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CODIFIED AGREEMENT. 243-00 My
POST OFFICE COUNTERS LTD
>and -
ICL PATHWAY LIMITED
INFORMATION TECHNOLOGY SERVICES AGREEMENT FOR BRINGING TECHNOLOGY
TO
POST OFFICES
CODIFIED AGREEMENT
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<==
Version control
Version Reason for Change Frozen/issue date
Reference
1.0 Original baseline 28 July 1999
lla Applying CCN313a to introduce Clause 512
1.1b Formatting changes only to aid version control (new
header and footer)
1.2a Applying CCN245c to introduce Clause 102.5.4; CCN525
to Clauses 503, 504.3, 509.1; CC533 to postcode before
recitals; CCN560 to Clause 606.2.1.1
1.2b Revising amendment to Clause 606.2.1.1
1.2¢ Revising clauses to change the function of A17 to record
the baselining process (redlined against version 1.2b
only)
1.2d Drafting revisions at clauses 102.5.1, 810.10 and 810.12
1.2 Baseline copy of 1.2d 8 February 2000
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CODIFIED AGREEMENT contr?
Table of Contents
Clauses Page Numbers
RECITALS
PART 1 : INTRODUCTION. 12
CLAUSE 101. CONTRACT STRUCTURE 12
CLAUSE 102. INTERPRETATION 12
CLAUSE 103. SEVERABILITY 14
CLAUSE 104. LAW AND JURISDICTION 14
CLAUSE 105. ENTIRE AGREEMENT 14
CLAUSE 106. GENERAL PRINCIPLES 15
PART 2 : PERFORMANCE OF POCL SERVICES AND SUPPLY OF PRODUCTS17 i
CLAUSE 201. PERFORMANCE OF CORE SYSTEM SERVICES 17
CLAUSE 202. PERFORMANCE OF OPTIONAL POCL SERVICES 19
CLAUSE 203. PERFORMANCE OF POCL CLIENT SERVICES 19
CLAUSE 204. PERFORMANCE OF ADDITIONAL POCL SERVICES 19
CLAUSE 205. SUPPLY OF CORE SYSTEM PRODUCTS 19
CLAUSE 206. SUPPLY OF OPTIONAL PRODUCTS 19
CLAUSE 207. SUPPLY OF ADDITIONAL PRODUCTS 20
CLAUSE 208. SUPPLY OF POCL CONSUMABLES 20
CLAUSE 209. CONTRACTOR CONSUMABLES 20
CLAUSE 210 FURTHER RELEASES 20
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CLAUSE 211 FURTHER USE OF THE CORE SYSTEM 20
PART 3 : CONSIDERATION 24
SanPAe
CLAUSE 301. CHARGES V r= > 24
CLAUSE 302. PACKAGING ee 22
os
Lore?
CLAUSE 303. PAYMENT 22
GLAUSE 304. VALUE ADDED TAX 22
PART 4: DEVELOPMENT, IMPLEMENTATION AND PERFORMANCE OF
OPERATIONAL SERVICES 23
sto SAAT
CLAUSE 401. TRANSFER OF ASSETS AND AGREEMENTS uw, s> 23
no aS$-2i>
pers] *
CLAUSE 402. OPERATIONAL TRIAL 26
CLAUSE 403, DEVELOPMENT SERVICES 26
CLAUSE 404. IMPLEMENTATION OF POCL SERVICE INFRASTRUCTURE AND
OPERATIONAL SERVICES 27
CLAUSE 405, PERFORMANCE OF OPERATIONAL SERVICES 27
CLAUSE 406. INSPECTION OF POCL PREMISES 28
CLAUSE 407. MARKING OF PRODUCTS 28
CLAUSE 408. DELIVERY OF PRODUCTS AND POCL CONSUMABLES 28
CLAUSE 409. PRODUCTS AND SERVICES 29
CLAUSE 410. CONTINGENCY SERVICES < nt 29
CLAUSE 411. ACCEPTANCE OF CORE SYSTEM sh 29
CLAUSE 412. INVENTORY 29
PART 5 : OWNERSHIP, LICENCES AND RISK 30
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CLAUSE 501. OWNERSHIP OF HARDWARE 30 “
CLAUSE 502. OWNERSHIP OF SOFTWARE 30 w
CLAUSE 503. OWNERSHIP OF DOCUMENTATION 30
CLAUSE 504. OWNERSHIP OF POCL DATA AND INTELLECTUAL PROPERTY
RIGHTS IN THE POCL SERVICE ARCHITECTURE 30
CLAUSE 505. OWNERSHIP OF POCL CONSUMABLES 31
CLAUSE 506. LICENCES TO USE INTELLECTUAL PROPERTY RIGHTS 317
CLAUSE 507. RISK IN PRODUCTS 34
CLAUSE 508. DAMAGE TO PLANT, TACKLE AND TOOLS 34
CLAUSE 509. LICENCES FOR THE CONTRACTOR TO USE INTELLECTUAL
PROPERTY RIGHTS 34
CLAUSE 510. DATABASES 35
CLAUSE 511. RIPOSTE 32 SOFTWARE 35
CLAUSE 512 TRANSFER OF HAPS DISASTER RECOVERY HARDWARE 35
PART 6 : CONTRACT AND SERVICE MANAGEMENT 35
CLAUSE 601. MONITORING 35
CLAUSE 602. MANAGEMENT INTERFACES AND MANAGEMENT SERVICES 36
CLAUSE 603. COMMUNICATIONS 36
CLAUSE 604. TRANSFER AND SUB-CONTRACTING 37
CLAUSE 605. POCL RESPONSIBILITIES 38
CLAUSE 606. TIME 38
CLAUSE 607. CONFIDENTIALITY “1
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CLAUSE 608. HEALTH AND SAFETY HAZARDS
CLAUSE 609. PROTECTION OF PERSONAL DATA
CLAUSE 610. PUBLICITY
CLAUSE 611. CONTRACTOR'S PERSONNEL
CLAUSE 612. WAIVER
CLAUSE 613. ACCESS TO POCL PREMISES
CLAUSE 614. SECURITY REQUIREMENTS
CLAUSE 615. CONTRACTOR’S KEY PERSONNEL
PART 7 : WARRANTIES AND STANDARDS
CLAUSE 701. AUTHORITY AND APPROVAL
CLAUSE 702. PERFORMANCE OF POCL SERVICES
CLAUSE 703. PERFORMANCE OF PRODUCTS
CLAUSE 704. INTELLECTUAL PROPERTY RIGHTS
CLAUSE 705. TECHNICAL STANDARDS
CLAUSE 706. STATEMENTS AND REPRESENTATIONS
CLAUSE 707. DISCLAIMER OF IMPLIED TERMS
PART 8 : REMEDIES
CLAUSE 801. AUDIT
CLAUSE 802. SERVICE CREDITS AND DELAY
CLAUSE 803. ADDITIONAL RESOURCES
CLAUSE 804. RECOVERY OF SUMS DUE
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CLAUSE 805. INTELLECTUAL PROPERTY RIGHTS INDEMNITY 50
CLAUSE 806. REMEDIES CUMULATIVE 52
CLAUSE 807. DISPUTE RESOLUTION PROCEDURE 52
CLAUSE 808. INJURY TO PERSONS; LOSS OF PROPERTY 52
CLAUSE 809. LIABILITY 53
CLAUSE 810. LIMITATION OF LIABILITY 53
PART 9 : TERM AND TERMINATION 57
CLAUSE 901. TERM 57
CLAUSE 902. TERMINATION OF CODIFIED AGREEMENT 57
CLAUSE 903. RIGHTS ON EXPIRY OR TERMINATION OF CODIFIED
AGREEMENT 59
CLAUSE 904. TRANSFER SERVICES 62
PART 10 : MISCELLANEOUS 62
CLAUSE 1001. CORRUPT GIFTS AND PAYMENTS OF COMMISSION 62
CLAUSE 1002. DISCRIMINATION 63
CLAUSE 1003. EXPORT OF PRODUCTS 63
CLAUSE 1004. GUARANTEE 63
CLAUSE 1005. INSURANCE 63
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Schedules
No. Title Latest
version
1. POCL Service Environment 1.1
Al. Interpretations 1.2
A2. Policies and Standards 1.2
A3. Audit 1.2
A4. Contract Management 1.0
AS. Change Control 1.0
A6. Approach to Remedies 1.0
A7. Contract Termination 1.0
A8. Sub-contractors 1.0
AQ. Asset Transfer 1.0
Alo. Ordering, Invoicing and Payment 1.0
All. Acceptance Procedures 1.0
Al2. Charging Structure 1.2
Al3. Guarantee 1.2
Al14. Contractor’s Key Personnel 1.0
Al5. Requirements 1.2
Al6. Solutions 1.2
Al7. CCNs 1.2
Bl. Software 1.0
B2. Hardware 1.0
B3. Documentation 1.2
B4. POCL Consumables 1.0
BS. POCL Acceptance Criteria 1.0
B6. [Not Used]
B7. [Not Used]
B8. Validation Procedures 1.2
B9. Timetable 1.0
B10. Remedy Aggregation 1.0
Cl. Optional POCL Services 1.0
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Automated Payments Service
El Service Definition 1.2
E2 Acceptance Criteria 1.0
E3 POCL Responsibilities 1.0
E4 Implementation 1.0
ES Service Management 1.0
E6 Service Transfer 1.0
E7 [Not Used]
E8 Service Levels and Remedies 1.2
E9 Contingency Services 1.0
EPOSS
Fl Service Definition 1.2
F2 Acceptance Criteria 1.0
F3 POCL Responsibilities 1.0
F4 Implementation 1.0
F5 Service Management 1.0
F6 Service Transfer 1.0
F7 (Not Used]
F8 Service Levels and Remedies 1.0
F9 Contingency Services 1.0
POCL Infrastructure Services
Gl POCL Infrastructure Services 1.2
G2 [Not Used]
G3 [Not Used]
G4 Acceptance Criteria 1.0
GS POCL Responsibilities 1.0
G6 Implementation 1.2
G7 Service Management 1.0
G8 Service Transfer 1.0
G9 {Not Used]
G10 Service Levels and Remedies 1.2
Gl1 Contingency Services 1.0
OBCS
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H1 Order Book Control Service 1.2
H2 Acceptance Criteria 1.0
H3 POCL Responsibilities 1.0
H4 Implementation 1.0
HS Service Management 1.0
H6 Service Transfer 1.0
H7 {Not used]
H8 Service Levels and Remedies 1.0
H9 Contingency Services 1.0
LFS
Kl Logistics Feeder Service 1.2
K2 Not used 1.0
K3 POCL Responsibilities 1.2
K4 Implementation 1.0
KS Service Management 1.0
K6 Service Transfer 1.0
K7 {Not used]
K8 Service Levels and Remedies 1.0
K9 Contingency Services 1.0
Operational Trial
Ll Operational Trial Objectives 1.0
12 Operational Trial Plans 1.2
L3 Operational Trial Acceptances 1.0
L4 Operational Trial Responsibilities 1.2
LS Operational Trial Remedies 1.0
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CODIFIED AGREEMENT
THIS CODIFIED AGREEMENT is made the 28th day of July, 1999
BETWEEN:
q) Post Office Counters Ltd whose registered office is situated at Gavrelle House, 2-14
Bunhill Row, London EC1Y 8HQ; and
(2) ICL Pathway Limited whose registered office is at 26 Finsbury Square, London EC2A
1SL ("the Contractor").
