FUJ00234905
FUJ00234905
CONFIDENTIAL
CLAUSES
Version History
1.0 31/08/06 Agreed version as at date of signature of CCN
1200
2.0 24/01/07 Baseline copy of v1.5
3.0 06/07/07 Baseline copy of v2.3
40 14/04/08 Baseline copy of v3.2
5.0 23/02/09 Baseline copy of 4.1
51 13/05/09 Applying changes as per CCN1258
5.2 19/05/09 RPI Increases for 2009
5.3 12/06/09 Applying changes as per CCN1252a
5.4 Moving contents page to front of Clauses
section
6.0 07/07/09 Moving all schedules to v6.0 as agreed with
Fujitsu
6.1 22/12/09 Applying changes as per CCN 1269
6.2 23/12/09 Applying changes as per CCN 1268
6.3 30/03/10 Applying Changes as per CCN 1276a
6.4 01/04/10 Applying changes as per CCN1270 and
CCN1277
6.5 23/04/10 Applying RPI increase for 2010
7.0 10/05/10 Moving all schedules to V7.0 as agreed with
Fujitsu
8.0 21/02/12 Applying changes as agreed in CCN1294d,
CCN1295a, CCN1296, CCN1303 and
CCN1302a
9.0 13/01/14 Applying changes as per
CCN1349,CCN1317,CCN1322b,CCN1343
and CCN1400)
10.0 10/09/15 Applying changes as per CCN1405,
CCN1415, CCN1421a, CCN1426 and as
CLAUSES Version 15.0
Page 1 of 127
CONFIDENTIAL
FUJ00234905
FUJ00234905
subsequently amended in this CCN1506 and
moving all Schedules to V10.0 in accordance
with CCN1506
31/03/16
Applying changes as per CCN 1423c, CCN
1500a, CCN 1512c, CCN1600 and moving all
Schedules to V11.0 in accordance with
CCN1604
03/07/2017
Applying changes as per CCN1601b,
CCN1609d, CCN1610, CCN1614a and
moving all schedules to v12.0
Updating as per CCN1612b, CCN1613a,
CCN1616b, CCN1627a, CCN1630,
CCN1637b, CCN1638, CCN1645, CCN1647
and moving all Schedules to v13.0
14.0
20/12/2021
Updating as per CCN1655a, CCN1623b,
CCN1648b, CCN1649f, CCN1672a,
CCN1674a, CCN1678, CCN1700 and moving
all Schedules to v14.0
22/12/2022
Updating as per CCN1703a, CCN1705b,
CCN1712, CCN1716a, CCN1725a, CCN1732,
CCN1735, CCN1737 CCN1748, CCN1749
CLAUSES Version 15.0
Page 2 of 127
CONFIDENTIAL
Contents
Page
20.
21.
22.
23.
Clause Removed by CCN1648b
Preferred Systems Integrator and Systems Integration Partnership
Governance
Change Control
Development and documentation of HNG-X
Associated Changes
Migration and Implementation
Performance of HNG-X Services prior to HNG-X Date and post HNG-X Date
Infrastructure prior to Trigger Point T5 and post Trigger Point T5
Performance of Services - General
Training
Changes to Services
Documentation
Consumables
Service Standards
Security
Service Levels
Service Level Remedies
Health and Safety Hazards
Policies and Standards
Charges
Payment
Gain Share
CLAUSES Version 15.0
Page 3 of 127
12
12
12
12
13
14
14
14
16
16
18
18
19
21
23
23
24
24
24
24
25
FUJ00234905
FUJ00234905
CONFIDENTIAL
24. Open Book
25. Audit
26. Ownership of Assets
27. Intellectual Property Rights
28. Intellectual Property Rights owned by Fujitsu Services
29. Intellectual Property Rights owned by Post Office
30.
31.
32. Riposte 32 and WebRiposte Software
33. Data
34. Intellectual Property Rights Indemnities
35. Use Of Services and Infrastructure
36. Damage to Physical Property
37. Damage to Plant, Tackle and Tools
38. Access to Post Office Premises
39. Post Office Responsibilities
40. Fujitsu Services' Personnel
41. Fujitsu Services’ Key Personnel
42. Injury to Persons; Loss of Property
43. Liability
44. Limitation of Liability
45. Insurance
46. Term
47. Termination
Licences granted by Fujitsu Services or a Third Party to Post Office
Licences granted by Post Office or a third party to Fujitsu Services
CLAUSES Version 15.0
Page 4 of 127
25
25
28
29
30
31
33
46
49
50
51
59
59
61
61
61
67
67
68
69
76
80
81
82
FUJ00234905
FUJ00234905
CONFIDENTIAL
48.
Expiring Service and termination of Project HNG-X
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64
65.
66.
67.
68.
69.
70.
71.
Rights on termination and expiry of this Agreement, Partial Termination, expiry of an
Additional Resources
Recovery of Sums Due
Authority and Approval
Statements and Representations
Disclaimer of Implied Terms
Waiver
Relationship of Parties
Publicity
Communications & Notices
Transfer and Sub-Contracting
Non-Solicitation
Force Majeure
Confidentiality
Remedies Cumulative
Discrimination
Export
VAT
Guarantee
Interpretation
Amendments to Clauses, Schedules and Annexes of this Agreement and CCDs
Severability
Dispute Resolution Procedure
Law and Jurisdiction
CLAUSES Version 15.0
Page 5 of 127
87
92
93
93
93
93
93
93
94
95
95
96
97
98
102
102
102
102
102
102
105
105
105
105
FUJ00234905
FUJ00234905
CONFIDENTIAL
72. Entire Agreement
73. Revising the Agreement to reflect matters agreed in CCNs
74. NBS CCNs
75. TUPE
CLAUSES Version 15.0
Page 6 of 127
105
106
106
106
FUJ00234905
FUJ00234905
CONFIDENTIAL
Schedule 1
Schedule A1
Schedule A2
Schedule A3
Schedule A4
Schedule AS
Schedule A6
Schedule B1.1
Schedule B1.2
Schedule B1.3
Schedule B2
Schedule B3.1
Schedule B3.2
Schedule B3.3
Schedule B3.4
Schedule B4.1
Schedule B4.2
Schedule B4.3
Schedule B4.4
Schedule BS
Schedule B6.1
Schedule B6.2
Schedule B6.3
Schedule C1
CLAUSES Version 15.0
Page 7 of 127
SCHEDULES
Interpretation
Preferred Systems Integrator
Governance
Change Control
Policies and Standards
Post Office Responsibilities
Clause Removed by CCN1648b
Development Services
Systems Integration Partnership
Branch Hardware Implementation Services
Business Continuity
HNG-X Services
Business Capabilities and Support Facilities
HNG-X Central and Telecommunications Infrastructure
Replaced Branch Infrastructure
Licenses
Clause Removed by CCN1648b
Clause Removed by CCN1648b
Clause Removed by CCN1648b
Clause Removed by CCN1648b
HNG-X Business Requirements
HNG-X Design and Build
HNG-X Acceptance Process
Service Level Principles and Remedies
FUJ00234905
FUJ00234905
CONFIDENTIAL
Schedule C2
Schedule C3
Schedule D1
Schedule D2
Schedule D3
Schedule D4
Schedule DS
Schedule D6
Schedule D7
Schedule D8
Schedule E
Schedule F
Schedule G
CLAUSES Version 15.0
Page 8 of 127
FUJ00234905
FUJ00234905
Sub-contractors
Licences
Charges
Ordering, invoicing and payment
Gain share
Open Book
Audit
Market Testing
Migration Charges
HNG-X and Associated Change Development Charges
Termination and the Exit Plan
Key Objectives of the Towers Model, Fujitsu
Collaboration Requirements and Responsibilities
Fujitsu Support Applications and Specified Third Party
Software
CONFIDENTIAL
THIS AGREEMENT is made the 28th day of July, 1999
BETWEEN:
(1)
(2)
Post Office Ltd whose registered office is situated at 148 Old Street, London EC1V
9HQ (“Post Office”); and
Fujitsu Services Limited whose registered office is at 22 Baker Street, London W1U
3BW ("Fujitsu Services").
RECITALS
WHEREAS:
(A)
(B)
(C)
(D)
(E)
By an agreement dated 24 May 1999 originally entered into between Post Office (then
known as Post Office Counters Ltd) and ICL Pathway Limited and subsequently novated
and amended (the "Codified Agreement"), Fujitsu Services provides certain services to
Post Office;
The Codified Agreement came into effect on 28 July 1999;
On 31 December 2002 the Parties signed CCN1100 which incorporated agreed
changes to and restated the Codified Agreement;
Various changes have been made to the Codified Agreement since 31 December 2002,
pursuant to the Change Control Procedure contained therein;
The Parties have agreed to the extension of the term of, and the making of certain
further changes to, the Codified Agreement with the aim of achieving, inter alia, the
following joint objectives (the “Joint Objectives”):
(a) the introduction of immediate and sustained reductions in certain Post
Office costs;
(b) subject to certain agreed exceptions, the continued provision to the Post
Office of services equivalent in their business outcome to the services
provided immediately prior to the introduction of the changes;
(c) fixed and variable pricing with variable elements based on the use of
particular service components and numbers of Branches, Counter
Positions and Transactions;
(d) continuous endeavour to make further cost savings and improve the
quality of service provision and value for money (“Strive”);
(e) improved joint working practices and the introduction of a new systems
integration relationship involving the pursuit of opportunities for both
Parties to share the benefits of any cost reduction initiatives through a
new Systems Integration Partnership ;
CLAUSES Version 15.0
Page 9 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
(f) the maintenance and enhancement of the customer relationship between
Fujitsu Services and the Post Office so that the Post Office remains as a
key referenceable customer for Fujitsu Services; and
(g) the provision to Post Office of information relating to and/or access to
(H)
(I)
(kK)
new technology, concepts and techniques developed by the Fujitsu
Services Group where such information or access would be relevant to
and capable of application to the Services;
On 31 August, 2006 the Parties signed CCN 1200 which extended the term of the
Codified Agreement and introduced certain further changes; and
This Agreement is the Codified Agreement as amended by CCN 1200, including the
Schedules thereto, the CCDs and CRDs.
On 26 September 2013 the Parties signed CCN 1400 which made certain changes to
the Codified Agreement to reflect Post Office's intention to transition the Services to a
new Towers Model. Under CCN 1400, the Codified Agreement was extended for a
transitional period until 31 March 2017, with certain Services expiring on 31 March 2015
(unless otherwise extended), to enable Post Office sufficient time to complete the
procurement process for transitioning to the Towers Model and to appoint suppliers for
each of the Towers (including Replacement Services).”
On 10 September 2015 the Parties signed CCN1500a which made certain changes to
the Codified Agreement to reflect Post Office's need to extend the Agreement to enable
transition of the Services to a new Towers Model. Under CCN1500a, the Codified
Agreement was extended for a transitional period until 31st March 2018, with certain
Services due to expire on 318! March 2016 and 318 March 2017 (unless otherwise
extended through the Change Control Procedure), to enable Post Office sufficient time
to transition to the Next Suppliers.”
On 22 February 2016 the Parties signed CCN1600 which made certain changes to the
Codified Agreement and the expiration date for the Codified Agreement was extended to
31st March 2023 . The Expiring Services shall expire on 31st March 2016 and 31st March
2017 as set out in the Codified Agreement (unless otherwise extended), with all other
Services (save where terminated early in accordance with the terms of this Agreement)
continuing until 31st March 2023.
On March 9th , the Parties signed CCN1638 in order to make certain changes to the
Codified Agreement in order to implement an updated service delivery framework,
attached hereto as Schedule I.
On 30th April 2021 the Parties signed CCN1700 which made certain changes to the
Codified Agreement and the expiration date for the Codified Agreement was extended to
31st March 2024. The Terminating Services shall cease on 31st March 2023 as set out
in the Codified Agreement (save where terminated early in accordance with the terms of
this Agreement) with all Continuing Services continuing until 31st March 2024 (unless
otherwise extended).
CLAUSES Version 15.0
Page 10 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
(M)
On 31st March 2023 the Parties signed CCN1732 which made certain changes to the
Codified Agreement and the expiration date for the Terminating Services (Data Centre
Operations Service and Central Network Service) was extended by one year to expire
on 31st March 2024 subject to the terms contained in the Codified Agreement
On 3rd November 2023 the Parties signed CCN1749 which further extended the
expiration date for the Terminating Services (Data Centre Operations Service and
Central Network Service) one year to expire on 31st March 2025 subject to the terms
contained in the Codified Agreement.”
NOW THEREFORE IT IS HEREBY AGREED as follows:
24
2.2
2.3
3.1
3.2
PART A: RELATIONSHIP
Clause Removed by CCN1648b
Preferred Systems Integrator and Systems Integration Partnership
It is Post Office's present intention to confer upon Fujitsu Services the role of Preferred
Systems Integrator with a wider scope of operation than the Infrastructure and with the
potential to include all Relevant IT Systems in that scope. The role of the Preferred
Systems Integrator and the manner and timing of its appointment are set out in further
detail in Schedule A1 to this Agreement.
In its role as Preferred Systems Integrator (if appointed) Fujitsu Services shall pursue in
particular those Joint Objectives listed in Recitals (E)(d) and (E)(e).
The Parties shall, with effect from the Amendment Date, establish and operate the SIP in
accordance with the terms of Schedule B1.2.
Governance
The Parties shall, throughout the term of this Agreement, govern their relationship:
3.1.1. in accordance with the provisions of Schedule A2; and
3.1.2 with a view to monitoring, and assisting with the aim of achieving, the Joint
Objectives set out in Recitals E(d) to (g) (inclusive).
Any dispute arising between the Parties in relation to this Agreement shall be resolved in
accordance with Schedule A2.
CLAUSES Version 15.0
Page 11 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
5.1
5.2
5.3
5.4
5.5
Change Control
Save as expressly provided otherwise in any provision of this Agreement, this Agreement
may only be amended in accordance with the Change Control Procedure set out in
Schedule A3.
PART B: SERVICES
Development and documentation of HNG-X
Post Office shall develop the Requirements Baseline for the HNG-X Service Infrastructure
and the Business Capabilities and Support Facilities in accordance with the process for
such development set out in Schedule B6.1. Fujitsu Services shall participate in that
process in the manner described in that Schedule.
Fujitsu Services shall, subject to Clause 10.5, design and develop the HNG-X Service
Infrastructure (other than the Associated Changes) and the Business Capabilities and
Support Facilities:
5.2.1 to comply with the Requirements Baseline (as may be amended pursuant
to Schedule B6.1);
5.2.2 in accordance with the HNG-X Assumptions and the Solution
Architecture; and
5.2.3 in accordance with the provisions of Schedule B6.2 (as supplemented by
the CCDs “Establishing and Assuring the HNG-X User Interface”
(REQ/GEN/PRD/0001) and “Postal Services Business and Operational
Context” (REQ/CUS/BRS/0001)),
and shall use reasonable endeavours to do so in compliance with the HNG-X Programme
Plan (as adjusted in accordance with the provisions of Schedule B6.2).
The Parties shall comply with their respective obligations set out in Schedule B6.3 in
relation to the acceptance of the HNG-X Service Infrastructure and the Business
Capabilities and Support Facilities.
As soon as reasonably practicable following HNG-X Final Acceptance, Schedules B3.2,
B3.3 and B3.4 and all other documents in the Solution Baseline Documentation Set shall
be amended under the Change Control Procedure, to the extent necessary, to be
consistent with the Solution Baseline (together with any rectification plans and
workarounds agreed pursuant to Schedule B6.3).
