce whatever evidence DSS
requires in support of the information provided
under Clause 801.4.1 above.
For the avoidance of doubt, such information shall not
include information concerning prices paid by the
CONTRACTOR to its sub-contractors or suppliers).
801.5 In connection with the DSS Agreement, the CONTRACTOR
must not enter into any other contract or agreement with
any person unless that contract or agreement contains a
provision equivalent to Clause 801.4 allowing DSS to
obtain price information and evidence (as described in
Clause 801.4) from that person. This Clause 801.5 does
not apply if the CONTRACTOR has entered into a contract or
agreement following a competitive tendering exercise in
which the CONTRACTOR accepted the tender with the lowest
price.
801.6 DSS must use information provided under Clauses
801.4 and 801.5 for the purposes of the Exchequer and
Audit Departments Act 1866 and for no other purpose.
801.7 The CONTRACTOR shall provide DSS at no additional
cost with copies of the annual and interim audited
accounts of the CONTRACTOR and its approved sub-
contractors within fourteen (14) days of such accounts
having been lodged at Companies House or its local
equivalent to Companies House.
801.8 Without in any way limiting the application of the
other Clauses of this DSS Agreement, the CONTRACTOR
acknowledges that for the purpose of examining and
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certifying DSS’s accounts or for examining (pursuant to
Section 6(1) of the National Audit Act 1983) the economy,
efficiency and effectiveness with which DSS has used its
resources, the Comptroller and Auditor General may examine
such documents as he may reasonably require which are
owned, held or are otherwise within the control of the
CONTRACTOR and may require the CONTRACTOR to produce such
oral and written explanations as he considers necessary.
801.9 The CONTRACTOR shall ensure that the terms of its
contracts with its sub-contractors require the sub-
contractors to permit examination by, and provide
explanation to, the Comptroller and Auditor General in the
manner described in Clause 801.8.
801.10All information obtained by DSS pursuant to this
Clause or Schedule A3 shall be treated as Confidential
Information.
801.11The parties shall comply with the provisions of
Schedule A3.
Clause 802. Service Credits and Delay
802.1 In the event that:
802.1.1 the CONTRACTOR fails to make available the
DSS Operational Trial System or any part thereof for
the DSS Operational Trial; or
802.1.2 the DSS Operational Trial is not recorded
as successful pursuant to the relevant provisions of
the DSS Agreement, and DSS elects to extend the
relevant testing period in accordance with the
relevant provisions hereof,
the CONTRACTOR shall, without prejudice to any other
rights and remedies of DSS, at the option of DSS either
credit against the Charges or pay to DSS liquidated
damages calculated in accordance with Schedule F5. Unless
DSS exercises its option to recover such liquidated
damages as a payment to it, DSS shall be deemed to have
exercised its option to recover such liquidated damages as
a credit against the Charges.
802.2 In the event that the DSS Services fail to meet the
Service Levels contained in Schedules D8 and E8, the
CONTRACTOR shall at the option of DSS either (i) as an
adjustment to the Charges, credit DSS with Service Credits
calculated in accordance with Schedules D8 and_ E8
respectively or (ii) pay DSS liquidated damages calculated
in accordance with Schedules D8 and E8 respectively.
Unless DSS exercises its option to recover liquidated
damages as a payment to it, DSS shall be deemed to have
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exercised its option to recover Service Credits as a
credit to it.
802.3 The CONTRACTOR shall credit DSS with the Service
Credits or pay DSS the liquidated damages within thirty
(30) days of receipt of a valid claim by DSS.
802.4 The parties acknowledge that the liquidated damages
and Service Credits specified in the relevant Schedules
referred to in this Clause are a genuine pre-estimate of
the loss likely to be suffered by DSS and that the figures
therein are reasonable.
802.5 The liquidated damages and Service Credits specified
in this Clause are without prejudice to any other rights
and remedies of DSS, except where they are specified in
Schedules A6 and F5 to be DSS’s exclusive remedy in
damages, in which case such credit or payment of the
relevant liquidated damages or Service Credits shall be in
full and final settlement of the CONTRACTOR’s liability in
respect of the Default to which they relate. Except in
accordance with Schedules A6 and F5, DSS shall have no
right of termination in relation to any such Default.
Clause 803. Additional Resources
In the event that the DSS Services are not provided in
accordance with all applicable provisions hereof as a
result of the Default of the CONTRACTOR, the CONTRACTOR
shall, at the request of DSS and without prejudice to
DSS’s other rights and remedies, arrange all = such
additional resources as are reasonably necessary to
correct the said failure as early as_ practicable
thereafter and at no additional charge to DSS.
Clause 804. Recovery of Sums Due
If any sum of money shall be due from the CONTRACTOR, the
same may be deducted from any sum then due or which at any
time thereafter may become due to the CONTRACTOR under the
Related Agreements or under any other agreement between
the CONTRACTOR and DSS or with any department, office or
agency of the Crown.
Clause 805. Intellectual Property Rights Indemnity
805.1 Subject always to DSS’s proper observance of its
obligations under this Clause , the CONTRACTOR shall
indemnify DSS against all claims, demands, actions, costs,
expenses (including but not limited to legal costs and
disbursements on a solicitor and client basis), losses and
damages arising from or incurred by reason of any
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infringement or alleged infringement (including but not
limited to the defence of such alleged infringement) in
the United Kingdom of any Intellectual Property Right by
the use or possession of the Products, DSS Services by or
on behalf of DSS or in connection with the DSS Services.
805.2 The CONTRACTOR shall promptly notify DSS if any
claim or demand is made or action brought against the
CONTRACTOR to which this Clause applies.
805.3 DSS shall promptly notify the CONTRACTOR if any
claim or demand is made or action brought against DSS to
which Clause 805.1 may apply. The CONTRACTOR shall at its
own expense conduct any litigation arising therefrom and
all negotiations in connection therewith and DSS hereby
agrees to grant to the CONTRACTOR exclusive control of any
such litigation and such negotiations. The CONTRACTOR
shall consult with and pay due regard to the interests
(including the public interest) and views of DSS in the
conduct of any defence to any claim or demand hereunder,
and shall, where it is reasonable to do so, comply with
such interests and views.