RECITALS
WHEREAS:
(a) On 15th May, 1996, 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”) and POCL (collectively “the
Authorities”) entered into certain agreements (the “Related Agreements”) for the
design, development, integration and establishment by the Contractor of a
computerised service infrastructure and for certain services to be provided thereon;
(b) Such agreements comprised:
(i) an agreement between DSS and the Contractor for, inter alia, the provision
by the Contractor of services relating to a benefit payment card (the “DSS
Agreement”);
(ii) an agreement between POCL and the Contractor for, inter alia, the
provision by the Contractor of the POCL Service Infrastructure and for the
POCL Services (as hereinafter defined) to be provided thereon the (“POCL
Agreement”); and
(iii) an agreement among DSS, POCL and the Contractor for the supply of a
service infrastructure and the provision of certain services which were of
common interest to both DSS and POCL (the “Authorities Agreement”);
(c) Each of the Related Agreements has been amended from time to time in accordance
with the change control procedures contained therein;
(d) On 24th May, 1999, DSS and the Contractor entered into an agreement under
which, inter alia, the DSS Agreement was terminated on that date;
(e) On 24th May, 1999 POCL and the Contractor entered into an agreement (the
“Letter Agreement”) under which they agreed that certain changes should be made
to the POCL Agreement and the Authorities Agreement with effect from that date.
() Under the Letter Agreement POCL and the Contractor agreed, inter alia, to replace
the POCL Agreement and the Authorities Agreement (each as amended under
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CODIFIED AGREEMENT
change control procedures) with a single agreement (the “Codified Agreement”)
codifying the changes to those agreements agreed in the Letter Agreement;
(g) This Codified Agreement is the Codified Agreement referred to in the Letter
Agreement.
NOW THEREFORE IT IS HEREBY AGREED as follows:
PART 1 : INTRODUCTION
Clause 101. Contract Structure
101.1 The Codified Agreement
Without prejudice to Clause 810.10 of this Codified Agreement, each of the POCL
Agreement and the Authorities Agreement is hereby terminated and replaced by the
provisions of this Codified Agreement with immediate effect.
101.2 Amendments to Clauses, Schedules and Annexes of this Codified Agreement
The provisions of this Codified Agreement shall only be amended in accordance
with the Change Control Procedure.
101.3 Failure by POCL to perform its Obligations
The Contractor shall not be liable to POCL for any failure to perform or delay in
performing its obligations hereunder where the Contractor proves that such failure
or delay has been directly caused by the failure of POCL to perform any of its
obligations under this Codified Agreement. This Clause shall not apply to Clause
809, which shall be governed by the specific rule stated in Clause 809.2.
Clause 102. Interpretation
102.1 As used in this Codified Agreement:
102.1.1 the terms and expressions set out in Schedule A1 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.
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CODIFIED AGREEMENT
102.3 Headings are included in this Codified Agreement for ease of reference only and
shall not affect the interpretation or construction of this Codified Agreement.
102.4 References in this Codified Agreement to Clauses, Parts and Schedules are, unless
otherwise provided, references to the clauses, parts and schedules of this Codified
Agreement. References to CCDs and CRDs are to the documents agreed as such
from time to time.
102.5.1 Subject to Clause 102.5.2, in the event and to the extent only of any conflict or
inconsistency between provisions of this Codified Agreement, the following order of
precedence shall apply:-
(a) the Clauses and Schedule Al;
(b) Schedules A2 to A14;
(c) the Service Definition Schedules and Schedule G6;
(d) Schedule A15;
(e) Schedule A16;
i¢a) all other Schedules except Schedule A17;
(g) CCDs and Schedule A17; and
(h) — CRDs.
102.5.2 In the event of any conflict or inconsistency in relation to Service Levels, the
provisions of the Service Level Schedules shall prevail over those of the Service
Definition Schedules and Schedules A15, A16 and G6 (but not the Clauses or
Schedules A1 to A14) to the extent of such conflict or inconsistency.
102.5.3 For the avoidance of doubt, POCL acknowledges that a particular solution in
Schedule A16 shall not be treated as being in conflict or inconsistent with any
requirement in Schedule A15, or the Service Definition Schedules or Schedule G6,
merely because the solution states that the requirement will be met in a particular
form, manner, quantity, time or place.
102.5.4 “Working Documents” do not affect or introduce any contractual obligations
between any of the parties.
102.6 The Recitals are not legally binding, but are intended as a guide to the
interpretation and construction of this Codified Agreement.
102.7 Where this Codified Agreement imposes upon either party an obligation which was
also imposed on that party under the Authorities Agreement or POCL Agreement
then to the extent that such obligation has been performed under the Authorities
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CODIFIED AGREEMENT
Agreement or POCL Agreement it shall be deemed to have been performed under
the corresponding provision of this Codified Agreement (but continuing obligations
shall continue under this Codified Agreement).
102.8 Where any provision of this Codified Agreement requires or permits a matter to be
agreed between the parties or approved by either of the parties and such provision
was also contained in the Authorities Agreement or POCL Agreement, any
agreement reached or approval given under the Authorities Agreement or POCL
Agreement shall be deemed to have been reached or given under the corresponding
provision of this Codified Agreement.
102.9 References in CCDs, CRDs and Schedules agreed prior to the date of this Codified
Agreement to NR2 or NR2+ shall be construed so as to refer to such of CSR or
CSR-+ as shall be appropriate having regard to the functionality of the item or
service to which such reference relates, as determined by the SADD and any
relevant Release Contents Description. Likewise, references in such CCDs, CRDs
and Schedules to other items, services or matters affected by subsequent
agreements between the parties (including this Codified Agreement) shall be
construed to reflect most appropriately the effect of such subsequent agreements.
102.10 It is expressly agreed that Clause 201.6 and (notwithstanding that they refer to
CCDs) the definitions of “Core System” and “CSR+” shall take precedence over all
other provisions of this Codified Agreement (including the Schedules) which define
the Core System, CSR+, the Core System Services or the POCL Services.
Clause 103. Severability
If any of the provisions of this Codified Agreement is judged to be invalid, illegal or
unenforceable, the continuation in full force and effect of the remainder of them will not be
prejudiced but such provision shall be deemed modified to the extent necessary in the court’s
opinion to render such term or provision enforceable, and the rights and obligations of the
parties shall be construed and enforced accordingly, preserving to the fullest permissible
extent the intent and agreements of the parties herein set forth.
Clause 104. Law and Jurisdiction
104.1 This Codified Agreement shall be governed by and shall be interpreted in
accordance with English Law and, subject to Clause 807, the parties submit to the
exclusive jurisdiction of the English Courts.
104.2 Except as specified in Clause 101, this Codified Agreement is binding on POCL and
its successors and permitted assignees and on the Contractor and the Contractor's
successors and permitted assignees.
Clause 105. Entire Agreement
105.1 This Codified Agreement constitutes the entire understanding between the parties
relating to the subject matter of this Codified Agreement. Each of the parties
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CODIFIED AGREEMENT
acknowledges that in entering into this Codified Agreement it has not relied on any
representation, warranty, promise or assurance, whether or not in writing, and
whether or not negligent, given or made by any other party as an inducement to
enter into this Codified Agreement. Accordingly no party shall have any right of
action (except in the case of fraud) against any other party arising out of any such
representation, warranty, promise or assurance.
105.2 This Codified Agreement supersedes the Letter Agreement, the schedules to the
Letter Agreement, the Heads of Agreement referred to in the Letter Agreement, the
POCL Agreement and the Authorities Agreement, each of which shall be of no
further effect (but without prejudice to rights and liabilities of the Parties accruing
under the Letter Agreement, the schedules thereto or the Heads of Agreement
between 24 May, 1999 and the date of this Codified Agreement).
105.3 The parties acknowledge that the consent agreement (the “Consent Agreement”)
dated 16th September, 1997 among DSS, POCL, ICL plc, the Contractor and ICL
Pathway Asset Company Limited shall not be terminated by the execution of this
Codified Agreement and that references in the Consent Agreement to the “POCL
Agreement”, the “Authorities Agreement” or the “Related Agreements” or any
provisions thereof shall be references to this Codified Agreement or (as the case
may be) the equivalent provisions of this Codified Agreement.
Clause 106. General Principles
106.1 POCL shall control the rights for using and marketing the POCL Services provided in
post offices. The Contractor shall have no control over the use or marketing of the
POCL Services.
106.2 The Contractor shall offer all reasonable assistance to POCL in preventing
fraudulent use of the POCL Services and POCL Service Infrastructure by POCL’s
employees and Agents.
106.3 The POCL Services and the POCL Service Infrastructure shall be provided in
accordance with and comply with all relevant applicable industry standards, as
these are listed in Schedule A2.
106.4 The Contractor shall, if so requested by POCL, work with POCL to identify and
develop new business opportunities for POCL and the Contractor.
106.5 For the avoidance of doubt, the Contractor shall ensure migration of appropriate
automated systems without any reduction in existing service or security levels to
POCLs clients and customers.
106.6 Except as otherwise agreed from time to time between POCL and the Contractor,
POCL will retain control itself of its critical business processes and relationships,
such as:
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CODIFIED AGREEMENT
106.6.1 customer interface, including quality of service (such as queuing time and
other customer charter measures) to its customers, network format,
location of offices and service standards;
106.6.2 contractual relationships with Agents;
106.6.3 contractual relationships with its clients;
106.6.4 policy control of its network;
106.6.5 its reconciliation, settlement and key infrastructure support processes;
106.6.6 its relationship with its suppliers; and
106.6.7 its product and service design.
106.7 The Contractor shall not restrict POCL from using the POCL Services and the POCL
Service Infrastructure for its existing and future clients, Agents, customers, products
and services.
106.8 The Contractor’s and its subcontractors’ contacts with Agents shall be arranged via
POCL.
106.9 The POCL Service Infrastructure (other than any Public Service Telecommunications
Networks) may not be used other than by POCL without the prior written consent of
POCL to provide any services to:
(a) POCLEs current clients in respect of current products and services;
(b) POCLs current clients in respect of new products and services;
(c) new clients in respect of current products and services;
(d) new clients in respect of new products and services; or
(e) POCLs current market domains (including:
¢ personal cash and banking services - cash withdrawals and deposits,
cashing cheques, benefit payments and postal orders;
* communications - letter and parcel services including stationery and
greetings products, other telecommunications retail products and
services;
* corporate cash services - cash management services for business
customers, including business deposits, cash handling and processing;
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CODIFIED AGREEMENT
© entertainment and leisure services - lotteries, fishing licences,
membership applications, TV licences and cable TV bill payment, tickets
for events;
© personal savings and budgeting - savings and investment accounts,
household bill payment and pre-payment, credit services, personal
pensions, household insurance;
* travel services - foreign exchange, international money transfer and
documentation including passports, travel tickets and motor vehicle
licences, car insurance and membership of motoring organisations,
travel insurance;
¢ insurance - other general risk insurance and life assurance products;
¢ information services - about the products and services offered by POCL
and its clients;
¢ benefit payment services).
106.10 The Contractor shall deliver and continue to provide a secure system in respect of
all transactions which as far as this Codified Agreement requires eliminates the
potential for any fraud or unauthorised disclosure of data and provides detection
procedures and significant barriers to attacks from internal conspiracy and collusion
to defraud POCL.
106.11 The POCL Services and the POCL Service Infrastructure shall be capable of
introduction in all post offices.
106.12 For the avoidance of doubt, and without limitation to the generality of Clause
902.2, any failure by the Contractor to comply with any of the provisions of Clauses
106.7, 106.8 or 106.9 shall be treated as a Default for the purposes of Clause
902.2.