Until the date on which Schedules B3.2, B3.3 and B3.4 and all other documents in the
Solution Baseline Documentation Set are amended pursuant to Clause 5.4, Fujitsu
Services’ obligations under this Agreement in relation to the HNG-X System shall be
determined by reference to the Solution Baseline (and any subsequent changes to the
HNG-X System agreed pursuant to the Change Control Procedure) rather than those
Schedules and documents.
CLAUSES Version 15.0
Page 12 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL
5.6 Save where the reference to XP is to it as the existing operating system, until such time
as a CCN to introduce a replacement operating system for NT (as envisaged by
paragraph 1.4 of Schedule C3) has been agreed by the Parties, any references to “XP”
in any of the Schedules, CCDs or CRDs, or to “Microsoft”, as the provider of XP, shall
be construed generically to mean a new operating system intended to replace NT and
the provider of that operating system respectively.
6. Associated Changes
6.1 Clause Removed by CCN1648b
6.2 Clause Removed by CCN1648b
7. Migration and Implementation
Removed by CCN1648b
8. Performance of HNG-X Services
8.1 Removed by CCN1648b .
8.2 In respect of each Branch, Fujitsu Services shall perform in respect of that Branch each
of the HNG-X Services as described in Schedule B3.1 over the Infrastructure.
8.3 Clause Removed by CCN1648b
9. Infrastructure
9.1 Removed by CCN1648b .
9.2 The Infrastructure over which the HNG-X Services shall be provided shall be the HNG-X
Service Infrastructure as described in Schedule B3.3.
10. Performance of Services - General
10.1 Fujitsu Services shall:
10.1.1 perform the Development Services in accordance with Schedule B1.1;
10.1.2 perform the Transfer Services in accordance with Schedule E; and
10.1.3 throughout the term of this Agreement, comply with the provisions of Schedule
B2 (Business Continuity).
10.2 Subject to Clause 10.8, Fujitsu Services shall, throughout the term of this Agreement,
provide all HNG-X Services (except any terminated in accordance with Clause 47.10 or
which expire in accordance with Clause 46.3) in accordance with the terms of this
Agreement. Subject to Clause 10.3 and provided the limit on the number of Counter
Positions specified in Part 1 of Annex A to Schedule D1 is not exceeded, where an HNG-
CLAUSES Version 15.0
Page 13 of 127
CONFIDENTIAL
10.3
10.4
10.5
10.6
10.7
10.8
10.9
X Service is to be provided at a Counter Position, it shall be capable of being provided at
such Counter Position.
Where a network connection is required to deliver a Service and such network connection
is unavailable at a Horizon Counter Position (due to characteristics particular to that
Horizon Counter Position) Fujitsu Services shall not be obliged to deliver that Service at
that Horizon Counter Position.
Each Party shall perform each of its obligations set out in the Schedules to this Agreement
and those in the CCDs subject to and in accordance with the provisions of this Agreement,
the Schedules to this Agreement and the CCDs.
Post Office may, by giving Fujitsu Services not less than six months’ notice in writing,
cease to use a POL Service Type. Upon expiry of that notice, the POL Service Type shall
be disabled by Fujitsu Services. Where a notice is given under this Clause in respect of
a POL Service Type listed in Annex 1 to Schedule B3.2 whose development has not been
completed at the date of provision of such notice, all work being undertaken in respect of
such development shall cease as soon as reasonably practicable following receipt of the
notice and the Change Control Procedure shall be used to agree any consequential
changes to this Agreement including, without limitation, the extent to which the HNG-X
Project Price should be lowered to reflect cost savings resulting from the cessation of
such work and the impact on the Requirements Baseline if such development is no longer
to be completed.
The removal by Fujitsu Services of any application code and/or infrastructure relating to
a POL Service Type disabled in accordance with Clause 10.5 shall be dealt with under
the Work Ordering Procedure.
Once a POL Service Type has ceased operation in accordance with Clause 10.5, such
POL Service Type may only be recommenced pursuant to the Change Control Procedure
set out in Schedule A3.
Claused removed by CCN1610
10.8.1 Not used
10.8.2 Not used
10.8.3 Not Used
As part of its strategic platform modernisation programme, Post Office intends to engage
a third party cloud provider to host the HNG-X Application and progressively replace the
components of the HNG-X System. It is acknowledged by the Parties that Post Office is
responsible for implementing its strategic modernisation programme but may request
support from Fujitsu Services by agreement in accordance with the Change Control
Procedure.
10.10 Subject to clause 10.12, in relation to the Payment and Banking Service, Fujitsu Services
shall carry out the activities detailed in Appendix 1 (Migration Plan) of Schedule 16 to
CLAUSES Version 15.0
Page 14 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
support Post Office with the Payment and Banking Pilot and roll-out of the Payment and
Banking Solution to the Post Office branches in accordance with the schedule agreed by
the Parties pursuant to Appendix 1 (Migration Plan) of Schedule I6 or as otherwise agreed
in writing between the Parties. Following successful completion of the Payment and
Banking Pilot, roll-out shall commence. Fujitsu Services shall work with Post Office during
the Early Life Support phase so that the Payment and Banking Service achieves Payment
and Banking Acceptance.
10.11 PCIDSS Certification and Security for the Payment and Banking Service.
10.11.1For the purpose of delivering the Payment and Banking Service only, Fujitsu
10.11.2
Services shall procure that its Subcontractor, Ingenico:
(a) abides by the certification rules of the PCI DSS standard in effect from time
to time;
(b) will obtain and provide a copy to Post Office by 31 January 2021AA of- the
following certifications (the "PCI Certifications”): (i) the PCIl DSS Level 1
Service Provider attestation of compliance for the Payment and Banking
Service only; and (ii) the PCI P2PE Attestation of Validation for the Axis
Managed Payment Service Solution;
(c) keeps the PCI Certifications up-to-date, at its cost, for the remainder of the
term of this Agreement;
(d) provides a copy of its most recent attestation of compliance and attestation
of validation of the PCI Certification on request from Post Office; and
(e) notifies Post Office immediately if at any time during the term of this
Agreement it is not, or suspects it will not, be compliant with the PCI DSS
standard in effect (or any changes due to come into effect).
Should Post Office request that Fujitsu Services' Sub-Contractor, Ingenico,
implements any higher standard than the PCI DSS standards, this will be
completed though the Change Control Procedure.
Within this context, and according to the PC! DSS recommendations, Fujitsu
Services shall procure that its Subcontractor, Ingenico, shall set up and regularly
and thoroughly test the security devices which aim to:
a) protect PBS Data integrity and confidentiality; and
b) ensure that PBS Data is not lost, destroyed, altered or disclosed (without
the proper authorisation) for the agreed retention period of fifteen (15)
months.
CLAUSES Version 15.0
Page 15 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL
Fujitsu Services shall procure that its Subcontractor, Ingenico, shall maintain
security procedures (which may be changed at any time to maintain the
required level of security) to protect the PBS Data in its custody.
10.11.3 Fujitsu Services shall procure that its Subcontractor Ingenico, maintains the
security of Cardholder Data that Ingenico on behalf of Fujitsu Services as the
service provider of the Payment and Banking Services, possesses or otherwise
stores, processes or transmits on behalf of Post Office or to the extent that
Ingenico could otherwise impact the security of the Cardholder Data Environment
(CDE).
10.12 At the 18th January 2021, the World Health Organisation (WHO) has declared a
pandemic in relation to the COVID-19 virus (the “Pandemic”). Due to the Pandemic,
national and local governments in the countries where the Fujitsu Services teams are
based have adopted or may in the future, in relation to the Pandemic or other pandemic
or epidemics declared by the World Health Organisation, adopt restrictive working
practices, including but not limited to:
) mandating that office workers work from home;
) closing certain businesses;
c) reducing capacity in offices;
) implementing social distancing;
) reducing or restricting access to public transport; and/or
‘f) closure or reduced access to schools,
as may be published by relevant governmental authorities from time to time, in each
case to the extent that they are relevant to the delivery of the Payment and Banking
Service and roll-out of the Payment and Banking Solution to the Post Office branches in
accordance with Appendix 1 (Migration Plan) of Schedule I6 (the “Restrictive Working
Practices”).
The Parties acknowledge the possibility that key personnel of Fujitsu Services engaged
in the delivery of the Payment and Banking Service and roll-out of the Payment and
Banking Solution to the Post Office branches in accordance with Appendix 1 (Migration
Plan) of Schedule 16 and may be unable to perform their duties as a result of them or a
member of their household having the COVID-19 virus or any other virus caused as part
of any other virus which is declared to be a pandemic or epidemic by the World Health
Organisation (“Relevant Illness”). The Parties therefore agree that any timelines,
Service Levels or other obligations under this Payment and Banking Service are subject
to the following provisions:
(a) During any period during which Restrictive Working Practices are in place (“the
Relevant Period”), Fujitsu Services will use all reasonable endeavours to
mitigate any adverse impact of any Restrictive Working Practices, or Relevant
Illness, on the Payment and Banking Pilot, roll-out of the Payment and Banking
Solution, Service Levels or any other relevant obligations in relation to the
Payment and Banking Service and will implement specific measures to support
this, including enabling employees to work from home where practical. Fujitsu
CLAUSES Version 15.0
Page 16 of 127
CONFIDENTIAL
st
(c)
(d)
Services will follow any applicable government guidance in relation to the
specific measures that it implements.
Fujitsu Services shall, on a monthly basis (or more frequently where Post Office
deems it necessary to remedy an immediate or ongoing impact to the Payment
and Banking Services) as part of the Payment and Banking Service review
meetings, provide an update on any relevant new Restrictive Working Practices
introduced since the prior project review meeting and an update on any
potential impact of any Restrictive Working Practices, or any Relevant Iliness,
on the delivery of the Payment and Banking Service and roll-out of the Payment
and Banking Solution and, such updates to be recorded in the minutes of those
meetings. Fujitsu Services shall notify Post Office as soon as reasonably
possible and in any event within two (2) Business Days of it becoming aware of
any likely delay in achieving any milestone or trigger date set out in or agreed
pursuant to this Agreement or impact on the Payment and Banking Service
(including without limitation in relation to the Service Level Targets), identifying
in such notice the relevant affected milestone, trigger date or obligation (a
“Notice of Impact”).
Following receipt by Post Office of any Notice of Impact, the Parties will:
(i) urgently convene a meeting to discuss the cause, length and impact on
delivery of the Payment and Banking Pilot, roll-out of the Payment and
Banking Solution and/or on Payment and Banking Service SLTs. Fujitsu
Services shall also detail the mitigation measures it has put in place
and steps taken to try and avoid the impact. These discussions shall all
be recorded in minutes of the meeting taken and issued by Fujitsu
Services (the “Minutes”). Post Office shall have five (5) days to provide
any feedback on the Minutes, which will be reasonably considered by
Fujitsu Services and where necessary updated Minutes will be issued;
and
(ii) urgently discuss in good faith any extensions of relevant timelines for
Payment and Banking Pilot or roll-out or for failing to achieve the
Payment and Banking Service SLTs or relaxation of other obligations
set out in the Notice of Impact, and these shall be agreed in
accordance with the Change Control Procedure.
Fujitsu Services shall not be liable for liquidated damages (payable in
accordance with clause 18 (Service Level Remedies)) for any delay or failure to
meet a Payment and Banking Service Level Target:
(i) for the month in which Fujitsu Services provides a Notice of Impact to
Post Office; and
(ii) where the circumstances outlined in the Notice of Impact continue for a
period that includes more than one (1) calendar month, for the month
following receipt of the Notice of Impact,
CLAUSES Version 15.0
Page 17 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
in each case where such delay or failure is caused by Restrictive Working
Practice(s) or Relevant Iliness that impacts Fujitsu Services or its
Subcontractor, Ingenico, provided that: (a) Fujitsu Services provides the Notice
of Impact to Post Office in accordance with the timescales set out above, (b)
Fujitsu Services has used, and continues to use, all reasonable endeavours to
mitigate the impact of the relevant Restrictive Working Practice(s) or Relevant
Illness, and (c) Fujitsu Services uses commercially reasonable efforts to
continue to provide the Payment and Banking Service and perform its other
obligations under this Agreement without disruption or interruption of the
Payment and Banking Services or degradation in the other Service Level Target
at no additional cost to Post Office.
10.13 Suspension of Payment and Banking Service
10.13.1 Subject to Fujitsu Services’ compliance with Clause 10.13.2, Fujitsu Services may
suspend the delivery of the Payment and Banking Service at any time, without liability to
Post Office, in the following circumstances:
(a) Fujitsu Services legitimately thinks, acting in accordance with Good
Industry Practice, that the Ingenico Software, Ingenico Central Platform and/or
Payment and Banking Solution is at risk of, or is undergoing, a major attack (in
particular, an attack by hackers or a virus);
(b) Post Office, or any of its employees or contractors, engage in suspected
fraudulent or unauthorised use impacting a significant proportion of the Service
and/or Solution; and/or
(c) Fujitsu Services is required to comply with an order, an injunction or a
request from a regulator, a court, the police or any other competent authority.
10.13.2 Fujitsu Services shall: (a) ensure any suspension of the delivery of the Payment
and Banking Service is reasonable and proportionate in the circumstances (in
terms of the risk posed and impact of a suspension, the extent of the Services or
part of the Services suspended and the duration of such suspension); (b) ensure
that Post Office is treated no less favourably than other customers of Ingenico
that are affected by the matter that has given rise to the suspension; (c) use
reasonable endeavours to provide as much advance notice as is reasonably
possible in the circumstances prior to suspension (and Post Office acknowledges
that it may not be possible for any notice to be provided in certain circumstances);
(d) throughout the period of suspension, update Post Office on a regular basis
(with the regularity to be reasonably assessed on the urgency or scale of the
suspension); and (e) use best endeavours to resolve, or provide assistance to
Post Office as required to resolve, the grounds for suspension as soon as
reasonably practicable to the extent that such grounds for suspension relate to a
Fujitsu Services’ systems or scope of responsibility. Where the grounds for
suspension relate to any Post Office or Post Office third party systems or
infrastructure or in the case of Clause 10.13.1(b) then the Parties will work
together in good faith as required to attempt to resolve the grounds for
suspension as soon as reasonably practicable.
CLAUSES Version 15.0
Page 18 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
10.14
10.15
10.16
10.17
Post Office acknowledges that some of the hardware and software Fujitsu Services
utilised to deliver the Services is either at the end of its service life or about to become
end of service life and it is the responsibility of Post Office to procure replacements to
such hardware and software where this is requested by Fujitsu Services in its rolling 12-
month EOSL Roadmap. Where Fujitsu Services identifies a need for such a replacement
in the EOSL Roadmap, Fujitsu Services shall discuss with Post Office at the quarterly
end of service life review whether there are alternatives to replacing the hardware and/or
software, such as procuring uplifted vendor support in respect of the relevant hardware
or software, Post Office shall promptly (and in any event within ten (10) Working Days of
the quarterly end of service life review) choose to either:
(a) as applicable, procure the replacement to, the relevant hardware or software;
(b) subject to clause 10.15, accept the risk of potential degradation of the
Operational Services by either: (i) rejecting such replacement; or (ii) electing
to implement an agreed alternative.