805.4 DSS shall at the request of the CONTRACTOR afford to
the CONTRACTOR all reasonable assistance for the purpose
of contesting any claim or demand made or action brought
against DSS to which Clause 805.1 may apply or any claim
or demand made or action brought against the CONTRACTOR to
which Clause 805.2 may apply. The CONTRACTOR shall
reimburse DSS for all costs and expenses (including but
not limited to legal costs and disbursements on a
solicitor and client basis) incurred in so doing.
805.5 DSS shall not make any admissions which may be
prejudicial to the defence or settlement of any claim,
demand or action for infringement or alleged infringement
of any Intellectual Property Right to which Clause 805.1
may apply or any claim or demand made or action brought
against the CONTRACTOR to which Clause 805.2 may apply.
805.6 If a claim or demand is made or action brought to
which Clause 805.1 may apply or in the reasonable opinion
of the CONTRACTOR is likely to be made or brought, the
CONTRACTOR may at its own expense either:
805.6.1 modify any or all of the Products or the
DSS Services without reducing the performance and
functionality of the same, or substitute alternative
products, or services of equivalent performance and
functionality for any or all of the Products or the
DSS Services, so as to avoid the infringement or the
alleged infringement but without disrupting the
performance of the DSS Services, provided that the
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terms herein shall apply mutatis mutandis to such
modified or substituted items or services and such
modified or substituted items shall be acceptable to
DSS (whether by passing any form of acceptance
testing or otherwise), such acceptance not to be
unreasonably withheld or delayed, and shall
reimburse DSS all reasonable costs directly incurred
by them; or
805.6.2 procure a licence to use the Products and
DSS Services on terms which afford to DSS no more
extensive rights than those originally applicable
here under and which are acceptable to DSS, and
shall reimburse DSS all reasonable costs directly
incurred by it.
805.7 The foregoing provisions of this Clause 805 shall
not apply insofar as any such claim or demand or action is
in respect of:
805.7.1 any use by or on behalf of DSS of the
Products or DSS Services in combination with any
item not supplied or approved (such approval not to
be unreasonably withheld or delayed) by the
CONTRACTOR where such use of the Products or DSS
Services directly gives rise to the claim, demand or
action; or
805.7.2 any modification carried out by or on behalf
of DSS to any item supplied by the CONTRACTOR under
the DSS Agreement if such modification is not
authorised by the CONTRACTOR in writing; or
805.7.3 any use by DSS of the Products or DSS
Services in a manner not reasonably to be inferred
from the specification or requirements of DSS.
805.8 If the CONTRACTOR has availed itself of its rights
to modify the Products or the DSS Services or to supply
substitute products or services pursuant to Clause 805.6.1
(or DSS has unreasonably withheld its acceptance of such
substitute products or services) or to procure a licence
under Clause 805.6.2 and such exercise of the said rights
has avoided any claim, demand or action for infringement
or alleged infringement, or if DSS has unreasonably
withheld its acceptance of any items modified or
substituted by the CONTRACTOR in accordance with Clause
805.6, then the CONTRACTOR shall have no further liability
thereafter under this Clause 805 in respect of the said
claim, demand or action.
805.9 If a modification or substitution in accordance with
Clause 805.6.1 above is not possible so as to avoid the
infringement and the CONTRACTOR has been unable to procure
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a licence in accordance with Clause 805.6.2, Clause 805.1
shall apply.
805.10DSS hereby warrants and represents that any
instructions given in relation to the CONTRACTOR's use of
any third party item supplied directly or indirectly by
DSS shall not cause the CONTRACTOR to infringe any third
party's Intellectual Property Rights in such item. DSS
shall, to the extent reasonably possible, assign to the
CONTRACTOR any indemnity in DSS’s favour in relation to
the Intellectual Property Rights in such third party
items.
805.11The foregoing states the entire liability of the
CONTRACTOR with regard to the infringement of any
Intellectual Property Right by the use or possession of
the Products by or on behalf of DSS or in connection with
the receipt of the DSS Services.
Clause 806. Remedies Cumulative
Except as otherwise expressly provided in the DSS
Agreement, all remedies available to the CONTRACTOR or to
DSS for breach of the DSS Agreement 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.
Clause 807. Alternative Dispute Resolution Procedure
807.1 All disputes between DSS and the CONTRACTOR arising
out of or relating to the DSS Agreement shall be referred,
by either party involved in the dispute, to the Contract
Administration Group (as specified in Schedule A4) for
resolution.
807.2 If any dispute cannot be resolved pursuant to Clause
807.1 within a maximum of fourteen (14) days after it has
been referred under Clause 807.1, that dispute shall be
referred to the Contracts Steering Group (as specified in
Schedule A4 of the AUTHORITIES’ Agreement) for resolution.
807.3 If the dispute cannot be resolved by the parties'
representatives nominated under Clause 807.2 within a
maximum of fourteen (14) days after it has been referred
under Clause 807.2 the dispute may be referred:
807.3.1 if the dispute is of a technical nature or
is expressed by the DSS Agreement to be subject to
expert determination, by agreement between the
parties it may be referred for final determination
to an expert (the "Expert") who shall be deemed to
act as expert and not as arbitrator; and
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807.3.2 in all other aspects it shall be determined
pursuant to Clause 104.1.
807.4 The Expert shall be selected by mutual agreement or,
failing agreement, within fourteen (14) days after a
request by one party to the other, shall be chosen at the
request of any party by the President for the time being
of the Institution of Electrical Engineers who shall be
requested to choose a suitably qualified and experienced
Expert for the dispute in question.
807.5 Fourteen (14) days after the Expert has accepted the
appointment the parties shall submit a written report on
the dispute to the Expert and to each other and seven (7)
days thereafter shall submit any written replies they wish
to make to the Expert and to each other.
807.6 The parties will then afford the Expert all
necessary assistance which the Expert requires to consider
the dispute including but not limited to full access to
the DSS Service Environment and any documentation or
correspondence relating to the DSS Service Environment.