PART 2 : PERFORMANCE OF POCL SERVICES AND SUPPLY OF PRODUCTS
Clause 201. Performance of Core System Services
201.1 [Not used]
201.2 Subject to Clause 201.6 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 Core System Services referred to in Clause
201.3. However, for the avoidance of doubt, and subject to Clauses 102.5 and
201.6, the parties acknowledge that POCLs acceptance of the Contractor’s solutions
in Schedule A16 and their agreement to the service descriptions contained in the
relevant Schedules of this Codified Agreement, shall not relieve the Contractor of its
obligation to meet such of those requirements specified in Schedule A15 as relate to
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CODIFIED AGREEMENT
the Core System, CSR+ and, subject to Clause 301.10, other Releases as referred to
in Clause 210.
201.3 Subject to Clause 201.6 the Contractor shall perform the following Core System
Services in accordance with all applicable provisions hereof:
, 201.3.1 the Development Services pursuant to Clause 403;
201.3.2 the Implementation Services pursuant to Clause 404;
201.3.3 the Operational Services pursuant to Clause 405;
201.3.4 the Management Services pursuant to Clause 602; and
201.3.5 the Transfer Services pursuant to Clause 904.
201.4 The Contractor shall, at no cost to POCL:-
201.4.1 strip out from, or suppress in, the Core System Release the functionality of;
and
201.4.2 strip out from CSR+
all software relating exclusively to the aborted benefit encashment service or to PAS.
or CMS (as defined under the DSS Agreement).
201.5 To support the performance of the POCL Services, the Contractor shall supply to
POCL one hard copy and one electronic copy of each version of the Service
Architecture Design Document in accordance with all applicable provisions hereof.
For the avoidance of doubt, the Contractor acknowledges that agreement by POCL
to the SADD shall not relieve the Contractor of its obligation to continue to perform
the POCL Services in accordance with all applicable provisions of this Codified
Agreement
201.6 Notwithstanding any other provision of this Codified Agreement to the contrary, the
Contractor's obligations in relation to those elements of the Core System Services
which are dependent on software releases are limited to the provision of:-
(a) following the Core System Release, such of those elements as are
dependent on the Core System Release;
(b) following CSR+, such of those elements as are dependent on CSR+; and
(c) in further Releases pursuant to Clause 210, such additional Core System
Services as may be agreed in accordance with the Change Control
Procedure and the provisions of Clause 301.10
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and references to the Core System Services and any category of them shall be
construed accordingly.
Clause 202. Performance of Optional POCL Services
POCL shall have the option, exercisable on prior written notice to the Contractor, of
obtaining any of the Optional POCL Services described in Schedule C1.
Such Optional POCL Services shall be performed in accordance with all applicable provisions
hereof.
Clause 203. Performance of POCL Client Services
The Contractor shall provide POCL with such services as may be agreed by the Contractor
and POCL in relation to Royal Mail, DVLA, DNS, Girobank ple and the Co-operative Bank plc
(and other POCL clients as may be agreed). Such services shall be performed in accordance
with all applicable provisions of this Codified Agreement.
Clause 204. Performance of Additional POCL Services
The Contractor undertakes to perform at any time during the term of this Codified
Agreement such Additional POCL Services as may be agreed by it and POCL in accordance
with the provisions of Clause 101.2 for the purposes contemplated by this Codified
Agreement and within the scope of the Advertisement. Such Additional POCL Services shall
be performed in accordance with all applicable provisions of this Codified Agreement.
Clause 205. Supply of Core System Products
205.1 To support the performance of the POCL Services, the Contractor shall supply the
following Core System Products in accordance with all applicable provisions hereof:
205.1.1 all of the Products comprising the POCL Service Infrastructure;
205.1.2 the Documentation.
205.2 The Contractor warrants that the Documentation comprises:
(a) a complete set of operating manuals; and
(b) a complete set of manuals for the POCL Service Architecture.
205.3 In addition to one hard copy of the Documentation provided by the Contractor, the
Contractor shall provide POCL with an electronic copy at no additional charge.
Clause 206. Supply of Optional Products
POCL shall have the option, exercisable on prior written notice to the Contractor, of
obtaining, as Optional Products, all or any items of the same type as the elements of the
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POCL Service Infrastructure provided by the Contractor for use on the POCL Premises (other
than any Public Service Telecommunications Network equipment).
The Optional Products shall be supplied in accordance with all applicable provisions hereof.
Clause 207. Supply of Additional Products
The Contractor undertakes to supply at any time during the term of this Codified Agreement
such Additional Products as may be agreed by it and POCL in accordance with the provisions
of Clause 101.2 for the purposes contemplated by this Codified Agreement and within the
scope of the Advertisement. Such Additional Products shall be supplied in accordance with
all applicable provisions hereof.
Clause 208. Supply of POCL Consumables
POCL shail have the option of obtaining all or any of the POCL Consumables in such
quantities as may be reasonably required by POCL by giving the Contractor not less than
thirty (30) days prior written notice thereof. The POCL Consumables shall be supplied in
accordance with all applicable provisions hereof.
Clause 209. Contractor Consumables
The Contractor shall provide all Contractor Consumables which are required for the
performance of the POCL Services.
Clause 210 Further Releases
210.1 Subject to the Change Control Procedure, further Releases of Software to provide
additional functionality relevant to the Core System shall be provided by the
Contractor by way of upgrades to CSR or CSR+.
210.2 The Contractor may also issue further Releases of Software from time to time as
necessary to remedy defects in the provision of the POCL Services or for the purpose
of maintenance of the POCL Service Infrastructure.
Clause 211 Further Use of the Core System
In parallel with the performance of the Contractor’s obligations under this Codified
Agreement, POCL confirms its desire to use the Core System for network banking and the
provision of services (via smart cards) for Modern Government. POCL will therefore work
with the Contractor to revive and continue the discussions on the Public Private Partnership
considered by the parties prior to the date of this Codified Agreement. It is hoped that the
parties can together develop a business strategy in these areas which they can deliver
through appropriate arrangements under a Public Private Partnership in order to leverage
the use of the Core System and develop to the full POCLs potential for the delivery of
electronic business services.
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PART 3 : CONSIDERATION
Clause 301. Charges
301.1 Core System Charges
The Charges for the provision of the POCL Service Infrastructure and the Core
System Services shall be calculated in accordance with Part A of Schedule A12 to
this Codified Agreement.
301.2 Charges for Optional POCL Services
The Charges for any Optional POCL Services shall be calculated in accordance with
paragraph 8 of Schedule A12 to this Codified Agreement.
301.3. Charges for POCL Client Services
The Charges for any POCL Client Services shall be calculated in accordance with
paragraph 9 of Schedule A12 to this Codified Agreement.
301.4 Charges for Additional POCL Services
The Charges for Additional POCL Services shall be as set out in paragraph 10 of
Schedule A12 to this Codified Agreement.
301.5 Core System Products
The costs of supply of the Core System Products are included within the charges
referred to in Clause 301.1 above.
301.6 Optional Products
The Charges for the supply of any Optional Products shall be calculated in
accordance with paragraph 12 of Schedule A12 to this Codified Agreement.
301.7 Additional Products
The Charges for the supply of any Additional Products shall be calculated in
accordance with the Contractor's then current list prices but shall in no event exceed
the prices then generally offered in the United Kingdom for such products on similar
terms.
301.8 POCL Consumables
The Charges for the supply of any POCL Consumables shall be as specified in
Schedule B4.
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301.9 Contractor Consumables
All Contractor Consumables shall be supplied at the expense of the Contractor.
301.10 Further Releases
301.10.1 Further releases of Software which fall within Clause 210.1 shall
be provided either:-
301.10.1.1 on the basis of appropriate time and material charges (as set out in
paragraph 14 of Schedule A12) which shall be invoiced monthly in
arrears; or
301.10.1.2 for a fixed price to be agreed (on payment terms to be agreed)
which shall not be audited
as elected by POCL.
301.10.2 Further releases of Software which fall within Clause 210.2 shall
be provided at no cost to POCL.
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 POCL
Services in accordance with the provisions of this Codified Agreement POCL shall
pay the Charges.
303.2 Payment of Charges in relation to the POCL Services performed hereunder shall be
made in accordance with the invoicing and payment procedure specified in
Schedule A10.
303.3 In the event that the Contractor, in accordance with the terms of this Codified
Agreement, enters into a supply contract or a sub-contract in connection with this
Codified Agreement, the Contractor shall ensure that a term is included in the
supply contract or 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).
Clause 304. Value Added Tax
It is hereby agreed that the Charges are exclusive of Value Added Tax, which POCL shall pay
to the Contractor at the rate and in the manner prescribed by law from time to time, subject
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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
OPERATIONAL SERVICES
Clause 401. Transfer of Assets and Agreements
401.1 Sale and Purchase
401.1.1 POCL, free of encumbrances, liens, charges, mortgages, pledges or other
third party rights, shall sell and transfer and the Contractor shall purchase
and accept the POCL Transferred Assets (if any) listed in Schedule A9.
401.1.2 Subject to Clause 401.1.3, the POCL Transferred Assets are sold and
transferred by POCL to the Contractor "as is" and POCL provides no
warranty as to the state, quality or fitness for purpose of the POCL
Transferred Assets and all such statutorily implied warranties are hereby
excluded. POCL warrants it has good title to the POCL Transferred Assets.
401.1.3 To the extent to which POCL is legally able to do so, POCL hereby assigns
all POCEs rights against manufacturers, suppliers and third parties in
respect of the POCL Transferred Assets to the Contractor. POCL shall at the
Contractor's request and expense give to the Contractor reasonable
assistance to enable the Contractor to enforce such rights.
401.1.4 Title to and risk in the POCL Transferred Assets shall pass to the Contractor
on the Transfer Date.
401.2 Sale Consideration
401.2.1 As consideration for the agreement by POCL to sell the POCL Transferred
Assets, the Contractor hereby agrees to pay to POCL the sum of £1 (if and
when requested).
401.2.2 It is hereby agreed that the sum to be paid pursuant to this Clause 401.2.1
is exclusive of Value Added Tax, which the Contractor shall pay to POCL at
the rate and in the manner prescribed by law from time to time, in addition
to the sum payable in Clause 401.2.1, subject to the production by POCL of
a valid tax invoice giving the requisite details of the taxable supply.
401.3 ISDN Lines
401.3.1 With effect from the Transfer Date POCL shall assign to the Contractor the
benefit of all agreements entered into between POCL and British Telecom
Plc to the extent relating to the provision of ISDN lines in Outlets in
connection with services to be migrated to the POCL Services (the
“Relevant ISDN Agreements”) and the Contractor agrees to assume and
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duly perform all of POCLs obligations in relation to the Relevant ISDN I
Agreements. The parties shall, unless otherwise agreed, enter into a deed
of novation with British Telecom PLC to effect such assignment and
assumption on the Transfer Date or as soon as reasonably practicable
thereafter.
401.3.2 POCL undertakes to pay, discharge and satisfy all liabilities and obligations
arising in the period up to the Transfer Date when the same fall due to be
paid, satisfied or discharged in respect of the Relevant ISDN Agreements
and to indemnify the Contractor from and against such liabilities and
against any and all losses, costs, liabilities and expenses arising out of or in
connection therewith. The Contractor undertakes to reimburse POCL upon
the Transfer Date in respect of all pre-payments made by POCL which
relate to any period following the Transfer Date. The Contractor and POCL
shall prior to the Transfer Date prepare and agree a written statement
itemising such pre-payments.
401.3.3 The Contractor undertakes to pay, discharge and satisfy all liabilities and
obligations arising after the Transfer Date when the same fall due to be
paid, satisfied or discharged in respect of the Relevant ISDN Agreements
and to indemnify POCL from and against such liabilities and against any
and all losses, costs, liabilities and expenses arising out of or in connection
therewith.