Where a degradation of the Operational Services arises out of an end of service life issue
on the hardware or software which has been identified to Post Office in the EOSL
Roadmap and which Post Office has chosen not to replace or is part of the Refresh
Programme 3 or Refresh Programme 4 but has not yet been refreshed, Fujitsu Services
shall have no liability for such degradation in the Operational Services including if such
issue arises as a result of to the extent that it relates to, limitations in the standard support
that the hardware or software vendor is no longer providing or if such issue arises as a
result of the unavailability of working spare parts required to be replaced in the
Infrastructure. Additionally, where a degradation of the Operational Services arises during
the implementation of any of the projects within either Refresh Programme 3 or Refresh
Programme 4 to replace end of service life hardware or software, Fujitsu Services shall
have no liability for such degradation in the Operational Services.
Where in respect of the Data Centre Operations Services, and pursuant to Clause
10.14(b) the Post Office chooses to accept the risk of potential degradation of the
Operational Services, or seeks to agree a reasonable alternative with Fujitsu Services, if
Fujitsu Services believes the potential degradation will have a material detrimental effect
on the Operational Services that the Post Office should consider further, the Post Office,
upon request by Fujitsu Services, shall make appropriate senior decision makers of the
Post Office available to meet Fujitsu Services and consider such information regarding
the potential degradation and its effect as Fujitsu Services makes available either at that
meeting or in writing.
If, Clause 10.15 above applies at any time or times and a public statement or press article
detrimental to either Party is made related to the degradation of the Terminating Services
(or other Operational Services if caused by the degradation of the Terminating Services),
then on each such occasion, if requested by either Party, the Parties shall reasonably
discuss and, each party acting promptly, shall reasonably agree, a mutually acceptable
public statement that shall be made in respect of the Terminating Services (and/or other
Operational Services if caused by the degradation of the Terminating Services),
downtime, and reasons for the failure of such Services taking account of the need to
protect Fujitsu Service's reputation as the provider of high quality information technology
CLAUSES Version 15.0
Page 19 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
10.18
10.19
12.1
12.2
12.3
services, and Post Office's reputation as a prudent and cost conscious business,
including by making clear that Fujitsu Services is not responsible for such issues or
failures.
The parties agree that Post Office will develop an alternative data audit solution to store
the operational audit trail as recorded by the Audit Support Facility, to replace the current
audit solution in the Data Centres. This avoids the need to refresh the Equipment currently
used for this purpose in the Data Centres. Post Office shall carry out such work as is
necessary to develop an alternative data audit solution in a timely way, and to continue
to progress that work as would be expected by a professional and experienced
organisation carrying out such development, and as result of this Fujitsu Services shall
have no responsibility for the storage of audit support facility data after 28th February
2025 unless otherwise reasonably agreed to extend for a period of a maximum of six
months by the Parties, due to delays outside the control of the Parties.
The Parties acknowledge that the content scanner Equipment used to deliver the
Operational Services becomes end of service life on or before 31st October 2024. A
project to refresh such Equipment (including the associated Charges for this) shall
therefore be agreed through the Change Control Procedure.
Trait
ing
Subject to the limits set out in Part 1 of Annex A to Schedule D1 not being exceeded,
Fujitsu Services shall supply Post Office with the Old CTO Configurations and New CTO
Configurations and install such configurations at locations agreed with Post Office. New
CTO Configurations and the locations where installed shall be deemed to be Counter
Positions and Branches respectively for the purposes of the Operational Charges and the
limits set out in Part 1 of Annex A to Schedule D1.
Fujitsu Services shall supply Post Office, on terms to be agreed between the Parties
under the Change Control Procedure, with such training systems and documents as Post
Office may reasonably require for the purposes of training Post Office employees in the
use of any Services provided under this Agreement.
Changes to Services
Subject to Clause 12.2, Fujitsu Services shall not introduce any product or service into
the Infrastructure, or the Services, nor make any change to the Services or to the
Infrastructure, without Post Office's prior written consent.
Fujitsu Services may issue further Releases of Software in accordance with the CCD
entitled “Pathway Release Policy” (PA/STR/003) from time to time as necessary to
remedy defects in the provision of the Services or for the purpose of maintenance of the
Infrastructure, the Horizon Applications and the Business Capabilities and Support
Facilities.
Removed by CCN1623b
CLAUSES Version 15.0
Page 20 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
12.4 Removed by CCN1623b
13. Documentation
13.1 Fujitsu
Services shall provide to Post Office one electronic copy of the Listed
Documentation, Specially Written Documentation and Developed Documentation at no
additional charge.
13.2 Fujitsu Services shall maintain and keep up to date the Core Document Set.
14. Consumables - Clause removed by CCN1616b
PART C: QUALITY OF SERVICE
15. Service Standards
15.1 Fujitsu Services undertakes that:
15.1.1
15.1.2
15.1.3
15.1.4
15.1.5
15.1.6
the Services, the HNG-X Development and the Associated Change Development
shall comply with, and be provided in accordance with, the policies and standards
specified in Schedule A4 and all components and equipment used in the course
of the provision of the Services shall operate in accordance with their technical
specifications;
neither the provision of the Services nor the operation of any testing and
monitoring instruments used in connection with the Services shall cause electrical
interference beyond the limits laid down in the relevant standard specified in
Schedule A4, save to the extent that any such interference is caused by Rate
Boards;
the Infrastructure, the HNG-X Applications and the Business Capabilities and
Support Facilities shall be provided in accordance with and comply with all
relevant applicable industry standards, as these standards are listed in Schedule
A4.
the Services, the HNG-X Development and the Associated Change Development
shall be supplied and rendered by appropriately experienced, qualified and
trained personnel with all due skill, care and diligence;
Fujitsu Services shall discharge its obligations under this Agreement with all due
skill, care and diligence including but not limited to good industry practice and
(without limiting the generality of this Clause 15) in accordance with the best of
its own established internal procedures;
the Services, the HNG-X Development and the Associated Change Development
shall be performed in compliance with all applicable laws, enactments, orders,
regulations, and other similar instruments;
CLAUSES Version 15.0
Page 21 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
15.2
16.1
16.2
16.3
15.1.7 the interfaces to all external systems connected to the Infrastructure shall operate
in accordance with the applicable Application Interface Specification and
Technical Interface Specification;
15.1.8 the Services shall be performed in such a way as to cause a minimum of
disruption to the business of Post Office and the End Users;
15.1.9 all components of the Infrastructure shall operate in accordance with their
respective specifications, except that, for the avoidance of doubt, it is agreed that
Post Office shall have no remedy for breach of this undertaking in relation to
errors or interruptions to Services which cause a failure of a Service Level Target
or an Additional Remedy Level; and
15.1.10 Clause removed by CCN1616b
Fujitsu Services warrants that in relation to the reliability, supportability, repair and/or
replacement of Existing Equipment:
15.2.1 Fujitsu Services has made all factual enquiries that it ought reasonably to have
made, including taking into consideration the Transaction volumes set out in the
CCD entitled "Horizon Capacity Management and Business Volumes"
(PA/PER/033) and the effect of the Business Capabilities and Support Facilities
on the use and expected use of the Existing Equipment, as known to Fujitsu
Services at the Amendment Date; and
15.2.2 a fair and accurate summary of, or extracts from, all information relevant to the
reliability, supportability, repair and/or replacement of Existing Equipment
obtained by Fujitsu Services pursuant to such enquiries, together with the related
analysis by Fujitsu Services based upon the factual enquiries referred to in
Clause 15.2.1, have been fairly disclosed to Post Office.
Security
Except in relation to the security of the Post Office Cloud as detailed in Clause 16.7,
Fujitsu Services shall deliver and continue to provide a secure system in respect of all
transactions which, as far as this Agreement requires, eliminates, to the extent possible,
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 Post Office.
Fujitsu Services shall use all reasonable endeavours to maintain the security of the
Services, the HNG-X Development and the Associated Change Development and shall
comply with the security requirements set out in Schedule A4.
Fujitsu Services shall offer all reasonable assistance to Post Office in preventing
fraudulent use of the Services, the HNG-X Development, the Associated Change
Development and the Horizon Service Infrastructure by Post Office's employees and
Agents.
CLAUSES Version 15.0
Page 22 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
16.4
16.5
In the event that the provisions of this Clause 16 or any other provisions of this Agreement
in relation to:
16.4.1 the elimination of the potential for any fraud or unauthorised disclosure of data;
or
16.4.2 provision of significant barriers to attacks from internal conspiracy and collusion
to defraud Post Office; or
16.4.3 prevention of corruption or loss of data; or
16.4.4 the security, accuracy, completeness, authenticity, validity or integrity of any data,
conflict or are inconsistent with the provisions of the CCD entitled "Security Constraints"
(ARC/SEC/ARC/0001), the provisions of that CCD shall prevail.
Notwithstanding any other provision in this Agreement to the contrary:
16.5.1 Fujitsu Services shall not be responsible for the accuracy, completeness, validity
or integrity of any data (including, without limitation, and Personal Data) in relation
to the POL FS Data or the POLSAP Data.
(a) provided by or on behalf of Post Office for loading onto the POL FS
System;
(b) produced by the Infrastructure and held on the POL FS System; or
(c) contained in any Transaction Correction Record delivered by Fujitsu
Services to any Branch,
(together “POL FS Data’);
16.5.2 Fujitsu Services shall not be responsible for extracting POL FS Data from the
POL FS System or dealing with subject information requests under the Data
Protection Act 1998 in relation to POL FS Data; or
16.5.3 Fujitsu Services shall not be responsible for manipulating or processing any POL
FS Data,
save to the extent that:
16.5.4 in relation to 16.5.1, 16.5.2 or 16.5.3 Fujitsu Services provides and is responsible
for the platforms on which POLSAP Data is held as part of the POLSAP Services
such responsibilities including, without limitation, application of access controls;
and
16.5.5 additionally in the case of Clause 16.5.1, the accuracy, completeness, validity and
integrity of POLSAP Data is adversely affected by the POLSAP Software itself.
CLAUSES Version 15.0
Page 23 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
16.6 Notwithstanding any other provision in this Agreement to the contrary, Fujitsu Services
shall not be responsible for:
16.6.1 the accuracy, completeness, validity or integrity of any data (including), without
limitation, any Personal Data):
16.6.1.1 provided by or on behalf of Post Office for loading onto the POL MI
System; or
16.6.1.2 produced by the Infrastructure and held on the POL MI System,
(together “POL MI Data’);
16.6.2 extracting POL MI Data from the POL MI System or dealing with subject
information requests under the Data Protection Act 1998 in relation to POL
MI Data; or
16.6.3 manipulating or processing any POL MI Data,
save to the extent that:
16.6.4 Fujitsu Services provides and is responsible for the platforms on which POL
MI Data is held as part of the POL MI Services such responsibilities
including, without limitation, application of access controls; and
16.6.5 Additionally in the case of 16.6.1, the accuracy, completeness, validity and
integrity of POL MI Data is adversely affected by the POL MI System itself.
16.7 Post Office shall maintain, and shall procure that the Post Office Cloud Service
Providers maintain, the security of the Post Office Cloud and all Post Office Data hosted
on the Post Office Cloud in a manner consistent with Good Industry Practice.
16.8 Fujitsu Services shall not be responsible for any Losses suffered by Post Office or any
member of the Post Office Group as a result of:
16.8.1 any unauthorised third party access or hacking (whether or not constituting
an offence under the Computer Misuse Act 1990) to the Post Office Cloud or
the Post Office Service Environment (which is gained through the Post Office
Cloud); or
16.8.2 any failure by Post Office to maintain (and/or to procure that its Post Office
Cloud Service Providers maintain) the security of the Post Office Cloud and
the Post Office Data in accordance with Clause 16.7.
16.9 The exclusions in Clause 16.8 shall not apply where such Losses arise as a result of
unauthorised access or hacking (whether or not constituting an offence under the
Computer Misuse Act 1990) to the Post Office Cloud or the Post Office Service
Environment (which is gained through the Post Office Cloud) which is directly caused
by:
CLAUSES Version 15.0
Page 24 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
18.1
18.2
18.3
18.4
16.9.1 Fujitsu Services not complying with its security obligations set out in this
Agreement in respect of the HNG-X Application;
16.9.2 Fujitsu Services not complying with the applicable obligations as an end user
of the Post Office Cloud, as set out in the contract between Post Office and
the Post Office Cloud Service Provider and provided in Paragraph 1.2 of
Schedule C3; or
16.9.3 a breach of Fujitsu Services’ obligations under this Agreement or Applicable
Law caused by Fujitsu Services’ negligence
Service Levels
Subject to Clause 10.14, the HNG-X Services provided by Fujitsu Services pursuant to
this Agreement shall be provided so as to achieve the Service Levels referred to in
Schedule C1.
Service Level Remedies
In the event that the Services fail to meet the Service Levels set out or referred to in
Schedules C1 or 16, Fujitsu Services shall pay Post Office liquidated damages (such
payment to be in the form of credit notes unless Post Office directs otherwise) calculated
or determined in accordance with Schedules C1 or I6 (as applicable) and paid pursuant
to Schedule D2.
Fujitsu Services shall pay Post Office the liquidated damages referred to in Clause 18.1
within 30 days of the date on which Fujitsu Services is due to deliver the Service
Management Report for the period to which the liquidated damages relate and Post Office
Additional Costs within 30 days of the Parties agreeing the amount of the same.
The Parties acknowledge that the liquidated damages referred to in this Clause are a
reasonable and genuine pre-estimate of the loss likely to be suffered by Post Office.
Without prejudice to Clause 47.2, paragraph 7 of Schedule C1:
18.4.1 liquidated damages and/or any other amounts specified in this Agreement
payable by Fujitsu Services in respect of any LDT failure (save to the extent that
LDT failure is also an ARL failure in which case and to such extent Clause 18.4.2
shall apply), whether that LDT failure occurs at, above or below the corresponding
SLT, shall be Post Office's exclusive remedy in respect of any failure of that LDT
and/or SLT; and
18.4.2 Post Office Additional Costs, liquidated damages and/or any other amounts
specified in this Agreement payable by Fujitsu Services in respect of any ARL
failure shall be Post Office's exclusive remedy in respect of that failure.
CLAUSES Version 15.0
Page 25 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
19.
19.1
19.2
19.3
20.
20.1
Health and Safety Hazards
Fujitsu Services shall notify Post Office of any health and safety hazards in relation to
Post Office Premises owned by or leased to Post Office which may arise in connection
with Fujitsu Services’ performance of this Agreement.
Post Office shall notify Fujitsu Services of any known health and safety hazards which
may exist or arise at the Post Office Premises owned by or leased to Post Office and
which may affect Fujitsu Services. Fujitsu Services shall draw these hazards to the
attention of its employees and sub-contractors or any persons engaged by Fujitsu
Services in the performance of this Agreement at such Post Office Premises.
Fujitsu Services shall inform all persons engaged in the performance of this Agreement
at the Post Office Premises owned by or leased to Post Office of all such hazards and
shall instruct such persons in connection with any necessary associated safety measures.
Policies and Standards
Each of the Parties shall comply with the obligations imposed on it by Schedule A4.