807.7 The Expert shall be instructed to deliver his
determination to the parties within fourteen (14) days or
such other period as may be agreed between the parties
after the submission of the written reports pursuant to
Clause 807.5.
807.8 Decisions of the Expert shall be final and binding
and not subject to appeal.
807.9 The Expert shall have the same powers to require any
party to produce any documents or information to him and
the other party as an arbitrator and each party shall in
any event supply to him such information which it has and
is material to the matter to be resolved and which it
could be required to produce on discovery.
807.10The fees of the Expert shall be borne by the parties
in the proportions determined by the Expert having regard
(amongst other things) to the conduct of the parties in
relation to the dispute in question.
807.11Work and activity to be carried out under the DSS
Agreement shall not cease or be delayed by this
alternative dispute resolution procedure. However, during
the currency of any alternative dispute resolution
procedure, DSS shall not be entitled to exercise any right
of termination which would otherwise arise in respect of
the dispute which forms the subject matter of such
procedure.
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Clause 808. Injury to Persons; Loss of Property
808.1 Subject always to DSS’s proper performance of its
obligations under this Clause, the CONTRACTOR shall fully
indemnify DSS in respect of any personal injury or loss of
or damage to Property incurred by DSS or its respective
employees and authorised agents to the extent that such
personal injury or loss of Property is directly caused by
any Default of the CONTRACTOR, its employees or agents in
connection with the performance or purported performance
of the DSS Agreement.
808.2 In the event of any claim or demand being made or
action brought to which Clause 808.1 applies, the
CONTRACTOR shall be promptly notified thereof and the
CONTRACTOR shall at its own expense conduct all
negotiations for settlement of the same and any legal
proceedings that may arise therefrom. The CONTRACTOR
shall consult with and pay due regard to the interests
(including the public interest) and views of DSS in the
conduct of any defence to any claim or demand hereunder,
and shall, where it is reasonable to do so, comply with
such interests and views. DSS, its employees and agents,
shall at the request of the CONTRACTOR afford all
reasonable assistance for the purpose of contesting any
such claim or demand or action and shall be repaid any
reasonable expense incurred in so doing and shall not make
any admissions which may be prejudicial to the defence of
such claim or demand or action.
Clause 809. Liability
809.1 Except as otherwise specified in Schedule B10 in
relation to benefit payment, the CONTRACTOR shall be
liable for all losses and shall indemnify DSS against all
costs, expenses, losses and damages incurred (including
any legal costs) as a result of:
(a) use of copied, altered or forged Cards;
(b) any unauthorised third party access to the DSS
Service Architecture;
(c) any impersonation of Card holders which
successfully defeats extended validation
procedures;
(d) any “hacking” into the systems used by the
CONTRACTOR to provide the DSS Services (whether
or not constituting an offence under the Computer
Misuse Act 1990)
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(e) drawing of any benefit payments by Card holders
or their proxies where at the time of payment
notification had been given by DSS to _ the
CONTRACTOR to withhold payment or cancel a proxy
authorisation;
(£) any other form of fraud (in relation to any of
the DSS Services).
809.2 Except as otherwise specified in Schedule B10 in
relation to benefit payment, Clause 809.1 shall not apply
if and to the extent that any of the matters referred to
therein have been caused by DSS’s non-performance of any
obligation under the DSS Agreement upon the performance of
which the CONTRACTOR's obligations under the DSS Agreement
in respect of risk for fraud are expressed to depend. The
foregoing is in place of the general rule stated in Clause
101.5.
809.3 In any case where DSS incurs any costs, expenses,
losses or damages as referred to in Clause 809.1, Clause
809.1 shall be presumed to apply unless the CONTRACTOR
proves that Clause 809.2 applies.
809.4 In relation to benefit payment only, the
responsibilities of the parties for the investigation of
fraudulent losses and the agreed apportionment of costs
under this DSS Agreement are defined in Schedule B10.
Clause 810. Limitation of Liability
810.1 Neither party hereto excludes or limits its
liability to any other party for death or personal injury
or 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.
810.2 Subject always to Clause 810.1, the liability of
each party for Defaults shall be subject to the financial
limits set out in this Clause 810.2.
810.2.1 The aggregate liability for all Defaults
resulting in direct loss of or damage to the
Property of any other party under the DSS Agreement
shall in no event exceed:
810.2.1.1 nine hundred thousand pounds
(£900,000), in the case of DSS; and
810.2.1.2 fifty million pounds (£50,000,000), in
the case of the CONTRACTOR.
810.2.2 The aggregate liability per Year under the
DSS Agreement of DSS for all Defaults (other than a
Default governed by Clause 810.2.1 ) arising during
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that Year shall in no event exceed four million five
hundred thousand pounds (£4,500,000), in the case of
DSS.
810.2.3 The aggregate liability under the Dss
Agreement of the CONTRACTOR for all Defaults (other
than a Default governed by Clause 810.2.1) shall in
no event exceed two hundred million pounds
(£200,000,000).
810.2.4 Subject to Clause 810.2.5, the financial
limits specified in Clause 810.2 apply to all claims
for monetary relief which either party may have
against the other either under the DSS Agreement or
otherwise in relation to the subject matter of the
DSS Agreement, including all claims for liquidated
damages and Service Credits pursuant to Clause 802,
all claims to be indemnified pursuant to Clauses 805
and 808 and all other claims or costs which are
compensable in money or money’s worth.
810.2.5 The financial limits applicable to DSS
under Clause 810.2 shall be exclusive of and
additional to any liability of DSS to pay any
Charges, any Termination Charge or any Transfer
Payment which may become properly due and payable to
the CONTRACTOR in accordance with the provisions
hereof or any sum by way of interest thereon that a
court may award.
810.3 Subject always to Clause 810.1, in no event shall
any party be liable to any other party for indirect or
consequential loss or damage. For the avoidance of doubt
this Clause shall not be deemed or construed to affect the
CONTRACTOR’s liability under Clause 809
810.4 The provisions of Clause 810.3 shall not be taken as
limiting the right of DSS to claim from the CONTRACTOR
for:
810.4.1 additional operational and administrative
costs and expenses; and/or
810.4.2 expenditure or charges rendered unnecessary
as a result of any Default by the CONTRACTOR.