401.4 Completion
401.4.1 Completion of the sale and purchase and/or transfer shall take place on the
Transfer Date at the offices of POCL.
401.4.2 Upon completion POCL shall deliver to the Contractor:
401.4.2.1 quiet possession of all the relevant POCL Transferred
Assets;
401.4.2.2 executed documentation sufficient for the purpose of
transferring title to the relevant POCL Transferred Assets;
401.4.2.3 copies of documentation relating to the Relevant ISDN
Agreements including relevant technical information and
terms and conditions of such Relevant ISDN Agreements.
401.4.3 Upon completion of the Transfer the Contractor shall pay to POCL ina
manner to be agreed between the parties the sum specified in Clause
401.2.1.
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401.5 Transfer of Undertakings (Protection of Employment) Regulations 1981
401.5.1 In the event that, by virtue of the application for whatever reason of the
Transfer of Undertakings (Protection of Employment) Regulations 1981
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 POCL Services
hereunder, there is transferred to the Contractor any contract of
employment of any employee of POCL, and provided that the Contractor:
(03) 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 POCL 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 POCL have given POCL
reasonable opportunity to offer such employee reemployment with
POCL; 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,
POCL, 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 termination of employment
by the Contractor of any such employees so transferred to it).
401.5.2 In the event of any claim or demand being made or action brought to
which Clause 401.5.1 applies, POCL shall be promptly notified thereof and
POCL shall at its own expense conduct all negotiations for settlement of
same and any legal proceedings that may arise therefrom. The Contractor,
its sub-contractors, agents and employees shall at the request of POCL
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.
(as
the
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Clause 402. Operational Trial
402.1 The Contractor shall, during the Operational Trial Period, make available the
Operational Trial System for the Operational Trial as set out in Schedules L1 to L5
to be performed in accordance with the timetable set out in Schedule L2
402.2 The objectives of the Operational Trial shall be as specified in Schedule L1.
402.3 Operational Trial and the Operational Trial System shall be used to test the Core
System for the purposes of Schedule A11.
402.4 [Not used]
402.5 [Not used]
402.6 [Not used]
402.7 POCL will perform its Operational Trial Responsibilities as set out in Schedule L4.
402.8 For the avoidance of doubt, the Contractor acknowledges that successful completion
of acceptance testing of any part of the Operational Trial System shall not relieve it
of its obligation to continue to perform the POCL Services hereunder in accordance
with all applicable provisions hereof.
402.9 Notwithstanding the foregoing provisions of this Clause, POCL shall have no right of
termination of this Codified Agreement in relation to failure of the Operational Trial
System successfully to complete the Operational Trial except in accordance with
Schedules All and LS.
Clause 403. Development Services
The Contractor shall perform the following Development Services:
403.1 development of the Automated Payment Service as described in Schedule E1;
403.2 development of EPOSS as described in Schedule F1;
403.3 development of the POCL Infrastructure Services as described in Schedule G1;
403.4 development of the OBCS as described in Schedule H1;
403.5 development of the Logistics Feeder Service as described in Schedule K1;
403.6 development of Optional POCL Services as described in Schedule C1 ;
403.7 development of the Service Architecture Design Document; and
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403.8 development of the Contingency Services as described in Schedules E9, F9, G11,
H9 and K9.
Clause 404. Implementation of POCL Service Infrastructure and Operational Services
404.1 The Contractor shall implement the POCL Service Infrastructure in accordance with
the provisions and timetable in Schedule G6. Elements of the POCL Service
Infrastructure shall be subject to Acceptance.
404.2 POCL may on prior written notice defer implementation of any part of the
Operational Services and of any of the POCL Service Infrastructure until successful
completion of the Operational Trial under the foregoing provisions of this Clause.
404.3. The Contractor shall implement the Automated Payment Service in accordance with
the timetable in, and the provisions of, Schedule E4. Elements of the Automated
Payment Service shall be subject to Acceptance.
404.4 The Contractor shall implement EPOSS in accordance with the timetable in, and the
provisions of, Schedule F4. Elements of EPOSS shall be subject to Acceptance.
404.5 The Contractor shall implement the POCL Infrastructure Services in accordance with
the timetable in, and the provisions of, Schedule G6. Elements of the POCL
Infrastructure Services shall be subject to Acceptance.
404.6 The Contractor shall implement OBCS in accordance with the timetable in, and
provisions of, Schedule H4. Elements of OBCS shall be subject to Acceptance.
404.7. The Contractor shall implement the Logistics Feeder Service in accordance with the
timetable in, and provisions of, Schedule K4.
Clause 405. Performance of Operational Services
Subject to the Release Authorisation Board authorising commencement of National Rollout
of the Core System and subject to Clause 201.6, the Contractor shall, from the date of CSR
Acceptance, perform the following Operational Services:
405.1 the Automated Payment Service, in accordance with the provisions of Schedule E1;
405.2 EPOSS, in accordance with the provisions of Schedule F1;
405.3 the POCL Infrastructure Services, in accordance with the provisions of Schedule G1;
405.4 the OBCS in accordance with the provisions of Schedule H1;
405.5 the Logistics Feeder Service in accordance with the provisions of Schedule K1;
405.6 the POCL Contingency Services in accordance with the provisions of Schedules E9,
F9, G11, H9 and K9;
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405.7 any Optional POCL Services ordered pursuant to Clause 202 in accordance with the
provisions of Schedule C1.
Clause 406. Inspection of POCL Premises
406.1 The Contractor confirms that it has been offered the opportunity to inspect the
POCL Premises in order to satisfy itself that the POCL Premises are suitable for the
installation and operation of the Products in the POCL Service Infrastructure and
the supply of the POCL Services. However, the Contractor does not warrant that the
use of such Products when installed will comply with applicable Health and Safety
legislation or that the POCL 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 In relation to any work at the POCL Premises whichis required as referred to in
paragraph 3.2 of Annex 4 to Schedule A12, the Contractor shall inspect the POCL
Premises, specify the necessary work and, subject to POCEs prior written approval of
the work to be done and the costs thereof,carry out such work. The costs of such
work shall be chargeable to POCL in accordance with paragraphs 6 and 13 of, and
Annex 4 to Schedule A12. POCL reserves the right to arrange for such work to be
done by parties other than the Contractor in accordance with procedures and
specifications reasonably agreed by the parties. The Contractor will not be liable
for any delay or Default directly caused by such changes being made by a party
other than the Contractor.
406.3 POCL shall only be liable to pay for the Contractor’s costs for those changes to the
POCL Premises which are strictly necessary to install the Products to enable the
Contractor to perform the POCL Services, and these costs shall only be chargeable
pursuant to the charging structure in Annex 4 to Schedule Al2. The Contractor will
minimise such installation and operations costs.
Clause 407. Marking of Products
The Contractor shall ensure that each Product in the POCL 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 POCL Service Infrastructure.
Clause 408. Delivery of Products and POCL Consumables
The Contractor shall deliver any Products and POCL Consumables to an authorised
representative of POCL at times and locations to be mutually agreed between the Contractor
and POCL (such agreement not to be unreasonably withheld or delayed). Any Software
supplied as a Product will be delivered in object code.
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Clause 409. Products and Services
The Contractor shall not introduce any product or service into the POCL Service
Infrastructure or POCL Services, nor make any change to any Products or POCL Services,
without POCLs prior written consent in accordance with Schedule A5.
Clause 410. Contingency Services
The Contractor shall perform the Contingency Services in accordance with the provisions of
Schedules E9, F9, G11, H9 and K9.
Clause 411. Acceptance of Core System
411.1 Provisions relating to CSR Acceptance are set out in Schedule A11.
411.2 The Contractor agrees that if, following CSR Acceptance, any fault arises in
connection with the Core System which:
(a) was not identified as an Acceptance Incident; but which
(b) might reasonably have been expected to have been identified as an
Acceptance Incident had the Acceptance Criteria, Acceptance Specifications
and Acceptance Tests agreed in relation to the Core System prior to
execution of this Codified Agreement been appropriately revised and
applied (i) to reflect in all material respects the removal from the Services
of BES, PAS and CMS (in each case as defined under the Related
Agreements immediately prior to 24 May, 1999) and (ii) to ensure that the
Core System were not affected by such removal
then the Contractor shall remedy such fault in accordance with Clause 411.3 below
at the expense of the Contractor.
411.3 In the case of category (a) faults (as defined in Schedule A11) such remedy shall be
effected forthwith on discovery of the fault and in the case of category (b) faults (as
so defined) it shall be effected promptly following discovery of the fault.
411.4 The occurrence of a fault to which Clause 411.2 applies shall not invalidate CSR
Acceptance or entitle POCL to claim that CSR Acceptance has not, or should not
have, taken place, or that any sum due to the Contractor upon CSR Acceptance
should be withheld or repaid.
411.5 CSR+ shall be subject to Release authorisation by the Release Authorisation Board
but not subject to Acceptance.
Clause 412. Inventory
412.1 The CCD entitled “CSR Asset Register” contains an inventory of the hardware and
software to be used to provide the host and network facilities of the POCL Service
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Infrastructure and located in the Contractor’s datacentres as at Acceptance of the
Core System.
412.2 The Contractor undertakes to maintain throughout the term of this Codified
Agreement hardware and software in relation to the POCL Service Infrastructure
providing, as a whole, equivalent capability to those listed in the CSR Asset Register.
412.3 The Contractor may replace, upgrade, remove or decommission hardware and
software from time to time comprised in the POCL Service Infrastructure provided
that it continues at all times to comply with its undertaking contained in Clause
412.2.
PART 5 : OWNERSHIP, LICENCES AND RISK
Clause 501. Ownership of Hardware
Ownership of the Hardware shall either vest in POCL upon acceptance thereof or shall
remain in the Contractor (or its licensors), as specified in Schedule B2. However, POCL 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 4
vest in POCL upon acceptance thereof or shall remain in the Contractor (or its licensors), as
specified in Schedule B1. However, POCL shall not acquire title to any Intellectual Property
Rights in the Software, other than Specially Written Software, the Intellectual Property
Rights in which are specified in Schedule B1 as vesting in POCL, the ownership to which
shall vest in POCL upon acceptance thereof.
Clause 503. Ownership of Documentation
Ownership of the media on which such Documentation is supplied by the Contractor shall
vest in POCL. However, POCL shall not acquire title to the Intellectual Property Rights in the
Documentation created by the Contractor. POCL shall retain title to the Intellectual Property
Rights of any POCL-owned material incorporated into Documentation.
Clause 504. Ownership of POCL Data and Intellectual Property Rights in the POCL
Service Architecture
504.1 The Contractor acknowledges that the POCL Data is the property of POCL and POCL
hereby reserves all Intellectual Property Rights which may subsist in the POCL Data.
The Contractor shall not delete or remove any copyright notices contained within or
relating to the POCL Data.
504.2 The Contractor shall preserve the integrity of the POCL Data once the Contractor
has received such POCL Data, shall prevent any corruption or loss of the POCL 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
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not be liable for any loss or corruption of POCL Data nor for any failure to perform
the POCL Services if it can prove that such loss or corruption or failure to perform
the POCL Services was caused by POCL Data which was lost or corrupted before the
Contractor received it, and the Contractor has complied with the validation rules in
relation to such POCL Data.
504.3 In the event that the POCL Data is altered, corrupted or lost in the course of
performing the POCL Services POCL shall have the option, in addition to any other
remedies that may be available to it either under this Codified Agreement or
otherwise, to elect either of the following remedies:
504.3.1 POCL may require the Contractor at its own expense to restore or procure
the restoration of the POCL Data; or
504.3.2 POCL may itself restore or procure restoration of the POCL Data, and shall
be repaid by the Contractor any reasonable expenses so incurred.