The Parties agree that provision of the Payment and Banking Services by Fujitsu Services
does not require Fujitsu Services or its Sub-Contractor, Ingenico, to be authorised by the
Financial Conduct Authority. In the event that, due to changes in law or regulation,
provision of the Payment and Banking Services does require Fujitsu Services or its Sub-
Contractor, Ingenico, to be authorised by the Financial Conduct Authority or any
equivalent successor authority (a “Regulatory Change”), then Fujitsu Services shall notify
Post Office of such Regulatory Change and the Parties shall meet to discuss the
Regulatory Change. Thereafter Fujitsu Services shall be entitled to terminate the
Payment and Banking Services without liability on at least twenty four (24) months’ notice
(or, where the Regulatory Change is to take effect on less than twenty four (24) months’
notice, as much notice as possible prior to the Regulatory Change taking effect), such
notice to continue to be effective notwithstanding the termination or expiry of this
Agreement, any novation of the Ingenico Agreement to Post Office or any approved Post
Office nominee, and Fujitsu Services serving a notice to terminate the Ingenico
Agreement. In the event that Fujitsu Services agrees to continue to provide Payment and
Banking Services under the Agreement after the date that the Regulatory Change comes
into effect, Post Office will be responsible for the costs and expenses of Fujitsu Services
or its Sub-Contractor, Ingenico, implementing the Regulatory Change including, obtaining
and maintaining such authorisation by the Financial Conduct Authority. If, at the time that
the Regulatory Change takes effect, Fujitsu Services or its Sub-Contractor, Ingenico, is
providing services to third parties that also require such authorisation, then Post Office
shall only be responsible for a proportion of the costs of obtaining and maintaining such
authorisation pro-rated to the number of third parties receiving such services from Fujitsu
Services or its Sub-Contractor, Ingenico
CLAUSES Version 15.0
Page 26 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
PART D: REWARD
21 Charges
21.1 Post Office shall pay to Fujitsu Services the Charges set out in Schedules D1, D7 and D8
21.2
21.3
22.
22.1
22.2
23.
24.
24A
and any other charges provided for in this Agreement or agreed under a Work Order.
Clause removed by CCN1616b
Except as otherwise expressly agreed in this Agreement, or as generally provided for
under the Change Control Procedure or in Work Orders, no other amounts shall be
payable by Post Office to Fujitsu Services in consideration of the Services to be provided
by Fujitsu Services under this Agreement.
Payment
Payment of Charges shall be made in accordance with the terms set out in Schedule D2.
In the event that Fujitsu Services, in accordance with the terms of this Agreement, enters
into a supply contract or a sub-contract in connection with this Agreement, Fujitsu
Services shall ensure that a term is included in the supply contract or sub-contract which
requires Fujitsu Services to pay all sums due thereunder to the relevant supplier or sub-
contractor within a specified period, not to exceed 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).
Gain Share
The provisions of Schedule D3 shall apply.
Open Book
The provisions of Schedule D4 shall apply.
Market Testing
The provisions of Schedule D6 shall apply save that with respect to the provisions of
paragraph 3 of Schedule D6 it shall be limited to the right to benchmark:
a) the on-shore and off-shore Rate Cards but Post Office shall only be entitled to
benchmark these rate cards after 1st April 2020; and
b) where the parties agree to a Gain Share project to transform an element of the
Services and where it is agreed (both parties acting reasonably) that the
transformed element of the Service is then delivered in a more industry standard
way (for example via a Cloud laaS mechanism), that standard element of the
service shall be subject to the right to benchmark provided that such benchmark
shall not apply until 18 months after the transformed element of the Services goes
live.
CLAUSES Version 15.0
Page 27 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
25.
25.1
25.2
25.3
25.4
25.5
25.6
25.7
Audit
Fujitsu Services shall keep or cause to be kept the Records.
Fujitsu Services shall grant or procure the grant to Post Office, any statutory or regulatory
auditors of Post Office and their respective authorised agents the right of reasonable
access to the Records and shall provide all reasonable assistance at all times for six
years after the creation of the relevant Records (except in relation to Records created
delivering the Payment and Banking Service which shall only be available for fifteen (15)
months from creation of the Record) for the purposes of carrying out an audit of Fujitsu
Services' compliance with this 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 of the Agreement, Partial Termination,
expiry of the Agreement or expiry of an Expiring Service, Fujitsu Services shall within a
reasonable time to be agreed by the Parties, transfer the Records to Post Office or a Next
Supplier, as instructed by Post Office. Following settlement of all Charges due and
payable under this Agreement, Fujitsu Services shall be released from any further
liabilities under this Clause 25.2 in relation to such Records.
Without prejudice to the foregoing, in the event of an investigation into suspected
fraudulent activity or other impropriety by Fujitsu Services or any third party, Post Office
reserves for itself, any statutory or regulatory auditors of Post Office and their respective
authorised agents the right of immediate access to the Records described in Clauses 25.1
and 25.2 and Fujitsu Services agrees to render all necessary assistance to the conduct
of such investigation at all times during the currency of this Agreement or at any time
thereafter. To the extent any fraudulent activity or impropriety is found to be attributable
to Post Office as a result of that investigation, Post Office shall take all reasonable
measures to prevent recurrence of its acts or omissions that resulted in such fraudulent
activity or impropriety.
Fujitsu Services shall provide Post Office at no additional cost with copies of the annual
and interim audited accounts of Fujitsu Services and its approved subcontractors within
14 days of such accounts having been lodged at Companies House or the relevant local
equivalent to Companies House.
The Parties shall comply with the provisions of Schedule D5.
All information obtained by Post Office or Post Office's Agents pursuant to this Clause 25
and Schedule D6 shall be treated as Confidential Information.
Notwithstanding the provisions of this Clause 25 and anything else to the contrary in this
Agreement, all access to the audit trail of Transactions held by Fujitsu Services in respect
of Transaction data created on or after the date of commencement of NB Pilot (Soft
Launch) shall be conducted as Audit Record Queries and shall be subject to the limits
and Service Level Targets set out in the information retrieval and audit sections of the
following CCDs, as applicable in accordance with the provisions of Schedule B3.1:
“Service Description for the Security Management Service” (CS/SER/016) and
“Security Management Service: Service Description" (SVM/SDM/SD/0017).
CLAUSES Version 15.0
Page 28 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
25.8
25.9
25.10
In addition to its obligations under Clauses 25.2 and 25.3, Fujitsu Services shall provide
the Court Case Support Services to Post Office in relation to prosecutions and other
disputes (whether civil or criminal) with any third party including but not limited to any
fraud, theft, breach of contract or impropriety (the “Court Case Support Services”). The
Court Case Support Services shall include any matters whether they relate to Horizon,
HNG-X or any other system provided by or on behalf of Fujitsu Services to Post Office,
its agents or its subcontractors (including Post Office Service Integrator and any Tower
Contractor). Fujitsu Services shall provide the Court Case Support Services within the
timeframes required by Post Office or the relevant court or other authority.
Without prejudice to Clause 25.3, the Court Case Support Services shall comprise:
25.9.1 the provision of copy reports;
25.9.2 the provision of data (including transaction data, event logs, helpdesk call logs,
non-polled data and remuneration data) where such data is held by or in the
control of Fujitsu Services;
25.9.3 the compilation of data (including transaction data, event logs, helpdesk call logs,
non-polled data and remuneration data);
25.9.4 the interpretation of data (including transaction data, event logs, helpdesk call
logs, non-polled data and remuneration data);
25.9.5 the provision of technical reports regarding technical aspects of any system
(whether Horizon, HNG-X or otherwise);
25.9.6 live witness evidence at Court if any of the information provided (including without
limitation that provided pursuant to Clauses 25.9.1 to 25.9.5) is challenged to the
extent to which Fujitsu Services provided said information; and
25.9.7 the right of access to Records, including but not limited to information, reports
and data, held by or in the control of Fujitsu Services, and the assistance of
Fujitsu Services’ personnel with appropriate knowledge of the applicable Records
(to the extent any such personnel remain employed or contracted to Fujitsu
Services) for any independent experts and/or legal advisors instructed by Post
Office and/or any other claimant(s) or defendant(s) and the Prosecution in any
mediation, arbitration tribunal, court case or dispute in which Post Office is
involved in relation to the Horizon and HNG-X or any other system provided by
or on behalf of Fujitsu Services to Post Office.
The Parties agree that to the extent Fujitsu Services’ costs for the Court Case Support
Services are not recovered via the Charges relating to the Security Management Service
(for example where additional resource is required), Fujitsu Services shall be entitled to
charge (and Post Office shall pay) additional reasonable and demonstrable costs
provided Fujitsu Services can evidence such costs to Post Office's reasonable
satisfaction and wherever possible agree them in advance with Post Office.
CLAUSES Version 15.0
Page 29 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
25.11
25.12
26.
26.1
26.2
26.3
26.4
26.5
26.6
For the avoidance of doubt, the Parties agree the provision of the Court Case Support
Services may continue after expiry or termination of this Agreement. For the avoidance
of doubt, where assistance is requested by the Post Office and/or Next Supplier of Fujitsu
Services then such assistance shall continue to be chargeable after expiry/termination of
the Agreement.
In addition to its obligations under clauses 25.8 and 25.9, Fujitsu Services may make
suggestions and recommendations to Post Office and request other involvement which
Post Office may (acting reasonably) permit in relation to any claim/ proceedings
associated with the Horizon Application and/or HNG-X Application relating to a time when
Fujitsu Services was supporting and/or providing Services associated with said
application. Where Fujitsu Services elects to do this itself, such involvement shall be at
no additional charge to the Post Office.
PART E: OWNERSHIP OF ASSETS AND INTELLECTUAL PROPERTY RIGHTS.
Ownership of Assets
Infrastructure
26.1.1 Subject to Clause 26.1.2, 26.2 and 48.1, ownership of the Infrastructure shall vest
in Fujitsu Services, save to the extent the Parties agree otherwise in writing.
26.1.2 Clause removed by CCN1616b.
Branch Hardware
With effect from 1% April 2015 title to Branch Hardware previously owned by Fujitsu
Services transferred to the Post Office on the date(s) stipulated in the Asset Transfer
Agreement.
Clause removed by CCN1610.
26.3.1 Not Used
26.3.2 Not Used
Clause removed by CCN1616b
Clause removed by CCN1616b
Post Office Data
Fujitsu Services acknowledges that the Post Office Data is the property of Post Office and
Post Office hereby reserves all Intellectual Property Rights which may subsist in the Post
Office Data.
No Lien
CLAUSES Version 15.0
Page 30 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL
Neither Fujitsu Services nor any sub-contractor, nor any other person, shall have a lien
on any item owned by or leased to Post Office for any sum due to Fujitsu Services, sub-
contractor or other person, and Fujitsu Services shall take all reasonable steps to
ensure that the title of Post Office and the exclusion of any such lien are brought to the
notice of all sub-contractors and other persons dealing with such items.
27. Intellectual Property Rights
27.1 The ownership and, where applicable, licensing of the following Intellectual Property
Rights and the Intellectual Property Rights in the following categories of documentation,
software or other things are set out in Clauses 28 (IPRs owned by Fujitsu Services), 29
(IPRs owned by Post Office), 30 (IPRs licensed by Fujitsu Services or a third party to Post
Office) and 31 (IPRs licensed by Post Office or a third party to Fujitsu Services):
27.1.1 Listed Documentation;
27.1.2 Fujitsu Services Software;
27.1.3 Specially Written Software;
27.1.4 Specially Written Documentation;
27.1.5 Developed Documentation;
27.1.6 Horizon Design Documentation;
27.1.7 Horizon Materials;
27.1.8 Internal Code;
27.1.9 Horizon Third Party Software;
27.1.10 Third Party Items;
27.1.11 Post Office Foreground IPR;
27.1.12 Licensed IPR;
27.1.13 Fujitsu Background IPR;
27.1.14 Post Office Background Materials; and
27.1.15 Deposited Software.
General
27.2 Except as explicitly stated herein, nothing in this Agreement shall transfer ownership of
or grant licences (including rights under patents) of any pre-existing or independently
developed Intellectual Property Rights of either Party.
CLAUSES Version 15.0
Page 31 of 127
CONFIDENTIAL
27.3
27.4
27.5
27.6
27.7
28.
28.1
Where Post Office Foreground IPR or Licensed IPR subsists in software within Fujitsu
Services or its Sub-contractors’ possession or control, Fujitsu Services shall, at the
request of Post Office, provide Post Office with one up-to-date copy (and other copies as
may reasonably be requested) of that software (in both Source Code and object code
formats) and all related engineering, design and test data, configuration files and
programming notes.
In the event that Fujitsu Services, a member of the Fujitsu Services Group or its HNG-X
Sub-contractor, transfers or assigns any Licensed IPR or Fujitsu Background IPR used
for the purposes of performing the Services to any third party, Fujitsu Services shall
ensure that such assignment or transfer is subject to the licences granted hereunder and
shall notify Post Office of such transfer or assignment as soon as reasonably practicable.
Each Party undertakes (at no additional charge) to do all such things and execute all such
documents as may be reasonably required to give full effect to any assignment or licence
made or granted hereunder of, in the case of Fujitsu Services, Post Office Foreground
IPR, Licensed IPR or Fujitsu Background IPR and, in the case of Post Office, Intellectual
Property Rights in Post Office Background Materials.
Fujitsu Services warrants and represents that:
27.6.1 Fujitsu Services has full capacity and authority to grant the licences granted by it
under Clauses 30, 48.8, 48.9 and 48.10; and
27.6.2 Post Office's use of the Infrastructure, Horizon Application, the Business
Capabilities and Support Facilities, and the receipt of the Services in accordance
with the provisions of this Agreement shall not infringe any Intellectual Property
Rights of any third party (other than any infringement that is subject to any
indemnity given by Post Office pursuant to Clause 34.3). For the avoidance of
doubt, this shall not apply to the Post Office's receipt of Microsoft Azure Services
to the extent such services are provided by Microsoft to Post Office pursuant to
the Customer Agreement or to any services provided by any third party in respect
of provision of the Post Office Cloud; and
Post Office warrants and represents that Post Office has full capacity and authority to
grant the licences granted by it under Clause 31
Intellectual Property Rights owned by Fujitsu Services
Subject to express agreement to the contrary in any Work Order or CCN and subject also
to the licences contained in this Agreement:
28.1.1 the Intellectual Property Rights in Fujitsu Developed Documentation, Fujitsu
Services Software, Internal Design Documentation, Listed Documentation
Internal Code and the Ingenico Central Platform, the Payment and Banking
Solution and the Ingenico Software;
CLAUSES Version 15.0
Page 32 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
29.
29.1
29.1a
29.2
28.1.2 the Intellectual Property Rights in all other Horizon Materials (other than Specially
Written Software, Specially Written Documentation and Post Office Developed
Documentation);
28.1.3 Fujitsu Background IPR; and
28.1.4 Licensed IPR,
shall, as between Post Office and Fujitsu Services, be vested on creation in Fujitsu
Services, Fujitsu Services' licensors, HNG-X Sub-contractors or a member of the Fujitsu
Services Group.
Intellectual Property Rights owned by Post Office
Subject to express agreement to the contrary in any Work Order or CCN and subject also
to the licences contained in this Agreement the Intellectual Property Rights in:
29.1.1 Post Office Developed Documentation;
29.1.2 Specially Written Software; and
29.1.3 Specially Written Documentation,
shall be vested in Post Office upon acceptance of the Post Office Developed
Documentation, Specially Written Software or Specially Written Documentation (as
applicable).