810.5 The parties expressly agree that should any
limitation or provision contained in this Clause be held
to be invalid under any applicable statute or rule of law
it shall to that extent be deemed omitted but if any party
thereby becomes liable for loss or damage which would
otherwise have been excluded such liability shall be
subject to the other limitations and provisions set out
herein.
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810.6 For the avoidance of doubt, it is acknowledged that
nothing in the DSS Agreement shall be deemed or construed
to relieve either party of its common law duty to the
other party against which a claim may be made to mitigate
any loss which is the subject of such claim.
PART 9 : TERM AND TERMINATION
Clause 901. Term
The term of the DSS Agreement shall, unless terminated
earlier in accordance with the provisions of Clause 902,
be for a period commencing on the date hereof and ending
five (5) years from the Roll-Out Completion Date.
Clause 902. Termination of DSS Agreement
902.1 DSS may at any time by notice in writing terminate
the DSS Agreement with effect from the date of service of
such notice or such later date as may be specified therein
if:
902.1.1 there is a change of control, as defined by
Section 416 of the Income and Corporation Taxes Act
1988, in the CONTRACTOR or the GUARANTOR; or
902.1.2 the CONTRACTOR or the GUARANTOR, being an
individual, or where the CONTRACTOR or the GUARANTOR
is a firm, any partner or partners in that firm who
together are able to exercise direct or indirect
control, as defined by Section 416 of the Income and
Corporation Taxes Act 1988, shall at any time become
bankrupt or shall have a= receiving order or
administration order made against him or shall make
any composition or arrangement with or for the
benefit of his creditors, or shall make any
conveyance or assignment for the benefit of his
creditors, or shall purport to do so, or appears
unable to pay or to have no reasonable prospect of
being able to pay a debt within the meaning of
Section 268 of the Insolvency Act 1986 or he shall
become apparently insolvent within the meaning of
the Bankruptcy (Scotland) Act 1985 as amended by the
Bankruptcy (Scotland) Act 1993 or any application
shall be made under any bankruptcy or insolvency act
for the time being in force for sequestration of his
estate, or a trust deed shall be granted by him for
behoof of his creditors; or any similar event occurs
under the law of any other jurisdiction; or
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902.1.3 the CONTRACTOR, being a company, passes a
resolution, or the Court makes an order that the
CONTRACTOR or the GUARANTOR be wound up otherwise
than for the purpose of a bona fide reconstruction
or amalgamation, or a receiver, manager or
administrator on behalf of a creditor is appointed
in respect of the business or any part thereof
(which for the avoidance of doubt shall not include
any subsidiary company of the CONTRACTOR or of the
GUARANTOR) of the CONTRACTOR or the GUARANTOR, or
circumstances arise which entitle the Court or a
creditor to appoint a receiver, manager or
administrator or which entitle the Court otherwise
than for the purpose of a bona fide reconstruction
or amalgamation to make a winding-up order, or the
CONTRACTOR or the GUARANTOR is unable to pay its
debts within the meaning of Section 123 of the
Insolvency Act 1986 or any similar event occurs
under the law of any other jurisdiction; or
902.1.4 if notice of termination of the
AUTHORITIES’ Agreement is given pursuant to Clause
902 of the AUTHORITIES’ Agreement in the previous
six (6) months (provided that if such notice is
given pursuant to Clause 902.6 of the AUTHORITIES’
Agreement, or is treated as having been so given by
virtue of Clause 902.10 of the AUTHORITIES’
Agreement, termination pursuant to this sub-Clause
shall be treated as termination for convenience in
accordance with Clause 902.6); or
902.1.5 any provisions hereof other than Clause
902, or any provision of the AUTHORITIES’ Agreement
other than Clause 902 thereof expressly entitles DSS
to terminate the DSS Agreement; or
902.1.6 the circumstances in Clause 606.3.6 arise
and either the obligation in question is not capable
of being performed again, or, if it is so capable,
is not so performed again within thirty (30) days of
written notice to the CONTRACTOR specifying the
obligation in question and requiring it to be
performed or within such other period as may be
requested by the CONTRACTOR and agreed by the DSS,
such agreement not to be reasonably withheld or
delayed; or
902.1.7 the circumstances in Clause 201.8 of the
AUTHORITIES’ Agreement arise.
902.2 DSS may at any time by notice in writing terminate
the DSS Agreement with effect from the date of service of
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such notice or such later date as may be specified in such
notice, if the CONTRACTOR is in Default of any obligation
under the DSS Agreement and:
902.2.1 the Default is capable of remedy and the
CONTRACTOR shall have failed to remedy the Default
within thirty (30) days of written notice to the
CONTRACTOR specifying the Default and requiring its
remedy or within such other period as may be
requested by the CONTRACTOR and agreed by DSS, such
agreement not to be unreasonably withheld or
delayed;
902.2.2 the Default is not capable of remedy (and
for the purposes of this Clause, failure to comply
with a timescale shall not of itself be considered a
Default not capable of remedy except pursuant to
Clause 606.1); or
902.2.3 notice has been served pursuant to Clause
606.4 making time of the essence and all or any of
the obligations specified in the notice have not
been performed by the time limit stated in the
notice.
902.3 [Not used]
902.4 In the event of any termination of the DSS Agreement
pursuant to Clause 902.1 or Clause 902.2, DSS shall return
the DSS Service Infrastructure or any part thereof (other
than any part in relation to which either or both of the
AUTHORITIES has exercised an option to purchase under the
Related Agreements), in which case the CONTRACTOR shall at
no additional cost to DSS remove such parts of the DSS
Service Infrastructure and shall make good any damage to
the DSS Premises occasioned by such removal.