504.4 For the purposes of Clauses 504.2 and 504.3, the term “POCL Data” shall include
the data of POCIs clients.
504.5 Ownership of any Intellectual Property Rights in that part of the design of the POCL
Service Architecture (as set out in the Service Architecture Design Document) which
is developed during the performance of the POCL Services shall vest in the
Contractor. Any use by the Contractor of the overall design of the POCL Service
Architecture within the United Kingdom for purposes other than in connection with
this Codified Agreement shall be subject to the prior written agreement of POCL on
reasonable commercial terms (such agreement not to be unreasonably withheld or
delayed).
504.6 POCL Data constitutes Confidential Information, and may not be reproduced
without the prior written consent of POCL except as necessary to perform the POCL
Services.
504.7 The Contractor shall not do anything to prejudice the security of the POCL Services.
Clause 505. Ownership of POCL Consumables
Ownership of any POCL Consumables supplied hereunder shall vest in POCL upon delivery
thereof in accordance with Clause 408.
Clause 506. Licences to use Intellectual Property Rights
506.1 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 POCL pursuant to Clause 502) grants POCL a perpetual, royalty-free,
irrevocable (subject to Clause 506.12) and non-exclusive licence to Use the relevant
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Specially Written Software, to use and copy solely in connection with the Services
the Documentation listed in Part A of Schedule B3 and to use, copy and modify
solely in connection with the Services the Documentation listed in Part B of
Schedule B3.
506.2 [Not Used]
506.3 In consideration of the payment of the relevant Charges the Contractor hereby
grants to POCL a royalty-free, non-exclusive licence to Use the Contractor's
Software. Such licence to Use the Contractor's Software shall, subject fo Clause
506.12, be perpetual and irrevocable. POCLs licence to Use such Contractor’s
Software shall be subject to any additional terms and conditions specified in
Schedule B1 which do not detract from the rights granted to POCL hereunder.
506.4 In respect of Third Party Software supplied hereunder, the Contractor shall in
consideration of the payment of the relevant Charges:
506.4.1 use all reasonable efforts to procure the right to grant to POCL a perpetual,
royalty-free, irrevocable (subject to Clause 506.12) and non-exclusive
sub-licence to Use such Third Party Software, subject to Clause 506.6 and
Clause 506.7, and, by the entering into of this Codified Agreement shall
grant such sub-licence; or
506.4.2 if the Contractor is unable to procure the right to grant the sub-licence
referred to in Clause 506.4.1 the Contractor shall procure, prior to the
commencement of the Operational Trial Period (or in respect of Optional
Products or Additional Products, prior to the provision thereof ), that the
third party grants to POCL a royalty-free and non-exclusive licence to Use
the Third Party Software subject to Clause 506.6 and Clause 506.7, and
shall use all reasonable endeavours to ensure that such licence is perpetual
and (subject to Clause 506.12) irrevocable;
POCLs 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 506.4.1 or any licence granted
under sub-Clause 506.4.2 shall not detract from the rights granted to POCL
hereunder.
506.5 In consideration of the payment of the relevant Charges the Contractor hereby
grants to POCL or shall procure prior to the commencement of any use by POCL
that the relevant Third Party grants to POCL 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 506.12, be
perpetual and irrevocable. On the sale or transfer of an item of Hardware of which
Internal Code is an integral part, 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. POCL shall take all reasonable steps to ensure that the
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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 POCL.
506.6 POCL 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 all reasonable
endeavours to enable POCL to engage a third party to use Internal Software and
Third Party Software) subject to and in accordance with this Codified Agreement on
behalf of POCL provided that such third party shall have entered into a
confidentiality undertaking in accordance with Clause 607.3.2.
506.7 POCL 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 POCL 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].”
506.8 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 POCL, the Contractor, the Third Party Software Owner (if applicable) and
the NCC shall agree. Such escrow agreement shall be entered into within thirty
(30) days of 15 May, 1996.
506.9 The Contractor hereby grants to POCL a perpetual, royalty-free, irrevocable (subject
to Clause 506.12) 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 POCL becomes entitled to obtain
access to the Source Code version of the Deposited Software pursuant to the source
code escrow agreement referred to in Clause 506.8 and the licence shall be subject
to any restrictions contained herein in respect of the object code version of the
Deposited Software.
506.10 Subject to any necessary consents (which the Contractor shall use all reasonable
endeavours to obtain) any licence or sub-licence granted by the Contractor to POCL
hereunder shall be transferable in accordance with the provisions of Clause 604.4.
506.11 Subject to any necessary consents (which the Contractor shall use all reasonable
endeavours to obtain) any rights to Use granted hereunder to POCL are hereby
granted to and are fully exercisable by members of the Post Office Group and End
Users.
506.12 The Contractor may at any time by notice in writing terminate any licence granted
under Clause 506.1, Clause 506.3, Clause 506.4, Clause 506.5, Clause 506.9 or
Clause 903.1.2 if POCL is in Default of its obligations under the relevant Clause in
relation to such licence and POCL shall fail to remedy such Default within thirty
(30) days of written notice to POCL specifying the Default and requiring its remedy,
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provided that if the Default in question is caused by an Agent, such licence shall
only be terminated in relation to Use by such Agent. Upon termination of the
relevant licence to POCL, POCL shall cease to use the 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.
Clause 507. Risk in Products
507.1 Risk in the Products shall remain with the Contractor unless title in any Products
passes to POCL, in which case risk in such Products shall pass to POCL at the same
time as title passes.
507.2 Notwithstanding the provisions of Clause 507.1, each party shall be liable for any
loss of or damage to any Products or part thereof supplied under this Codified
Agreement if such loss or damage is occasioned by the negligence or wilful acts or
omissions of that party.
507.3 The Contractor shall with all possible speed make good any loss or damage affecting
the Core System Products and shall notwithstanding such loss or damage proceed
with and complete the installation of the POCL Service Infrastructure (where
appropriate) and the performance of the POCL Services in accordance with this
Codified Agreement. Subject to Clause 507.2, the Contractor shall pay the costs of
making good such loss or damage.
Clause 508. Damage to Plant, Tackle and Tools
508.1 All plant, tackle and tools at the POCL Premises provided by or on behalf of the
Contractor shall stand at the risk and be in the sole charge of the Contractor.
508.2 The Contractor shall be required to remove all such plant, tackle and tools which it
brings to the POCL Premises.
508.3 The Contractor shall ensure that all such plant, tackle and tools shall meet minimum
safety standards required by law.
Clause 509. Licences for the Contractor to use Intellectual Property Rights
509.1 POCL hereby grants to the Contractor a non-exclusive licence to use any software,
documentation, logos, designs or other material (referred to in this clause as
“material”) which are reasonably required by the Contractor for the purpose of
performing the POCL Services and in which the Intellectual Property Rights vest in
POCL for the term of this Codified Agreement solely for the purposes of performing
the POCL Services and for no other purposes. The Contractor shall be entitled to
copy such material for operational purposes in accordance with the foregoing
licence and in order to make back up copies of such material. Upon termination of
this Codified Agreement or upon the Contractor ceasing to use such material, the
Contractor shall either return or destroy all copies of such material as directed by
POCL. As part of the foregoing licence, the Contractor shall be entitled to copy such
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material provided any POCL copyright markings and security markings are
preserved and adhered to, and subject to the third sentence of Clause 610.3, the
Contractor shall be entitled to incorporate parts of such material into a document
subject to the source of the material being acknowledged in the receiving document.
509.2 Neither the Contractor nor any sub-contractor, nor any other person, shall have a
lien on any Products owned by or leased to POCL 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 POCL and the exclusion of any such lien are brought to the
notice of all sub-contractors and other persons dealing with such Products.
Clause 510. Databases
POCL shall have the right to use the POCL Services and the POCL Service Infrastructure to
capture, develop and use databases containing information in relation to its customers. Any
assistance provided by the Contractor pursuant to this Clause over and above the
performance of its other obligations hereunder shall be treated as an Additional POCL
Service.
Clause 511. Riposte 32 Software
511.1 The Contractor shall ensure that, within seven (7) days after 24th May, 1996, a
copy of the source code of the Riposte 32 Software is provided to the Contractor’s
European Development and Service Centre.
511.2 The Contractor shall within seven (7) days after such copy of the source code is
provided to the Contractor’s European Development and Support Centre provide to
POCL a certificate signed by the Contractor’s Managing Director that this has
occurred, and provide to POCL a copy of the relevant contractual documentation
confirming the Contractor’s right of access to such source code and that the
Contractor has all other rights to such source code necessary for the performance of
its obligations under this Codified Agreement. For the avoidance of doubt, such
supporting documentation shall not include details of the prices paid by the
Contractor to its sub-contractors or licensors.
Clause 512 Transfer of HAPS Disaster Recovery Hardware
512.1 The title in the hardware installed on POCL premises in Leicester in accordance with
the document HAPS Disaster Recovery, shall be transferred to POCL when the HAPS
system is no longer required (as determined by POCL). This hardware will be
transferred to POCL for £1 (one pound).
PART 6 : CONTRACT AND SERVICE MANAGEMENT
Clause 601. Monitoring
POCL shall be entitled to monitor the performance by the Contractor of its obligations under
this Codified Agreement in accordance with the procedures set out in Schedule A4.
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Clause 602. Management Interfaces and Management Services
602.1 The parties shall establish the management interfaces set out in Schedule A4. All
contract management of this Codified Agreement shall be performed in accordance
with the provisions of Schedule A4.
602.2 In relation to the Automated Payments Service, EPOSS, the POCL Infrastructure
Services, the OBCS and the LFS, the POCL Services shall be managed in accordance
with the provisions of Schedules E5, FS G7, H5 and KS respectively. The
Contractor shall provide the Management Services specified in Schedules E5, F5,
G7, H5 and K5. The Contingency Services shall be managed in accordance with the
provisions of Schedules E9, F9, G11, H9 and K9. The Transfer Services shall be
managed in accordance with the provisions of Schedule A7.
Clause 603. Communications
603.1 Except as otherwise expressly provided no communication from one party to the
other shall have any validity under this Codified Agreement unless made in writing
by or on behalf of POCL 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 this Codified Agreement to give or make to another shall be given
or made either by post in a prepaid letter, 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 this Codified
Agreement to have been given or made after two days, for a letter, or four hours, for
facsimile transmission.
603.3 For the purposes of Clause 603.2 above the address of each party shall be:
603.3.1 For POCL:
Post Office Counters Ltd.,
4th Floor,
20-23 Greville Street,
LondonECIN 8Ss.
For the attention of:
Horizon Programme Director
Telephone}
Facsimile {
603.3.2 For the Contractor:
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ICL Pathway Limited
Forest Road,
Feltham,
Middlesex TW13 7EJ.
For the attention of:
Managing Director of ICL Pathway Limited.
Telephone!
Facsimile
603.4 Any party may change its address for service by notice as provided in this Clause
603.
Clause 604. Transfer and Sub-Contracting
604.1 This Codified Agreement is personal to the Contractor. The Contractor shall not
assign, novate, sub-contract or otherwise dispose of this Codified Agreement or any
part thereof without the previous written consent of POCL.
604.2 POCL hereby consents to the Contractor having subcontracted its obligations
specified in Schedule A8 to the respective sub-contractors specified therein.
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 this
Codified 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 POCL Services on the Contractor's behalf as
though such acts or omissions were its own.