All Intellectual Property Rights in the PODG Licensed IPR shall remain vested in Fujitsu
Services. Any Intellectual Property Rights in any modifications made by or on behalf of
Post Office to the PODG Licensed IPR pursuant to the PODG Licence set out at Clause
30.4a below shall be vested, upon creation, in Post Office. For the avoidance of doubt,
the PODG Licensed IPR is provided pursuant to the PODG Licence on an “as-is” basis
without any warranty or condition from Fujitsu Services (whether express pursuant to
this Agreement or otherwise implied), including as to its fitness for any particular
purpose, and the indemnity provided by Fujitsu Services pursuant to Clause 34.1 does
not extend to any modifications to the PODG Licensed IPR made by or on behalf of
Post Office.
Fujitsu Services hereby:
29.2.1 assigns all future copyright and database rights subsisting in; and
29.2.2 agrees to assign (and, in relation to any Post Office Developed Documentation,
Specially Written Software or Specially Written Documentation created by
another member of the Fujitsu Services Group or Sub-contractor, procure the
assignment of) all other Intellectual Property Rights subsisting in,
CLAUSES Version 15.0
Page 33 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
29.3
29.4
29.5
Post Office Developed Documentation, Specially Written Software and Specially Written
Documentation absolutely to Post Office for the full term during which the rights in such
Intellectual Property Rights and any renewals and extensions shall subsist.
Any Intellectual Property Rights created by a Fujitsu Services SIP Team Member, solely
or jointly with any other person in relation to the business or activities of Post Office or
any member of the Royal Mail Group arising out of or in connection with, and during, their
engagement as a member of the SIP Team and in the course of fulfilling their agreed role
within the SIP, shall become the sole property of Post Office (or a member of the Royal
Mail Group, as applicable) and Fujitsu Services shall procure that the Fujitsu Services
SIP Team Member agrees that he has no right to compensation in respect of such
Intellectual Property Rights. Fujitsu Services shall procure that the Fujitsu Services SIP
Team Member shall execute all such documents and do all such things reasonably
required to enable Post Office or any member of the Royal Mail Group (as the case may
be) to obtain registration or other protection in respect of such Intellectual Property Rights
or (if necessary) to vest ownership of such Intellectual Property Rights in Post Office or
any member of the Royal Mail Group.
All Intellectual Property Rights created by Fujitsu Services, any member of the Fujitsu
Services Group or any HNG-X Sub-contractor (or, in relation to any work referred to in
Clause 29.4.2, any Sub-contractor of Fujitsu Services who carries out that work) in
relation to:
29.4.1 all applications and other software developed for Project HNG-X to fulfil the
Functional Requirements, System Capacity and Performance Requirements,
User Interface Requirements, Training Requirements, Design and Architecture
Requirements and Security Requirements (each as referred to in paragraph 4.1
of Schedule B6.1 as such may be developed or modified from time to time),
together with the databases and any background documents and materials
associated with or relating to such applications and software and, in each case,
all subsequent developments and modifications thereto during the term of this
Agreement;
29.4.2 all software, together with any databases, background documents and materials
associated with or relating to such software (in each case, including all
subsequent developments and modifications thereto), which are created to meet
agreed requirements or specifications under a Work Order or CCN entered into
after the Project HNG-X Commencement Date; and
29.4.3 such other software, documents or materials developed for Project HNG-X or any
other work as the Parties may agree in writing from time to time.
(together, "Post Office Foreground IPR") shall vest in Post Office.
Fujitsu Services hereby:
29.5.1 assigns all future copyright and database rights comprised in the Post Office
Foreground IPR; and
CLAUSES Version 15.0
Page 34 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
29.6
29.7
30.
30.1
30.2
29.5.2 agrees to assign (and, in relation to any Post Office Foreground IPR created by
another member of the Fujitsu Services Group or an HNG-X Sub-contractor,
procure the assignment of) all other Post Office Foreground IPR,
absolutely to Post Office for the full term during which the rights and any renewals or
extensions shall subsist.
Fujitsu Services shall procure that its employees, sub-contractors and sub-contractors’
employees shall waive absolutely and irrevocably in favour of Post Office their moral
rights in Post Office Developed Documentation, Specially Written Software, Specially
Written Documentation and/or Post Office Foreground IPR granted under the Copyright
Designs and Patents Act 1988 or equivalent or analogous rights under laws of other
jurisdictions in relation to such property.
Without prejudice to Clause 26.6 and the generality of Clause 27.2, Fujitsu Services
acknowledges and agrees that Post Office or its licensors shall own all Intellectual
Property Rights in Post Office Background Materials.
Licences granted by Fujitsu Services or a Third Party to Post Office
In consideration of the payment of the relevant Charges, Fujitsu Services hereby grants
to Post Office or shall procure that Post Office is granted in respect of each category of
IPR, documentation and software listed in Table 1 in Clause 30.3 a licence which has the
characteristics, affords the rights and is subject to the restrictions designated with ticks in
Table 1 in respect of that category (as such may be supplemented by the rights set out in
Clauses 30.14 and 30.18). In addition, Clauses 48.7 to 48.13 shall apply in the event that
a Terminable Service is terminated pursuant to Clause 47.10.1 or 47.10.2 or this
Agreement expires or is terminated as provided herein (other than by Fujitsu Services
pursuant to Clause 47.4).
For the purposes of Table 1:
30.2.1 "terminable by FS" means Fujitsu Services may at any time, notwithstanding any
provision herein describing the licence as irrevocable, by notice in writing
terminate the licence in question if Post Office is in Default of such licence and
Post Office shall fail to remedy such Default within 30 days of written notice to
Post Office specifying the Default and requiring its remedy, 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 Post
Office, Post Office shall cease to use the software or document which is the
subject matter of such licence and shall either return or destroy all copies of such
software and documentation, as directed by Fujitsu Services;
30.2.2 "FS Limitation One" means the rights granted under the licence in question may
be exercised solely for the purposes of receiving the Services;
30.2.3 "FS Limitation Two" means the right to use granted under the licence in question
may be exercised solely in connection with the Hardware of which the software
forms an integral part;
CLAUSES Version 15.0
Page 35 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
30.2.4
30.2.5
30.2.6
30.2.7
30.2.8
30.2.9
"FS Limitation Three" means the licence in question shall be granted or procured
by Fujitsu Services solely to the extent necessary for Post Office to receive:
(a) the HNG-X Services over the HNG-X Service Infrastructure; or
(b) the benefit of its other rights under this Agreement;
“during the term" means the licence in question is granted during the term of this
Agreement only;
"Third Party Use" means:
(a) in the case of Internal Code, Fujitsu Services shall use all reasonable
endeavours to enable a third party engaged by Post Office to use, and
(b) in the case of Fujitsu Services Software, Post Office shall be entitled to
engage a third party to Use,
the software or documentation which is the subject of the licence, subject to and
in accordance with this Agreement on behalf of Post Office provided that such
third party shall have entered into an appropriate Agreed Form NDA;
“Archival Copies" means Post Office shall be entitled to copy the software which
is the subject of the licence in order to create as many archival or back-up copies.
of the same as are necessary. When copying such software, Post Office 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 [Fujitsu Services] [the Third
Party Software Owner]";
"Transferable" means the licence in question shall be fully transferable and fully
sub-licensable; and
“Any Purpose" means the licence in question is for any purpose whatsoever.
CLAUSES Version 15.0
Page 36 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL,
30.3 Table 1: Licences Granted by Fujitsu Services to Post Office
IPR, software or document Licence characteristics, rights and restrictions
category
2
o °
ao =
E ing o S 215 gi 3
3 Be $s BS Sl si al ele ¢
eo) 2 ele ge g S fle ei sia ¢
ws sI 828i sai; 3le oI 2 2) 8 sc Ss dnd fa 2
SI 218i] 2): 2/3 Oh ba 2 21 gis Cj 5
$I2lsi2 6I2\ 41% 9/2 21381616 & e.éi2
PI Sl ELE El Sleislcizlelclalelaielelelz
&@ 3 5 2 = @€I es € © g @ sicic ce g Fi <
Listed Documentation v viv v viv viv v
Fujitsu Services Software v v v v v v viv
Fujitsu Developed v v v v v
Documentation
Internal Code v viv v viv v viv
Licensed IPR (excluding v v Viv v viv
PODG)
Fujitsu Background IPR viv v viv v
PODG Licensed IPR v v v viv viv v v
CLAUSES Version 15.0
Page 37 of 127
CONFIDENTIAL
30.4
If and to the extent that any Fujitsu Services Software, Listed Documentation or Fujitsu
Developed Documentation necessary for Post Office to receive the HNG-X Services over
the HNG-X Service Infrastructure is included in the licence granted to Post Office
pursuant to this Clause 30 of Fujitsu Background IPR, then no other licence under this
Clause 30 in respect of that Fujitsu Services Software, Listed Documentation or Fujitsu
Developed Documentation shall apply for Post Office to receive the HNG-X Services over
the HNG-X Service Infrastructure.
30.4a Fujitsu Services grants a licence to Post Office to use and/or modify the PODG
Licensed IPR (in accordance with Table 1: “Licences Granted by Fujitsu Services to
Post Office” in Clause 30.3) (‘PODG Licence”) for the sole purpose of recreating PODG
in the pre-production environment of the Post Office Cloud (“the Purpose”). Post Office
will not use the PODG Licensed IPR (nor any modifications made pursuant to the
PODG Licence) in a live environment nor to provide services in place of Post Office
Data Gateway Service delivered to Post Office by Fujitsu Services pursuant to this
Agreement. Post Office shall be entitled to sub-license to Credera Limited (company
number 02387340) (“Credera’) its rights to the PODG Licensed IPR granted by the
PODG Licence ("PODG Sub-licence”), provided that, under the terms of the PODG
Sub-licence:
30.4a.1 Credera shall only be entitled to use and/or modify the PODG Licensed IPR
for the Purpose;
30.4a.2 the PODG Sub-licence shall:
(a) contain provisions consistent with this Clause 30;
(b) be on substantially the same terms as the PODG Licence;
© provide that, without prejudice to any liability Fujitsu Services may have to Post
Office pursuant to this Agreement or at law, ensure that Fujitsu Services shall have
no liability whatsoever to Credera save for that which cannot be excluded by law;
and
(d) contain termination provisions allowing Post Office to terminate such agreement in
the event Credera commits a material breach of the agreement by allowing a third
party (other than Post Office or its Affiliates) to use the PODG Licensed IPR other
than for the Purpose and fails to remedy such breach within a period of 30 days
after being notified in writing to do so by Post Office.
30.4a.3 Post Office shall remain responsible for Credera's compliance with the terms of
the PODG Licence, and all acts and omissions of Credera in relation to Credera's
use of the PODG Licensed IPR, as if such compliance, acts and/or omissions
were Post Office's own.
30.4a.4 Post Office shall provide to Fujitsu Services a copy of the PODG Sub-licence
within five (5) business days of its execution.
CLAUSES Version 15.0
Page 38 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
30.4b
30.5
30.6
30.4b.
30.4b
30.4b.
Fujitsu Services has the right to terminate the PODG Licence by written notice in
the event that any of the following occur:
1 the Parties fail to execute a CCN, by 30th April 2022, which agreesmodifications
to the Services to remove the Post Office Data Gateway Service, the related
Call-Off Services, being PODG Client Connection Service and PODG Client File
Re-Send Service, and the Post Office Data Gateway Support Facility aspects of
the Services and introduce a new CoLo Network Redirect Service;
.2 Post Office's (or Credera’s) use of the PODG Licence extends beyond the
Purpose, or there is any material breach of the terms of the PODG Licence by
Post Office or of the PODG Sub-Licence by Credera; or
3 The IP Licence Fee is not paid in accordance with Clause 30.19.1;
and, in the event that the PODG Licence terminates for whatever reason, any sub-
licensed rights under the PODG Sub-licence shall also terminate.IPR owned by Third
Parties
Post Office acknowledges and agrees that all Intellectual Property Rights in Horizon Third
Party Software and Third Party Items (excluding Intellectual Property Rights in Third Party
Items
in the
required to be assigned to Post Office pursuant to Clause 29) shall remain vested
relevant third party proprietor of those rights.
In consideration of the payment of the relevant Charges:
30.6.1
30.6.2
subject to Clauses 30.11 and 30.12, Fujitsu Services hereby grants or shall grant,
as the case may be, to Post Office a perpetual (subject to Clause 30.6.3), royalty-
free, irrevocable and non-exclusive sub-licence:
(a) to Use Horizon Third Party Software and HNG-X Third Party Software;
and
(b) to use Third Party Items (other than HNG-X Third Party Software);
in each case where Fujitsu Services has procured the rights to grant such sub-
licences; or
subject to Clause 30.11, if Fujitsu Services is unable to procure the right to grant
the sub-licence referred to in Clause 30.6.1, having used all reasonable
endeavours to procure such right, Fujitsu Services shall procure that the relevant
third party grants to Post Office a royalty-free and non-exclusive licence:
(a) to Use Horizon Third Party Software and HNG-X Third Party Software;
and
(b) to use Third Party Items (other than HNG-X Third Party Software),
CLAUSES Version 15.0
Page 39 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
30.7
30.8
30.9
30.10
and shall use all reasonable endeavours to ensure that such licence is perpetual
(subject to Clause 30.6.3) and irrevocable.
30.6.3 Each of the sub-licences and/or licences granted or procured pursuant to this
Clause 30.6 in respect of Horizon Third Party Software shall terminate upon the
later of:
(a) the occurrence of Trigger Point T6 (Counter Application Rollout
Complete); and
(b) the date when the Horizon Third Party Software is no longer used in the
provision or receipt of the Existing Services in accordance with this
Agreement or, in the case only of “Windows NT Workstation” (identified
as Horizon Third Party Software in Schedule B4.1), the date when that
software is no longer used in the provision or receipt of the HNG-X
Services in accordance with this Agreement.
Each of Post Office's sub-licences and licences under Clauses 30.6.1 and 30.6.2
respectively shall be subject to any additional terms and conditions imposed by the
licensor, provided that any terms of any such sub-licence or licence shall not detract from
the rights granted to Post Office hereunder. Without prejudice to the generality of the
foregoing, Post Office accepts the licence terms relating to the Escher Upgrade Software
set out in Schedule B4.1 and that such terms satisfy the requirements of this Clause 30.7.
Fujitsu Services shall use all reasonable endeavours to enable a third party engaged by
Post Office to use Horizon Third Party Software subject to and in accordance with this
Agreement on behalf of Post Office provided that such third party shall have entered into
an appropriate Agreed Form NDA.
Post Office shall be entitled to copy Horizon Third Party Software and HNG-X Third Party
Software in order to create as many archival or back-up copies of the same as are
necessary. When copying such software, Post Office 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 Third Party Software Owner]."
In respect of any Non-standard Third Party Material to be (i) included in or used as part
of the HNG-X Service Infrastructure or the Business Capabilities and Support Facilities,
or (ii) used to provide or receive the HNG-X Services over the HNG-X Service
Infrastructure, Fujitsu Services shall procure such rights for Post Office to use those
materials as are set out in Clause 48.8, such rights only to be granted in accordance with
the provisions of Clause 48.8 (in each case as if references to Fujitsu Background IPR
were to the IPR in the Non-standard Third Party Material). Without prejudice to Post
Office's rights and remedies under this Agreement, in the event that Fujitsu Services
cannot procure such rights, it shall not procure the development or make use of that Non-
standard Third Party Material in connection with this Agreement without the prior written
consent of Post Office and shall, at Post Office's request and at no additional charge to
Post Office:
CLAUSES Version 15.0
Page 40 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
30.11
30.12
30.13
30.10.1 provide Post Office with such information as it may reasonably request in order
to understand and assess the reasons for, and the benefits of, the use of that
Non-standard Third Party Material (including, without limitation, identifying any
alternative software or materials which possess substantially equivalent
functionality, performance and interoperability to that of the Non-standard Third
Party Material and in relation to which the above rights can be obtained with
minimum additional costs or restrictions); and
30.10.2 either jointly approach the third party supplier with Post Office or provide
reasonable assistance to Post Office in its negotiations with such third party, in
each case with a view to obtaining the above rights.