902.5 DSS shall only be permitted to exercise its rights
pursuant to Clause 902.1.1 for three (3) months after each
such change of control and shall not be permitted to
exercise such rights where DSS has agreed in advance in
writing to the particular change of control and such
change of control takes place as proposed. The CONTRACTOR
shall notify DSS in advance of any change of control
taking place, if legally possible, or if not so possible
as soon as reasonably practicable, and in any event no
later than one (1) month after such change of control
taking place.
902.6
902.6.1 DSS may terminate the DSS Agreement by
giving the CONTRACTOR not less than twelve (12)
months' notice.
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902.6.2 [Not used]
902.6.3 In the event of such notice being given,
DSS shall on termination hereof pay the CONTRACTOR
the Termination Charge (calculated in accordance
with Schedule A7).
902.6.4 [Not used]
902.6.5 [Not used]
902.7 Termination shall not prejudice or affect any right
of action or remedy which shall have accrued or shall
thereafter accrue to either party.
902.8 The provisions of Clauses 101, 102, 104, 507, 607,
609, 610, 801, 804, 805, 810, 902, 903, 904, 905 and 906
and the provisions of Schedules Al, A3, A7, D6 and E6
shall survive the termination of this DSS Agreement by
DSS.
902.9 The CONTRACTOR may terminate the DSS Agreement by
notice in writing in accordance with Clause 201.8.2 of the
AUTHORITIES’ Agreement.
Clause 903. Termination of DSS Services
903.1 DSS may at any time by notice in writing terminate
any or all of the DSS Services with effect from the date
of service of such notice or such later date as may be
specified therein if:
903.1.1 there is a change of control, as defined by
Section 416 of the Income and Corporation Taxes Act
1988, in the CONTRACTOR or the GUARANTOR; or
903.1.2 the CONTRACTOR or the GUARANTOR, being an
individual, or where the CONTRACTOR or the GUARANTOR
is a firm, any partner or partners in that firm who
together are able to exercise direct or indirect
control, as defined by Section 416 of the Income and
Corporation Taxes Act 1988, shall at any time become
bankrupt or shall have aé_ receiving order or
administration order made against him or shall make
any composition or arrangement with or for the
benefit of his creditors, or shall make = any
conveyance or assignment for the benefit of his
creditors, or shall purport to do so, or appears
unable to pay or to have no reasonable prospect of
being able to pay a debt within the meaning of
Section 268 of the Insolvency Act 1986 or he shall
become apparently insolvent within the meaning of
the Bankruptcy (Scotland) Act 1985 as amended by the
Bankruptcy (Scotland) Act 1993 or any application
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shall be made under any bankruptcy or insolvency act
for the time being in force for sequestration of his
estate, or a trust deed shall be granted by him for
behoof of his creditors; or any similar event occurs
under the law of any other jurisdiction; or
903.1.3 the CONTRACTOR, being a company, passes a
resolution, or the Court makes an order that the
CONTRACTOR or the GUARANTOR be wound up otherwise
than for the purpose of a bona fide reconstruction
or amalgamation, or a_ receiver, manager or
administrator on behalf of a creditor is appointed
in respect of the business or any part thereof
(which for the avoidance of doubt shall not include
any subsidiary company of the CONTRACTOR or of the
GUARANTOR) of the CONTRACTOR or the GUARANTOR, or
circumstances arise which entitle the Court or a
creditor to appoint a receiver, manager or
administrator or which entitle the Court otherwise
than for the purpose of a bona fide reconstruction
or amalgamation to make a winding-up order, or the
CONTRACTOR or the GUARANTOR is unable to pay its
debts within the meaning of Section 123 of the
Insolvency Act 1986 or any similar event occurs
under the law of any other jurisdiction.
903.1.4 if notice of termination of the
AUTHORITIES’ Agreement is given pursuant to Clause
902 of the AUTHORITIES’ Agreement in the previous
six (6) months; or
903.1.5 any provision hereof other than Clauses 902
or 903 or any provision of the AUTHORITIES’
Agreement other than Clause 902 thereof expressly
entitles DSS to terminate the DSS Agreement or any
DSS Service; or
903.1.6 the circumstances in Clause 606.3.6 arise
and either the obligation in question is not capable
of being performed again, or, if it is so capable,
is not so performed again within thirty (30) days of
written notice to the CONTRACTOR specifying the
obligation in question and requiring it to be
performed or within such other period as may be
requested by the CONTRACTOR and agreed by DSS, such
agreement not to be unreasonably withheld or
delayed.
903.2 DSS may at any time by notice in writing terminate
any or all of the DSS Services, with effect from the date
of service of such notice or such later date as may be
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specified therein if the CONTRACTOR is in Default of any
obligation under the DSS Agreement and:
903.2.1 the Default is capable of remedy and the
CONTRACTOR shall have failed to remedy the Default
within thirty (30) days of written notice to the
CONTRACTOR specifying the Default and requiring its
remedy or within such other period as may be
requested by the CONTRACTOR and agreed by DSS, such
agreement not to be unreasonably withheld or
delayed; or
903.2.2 the Default is not capable of remedy (and
for the purposes of this Clause, failure to comply
with a timescale shall not of itself be considered a
Default not capable of remedy except pursuant to
Clause 606.4); or
903.2.3 notice has been served pursuant to Clause
606.4 making time of the essence and all or any of
the obligations specified in the notice have not
been performed by the time limit specified in the
notice.
903.3 [Not used]
903.4 DSS shall only be permitted to exercise its rights
pursuant to Clause 902.1.1 for three (3) months after each
such change of control and shall not be permitted to
exercise such rights where DSS has agreed in advance in
writing to the particular change of control and such
change of control takes place as proposed.
903.5
903.5.1 DSS may terminate any or all of the DSS
Services by giving the CONTRACTOR not less than
twelve (12) months notice.
903.5.2 [Not used]
903.5.3 In the event of such notice being given,
DSS shall on termination of the DSS Service pay the
CONTRACTOR the Termination Charge (calculated in
accordance with Schedule D6 or E6 as appropriate).
903.5.4 [Not used]
903.5.5 [Not used]
903.6 [Not used]
903.7 Termination of DSS Services shall not prejudice or
affect any right of action or remedy which shall have
accrued or shall thereafter accrue to either party.