604.3 [Not used]
604.4 POCL shall be entitled to assign, novate or otherwise dispose of its rights and
obligations under this Codified 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 other body which performs any of the functions that
previously had been performed by POCL, provided that any such assignment,
novation or other disposal shall not increase the burden of the Contractors
obligations pursuant to this Codified Agreement.
604.5 POCL shall be entitled to disclose, to the extent necessary for the purposes of this
Codified Agreement, to any transferee any Confidential Information of the
Contractor which relates to the performance of the POCL Services by the Contractor.
In such circumstances POCL shall authorise the transferee to use such Confidential
Information only for purposes relating to the performance of the POCL Services and
for no other purposes and, for the avoidance of doubt, the transferee shall be bound
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by the confidentiality undertaking contained herein in relation to such Confidential
Information.
Clause 605. POCL Responsibilities
605.1 Subject to the provisions of Clause 607 POCL undertakes to provide at its own cost
and expense to the Contractor, all information, services, facilities and responses
designated as POCL Responsibilities in Schedules A16, E3, F3, G5, H3 and K3.
POCL shall use all reasonable endeavours to perform such POCL Responsibilities in
a timely fashion in accordance with any agreed timetable specified in Schedule B9
or elsewhere herein.
605.2 Without limitation to Clause 605.1, POCL shall use all reasonable endeavours to
ensure that its Agents co-operate with the Contractor to the extent reasonably
necessary to permit the Contractor to perform the POCL Services. In the event that
any Agent fails to provide such co-operation, and POCL is unable to secure such co-
operation within six (6) months after receiving written notice thereof from the
Contractor, the Contractor shall be relieved of liability for any failure or delay to
perform the POCL Services which is directly caused by the Agent's failure to provide
such co-operation and shall be entitled to any reasonable additional costs and
expenses which the Contractor can show were directly incurred by it as a result of
the Agent’s failure to provide such co-operation.
Clause 606. Time
606.1 Timetable
606.1.1 The Contractor shall use its reasonable endeavours to perform the POCL
Services in accordance with the timetable specified in Schedule B9 and
shall achieve Acceptance of the Core System not later than the Final
Deadline for CSR Acceptance. In the event of failure to meet any target
date in such timetable the Contractor shall provide POCL with a method
statement showing how it intends to recover any lost time. For the
avoidance of doubt time shall not be of the essence in relation to any date
unless notice is served in accordance with Clause 606.4.
606.1.2 Before POCL exercises its option for any Optional POCL Service, and before
POCL and the Contractor agree on the supply of any Additional POCL
Service, POCL and the Contractor shall agree a timetable for the
performance of such POCL Services and such timetable shall be
incorporated into this Codified Agreement in accordance with the Change
Control Procedure.
606.2 Extension of Time
606.2.1 Subject to Clause 606.2.2 and 606.3 below, if Acceptance or Rollout of the
Core System is changed or delayed from the agreed procedure and/or
timetable:
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606.2.1.1 to the extent that such change or delay is caused by the
Default of POCL the Contractor will be entitled to a time
and cost adjustment to compensate for such change or
delay. Except that any such delay to Rollout caused by
the Default of POCL shall be disregarded to the extent
that the aggregate duration of all such delays does not
exceed 42 days. The Contractor shall notify POCL in
writing within three (3) working days of becoming aware
of such Default; and
606.2.1.2 to the extent that compensation is not payable by POCL
under paragraph 606.2.1.1 or liquidated damages are not
payable by the Contractor under Schedule L5, such costs
will lie where they fall.
606.2.2 In the event of any such change or delay as is referred to in paragraph
606.2.1 above, for the purpose of determining and resolving to what extent
each party is at fault (if at all) and the time and cost adjustment applicable
the following procedure will apply:-
606.2.2.1 within seven days of a request by either of them, the
Managing Director of POCL (or any equivalent executive)
and the Commercial Director of ICL shall meet to resolve
these issues. In the event that these issues are not
resolved to the satisfaction of both parties in so meeting
then;
606.2.2.2 within seven days of a request by either of them, the
Chief Executive of the Post Office and the Chief Executive
Officer of ICL shall meet to resolve these issues. In the
event that these issues are not resolved to the satisfaction
of both parties in so meeting then;
606.2.2.3 the Chief Executive of the Post Office and the Chief
Executive Officer of ICL shall together decide how any
remaining dispute should be resolved, whether by
reference to binding expert determination, mediation,
arbitration, or such other means as agreed upon by both
parties.
606.2.3 If the performance of this Codified 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.
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606.3 Force Majeure
606.3.1 For the purposes of this Codified 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 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 in
relation to the POCL 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 this Codified 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 this Codified 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 process. The Contractor shall remain
liable to perform the POCL Contingency Services, save where such POCL
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 POCL Contingency Services.
606.3.3 If the Contractor shall become aware of circumstances 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 POCL within one (1) working day
and shall inform POCL of the period which it is estimated that such failure
or delay shall continue. If POCL 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.
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 this Codified
Agreement which results from any failure or delay in the performance of its
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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 substitute 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, POCL may after consulting with the Contractor and taking into
account the Contractor’s views, terminate this Codified Agreement in
accordance with Clause 902.1.5.
606.4 Time of the Essence
Where POCL after undue delay by the Contractor notifies the Contractor that time is
of the essence of this Codified 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, POCL may terminate this Codified Agreement in accordance
with Clause 902.2.3. In relation to the timescales specified herein, POCL may only
give notice making time of the essence in relation to the Final Deadline for CSR
Acceptance.
606.5 Political Risk
Notwithstanding the provisions of Clause 606.3, a change of, or new, Governmental
Regulation:
606.5.1 shall not entitle POCL to terminate this Codified 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
606.5.2 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 the Change Control
Procedure.
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 POCL, or its servants or agents, is the property of POCL.
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607.2 Each party agrees to keep confidential, and not to disclose to anyone else,
Confidential Information.
Notwithstanding the above, any party may disclose Confidential Information
607.2.1 if and to the extent required by law;
607.2.2 if and to the extent that the other parties have given prior written
I consent to the disclosure;
' 607.2.3 to its professional advisers;
607.2.4 to the extent requested by H.M. Government;
607.2.5 if and to the extent that the Confidential Information is in the
public domain or falls into the public domain without breach of
any applicable confidentiality obligation (including this clause);
607.2.6 to the Post Office;
607.2.7 to Fujitsu;
607.2.8 to the Contractor’s approved sub contractors as listed in Schedule
A8;
607.2.9 potential arrangers of funding for the investment required in
connection with this Codified Agreement;
607.2.10 if and to the extent reasonably necessary to be disclosed for the
purpose of arranging and maintaining funding generally for ICL
plc or the Contractor;
607.2.11 which is in the possession of the receiving party without restriction
in relation to disclosure before the date of receipt from the
disclosing party;
607.2.12 which is received from a third party who lawfully acquired it and
who is under no obligation restricting its disclosure; or
607.2.13 which is independently developed without access to the
Confidential Information.
607.3 The Contractor hereby agrees that (other than as required by law):
607.3.1 the Contractor (and any person employed or engaged by the Contractor in
i connection with this Codified Agreement in the course of such employment
or engagement) shall only use Confidential Information of POCL for the
i purposes of this Codified Agreement;
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607.3.2 the Contractor shall take all necessary precautions to ensure that no
Confidential Information of POCL is used other than for the purposes of
this Codified 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
607.3.3 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 POCL for
the solicitation of business from POCL or from any third party by the
Contractor or by such servant or consultant or by any third party.
607.4 POCL (other than as required by law) 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 POCL pursuant to
Clause 502).
607.5 In the event that Confidential Information is disclosed by any party to its
professional advisers, that party shall procure that its professional advisers comply
with the restrictions contained in this Clause, mutatis mutandis.
607.6 Nothing in this Clause 607 shall prevent the Contractor or POCL from using data-
processing techniques, ideas and know-how gained during the performance of this
Codified 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
POCL or the Contractor of any Intellectual Property Right.
Clause 608. Health and Safety Hazards
608.1 The Contractor shall notify POCL of any health and safety hazards in relation to
POCL Premises owned by or leased to POCL which may arise in connection with the
performance of this Codified Agreement.
608.2 POCL shall notify the Contractor of any known health and safety hazards which may
exist or arise at the POCL Premises owned by or leased to POCL 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 this Codified Agreement at such POCL Premises.
608.3 The Contractor shall inform all persons engaged in the performance of this Codified
Agreement at the POCL Premises owned by or leased to POCL of all such hazards
and shall instruct such persons in connection with any necessary associated safety
measures.
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Clause 609. Protection of Personal Data
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 this Codified Agreement.
Clause 610. Publicity
610.1 No public announcement or public circular (including a media release) relating to
the subject matter of this Codified Agreement will be made unless it has first been
agreed between the parties in writing. This restriction shall not apply to any
announcement intended solely for internal distribution by the party in question or
any disclosure required by any legal, accounting or regulatory requirement.
610.2 Each party 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 Post Office Group
member without POCLs prior written consent. The Contractor shall have no right to
use the brand or logo of any part of POCL without POCEs prior written consent.
The Contractor shall do nothing to injure such logos and brands or the reputation of
POCL and, if it uses such brands or logos, it shall take all reasonable steps to enable
POCL to protect such logos and brands and the reputation of POCL but in no event
less than the steps it would take in relation to its own logos, brands and reputation.
610.4 POCL shall have no right to use the brands or logo of the Contractor or its sub-
contractors without the Contractor's prior written consent. POCL shall do nothing
to injure such logo and brands or the reputation of the Contractor or its sub-
contractors 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 logo 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 POCL reserves the right under this Codified Agreement to refuse to admit to any
premises occupied by or on behalf of any member of the Post Office Group (which
expression shall in this Clause 611 include all persons employed or engaged by the
Post Office Group and all persons other than the Contractor and its sub-contractors
providing services to the Post Office Group), or to any post office any person
employed or engaged by the Contractor, or by a sub-contractor, whose admission
would be, in the reasonable opinion of POCL undesirable.
611.2 If and when directed by POCL, 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 this Codified Agreement to any premises occupied by or on
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behalf any member of the Post Office Group or to any post office, specifying the
capacities in which they are concerned with this Codified Agreement and giving
such other particulars as POCL may reasonably require. The Contractor shall
comply with any reasonable directions issued by the designated representative of
POCL as to which persons may be admitted to such premises and at what times.
611.3 Ifand when directed by POCL, 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 this Codified
Agreement.
611.4 The Contractor's representatives, engaged within the boundaries of a Post Office
Group establishment or post office, 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 or post
office and when outside that establishment or post office.
611.5 The decision of POCL as to whether any person is to be refused admission to any
premises occupied by or on behalf of the Post Office Group or to a post office shall
be final and conclusive.
Clause 612. Waiver
No forbearance or delay by any party in enforcing its rights will prejudice or restrict the
rights of that party, subject to the express timescales set out herein, and no waiver of any
such rights or of any breach of any contractual term will be deemed to be a waiver of any
other right or of any later breach.
Clause 613. Access to POCL Premises
613.1 Any land or POCL Premises (including temporary buildings) made available to the
Contractor by POCL in connection with this Codified Agreement shall be made
available to the Contractor on such terms and conditions as may be agreed between
the Contractor and POCL. The Contractor shall have the use of such land or POCL
Premises as licensee and shall vacate the same upon the termination or expiry of
this Codified Agreement or at such earlier date as POCL may reasonably determine.
613.2 POCL shall be responsible for maintaining the security of such land or POCL
Premises in accordance with its standard security requirements. The Contractor
shall comply with all reasonable security requirements of POCL while on the POCL
Premises, and shall procure that all of its employees, agents and subcontractors
shall likewise comply with such requirements. POCL 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.