Post Office acknowledges and agrees that Fujitsu Services may be unable and, if so,
shall not be obliged to fulfil its obligations pursuant to Clauses 30.6.1, 30.6.2 or 30.17 (as
the case may be) in respect of an item of Horizon Third Party Software or a Third Party
Item in the event that an act or omission of Post Office gives rise to a right for the
proprietor of the relevant item of Horizon Third Party Software or Third Party Item to:
30.11.1 terminate its licence to Fujitsu Services of the relevant item of Horizon Third Party
Software or Third Party Item;
30.11.2 terminate its licence to Post Office of the relevant Horizon Third Party Software
or Third Party Item; or
30.11.3 require Fujitsu Services to terminate its sub-licence to Post Office of the relevant
Horizon Third Party Software or Third Party Item.
In the event that Post Office is in breach of a sub-licence of an item of Horizon Third Party
Software or a Third Party Item granted pursuant to Clause 30.6.1 and Fujitsu Services
reasonably believes that Post Office's breach will result in the termination of Fujitsu
Services’ right to use such Third Party Item:
30.12.1 Fujitsu Services shall give Post Office notice in writing specifying the breach and
requiring Post Office to remedy that breach within 30 days of receipt of such
notice; and
30.12.2 if Post Office fails to remedy the breach within 30 days of receipt of such notice,
Fujitsu Services may by notice in writing terminate the relevant sub-licence.
In the event that a sub-licence is terminated pursuant to Clauses 30.11 or 30.12.2, Fujitsu
Services shall not be liable for any failure or delay in providing any Service to the extent
that the failure or delay is caused by the cessation of Post Office's right to use the material
or thing the subject of that sub-licence, provided that Fujitsu Services has used its
reasonable endeavours to continue providing the affected Service or Services to the
extent possible and to mitigate the impact of the failure or delay. Fujitsu Services shall
provide such assistance as Post Office may reasonably require in order for Post Office to
assess, and procure the necessary rights to use, suitable replacement materials to those
the subject of the terminated licence.
CLAUSES Version 15.0
Page 41 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL
30.14 Subject to any necessary consents (which Fujitsu Services shall use all reasonable
endeavours to obtain) in relation to Horizon Third Party Software, HNG-X Third Party
Software or other materials or things in which the Intellectual Property Rights are owned
by a third party, any licence or sub-licence granted by Fujitsu Services to Post Office
hereunder:
30.14.1 shall be transferable in accordance with the provisions of Clause 58.3; and
30.14.2 is hereby granted to and are fully exercisable by members of the Royal Mail
Group, End Users and, in respect of HNG-X Third Party Software only, individuals
under contract to the Post Office fulfilling a role ordinarily performed by
employees of the Post Office.
30.15 Use of Internal Design Documentation and Specially Commissioned Design
Documentation
30.15.1 Subject to Clause 30.15.2, Post Office and a third party engaged by Post Office including
but not limited to any bona fide potential Next Suppliers (in particular during any tender,
due diligence or implementation process) where reasonably required (i) to comply with
the Public Contracts Regulations 2006 (in particular without limitation Regulation 4(3))
and (ii) by Post Office for a Design Purpose, shall be entitled to have access to and use
Horizon Design Documentation.
30.15.2 Post Office agrees:
(a) that (irrespective of ownership of the Intellectual Property Rights in Developed
Documentation) it will not use or permit to be used any Horizon Design
Documentation for any purpose other than a Design Purpose;
(b) not to disclose Horizon Design Documentation to any third party save where such
disclosure is required for a Design Purpose and the third party to whom it is
disclosed has (1) entered into such confidentiality commitments as Fujitsu
Services may reasonably request (written confirmation of which shall be provided
by Post Office to Fujitsu Services prior to release of such documentation), and (2)
delivered a written undertaking to Fujitsu Services that it will use such Horizon
Design Documentation solely for the Design Purposes; and
(c) access to and use of any Horizon Design Documentation in accordance with this
Clause 30.15.2 shall not serve to transfer any Intellectual Property Rights in the
documentation or information contained therein to the Post Office or any third
party.
30.15.3 For the purposes of determining ownership of, and any licences granted in respect of,
Intellectual Property Rights in any Specially Commissioned Design Documentation, such
documentation shall be deemed to fall within the definition of Developed Documentation
or Specially Written Documentation, whichever is applicable. Licences granted by Fujitsu
Services under Clause 30.1 in respect such Specially Commissioned Design
Documentation that is deemed to be Fujitsu Developed Documentation shall be subject
to the additional restrictions imposed by Clause 30.15.2.
CLAUSES Version 15.0
Page 42 of 127
CONFIDENTIAL
Deposited Software
30.16
30.17
30.18
Fujitsu Services shall place the Source Code of the Deposited Software in escrow with a
reputable escrow company agreed upon by the Parties (if the Parties are unable to agree
then the escrow company shall be NCC), on the basis of the appropriate standard
agreement or on such other terms as Post Office, Fujitsu Services, the third party licensor
(if applicable) and the escrow company shall agree (each such agreement, a "Source
Code Escrow Agreement") such terms, unless the parties agree and record otherwise in
their Source Code Escrow Agreement, to be consistent with Post Office's rights under
Clauses 48.7 to 48.13.
Without prejudice to the generality of Clauses 48.7 to 48.13, Fujitsu Services hereby
grants to Post Office a perpetual, royalty-free and non-exclusive licence (which shall
(subject to Clause 30.11) be irrevocable) 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 Post Office 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 30.16 and the licence shall be subject to any restrictions contained
herein in respect of the object code version of the Deposited Software.
Miscellaneous Licence Provisions
30.18.1 On the sale or transfer of an item of Hardware of which Internal Code is an integral part,
the 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. Post Office shall
take all reasonable steps to ensure that the purchaser or transferee of the said item of
Hardware agrees to comply with the licence to use the Internal Code that was previously
enjoyed by Post Office.
30.18.2 The licence to use Listed Documentation granted under this Clause 30 does not authorise
any use or disclosure of the Listed Documentation in question which would constitute a
breach of the obligations of confidentiality contained in Clause 61 or any other obligations
of confidentiality which have been accepted by Post Office.
30.18.3 Notwithstanding and without prejudice to 30.11 above and any other relevant provisions
of this Clause 30, in relation to the use of Third Party Items by Accenture as the Next
Supplier of the POLSAP Applications Support Services (which were terminated by
CCN1609d Post Office and Fujitsu Services hereby agree that in consideration of the
payments by Post Office outlined in CCN1609d Fujitsu Services shall enable Post Office
and Accenture as the Next Supplier to continue to be sub-licensed to use until 318t March
2017 the Third Party Item known as Data Archiving for SAP Solutions (as listed in
Schedule G Annex A) after the termination of the POLSAP Applications Support Services
on 4" October at 11.59 pm, as if Fujitsu Services were continuing to supply those services.
Further Post Office will in consideration of the continuity of such usage rights procure
that Accenture complies with the provisions of the Open Text licence until 23:59 on 31%
March 2017 when the Fujitsu Services /OpenText sub-contract will terminate, unless
otherwise agreed in writing between the Parties, and Post Office acknowledges and
accepts that Fujitsu Services will continue to benefit from and/or enforce the waiver, rights
CLAUSES Version 15.0
Page 43 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
30.19
and/or relief contained in Clauses 30.11, 30.12, and 30.13 as if Fujitsu Services were
continuing to supply the POLSAP Applications Support Services on and after the 5'"
October 2016.
Licenses granted by Fujitsu Services
In the event that the term of this Agreement is shortened following a declaration of
ineffectiveness pursuant to Regulation 98(2) of the Public Contracts Regulations 2015 SI
2015/102, then this Clause 30.19 shall lapse and have no effect.
30.19.1 By no later than 31% March 2023 Post Office shall pay to Fujitsu Services an IP Licence
Fee of £10,000,000 in accordance with Clause 30.19.5 unless Clause 30.19.2 applies
and the Termination Licence Fee has already been paid to Fujitsu Services. In
consideration of the payment of the IP Licence Fee by Post Office, Fujitsu Services grants
the licence in Clause 30.19.5.
30.19.2 In the event that termination of the Agreement by either Party takes effect prior to 31%
March 2023, then, on the date that the termination takes effect, Post Office shall pay to
Fujitsu Services the sum calculated in accordance with Clause 30.19.3 (the “Termination
Licence Fee”) in accordance with Clause 30.19.5. For the avoidance of doubt, where
termination of the Agreement takes effect prior to 315 March 2023 and Post Office has
paid Fujitsu Services the Termination Licence Fee pursuant to this Clause 30.19.2, it shall
not be required to make any further payment referred to in Clause 30.19 .1.
30.19.3 The Termination Licence Fee payable by Post Office pursuant to Clause 30.19.2 shall be
determined based on the date the termination of the Agreement takes effect (the
“Agreement Termination Date”) using the table below.
FUJ00234905
FUJ00234905
Agreement Termination Date or (where I Termination Licence Fee
applicable) Termination Early Release Date
(whichever is the earlier)
From 1% April 2020 to 318t March 2021 £17,500,000
From 1st April 2021 to 31st March 2022 £15,000,000
From 1st April 2022 to 30!" March 2023 £12,500,000
30.19.4 in the event that Post Office requires earlier access to the Horizon Software IPR and/or
Horizon IPR Materials (i.e. prior to 318 March 2023) as part of its re-procurement or
replacement of the Services similar to the services provided under this Agreement, Post
Office may raise a Change Request with Fujitsu Services setting out the specific access
it requires including where it requests such access to be extended to third parties.
CLAUSES Version 15.0
Page 44 of 127
CONFIDENTIAL
30.19.5Post Office may request an invoice in respect of the IP Licence Fee by notice at any time
prior to 318t March 2023; failing which, Fujitsu Services shall invoice the IP Licence Fee
on 318! March 2023. Post Office shall pay the sum due to Fujitsu Services pursuant to
Clause 30.19.10r 30.19.2 (as applicable) within 30 days following receipt by Post Office
of an invoice raised in accordance with paragraph 10 of Schedule D2. All sums referred
to above are exclusive of any applicable VAT, which where applicable shall be payable by
Post Office in addition to any sum in respect of which it is calculated.
30.19.5.1 Subject to receipt of payment by Fujitsu Services of the IP Licence Fee
or Termination Licence Fee (as applicable) and with effect from 1% April
2023, Fujitsu Services hereby grants to Post Office (such licence being
effective from and including the Licence Date) a non-exclusive,
perpetual, irrevocable, fully paid-up, worldwide licence under the
Horizon Software IPR, for the purpose of using, copying, modifying,
adapting, advancing and developing the Horizon Software, in both
object code and source code formats (and doing all other acts that
would otherwise amount to an infringement of the Horizon Software
IPR). Post Office shall be entitled to use, support, maintain, enhance,
modify and develop the Horizon Software for Post Office’s and Post
Office's Affiliates’ business purposes only (which shall include, for the
avoidance of doubt but without limitation, the use of the Horizon
Software by or on behalf of British Forces Post Office and use of the
Horizon Software by or behalf of Post Office's franchisees and agents)
(the “Specified Purpose”), provided always that, for the avoidance of
doubt, Post Office and the Post Office Affiliates shall not otherwise
under any circumstances sell or transfer the Horizon Software to third
parties (other than to Post Office Affiliates) or otherwise market or
commercially exploit the Horizon Software by permitting third parties
(other than to Post Office Affiliates) to use the Horizon Software for their
own business purposes. Post Office shall ensure that any using,
copying, modifying, adapting, advancing or developing of the Horizon
Software during the Term shall not affect delivery of the Services by
Fujitsu Services. Fujitsu Services shall not be liable to Post Office for
any failure to perform or delay in performing its obligations under this
Agreement where such failure or delay has been caused by the Post
Office using, copying, modifying, adapting, advancing or developing of
the Horizon Software.
30.19.5.2 Post Office shall be entitled to sub-license its rights in and to the Horizon
Software through multiple tiers of sub-licensee without the prior written consent
of Fujitsu Services, provided that:
(a)
the sub-licensees shall only be entitled to use the Horizon Software for
the Specified Purpose (including the provision of services to Post Office
and Post Office's Affiliates);
the provisions of the agreement under which Post Office sub-licenses its
rights:
are consistent with the provisions of this Clause 30.19;
ii. contain restrictions equivalent to those set out in this Clause
30.19 in relation to the use of the Horizon Software;
CLAUSES Version 15.0
Page 45 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL
iii. without prejudice to any liability Fujitsu Services may have to
Post Office pursuant to this Clause 30.19 or as otherwise under
this Agreement or at law, ensure that Fujitsu Services shall have
no liability whatsoever to any sub-licensee save for that which
cannot be excluded by law; and
iv. contain termination provisions allowing Post Office to terminate
such agreement in the event the sub-licensee commits a material
breach of the agreement by allowing any third party (other than
Post Office or its Affiliates) to use the Horizon Software other than
for the Specified Purpose, and fails to remedy such breach within
a period of 30 days after being notified in writing to do so by Post
Office.
(c) Save as provided in Clause 30.19.5.2. Post Office shall not sub-license
its rights under this Agreement without the prior written consent of Fujitsu
Services.
(d) Except as expressly set out in this Clause 30.19.5.2, and without
prejudice to its right to sub-license, Post Office shall remain responsible
for all acts and omissions of all sub-licensees in relation to their use of
the Horizon Software as if such acts and/or omissions were Post Office's
own.
(e) Post Office shall notify Fujitsu Services annually of the execution of any
such agreements under which Post Office sub-licences its rights under
the Horizon Software IPR, or otherwise on the request of Fujitsu Services
(acting reasonably).
30.19.6 Upon thirty (30) days’ prior written notice from Fujitsu Services, Post Office shall permit
an independent certified or chartered public accounting firm (“Accounting Firm”) of
nationally recognised standing selected by Fujitsu Services and acceptable to Post Office
(acting reasonably), to examine, at Fujitsu Services’ expense, the relevant books and
records of Post Office as may be reasonably necessary to audit Post Office's use of the
Horizon Software to ensure it is being used only for the Specified Purpose. An
examination by Fujitsu Services under this Clause shall occur not more than once in any
calendar year (except where Fujitsu Services has reasonable grounds to suspect that
Post Office is not complying with the provisions of this Agreement of which grounds it
provides evidence to Post Office's satisfaction (acting reasonably), in which case it may
carry out an audit at any time) and shall be limited to the pertinent books and records for
calendar years ending not more than thirty-six (36) months before the date of the request.
The Accounting Firm shall be provided access to such books and records at such
facility(ies) where such books and records are normally kept and such examination shall
be conducted during normal business hours for such facility(ies). The Accounting Firm
may be required to sign a standard non-disclosure agreement before providing the
Accounting Firm access to such facilities or records. Upon completion of the audit, the
Accounting Firm shall provide both Fujitsu Services and Post Office with a written report
CLAUSES Version 15.0
Page 46 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
disclosing whether Post Office's use of the Horizon Software is only for the Specified
Purpose, and, in each case, the specific details concerning any discrepancies. No other
information shall be provided to Fujitsu Services.