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903.8 If DSS shall terminate all DSS Services, it shall
have no further rights or obligations under the DSS
Agreement other than pursuant to the provisions of Clauses
101, 102, 104, 507, 607, 609, 610, 801, 804, 805, 810,
902, 903, 904, 905 and 906, Schedules Al, A3, A7, D6 and
E6.
903.9 In the event of the termination of any DSS Services
or POCL Services, or of any Related Agreement, the parties
shall negotiate in good faith to make any necessary
consequential amendments to the DSS Agreement in
accordance with Clause 101.3. Until such consequential
amendments have been made, the CONTRACTOR shall not be
liable for any delay or failure in the performance of its
obligations under the DSS Agreement which is directly
caused by the termination of any DSS Services, POCL
Services or Related Agreement.
Clause 904. Rights on Termination of DSS Agreement
904.1 In the event of termination hereunder, in
circumstances where DSS does not intend inviting the
CONTRACTOR to continue to provide the DSS Services or to
provide services equivalent to the DSS Services, DSS
shall, without prejudice to DSS’s other rights and
remedies, have the option, exercisable at any time within
four (4) months after notice of termination:
904.1.1 to purchase from the CONTRACTOR, or to
require the CONTRACTOR to permit a replacement
contractor to purchase from it, any or all of the
hardware comprised within the DSS Service
Infrastructure and/or used in connection with the
performance of the DSS Services (other than where
such hardware is not owned by the CONTRACTOR) ;
904.1.2 to acquire from the CONTRACTOR a
non-exclusive licence to use (or authorise a
replacement contractor to use) for the continuation
of services equivalent to the DSS Services in
respect of any necessary Intellectual Property
Rights which are owned by the CONTRACTOR and used in
connection with the performance of the DSS
Agreement. Such licence shall:
904.1.2.1 not be subject to payment other than
pursuant to Clause 904.1.6; and
904.1.2.2 be perpetual and irrevocable (subject
to Clause 507.11).
904.1.2.3 [Not used]
904.1.2.4 [Not used]
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904.1.2.5 [Not used]
904.1.3 to require that the CONTRACTOR shall assign
or novate, or (if assignment or novation is not
possible) arrange for the benefit thereof to be
transferred, in favour of DSS or to any person as
may be designated for the purpose by DSS any sub-
contracts, equipment rental or lease agreements and
all other (non-employment) agreements entered into
by the CONTRACTOR which are necessary to the
performance of the DSS Services as DSS~ may
designate;
904.1.4 to require that the CONTRACTOR shall at no
cost to DSS (or a replacement contractor) forthwith
release to DSS (or a replacement contractor) a copy
of all the Software and all other software, data,
tools, utilities, documentation and any other item
necessary to provide the DSS Service hereunder.
Such software (other than any in respect of which
DSS has exercised its option under Clause 904.1.2)
shall be subject to any applicable licence terms,
provided that such terms shall not detract from
DSS’s or a replacement contractor’s ability to
perform services equivalent to the DSS Services.
904.1.5 Notwithstanding the generality of
Clauses 904.1.1 to Clause 904.1.4 DSS agrees only to
exercise their rights under such Clauses when and
only to the extent that it is necessary for DSS
either to fulfil the purposes of the DSS Agreement
itself or to engage a third party so to do.
904.1.6 In the event that DSS exercises any of the
options in Clause 904.1, DSS shall pay to the
CONTRACTOR the Transfer Payment (calculated in
accordance with Schedule A7).
904.1.7 If the DSS Agreement expires and DSS does
not recompete the DSS Services, DSS shall be obliged
to exercise all of the options in this Clause in
relation to any DSS Services not so recompeted,
unless the CONTRACTOR elects to relieve DSS of this
obligation in whole or in part.
904.2 In the event that the DSS Agreement is terminated as
provided for herein:
904.2.1 the CONTRACTOR shall repay forthwith to DSS
all monies paid in relation to DSS Services up to
and including such date of termination other than
monies in respect of any DSS Services or part
thereof properly performed in accordance with the
DSS Agreement;
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904.2.2 the CONTRACTOR shall return to DSS all
Property of DSS in its possession;
904.2.3 the CONTRACTOR shall render all practicable
assistance to DSS, if requested, to the extent
necessary to effect an orderly assumption by DSS or
a replacement contractor of the services theretofore
performed by the CONTRACTOR under the DSS Agreement
and DSS shall reimburse the CONTRACTOR for such
assistance at the rates then prevailing for
customers of the CONTRACTOR for the same or similar
services;
904.2.4 DSS shall be entitled on termination to
offer any employee or sub-contractor (being an
individual) of the CONTRACTOR who has during the six
(6) months prior to such offer been involved for at
least seventy-five (75%) of his contracted working
time in performing the CONTRACTOR's obligations
under the DSS Agreement employment or an agreement
for services with DSS and the CONTRACTOR agrees that
if such person accepts such offer the CONTRACTOR
shall release such person from any breach of
contract with it (other than in relation to such
person’s obligations of confidentiality and notice
of termination) which such acceptance may otherwise
involve; and
904.2.5 (a) as soon as possible following any notice
of termination being given (in the case
of an early termination of the DSS
Agreement) and no later than three (3)
months prior to the expiry of the DSS
Agreement (in the case of the
termination of the DSS Agreement through
the effluxion of time) the CONTRACTOR
shall at the request of DSS provide to
DSS or to a replacement contractor
nominated by DSS details of the terms of
employment of all CONTRACTOR personnel
who are then employed in the performance
of the DSS Services as reasonably
required by DSS in order to permit
compliance with the Transfer of
Undertakings (Protection of Employment)
Regulations 1981 by DSS or a replacement
contractor.