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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 A14 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 POCL to
replace such an individual with another individual whose abilities and qualifications are
appropriate for the services to be performed by such individual.
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 this Codified Agreement and
that this Codified Agreement is executed by a duly authorised representative of the
Contractor.
Clause 702. Performance of POCL Services
The Contractor warrants and represents that:
702.1 the POCL Services shall be supplied and rendered by appropriately experienced,
qualified and trained personnel with all due skill, care and diligence;
702.2 the Contractor shall discharge its obligations under this Codified Agreement with all
due 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 POCL Services shall be performed in compliance with all applicable laws,
enactments, orders, regulations, and other similar instruments;
702.4 the POCL Services shall be performed in accordance with all applicable service
levels in this Codified Agreement;
702.5 the POCL Services shall be fully integrated within the POCL Service Architecture
and the POCL Service Infrastructure;
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702.6
702.7 the POCL Services shall be compatible with the POCL Service Environment as at the
date hereof, as set out in Schedule 1;
702.8 the POCL Services shall be performed in such a way as to cause a minimum of
disruption to the business of POCL and the End Users.
Clause 703. Performance of Products
The Contractor warrants and represents that:
703.1
703.2
703.3
703.4
703.5
Clause 704. Intellectual Property Rights
The Contractor warrants and represents that:
the POCL Services shall be performed in accordance with all applicable provisions of
the Service Architecture Design Document;
At the Operational Trial Acceptance Date, the Operational Trial System shall meet
the Operational Trial Criteria and the regulations and standards specified in
Schedule A2;
During the term of this Codified Agreement all components of the POCL Service
Infrastructure shall operate in accordance with their respective specifications, except
that, for the avoidance of doubt, it is agreed that POCL shall have no remedy for
breach of this warranty in relation to errors or interruptions to POCL Services
covered by paragraph 4.1(a) and 4.3 of Schedule A6;
POCL shall acquire title to the Products in which it is to acquire title under Clauses
501, 502 and 503 free from all encumbrances and POCL shall have the right to
quiet possession of such Products supplied hereunder;
the Core System Products will be compatible with the POCL Service Environment as
at the date hereof, as specified in Schedule 1;
all Optional and Additional Products and POCL Consumables shall be compatible
with the POCL Service Infrastructureand the POCL Service Environment.
704.1 POCL's use and operation of the Products and the POCL Service Architecture and
the provision of the POCL 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 506;
704.3 it can comply with Clauses 903.1.3 and 903.1.4.
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Clause 705. Technical Standards
The Contractor warrants and represents that:
705.1 the POCL 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 POCL Services shall operate in accordance
with their technical specifications;
705.2 the provision of the POCL Services shall not cause electrical interference beyond the
limits laid down in the relevant standard specified in Schedule A2, provided that for
the purpose of this Clause 705.2 the POCL Services shall be deemed to include the
operation of any testing and monitoring instruments used in connection with the
provision of the POCL Services.
Clause 706. Statements and Representations
The Contractor warrants and represents that all statements and representations made to
POCL in connection with tendering for and entering into the POCL Agreement and the
Authorities Agreement were, 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 POCL 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 this Codified 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 POCL, any statutory or regulatory
auditors of POCL 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 this Codified 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 POCL or a replacement contractor, as instructed by
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801.3
801.4
801.5
801.6
Clause 802. Service Credits and Delay
802.1
802.2
802.3
802.4
802.5
POCL. The Contractor shall thereafter be released from any further liabilities under
this Clause in relation to such Records.
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 POCL
reserves for itself, any statutory or regulatory auditors of POCL and their respective
authorised agents 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
this Codified Agreement or at any time thereafter.
The Contractor shall provide POCL at no additional cost with copies of the annual
and interim audited accounts of the Contractor and its approved subcontractors
within fourteen (14) days of such accounts having been lodged at Companies House
or its local equivalent to Companies House.
All information obtained by POCL pursuant to this Clause and Schedule A3 shall be
treated as Confidential Information.
The parties shall comply with the provisions of Schedule A3.
It is acknowledged that liquidated damages shall be payable by the Contractor to
POCL under Schedule LS in the circumstances referred to in paragraph 3.3 of
Schedule A11.
In the event that the POCL Services fail to meet the Service Levels contained in
Schedules E8, F8, G10, H8 or K8, the Contractor shall, without prejudice to any
other rights and remedies of POCL at the option of POCL either (i) as an adjustment
to the Charges, credit POCL with Service Credits calculated in accordance with
Schedules B10, E8, F8, G10, H8 and K8 as appropriate, or (ii) pay POCL liquidated
damages calculated in accordance with Schedules B10, E8, F8, G10, H8 and K8 as
appropriate. Unless POCL exercises its option to recover liquidated damages as a
payment to it, POCL shall be deemed to have exercised its option to recover Service
Credits as credit to it. Any such reductions shall be applied in accordance with
paragraph 6 of Schedule A10.
The Contractor shall credit POCL with the Service Credits or pay POCL the
liquidated damages as referred to in Clauses 802.1 or 802.2 within thirty (30) days
of receipt of a valid claim by POCL.
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 POCL and that the figures therein are reasonable.
The liquidated damages and Service Credits specified in this Clause are without
prejudice to any other rights and remedies of POCL, except where they are specified
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in Schedule A6 to be POCL’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 Schedule A6, POCL shall have no right of
termination in relation to any such Default as is referred to in clause 802.2 above.
Clause 803. Additional Resources
In the event that the POCL 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 POCL and without prejudice to POCL'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 POCL.
Clause 804. Recovery of Sums Due
If any sum of money shall be due from the Contractor under this Codified Agreement, the
same may be deducted from any sum then due or which at any time thereafter may become
due to the Contractor under this Codified Agreement. There shall be no other right of set-off
or deduction in respect of sums due to the Contractor under this Codified Agreement.
Clause 805. Intellectual Property Rights Indemnity
805.1 Subject always to POCL's proper observance of its obligations under this Clause, the
Contractor shall indemnify POCL 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
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 or POCL Services by or on behalf of POCL
or in connection with the POCL Services.
805.2 The Contractor shall promptly notify POCL if any claim or demand is made or action
brought against the Contractor to which this Clause applies.
805.3 POCL shall promptly notify the Contractor if any claim or demand is made or action
brought against POCL 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 POCL 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 commercial interests of the
Post Office Group and the public interest) and views of POCL 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 POCL 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 POCL to which Clause 805.1 may apply or any claim or demand
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made or action brought against the Contractor to which Clause 805.2 may apply.
The Contractor shall reimburse POCL 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 POCL 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 Ifaclaim 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 POCL 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 POCL Services, so as to avoid the infringement or
the alleged infringement but without disrupting the performance of the
POCL Services, provided that the terms herein shall apply mutatis mutandis
to such modified or substituted items or services and such modified or
substituted items shall be acceptable to POCL (whether by passing any
form of acceptance testing or otherwise), such acceptance not to be
unreasonably withheld or delayed, and shall reimburse POCL all reasonable
costs directly incurred by them; or
805.6.2 procure a licence to use the Products and POCL Services on terms which
afford to POCL no more extensive rights than those originally applicable
hereunder and which are acceptable to POCL and shall reimburse POCL 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 POCL of the Products or POCL 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 POCL Services directly gives rise to the claim, demand or
action; or
805.7.2 any modification carried out by or on behalf of POCL to any item supplied
by the Contractor under this Codified Agreement if such modification is not
authorised by the Contractor in writing; or
805.7.3 any use by POCL of the Products or POCL Services in a manner not
reasonably to be inferred from the specification or requirements of POCL.
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805.8 If the Contractor has availed itself of its rights to modify the Products or the POCL
Services or to supply substitute products or services pursuant to Clause 805.6.1 (or
POCL 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 POCL 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 a licence in accordance with Clause 805.6.2, Clause 805.1 shall apply.
805.10 POCL 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 POCL shall
not cause the Contractor to infringe any third party's Intellectual Property Rights in
such item. POCL shall, to the extent reasonably possible, assign to the Contractor
any indemnity in its favour in relation to the Intellectual Property Rights in such
third party items.
805.11 The 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 POCL or in connection with the receipt of the POCL
Services.
Clause 806. Remedies Cumulative
Except as otherwise expressly provided in this Codified Agreement, all remedies available to
the Contractor or to POCL for breach of this Codified 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. Dispute Resolution Procedure
Except to the extent that paragraph 6 of Schedule All requires otherwise, in the event of
any disagreement concerning the terms of, or arising under, this Codified Agreement, the
parties shall negotiate in good faith to reach an amicable resolution of the matter in
question, but in default of resolution within a reasonable period either party may apply to
the Courts of England & Wales for the matter to be resolved in accordance with English law.
Clause 808. Injury to Persons; Loss of Property
808.1 Subject always to POCLs proper observance of its obligations under this Clause, the
Contractor shall fully indemnify POCL in respect of any personal injury or loss of or
damage to Property incurred by POCL or its respective employees and authorised
agents to the extent that such personal injury or loss of Property is caused by any
Default of the Contractor, its employees or agents in connection with the
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performance or purported performance of this Codified 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 commercial interests of the Post Office
Group and the public interest) and views of POCL 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. POCL, 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 The Contractor shall be liable for all losses and shall indemnify POCL against all
costs, expenses, losses and damages incurred (including any legal costs) as a result
of:
(a) any unauthorised third party access to the POCL Service Architecture;
(b) any “hacking” into the systems used by the Contractor to provide the POCL
Services (whether or not constituting an offence under the Computer
Misuse Act 1990); or
(c) any other form of fraud (in relation to any of the POCL Services).
809.2 Clause 809.1 shall not apply if and to the extent that any of the matters referred to
therein have been caused by POCEs non-performance of any obligation under this
Codified Agreement upon the performance of which the Contractor's obligations
under this Codified Agreement in respect of risk for fraud are expressed to depend.
The foregoing is in place of the general rule stated in Clause 101.3.
809.3 In any case where POCL 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.
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.
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810.2.1 The aggregate liability for all Defaults resulting in direct loss of or damage
to the Property of any other party under this Codified Agreement shall in
no event exceed:
810.2.1.1 nine million pounds (£9,000,000), in the case of POCL;
and
810.2.1.2 ten million pounds (£10,000,000) per Year in relation to
such Defaults arising during that Year, in the case of the
Contractor.
810.2.2 The aggregate liability per Year under this Codified Agreement of POCL for
all Defaults (other than a Default governed by Clause 810.2.1) arising
during that Year shall in no event exceed four million five hundred
thousand pounds (£4,500,000).
810.2.3 The aggregate liability under this Codified 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 this Codified Agreement or otherwise in relation to
the subject matter of this Codified Agreement, including all claims for
liquidated damages and Service Credits pursuant Clause 802, all claims to
be indemnified pursuant to Clauses 805 or 808 and all other claims or costs
which are compensatable in money or money’s worth.
810.2.5 The financial limits applicable to POCL under Clause 810.2 shall be
exclusive of and additional to any liability of POCL to pay any Charges
(including any adjustment pursuant to Clause 606.2.1.1), the Transfer
Payment or any Termination Charges 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 POCL 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.
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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.
810.6 For the avoidance of doubt, it is acknowledged that nothing in this Codified
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. In applying the Contractor’s common law and
contractual obligations to mitigate (whether for the purpose of calculating the
Termination Payment or otherwise) no regard shall be paid to the manner in which
the Roll Out Payment is stated to be apportioned in the definition of the term “Roll
Out Payment”.
810.7 POCL and the Contractor shall use all reasonable endeavours to resolve outstanding
agreements to agree by 20th December, 1999.