30.19.7 Fujitsu Services shall deliver to Post Office, on a date or dates agreed between the
Parties, but in any event (unless agreed otherwise by Post Office) within 60 Working
Days, or such other period as is agreed between the Parties in writing, following receipt
of payment of the IP Licence Fee or Termination Licence Fee (as applicable) an electronic
copy of:
(a) the Horizon Software in use in the delivery of services at the time to Post Office
pursuant to this Agreement (in object and source code formats);
(b) all legacy versions of the Horizon Software (in object and source code formats),
to the extent such versions are in the possession or control of Fujitsu Services or
its Affiliates (Post Office acknowledges that such legacy versions may not have
been maintained by Fujitsu Services); and
(c) any documents or other materials relating to the Horizon Software, which are
necessary to enable Post Office to use (and make such other use as is permitted
under this Agreement of) the Horizon Software and which are in existence at the
date of the expiry or termination of this Agreement,
(together, the “Horizon IPR Materials’).
30.19.8 Fujitsu Services represents and warrants on a continuing basis throughout the term of
this Agreement that:
30.19.8.1 the Horizon Software, taken together with the Fujitsu Support Applications, the
Specified Third Party Software and the software and databases the Intellectual
Property Rights in which are licensed by Post Office to Fujitsu Services pursuant
to this Agreement, comprises all the software and databases used by Fujitsu
Services to provide the HNG-X Applications and to perform the associated
Services in accordance with the terms of this Agreement; and
30.19.8.2 the use by Post Office of the Horizon Software as authorised under this
Agreement, the doing of any other act licensed under this Clause 30.19 and the
granting of any sub-licence of the Horizon Software IPR in accordance with the
terms of this Agreement does not and shall not infringe or otherwise
misappropriate the Intellectual Property Rights or database rights of any third
party.
For the avoidance of doubt all other representations and warranties (other than as set out
in Clause 27.6.1), including as to fitness for purpose and any indication that the
Intellectual Property Rights and/or Horizon Software licensed under this Clause 30.19 will
be sufficient to enable a third party to support the HNG-X Applications and/or to provide
services equivalent to the Services (as such terms are defined in the Agreement), are
expressly excluded by Fujitsu Services.
CLAUSES Version 15.0
Page 47 of 127
CONFIDENTIAL
30.19.9 Fujitsu Services shall indemnify on demand, and keep indemnified, Post Office, its
Affiliates and any sub-licensees from and against all damages, claims, losses, liabilities,
costs and/or expenses (including, without limitation, properly incurred legal expenses and
other advisers’ fees) incurred by Post Office, its Affiliates or any sub-licensees arising out
of and/or in connection with a claim made by a third party alleging that the use of the
Horizon Software, and/or the documents or materials in which the Horizon Software IPR
subsists as provided by Fujitsu Services under this Agreement, or the doing of any other
act licensed under this Clause 30.19 in accordance with this Agreement, infringes or
otherwise misappropriates the Intellectual Property Rights or database rights of a third
party provided that Post Office promptly upon becoming aware of a claim which might
give rise to any liability on Fujitsu Services to indemnify Post Office under this Clause
30.19.9 Post Office will:
30.19.9.1 give written notice of the claim to Fujitsu Services;
30.19.9.2 allow Fujitsu Services to assume the contro! and conduct of the defence and
settlement of the claim;
30.19.9.3 at the expense of Fujitsu Services, give such reasonable assistance as may
reasonably be required by Fujitsu Services in the defence, settlement or
compromise of the claim; and
30.19.9.4 have the right to participate in (but not control) the defence of a claim and to
retain its own counsel in connection with such claim at Post Office's own
expense.
30.19.10 Fujitsu Services shall update Annex 1 of Schedule G and Annex 2 of Schedule G,
detailing the Fujitsu Support Applications and Specified Third Party Software
respectively, upon each major release of the Software.
30.19.11 Notwithstanding any other provision of this Agreement no confidentiality obligation shall
restrict Post Office's ability to disclose confidential information to the extent necessary
or useful for it to exercise its rights under this this Clause 30.19.
30.19.12 Fujitsu Services shall at the request of Post Office do or procure the doing of all such
further acts and execute or procure the execution (as a deed or otherwise) of all such
documents as may from time to time be necessary in Post Office's opinion (acting
reasonably) to give full effect to this Clause 30.19 and to vest in Post Office the full
benefit of the rights and benefits to be provided to Post Office under this Clause 30.19.
30.19.13 Fujitsu Services shall, within twelve months following execution of CCN 1600 work with
Post Office to provide reasonable written descriptions of the Fujitsu Support Applications
and the Specified Third Party Software, including by reference to the specific elements
of the Services that they relate to and in such detail to enable Post Office to understand
the purpose of each of the elements of Fujitsu Support Applications and the Specified
Third Party Software it being anticipated by both Parties that this shall comprise not
more than a couple of sentences about each item which defines the spirit of its purpose
(the “Understanding Exercise”). Where requested by Post Office, Fujitsu Services
shall:
CLAUSES Version 15.0
Page 48 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL
30.19.13.1 meet with a reasonably competent IT professional(s) of Post Office and
discuss and document the descriptions of the Fujitsu Support Applications and
the Specified Third Party Software;
30.19.13.2 answer any questions asked by a reasonably competent IT professional(s) of
Post Office (acting reasonably) in relation to the Understanding Exercise and
the outcomes thereof; and
30.19.13.3 make such amendments to the descriptions as reasonably requested by the
reasonably competent IT professional(s) of Post Office, whether following
discussions, answers to questions or otherwise.
Fujitsu Services shall every twelve months provide updated written descriptions that
reflect any updates or changes to the Fujitsu Support Applications and the Specified Third
Party Software (including additions thereto) since the last descriptions were provided to
Post Office and, where requested by Post Office, the process in Clauses 30.19.13.1 to
30.19.13.3 (inclusive) shall be repeated in relation to such updates or changes. Each
Party shall bear its own costs in relation to its obligations under this Clause 30.19.13.
30.19.14 The terms of Schedule H shall apply as set out therein. Notwithstanding
Clause 67.5, In the event of any conflict or inconsistency between the terms
of the Clauses (including this Clause 30) and Schedule H, the provisions of
Schedule H shall take precedence to the extent of such conflict or
inconsistency.
30.20. Right to use the Ingenico Software and the Web Merchant Interface
30.20.1. C3 Software
In consideration of the payment of the relevant Charges for the Payment and Banking
Service, Fujitsu Services hereby grants to Post Office as part of the provision of the
Payment and Banking Service and solely for the purpose of receiving the Payment and
Banking Service during the term of this Agreement (including any agreed Exit Period),
a non-exclusive, non-transferable licence to use the Ingenico Software at the location
where the Pin Pad is installed, only in relation to such Terminal and the associated
Counter Position, subject to the following limitations:
Post Office may only: (i) run and display the Ingenico Software on the PIN Pad and the
Counter Position and permit the use of Ingenico Software for all Transactions and
payments using the Pin Pad; and (ii) make a single backup copy of the Ingenico
Software on any medium (including optical or magnetic media). Post Office undertakes
not to copy, disassemble, translate, adapt, modify or decompile all or part of the
Ingenico Software. The Ingenico Software licence granted to Post Office shall terminate
upon the expiry of this Agreement or in the event of its termination for any reason
whatsoever. The licence granted under this clause 30.20.1 includes the right for Post
Office to authorise its supplier managing or integrating Post Office's infrastructure, to
use the Ingenico Software only as needed in order for Post Office to benefit from the
Payment and Banking Service. No other provisions in this Clause 30 shall apply to the
use of Ingenico Software
CLAUSES Version 15.0
Page 49 of 127
CONFIDENTIAL
30.20.2 Web Merchant Interface
30.21
31.
31.1
31.2
In consideration of the payment of the relevant Charges for the Payment and Banking
Service, Fujitsu Services shall grant to Post Office as part of the provision of the
Payment and Banking Service and solely for the purpose of benefiting from the Banking
and Payment Service during the term hereof (including any Exit Period), a right to
access the Web Merchant Interface to perform supervisory and PBS Transaction flow
statistics operations. The right to use the Web Merchant Interface will end upon the
expiry of this Agreement or in the event of its termination for any reason whatsoever. No
other provisions in this Clause 30 shall apply to the use of Web Merchant Interface.”
In relation to the Intellectual Property Rights pertaining to the Banking Solution Elements
created by Fujitsu Services and derived from Post Office's funding under CWO230
(“Banking IPR”):
30.21.1 All Intellectual Property Rights in the Banking Solution Elements shall vest on
creation on Fujitsu Services or its Subcontractors; and
30.21.2 Fujitsu Services and its Sub-contractors shall be restricted from re-using or
licensing to a third party such Intellectual Property in the United Kingdom for a
period of 12 months from the commencement date of PBS3, Commencement of
Payment and Banking Pilot, provided that no such restriction shall apply if Post
Office terminate this Agreement or the Payment and Banking Service for
convenience in accordance with Clause 47.2 or 47.10.2 (except where the
Fujitsu Services Subcontract agreement with Ingenico for the Payment and
Banking Service is assigned or novated to Post Office where required in
accordance with clause 48.1.2)
Licences granted by Post Office or a third party to Fujitsu Services
Post Office hereby grants to Fujitsu Services or shall procure that Fujitsu Services is
granted in respect of each category of IPR, documentation and software listed in Table 2
in Clause 31.3 a licence which has the characteristics, affords the rights and is subject to
the restrictions designated in Table 2 with ticks in respect of that category.
For the purposes of Table 2:
31.2.1 “during the term" means the licence in question is granted only during the term of
this Agreement and for the purposes of the provision of the Transfer Services
beyond such term;
31.2.2 "merge", in the case of software, means the right to merge with other computer
programs and, in the case of documents means the right to merge with other
documents;
31.2.3 "PO Limitation One" means the rights granted under the licence in question may
be exercised solely for the purposes of providing the Services and/or HNG-X
Development and/or Associated Change Development;
CLAUSES Version 15.0
Page 50 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL
31.2.4
31.2.5
31.2.6
31.2.7
“Other Purposes” means the rights granted under the licence in question may be
exercised for purposes other than those set out in PO Limitation One, subject to
obtaining the prior written consent of Post Office, such consent not to be
unreasonably withheld or delayed;
"Sub-licensable" means the rights granted under the licence in question include
a right to grant sub-licences to sub-contractors of a member of the Fujitsu
Services Group subject to the relevant member of Fujitsu Services Group
imposing obligations of confidentiality on those sub-contractors similar to those
set out in Clause 61. Where the sub-licence only permits use by the sub-
contractor in question for the purpose of providing, or in connection with the
provision of, the Services and/or HNG-X Development and/or Associated Change
Development, no prior consent of Post Office to the sub-licence shall be required
In any other case the prior written consent of Post Office, such consent not to be
unreasonably withheld or delayed, shall be required;
“Extends to FSG" means the licence in question is for each member of the Fujitsu
Services Group; and
"Copy/Incorporate" means Fujitsu Services shall be entitled to copy all material
which is the subject of the licence provided any Post Office copyright markings
and security markings are preserved and adhered to and, subject to Clause 56.4,
Fujitsu Services 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.
CLAUSES Version 15.0
Page 51 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL,
31.3
Table 2: Licences granted by Post Office or third party to Fujitsu Services
IPR, software or document
category
Licence characteristics, rights and restrictions
@
6 [o} 4]
E g S 3 a 5 a
g 2 SI & uw} g@) oo
saga: 2 eal Ela Ge
§I =I 8 23 ®I & 2 2 8I # gé
B22 284 ste & 3b si 2 ss
Bl = a) SI 3 =I 3] 2] &] 8) & 5) 8) 2) Fe
a) 3) =) 2) 8 2) 8] 2) 8) 8 8) 8) 6) a oo
Specially Written Software v viv viviv v v v v v v
Specially Written v v v viv v viviv v v v
Documentation
Post Office Developed v viv viv viviviviviy v
Documentation
Post Office Foreground IPR viviv viviv v viviv v viv
Post Office Background viviv v viv v Viviv v v v
Materials (other than the
software referred to in
paragraph 1.2 of Schedule
B4.1 and/or paragraph 1.2 of
Schedule C3 and/or the Third
Party Data referred to in the
tables in paragraph 1.3 of
Schedule B4.1 and/or
paragraph 1.3 of Schedule C3)
CLAUSES Version 15.0
Page 52 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
31.4
31.5
31.6
31.7
32.
32.1
32.2
Upon the cessation of Fujitsu Services' need to use Post Office Foreground IPR or Post
Office Background Material for the purposes of providing the Services (which, in the case
of the Transfer Services, may be after termination or expiry of this Agreement), Fujitsu
Services shall either return or destroy all copies of such material as directed by Post
Office.
Post Office hereby grants to Fujitsu Services a non-exclusive sub-licence or right, as
specified in paragraph 1.2 of Schedule B4.1 and/or paragraph 1.2 of Schedule C3, to use
the software for the term of this Agreement solely for the purposes of performing the
Services, HNG-X Development, Associated Change Development, operating the HNG-X
Service Infrastructure, running the H-NGX Applications and/or providing the Business
Capabilities and Support Facilities. Such sub-licence or right shall in respect of each item
of software (other than in respect of the term of such sub-licence or right which shall be
for the term of the Agreement unless agreed otherwise by the Parties in writing):
31.5.1 be on the terms;
31.5.2 subject to the restrictions; and
31.5.3 include any additional rights (for example, to operate, copy, modify, or merge the
software with other software),
that are specified or referred to in the tables in paragraph 1.2 of Schedule B4.1 and/or
paragraph 1.2 of Schedule C3 as being applicable to that software. References in this
Clause 31.5 to the term of this Agreement shall, in the case of licences granted under this
Clause for the purposes of performing the Transfer Services, include any period after
termination or expiry of this Agreement during which the Transfer Services are provided.
Post Office hereby grants Fujitsu Services the rights, in respect of the Third Party Data,
specified or referred to in the tables in paragraph 1.3 of Schedule B4.1 and/or paragraph
1.3 of Schedule C3, subject to the restrictions specified or referred to in that table.
Post Office shall, on the written request of Fujitsu Services and subject to the Parties
agreeing fair commercial terms (any licence fee being by way of rebate or otherwise),
grant Fujitsu Services a non-exclusive licence to use and modify the documents,
software, materials, items or other things whatsoever in which the Post Office Foreground
IPRs subsist for purposes other than performing the Services, HNG-X Development and
Associated Change Development.
Riposte 32 and WebRiposte Software
Fujitsu Services has deposited a copy of the source code of the Riposte 32 and
WebRiposte Software at Fujitsu Services' offices in Bracknell and shall retain such source
code at those offices for so long as the Riposte 32 and WebRiposte Software are used
by Fujitsu Services in the performance of the HNG-X Services.
Fujitsu Services has provided to Post Office certificates signed by Fujitsu Services!
Managing Director confirming that the source code of the Riposte 32 and WebRiposte
Software has been deposited at Fujitsu Services' offices in Bracknell as required by
CLAUSES Version 15.0
Page 53 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
32.3
33.