(b) subject always to DSS’s proper
observance of their obligations under
Clause 904.2.5(c), the CONTRACTOR shall
fully indemnify DSS from and against any
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and all liabilities which DSS may incur
in connection with or as a result of any
claim or demand whatsoever by any
employee or former employee of the
CONTRACTOR or of any of the
CONTRACTOR’s sub-contractors or agents
in respect of his employment with the
CONTRACTOR or such sub-contractor or
agent (or, pursuant to the application
of the Transfer of Undertakings
(Protection of Employment ) Regulations
1981, with DSS or any replacement
contractor) and/or its termination save
to the extent such claim or demand both
(i) is made by an employee identified
within the relevant employment details
referred to in Clause 904.2.5(a) as
transferring pursuant to the Regulations
and (ii) relates to employer’s
obligations accruing after the said
transfer of employment which are clearly
identified within the relevant
employment details.
(c) in the event of any claim or demand
being made or action brought to which
Clause 904.2.5(b) applies, the
CONTRACTOR shall be promptly notified
thereof and the CONTRACTOR shall at its
own expense conduct all negotiations for
settlement of the same and any legal
proceedings that may rise therefrom.
DSS, its sub-contractors, agents and
employees shall at the request of the
CONTRACTOR afford all reasonable
assistance for the purpose of contesting
any such claim or demand or action and
shall be repaid any reasonable expense
incurred in so doing and shall not make
any admissions which may be prejudicial
to the defence of any such claim or
demand or action.
904.3 DSS shall only be entitled to examine the options in
Clause 904.1 and 904.2.4 to the extent that such exercise
does not affect the CONTRACTOR’s ability to perform any
surviving Services.
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Clause 905. Rights on Termination of DSS Services
905.1 In the event of termination of any DSS Service
hereunder, in circumstances where DSS does not intend
inviting the CONTRACTOR to continue to provide the DSS
Services or to provide services equivalent to the DSS
Services, DSS shall, without prejudice to DSS’s_ other
rights and remedies, have the option, exercisable at any
time within four (4) months after notice of termination
905.1.1 to purchase from the CONTRACTOR, or to
require the CONTRACTOR to permit a replacement
contractor to purchase from it, any or all of the
hardware comprised within the DSS Service
Infrastructure and/or used in connection with the
performance of the relevant DSS Services (other than
where such hardware is not owned by the CONTRACTOR) ;
905.1.2 to acquire from the CONTRACTOR a = non-
exclusive licence to use (or authorise a replacement
contractor to use) for the continuation of services
equivalent to the relevant DSS Service in respect of
any necessary Intellectual Property Rights which are
owned by the CONTRACTOR and used in connection with
the performance of the DSS Agreement. Such licence
shall:
905.1.2.1 not be subject to payment other than
pursuant to Clause 905.1.6; and
905.1.2.2 be perpetual and irrevocable (subject
to Clause 507.11).
905.1.2.3 [Not used]
905.1.2.4 [Not used].
905.1.2.5 [Not used].
905.1.3 to require that the CONTRACTOR shall assign
or novate, or (if assignment or novation is not
possible) arrange for the benefit thereof to be
transferred, in favour of DSS or to any person as
may be designated for the purpose by DSS any sub-
contracts, equipment rental or lease agreements and
all other (non-employment) agreements entered into
by the CONTRACTOR which are necessary to the
performance of the relevant DSS Services as DSS may
designate;
905.1.4 to require that the CONTRACTOR shall at no
cost to DSS (or to a replacement contractor)
forthwith release to DSS (or to a _ replacement
contractor) a copy of all the Software and (subject
to any necessary consents of third parties) all
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other software, data, tools, utilities,
documentation and any other item necessary to
provide the relevant DSS Service hereunder. Such
software (other than any in respect of which DSS has
exercised its options under Clause 905.1.2) shall be
subject to any applicable licence terms, provided
that such terms shall not detract from DSS’s or a
replacement contractor’s ability to perform services
equivalent to the relevant DSS Service.
905.1.5 Notwithstanding the generality of
Clauses 905.1.1 to Clause 905.1.4 DSS agrees only to
exercise its rights under such Clauses when and only
to the extent that it is necessary for DSS either to
fulfil the purposes of the DSS Agreement itself or
to engage a third party so to do.
905.1.6 In the event that DSS exercises any of the
options in Clause 905.1, DSS shall pay to the
CONTRACTOR the relevant Transfer Payment.
905.2 In the event that any DSS Service is terminated as
provided for herein:
905.2.1 the CONTRACTOR shall repay forthwith to DSS
all monies paid up to and including such date of
termination in respect of the relevant DSS Service
other than monies in respect of any such DSS Service
or part thereof properly performed in accordance
with the DSS Agreement;
905.2.2 the CONTRACTOR shall render all practicable
assistance to DSS, if requested, to the extent
necessary to effect an orderly assumption by DSS or
a replacement contractor of the services theretofore
performed by the CONTRACTOR under the DSS Agreement
and DSS shall reimburse the CONTRACTOR for such
assistance at the rates then prevailing for
customers of the CONTRACTOR for the same or similar
services;
905.2.3 shall be entitled on termination of the
relevant DSS Service to offer any employee or sub-
contractor (being an individual) of the CONTRACTOR
who has during the six (6) months prior to such
offer been involved for at least seventy-five per
cent (75%) of his contracted working time in
performing the CONTRACTOR's obligations under the
DSS Agreement in relation to the relevant DSS
Service employment or an agreement for services with
DSS and the CONTRACTOR agrees that if such person
accepts such offer the CONTRACTOR shall release such
person from any breach of contract with it (other
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than in relation to such person’s obligations of
confidentiality and notice of termination) which
such acceptance may otherwise involve; and
905.2.4 (a) as soon as possible following any notice
of termination being given (in the case
of an early termination of the relevant
DSS Service) the CONTRACTOR shall at the
request of DSS provide to DSS or to a
replacement contractor nominated by DSS
details of the terms of employment of
all CONTRACTOR personnel who are then
employed in the performance of the
relevant DSS Services as reasonably
required by DSS in order to permit
compliance with the Transfer of
Undertakings (Protection of Employment)
Regulations 1981 by DSS or a replacement
contractor.