810.8 The Contractor shall not be liable for any failure or delay in performing any of its
obligations under this Codified Agreement where such failure or delay is the direct
consequence of a failure by POCL and the Contractor to resolve any outstanding
agreements to agree for so long as such failure to resolve continues.
810.9 For the avoidance of doubt, the parties agree that POCL shall not be liable to
indemnify or otherwise compensate the Contractor for any additional costs,
expenses, losses or damages incurred directly or indirectly as a result of the failure
by the Contractor and POCL to resolve any outstanding agreements to agree.
810.10 The parties agree that:-
810.10.1 to the extent that amendments were required to the provisions of
the Clauses and Schedules of this Codified Agreement in order to
reflect the matters agreed in the CCNs listed in Schedule A17
those amendments have been made. Subject to sub Clauses
810.10.2 and 810.10.3 below, the said CCNs have accordingly
been superseded by this Codified Agreement to that extent but this
shall be without prejudice to the application of the said CCNs to
matters other than the Clauses and Schedules of this Codified
Agreement (including their application to, or the introduction of,
CCDs and CRDs and/or to any charges or credits specified in the
said CCN which shall be due or which shall become due to be paid
or allowed);
810.10.2 the Second Supplemental Agreement between the parties dated 24
September 1999 (CCN560) has been reflected by amendment to
this Codified Agreement:
810.10.2.1 Clause 5 and Schedule 3 thereof;
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810.10.2.2 Clause 10 thereof;
810.10.2.3 the amendments contained in Schedule 5 thereof as
incorporated by Clause 11 thereof;
810.10.3 save to the extent referred to in Clause 810.10.2 above as having
been reflected in this Codified Agreement the provisions of the
Second Supplemental Agreement (CCN560) and of the Side
Agreement dated 24 September 1999 (CCN561) have not been
reflected by amendment to this Codified Agreement and
accordingly shall remain in effect insofar as applicable;
810.10.4 those CCNs and Change Requests formally submitted on or prior
to 1 July, 1999 and not listed in Schedule A17 are not relevant to
this Codified Agreement and shall forthwith cease to have effect.
810.11 The parties shall identify and prioritise any outstanding CCN’s and/or approve new
CCNs, all as required to cover outstanding agreements to agree and other matters,
in each case relevant to the Core System Release.
810.12 [Not used]
810.13 Notwithstanding any provision in this Codified Agreement, if, in connection with
the performance by POCL of its responsibilities in relation to in-office data
migration as referred to in the Migration Specification, there shall be a breach of the
integrity of, or the introduction of any viruses into, any system or disk through use
by POCL of a laptop computer supplied by the Contractor for use in in-office data
migration then the consequences of such breach or introduction of viruses shall be
as follows:-
810.13.1 POCL shall not be liable to the Contractor therefor and such
breach or introduction of viruses shall not be a Default for the
purposes of this Codified Agreement;
810.13.2 the Contractor shall accordingly not be entitled to any time or cost
adjustment pursuant to Clause 606.2.1.1; and
810.13.3 the Contractor shall not be liable for liquidated damages and this
Codified Agreement shall not be liable to termination, in each case
as a result of any delay or reduction in Service Levels, caused by
such breach or introduction of viruses, which could not reasonably
be avoided or mitigated by the Contractor.
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PART 9 : TERM AND TERMINATION
Clause 901. Term
The term of this Codified Agreement shall, unless terminated earlier in accordance with the
provisions of Clause 902, be for a period commencing on the date hereof and ending on 31st
March, 2005.
Clause 902. Termination of Codified Agreement
902.1 POCL may at any time by notice in writing terminate this Codified 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
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
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902.1.4 any provision hereof other than Clause 902 expressly entitles POCL to
terminate this Codified Agreement; or
902.1.5 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 POCL, such agreement not to be unreasonably
withheld or delayed; or
902.2 POCL may at any time by notice in writing terminate this Codified Agreement with
effect from the date of service of such notice or such later date as may be specified
therein, if the Contractor is in Default of any obligation under this Codified
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 POCL,
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 606.4); 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 POCL may terminate this Codified Agreement in the circumstances referred to in
paragraph 3 of Schedule A11.
902.4 In the event of any termination of this Codified Agreement pursuant to
Clause 902.1, Clause 902.2 or 902.3 POCL shall return the POCL Service
Infrastructure or any part thereof (other than any part in relation to which it has
exercised the option to acquire under Clause 903), in which case the Contractor
shall at no additional cost to POCL, remove such parts of the POCL Service
Infrastructure and shall make good any damage to the POCL Premises occasioned
by such removal.
902.5 POCL 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 POCL 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 POCL 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.
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902.6
902.6.1 POCL may terminate this Codified Agreement by giving the Contractor not
less than twelve (12) months' notice.
902.6.2 [Not used].
902.6.3 In the event of such notice being given, POCL shall on termination hereof
pay to 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, 506, 607, 609, 610, 801, 804, 805, 810,
(other than 810.7 and 810.10) 902, 903 and 904 and the provisions of Schedules
Al, A3, A7 and A12, shall survive the termination of this Codified Agreement by
POCL or the expiry of this Codified Agreement.
Clause 903. Rights on Expiry or Termination of Codified Agreement
903.1 In the event of termination or expiry of this Codified Agreement, POCL shall,
without prejudice to POCL’s other rights and remedies but subject to payment of all
sums due and payable to the Contractor up to the date of termination, have the
option, exercisable at any time within one month after notice of termination, to
acquire from the Contractor or to require the Contractor to permit a replacement
contractor to acquire from it, in consideration of the Transfer Payment, the Project
Assets, which shall comprise:-
903.1.1 any or all of the hardware comprised within the POCL Service
Infrastructure and/or used in connection with the performance of the POCL
Services (other than where such hardware is not owned by the Contractor
or any of its subsidiary companies);
903.1.2 a non-exclusive licence to use for the continuation of services equivalent to
the POCL Services any necessary Intellectual Property Rights which are
owned by the Contractor and used in connection with the performance of
this Codified Agreement. Such licence shall:
903.1.2.1 not be subject to payment other than pursuant to Clause
903.1.6;
903.1.2.2 be perpetual and irrevocable (subject to Clause 506.12);
and
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903.1.2.3 permit use by members of the Post Office Group and End
Users.
903.1.3 the right 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 POCL or to any person as may be designated
for the purpose by POCL 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 POCL
Services as POCL may designate;
903.1.4 a copy of all the Software and all other software, data, tools, utilities,
documentation and any other item necessary to provide the POCL Services.
Such software (other than any in respect of which POCL has exercised its
option under Clause 903.1.2) shall be subject to any applicable licence
terms, provided that such terms shall not detract from POCLs or a
replacement contractor's ability to provide services equivalent to the POCL
Services.
903.1.5 Notwithstanding the generality of Clauses 903.1.1 to Clause 903.1.4 POCL
agrees only to exercise its rights under such Clauses to the extent that the
relevant Project Assets apply to, and are required for the operation of, the
Core System Services.
903.1.6 In the event that POCL exercises any of the options in Clause 903.1, POCL
shall pay to the Contractor on completion of such option a sum equal to the
Transfer Payment.
903.2 In the event that this Codified Agreement is terminated as provided for herein:
903.2.1 [Not used]
903.2.2 the Contractor shall return to POCL all Post Office Group Property in its
possession;
903.2.3 the Contractor shall render all practicable assistance to POCL, if requested,
to the extent necessary to effect an orderly assumption by POCL ora
replacement contractor of the services theretofore performed by the
Contractor under this Codified Agreement and POCL shall reimburse the
Contractor for such assistance at the rates then prevailing for customers of
the Contractor for the same or similar services;
903.2.4 POCL 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 per
cent (75%) of his contracted working time in performing the Contractor's
obligations under this Codified Agreement employment or an agreement
for services with POCL and the Contractor agrees that if such person
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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
903.2.5 (a) as soon as possible following any notice of termination being given
(in the case of an early termination of this Codified Agreement)
and no later than three (3) months prior to the expiry of this
Codified Agreement (in the case of the termination of this Codified
Agreement through the effluxion of time) the Contractor shall at
the request of POCL provide to POCL or to a replacement
contractor nominated by POCL details of the terms of employment
of all Contractor personnel who are then employed in the
performance of the POCL Services as reasonably required by POCL
in order to permit compliance with the Transfer of Undertakings
(Protection of Employment) Regulations 1981 by POCL ora
replacement contractor;
(b) subject always to POCL’s proper observance of their obligations
under Clause 903.2.5(c), the Contractor shall fully indemnify
POCL from and against any and all liabilities which POCL 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
POCL 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 903.2.5(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 903.2.5(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 arise therefrom. POCL, 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.
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903.3 All the assets to be acquired pursuant to the exercise by POCL of its option under
Clause 903.1 shall be acquired “as is”, but free from encumbrances and the parties
agree that all express and implied warranties and conditions relating to such assets
are excluded to the full extent permitted by law.
Clause 904. Transfer Services
In the event of termination of this Codified Agreement , the Contractor shall perform the
Transfer Services as set out in Schedule A7.
PART 10 : MISCELLANEOUS
Clause 1001. Corrupt Gifts and Payments of Commission
1001.1 The Contractor shall neither:
1001.1.1 offer or give or agree to give any person employed by the Post
Office Group (which term shall include all persons employed or
engaged by the Post Office Group and all persons providing
services to the Post Office Group) 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 this Codified Agreement or any other
agreement with the Post Office Group or for showing or forbearing
to show favour or disfavour to any person in relation to this
Codified Agreement; nor
1001.1.2 enter into this Codified Agreement if in connection with it
commission has been paid or agreed to be paid to any person
employed by the Post Office Group by the Contractor or on the
Contractor's behalf or to the Contractor's knowledge, unless before
this Codified 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 POCL.
1001.2 In 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 the Post Office Group, POCL may terminate this Codified
Agreement by notice in writing to the Contractor pursuant to Clause 902.1.4.
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 POCL and
provided always that POCL may recover from the Contractor the amount or value of
any such gift, consideration or commission.
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1001.3 The decision of POCL 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 Codified Agreement); or
1001.3.2 the right of POCL under this Clause 1001 to terminate. the
Codified Agreement; or
1001.3.3 the amount or value of any such gift, consideration or commission.
Clause 1002. _ Discrimination
1002.1 The 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.
1002.2 The 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.
Clause 1003. Export of Products
For the purpose of this Codified Agreement only, POCL confirms that neither the Products
nor their direct product(s) will be exported by POCL unless in accordance with any
appropriate UK Government export licensing controls.
Clause 1004. Guarantee
The Contractor shall procure that ICL Plc shall within thirty (30) days after the date hereof
enter into and maintain a guarantee in the form set out in Schedule A13 and that Fujitsu
Limited shall execute and deliver to POCL a guarantee as required by Clause 1.2 of the Deed
of Guarantee and Indemnity dated 24th May, 1999 between Fujitsu Limited and POCL.
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 POCL Services, including workman’s compensation, public liability, product
liability, property damage and professional indemnity. The Contractor will, if requested in
writing by POCL, produce to POCL a certificate of insurance showing the applicable coverage
currently in force, and will also give POCL 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 Codified Agreement has been executed on behalf of the parties
as follows:-
Signed by
for and on behalf of
POST OFFICE COUNTERS LTD
in the presence of:-
Paul Lam-Po-Tang
Visiting Lawyer
Slaughter and May
35 Basinghall Street
London EC2V SDB
Signed by
for and on behalf of
ICL PATHWAY LIMITED
in the presence of:-
Myles Blewett
Masons
30 Aylesbury Street
London EC1R OER
vevye
S.J. Sweetman
(signed)
R. Christou
(signed)
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