(b) subject always to DSS’s proper
observance of their obligations under
Clause 905.2.4(c), the CONTRACTOR shall
fully indemnify DSS from and against any
and all liabilities which DSS may incur
in connection with or as a result of any
claim or demand whatsoever by any
employee or former employee of the
CONTRACTOR or of any of the
CONTRACTOR’s sub-contractors or agents
in respect of his employment with the
CONTRACTOR or such sub-contractor or
agent (or, pursuant to the application
of the Transfer of Undertakings
(Protection of Employment ) Regulations
1981, with DSS or any replacement
contractor) and/or its termination save
to the extent such claim or demand both
(i) is made by an employee identified
within the relevant employment details
referred to in Clause 905.2.4(a) as
transferring pursuant to the Regulations
and (ii) relates to employer’s
obligations accruing after the said
transfer of employment which are clearly
identified within the relevant
employment details.
(c) in the event of any claim or demand
being made or action brought to which
Clause 905.2.4 (b) applies, the
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CONTRACTOR shall be promptly notified
thereof and the CONTRACTOR shall at its
own expense conduct all negotiations for
settlement of the same and any legal
proceedings that may rise therefrom.
DSS, its sub-contractors, agents and
employees shall at the request of the
CONTRACTOR afford all reasonable
assistance for the purpose of contesting
any such claim or demand or action and
shall be repaid any reasonable expense
incurred in so doing and shall not make
any admissions which may be prejudicial
to the defence of any such claim or
demand or action.
905.3 DSS shall only be entitled to exercise the options
in Clause 905.1 and 905.2.3 to the extent that such
exercise does not affect the CONTRACTOR’s ability to
perform any surviving Services.
Clause 906. Transfer Services
906.1 In the event of termination of the DSS Agreement or
the Card Management Service, the CONTRACTOR shall perform
the Transfer Services as set out in Schedule E6é.
906.2 In the event of termination of the DSS Agreement or
the Payment Authorisation Service, the CONTRACTOR shall
perform the Transfer Services as set out in Schedule D6.
906.3 In the event of termination of the DSS Agreement,
the CONTRACTOR shall perform the Transfer Services
specified in Schedule A7.
PART 10 : MISCELLANEOUS
Clause 1001. Corrupt Gifts and Payments of Commission
1001.1The CONTRACTOR shall neither:
1001.1.1 offer or give or agree to give any person
on Her Majesty's Service (which term shall include
all persons employed or engaged by the Crown and all
persons providing services to the Crown) any gift or
consideration of any kind as an inducement or reward
for doing or forbearing to do or for having done or
forborne to do any act in relation to the obtaining
or performance of the DSS Agreement or any other
agreement with Her Majesty's Service or for showing
or forbearing to show favour or disfavour to any
person in relation to the DSS Agreement; nor
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1001.1.2 enter into the DSS Agreement if in
connection with it commission has been paid or
agreed to be paid to any person on Her Majesty's
Service by the CONTRACTOR or on the CONTRACTOR's
behalf or to the CONTRACTOR's knowledge, unless
before the DSS Agreement is made particulars of any
such commission and of the terms and conditions of
any agreement for the payment thereof have been
disclosed in writing to DSS.
1001.2In the event of any breach of this Clause 1001 by
the CONTRACTOR or by anyone employed by the CONTRACTOR or
acting on the CONTRACTOR's behalf (whether with or without
the knowledge of the CONTRACTOR) or the commission of any
offence by the CONTRACTOR or by anyone employed by the
CONTRACTOR or acting on behalf of the CONTRACTOR under the
Prevention of Corruption Acts, 1889 to 1916 in relation to
this or any other contract with for Her Majesty's Service,
DSS may summarily terminate the DSS Agreement by notice in
writing to the CONTRACTOR pursuant to Clause 902.1.5.
Provided always that such termination shall not prejudice
or affect any right of action or remedy which shall have
accrued or shall accrue thereafter to DSS and provided
always that DSS may recover from the CONTRACTOR the amount
or value of any such gift, consideration or commission.
1001.3The decision of DSS shall be final and conclusive in
any dispute, difference or question arising in respect of:
1001.3.1 the interpretation of this Clause (except
so far as the same may relate to the amount
recoverable from the CONTRACTOR under Clause 1001.2
in respect of any loss resulting from such
termination of the DSS Agreement); or
1001.3.2 the right of DSS under this Clause 1001 to
terminate the DSS Agreement; or
1001.3.3 the amount or value of any such gift,
consideration or commission.
Clause 1002. Discrimination
1002.1The CONTRACTOR shall not unlawfully discriminate
within the meaning and scope of any law, enactment, order,
regulation or other similar instrument relating to
discrimination (whether in relation to race, gender,
religion or otherwise) in employment.
1002.2The CONTRACTOR shall take all reasonable steps to
ensure the observance of the provisions of Clause 1002.1
by all servants, employees, agents and consultants of the
CONTRACTOR and all sub-contractors.
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Clause 1003. Export of Products
For the purpose of the Related Agreements only, DSS
confirm that neither the Products nor their direct
product(s) will be exported by DSS unless in accordance
with any appropriate UK Government export licensing
controls.
Clause 1004. Guarantee
The CONTRACTOR shall procure that the GUARANTOR shall
within thirty (30) days after the date hereof enter into
and maintain a guarantee in the form set out in Schedule
Al3. Breach of this Clause shall constitute a Default not
capable of remedy.
Clause 1005. Insurance
The CONTRACTOR shall to the extent reasonably possible
insure or make provision for self-insurance against all
losses and damages which are the result of its fault or
negligence in performing the DSS Services, including
workman’s compensation, public liability, product
liability, property damage and professional indemnity.
The CONTRACTOR will, if requested in writing by Dss,
produce to DSS a certificate of insurance showing the
applicable coverage currently in force, and will also give
DSS prior written notice of (where possible), or written
notice no later than thirty (30) days after, alteration or
cancellation of such insurance.
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IN WITNESS WHEREOF this Agreement has been executed on
behalf of the parties as follows:
Signed for and on behalf of Secretary of State for Social
Security
Name: PETER MATHISON
Title: Chief Executive, Benefits Agency
Signed for and on behalf of the CONTRACTOR
Name: JOHN H. BENNETT
Title: Managing Director, Pathway Group Limited
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