33.1
Clause 32.1, and has provided to Post Office a copy of the relevant contractual
documentation confirming Fujitsu Services' right of access to such source code and
confirming that Fujitsu Services has all other rights to such source code necessary for the
performance of its obligations under this Agreement.
Post Office agrees that upon the Riposte 32 and WebRiposte Software becoming
Deposited Software and the relevant source code being deposited with a reputable
escrow company agreed upon by the Parties in accordance with Clause 30.16, Fujitsu
Services shall no longer be obliged to retain a copy of the source code at its offices in
Bracknell and Fujitsu Services and each officer of Fujitsu Services shall be released from
any liability arising from the certificates referred to in Clause 32.2.
Data
Post Office Data
33.1.1 Fujitsu Services shall not delete or remove any copyright notices contained within
or relating to the Post Office Data.
33.1.2 Where Post Office Data resides in the Data Centres, Fujitsu Services shall
preserve the integrity of the Post Office Data once Fujitsu Services has received
such Post Office Data, shall prevent any corruption or loss of such Post Office
Data and shall comply with the validation procedures set out in the applicable
CCDs (relating to the Horizon Applications or the Business Capabilities and
Support Facilities) referred to in Schedule B3.2 as such procedures may be
updated and amended from time to time. Fujitsu Services shall not be liable for
any loss or corruption of Post Office Data nor for any failure to perform the
Services if it can prove that such loss or corruption or failure to perform the
Services was caused by Post Office Data which was lost or corrupted before
Fujitsu Services received it, and Fujitsu Services has complied with the validation
rules in relation to such Post Office Data. Where Post Office Data resides in the
Post Office Cloud, Fujitsu Services shall not, by act or omission, compromise the
integrity, corrupt or cause loss of the Post Office Data on the HNG-Application.
Where Post Office Data resides in the Post Office Cloud and Post Office Data is
lost or corrupted by the HNG-X Application then an Incident shall be raised and
Fujitsu Services shall carry out a root cause analysis in relation to the Operational
Services at no cost to Post Office which shall be managed in accordance with the
Major Incident Process as described in the CCD Service Management Service:
Service Description (SVM/SDM/SD/0007), and provide the results of such root
cause analysis to Post Office. Post Office shall be responsible for carrying out
recovery procedures for such lost or corrupt Post Office Data and Fujitsu Services
shall provide Post Office with all reasonable cooperation in carrying out such
procedures. Clause 33.1.3 shall not apply where the Post Office Data is corrupted
by the HNG-X Application in the Post Office Cloud.
33.1.3. In the event that the Post Office Data is altered, corrupted or lost in the course of
performing the Services (in breach of Fujitsu Services’ obligations under
Clause 33.1.2) Post Office shall have the option, in addition to any other remedies
CLAUSES Version 15.0
Page 54 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
33.1.4
33.1.5
33.1.6
33.1.7
33.2 GDPR
33.2.1
that may be available to it either under this Agreement or otherwise, to elect either
of the following remedies:
(a) Post Office may require Fujitsu Services at its own expense to restore or
procure the restoration of the Post Office Data; or
(b) Post Office may itself restore or procure restoration of the Post Office Data,
and shall be repaid by Fujitsu Services any reasonable expenses so
incurred.
For the purposes of Clauses 33.1.2 and 33.1.3, the term "Post Office Data" shall
include the data of Post Office's clients.
Post Office Data constitutes Confidential Information, and may not be reproduced
without the prior written consent of Post Office except as necessary to perform
the Services, HNG-X Development or Associated Change Development.
Not Used.
Notwithstanding any other provision in this Agreement to the contrary, Fujitsu
Services shall not be responsible for the accuracy, completeness, validity or
integrity of any data (including, without limitation, any Personal Data) provided by
or on behalf of Post Office for use in the performance and/or operation of the
Superstock Solution or any resulting data inaccuracy, incompleteness, invalidity
or integrity problems.
(a) Post Office Cloud and Fujitsu Services acknowledge that for the purposes of
the interpretation) of this Agreement, Post Office is the Data Controller and
Fujitsu Services is the Processor of any Post Office Personal Data.
(b) Post Office shall:
(i) obtain delegated authority from each Third Party Data Controller
to appoint Fujitsu Services to process Post Office Personal Data
of that Third Party Data Controller on the terms dealing with such
processing set out in this Clause 33.2;
(ii) obtain delegated authority from each Third Party Data Controller so
that Fujitsu Services is entitled to appoint any of Fujitsu Services’
sub-contractors listed in Schedule C2 to process Post Office
Personal Data of that Third Party Data Controller;
(iii) to the extent reasonably possible, give at least 42 days’ prior notice
to Fujitsu Services of any New Personal Data, or, in the case of
Special Category Personal Data or Personal Data of a child, at
least 60 days’ prior notice
CLAUSES Version 15.0
Page 55 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
33.2.2
33.2.3
33.2.4
33.2.5
33.2.6
33.2.7
prior to the commencement by Fujitsu Services the processing of that Post Office
Personal Data
Where Post Office fails to obtain delegated authority to the full extent referred to
in Clause 33.2.1, subject to Clause 33.2.3, the Parties agree to co-operate with
each other and to execute such other additional agreements between them (and
if reasonably deemed necessary by Post Office and the relevant Third Party Data
Controller Post Office shall execute any other additional agreements between it
and any Third Party Data Controller)as may reasonably be required to enable
Fujitsu to process such Post Office Personal Data (in accordance with Data
Protection Law and with the applicable provisions of this Agreement).
Where Post Office fails to ensure that Post Office and Fujitsu Services have
delegated authority from each Third Party Data Controller to the full extent
referred to in Clause 33.2.1, or where the terms of Post Office's contract with a
Third Party Data Controller do not permit the Post Office Personal Data of that
Third Party Data Controller to be processed on the terms of this Agreement,
Fujitsu Services shall not be required to perform any additional obligations or any
reduced or modified obligations as a result of such failure or lack of permission
without Post Office obtaining the written permission of that Third Party Data
Controller to the extent such permission is required by the Data Protection
Legislation and Fujitsu Services’ agreement in accordance with the Change
Control Procedure.
All instructions given by Post Office to Fujitsu Services (on its own behalf as Data
Controller, or on behalf of any Third Party Data Controller) in respect of Post
Office Personal Data shall at all times be in accordance with the laws of the United
Kingdom.
Each Party shall comply with its obligations under the Data Protection Legislation.
Fujitsu Services represents and agrees that it shall only process Post Office
Personal Data in accordance with Post Office's instructions as set out in the
Agreement and in the Description of Data Processing and as provided in writing
by Post Office from time to time (including to delete, amend, transfer or rectify
Post Office Personal Data), unless Fujitsu Services is subject to an obligation
under Applicable Law (including Data Protection Legislation) of the European
Union to do otherwise, in which case it shall (unless prohibited by law on
important grounds of public interest) promptly notify Post Office in advance of that
legal obligation (to the extent permitted by law). Where such written instruction
impacts delivery of the Services or the cost associated with delivery of the
Services, then the implementation of such instruction shall be subject to Change
Control.
Fujitsu Services shall notify Post Office in writing immediately (meaning as soon
as the Fujitsu Services Data Protection Officer becomes aware) if in Fujitsu
Services’ opinion, any Post Office instruction breaches a requirement of Data
Protection Legislation.
CLAUSES Version 15.0
Page 56 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
33.2.8
33.2.9
Fujitsu Services represents and agrees that it shall provide such assistance, and
within the timescales specified by Post Office, to enable Post Office to comply
with its obligations under the Data Protection Legislation, where relevant given
the nature of its processing of Post Office Personal Data consisting of the
following and any additional obligations as reasonably agreed between the
Parties:
(a) reviewing and supporting Post Office in its completion of any Data
Protection Impact Assessment;
(b) implementing appropriate technical and organisational measures insofar
as this is possible to enable Post Office to respond to requests from Data
Subjects exercising their rights under the Data Protection Legislation,
consisting of the following and any additional obligations as reasonably
agreed between the Parties
(i) without undue delay but in any event within 5 Working Days,
notifying Post Office if it receives a request from a Data Subject
under Data Protection Legislation except in relation to Post Office
Personal Data processed in the following areas: Data collected at
the counter via AP-ADC scripts; Post Office Data Gateway
external file content (sent and received),APOP Database content
(from AP-ADC collection and human APOP administrators)Web
Service Frameworks (including Horizon AP-ADC gateway returned
from Accenture CDP) and HiH data collected at device, providing
Post Office with the relevant Post Office Personal Data and details
of its Processing of Post Office Personal Data in response to a
request by a Data Subject in the manner described in
ARC/SOL/CSP/3572 ‘Post Office Account HNG-X Information
Security Policy - Subject Access Requests; and
(ii) assisting with any enquiries from a Data Protection Regulator.
Post Office will complete and provide to Fujitsu Services a privacy impact
assessment prior to requiring Fujitsu Services to process any new or amended
Special Category Personal Data or Personal Data of a child under this
Agreement. To the extent that any privacy impact assessment makes
recommendations for changes to security requirements, the parties will
reasonably discuss and agree any changes in accordance with the Change
Control Procedure.
33.2.10 Subject to Clause 33.2.11, when Processing Post Office Personal Data in the
manner set out in the Description of Data Processing, Fujitsu Services shall take
appropriate technical and organisational measures to ensure an appropriate
level of security and prevent any unlawful processing or disclosure. These
measures shall take into account the state of the art, the costs of implementation,
the nature, scope, context and purposes of Processing as well as the risk of
varying likelihood and severity for the rights and freedoms of the Data Subjects.
These shall consist of the following and any additional measures as reasonably
agreed between the Parties:
(a) _ encrypting Post Office Personal Data stored on any mobile media or
transmitted over public or wireless networks;
CLAUSES Version 15.0
Page 57 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
(b)
(c)
(e)
implementing and maintaining a suitable business continuity and disaster
recovery plan (including in accordance with any requirements pertaining
to the same in the Agreement) to restore the availability and access to
Post Office Personal Data in a timely manner in the event of a physical or
technical Incident;
ensuring the ongoing confidentiality, integrity, availability and resilience of
Processing systems and services;
taking all reasonable steps to ensure the reliability of Fujitsu Personnel
with access to Post Office Personal Data, ensuring that all Fujitsu
Personnel who are involved in the Processing of Post Office Personal
Data are appropriately trained for the role they undertake and are under
contractual or statutory obligations of confidentiality concerning Post
Office Personal Data;
pseudonymising, and encrypting, Post Office Personal Data on request
by Post Office;
(together the Security Measures)
33.2.11 Post Office confirms that the measures specified in 33.2.10(a) to (e), the
provisions of Schedule A4, ARC/SEC/ARC/003 and ARC/SEC/ARC/001 as well
as any additional measures specified to Fujitsu Services by Post Office from time
to time, in accordance with the Change Control Procedure, constitute appropriate
technical and organisational measures to ensure an appropriate level of security
and prevent any unlawful processing or disclosure in relation to the following:
Data collected at the counter via AP-ADC scripts
Post Office Data Gateway external file content (sent and received)
APOP Database content (from AP-ADC collection and human APOP
administrators)
Web Service Frameworks (including Horizon AP-ADC gateway returned
from Accenture CDP)
Data collected at device or applications other than the counter running
the HNG-X Application
33.2.12 Fujitsu Services shall regularly test, at least annually, the Security Measures to
assess the effectiveness of the Security Measures in ensuring the security,
confidentiality, integrity, availability and resilience of Post Office Personal Data
and shall maintain records of such testing.
33.2.13 Post Office, a regulatory authority, and/or their authorised representatives
(Auditors) shall be entitled to enter Fujitsu Services’ and/or its sub-contractors’
premises to inspect and audit Fujitsu Services’ Processing of any Post Office
Personal Data and take copies of relevant documentation (Data Protection Audit).
A Data Protection Audit shall only take place:
(a)
during the term of the Agreement and for a period of 6 years from the
expiry or termination of the Agreement;
CLAUSES Version 15.0
Page 58 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
(b) not more than once in any calendar year;
(c) on not less than 5 Business Days' prior written notice, or in the case of
Payment and Banking Service 15 Business Days, unless such Data
Protection Audit is required in accordance with Clause 33.2.15 below;
and
(d) during ordinary business hours.
33.2.14 Post Office shall be entitled to share relevant parts of its audit report with the
relevant Third Party Controller banks, in relation to the banking elements of the
Payment and Banking Service only, subject to confidentiality.
33.2.15 Post Office shall not be required to give notice of any Data Protection Audit in
accordance with Clause 33.2.13(c) and there shall be no limit to the number of
audits that can take place in any calendar year, if:
(a) Subject to 33.2.16, Post Office reasonably believes that Fujitsu
Services (or any sub-contractor) is in breach of any of its obligations
relating to Post Office Personal Data under the Agreement.
(b) such audit of Post Office Personal Data, to which Post Office is subject,
which is conducted or required by the ICO or other body with authority
to regulate and/or audit the processing of Personal Data and which
does not permit notice to be given or requires a Data Protection Audit
‘on short notice; or
(c) there is a Personal Data Breach directly caused by Fujitsu Services.
33.2.16 Fujitsu Services will provide such co-operation and assistance as may reasonably
be required in relation to any Data Protection Audit. Fujitsu will not charge for
such assistance if the Data Protection Audit is conducted because:
(a) Fujitsu Services is wholly or partially responsible for a Personal Data
Breach; or
(b) Post Office reasonably believes Fujitsu Services may be wholly or
partially responsible for a Personal Data Breach, provided Post Office
supplies details and where appropriate evidence demonstrating its
belief is reasonable.
33.2.17 Fujitsu Services shall provide Post Office with all information reasonably
requested by Post Office, to enable Post Office to verify Fujitsu Services’ (and
each sub-contractor's) compliance with this Clause 33.2.
33.2.18 Fujitsu Services shall not transfer or Process any Post Office Personal Data (nor
allow any Post Office Personal Data to be accessed from) outside of the
European Economic Area including the United Kingdom without first:
(a) obtaining the prior written consent of Post Office;
(b) ensuring that any relevant employee, agent, sub-contractor, third party
or consultant is subject to a written contract with Fujitsu Services
requiring them to comply with Fujitsu Services’ obligations herein
CLAUSES Version 15.0
Page 59 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
regarding the security and confidentiality of the Personal Data and to
comply with Fujitsu Services’ instructions in processing it; and
(c) taking such steps as Post Office may request to ensure that any such
transfer of Processing of Post Office Personal Data complies with the
requirements of the Data Protection Legislation.
33.2.19 Subject to Clause 33.2.20, Fujitsu Services shall not sub-contract the Processing
of any Post Office Personal Data or allow any third party to Process any Post
Office Personal Data without first:
(a) complying with its obligations in Clauses 58.1 and 58.2; and
(b) complying with the requirements of Clause 33.2.22(b) ; and
(c) taking such other steps as Post Office may reasonably request to ensure
that any such sub-contracting of the Processing of Post Office Personal
Data complies with the requirements of the Data Protection Legislation.
33.2.20 Fujitsu Services shall be entitled to use any of its Subcontractor Ingenico's Affiliate to
process Post Office Personal Data within the EU to deliver the Payment and Banking
Service without the prior consent of Post Office. Fujitsu Services will however notify
Post Office of the use of an Ingenico Affiliate within the EU processing Post Office
Personal Data.
33.2.21 Post Office consents to the transfer of Post Office Personal Data to the processors
identified under this Agreement to the extent necessary for the processing activities
detailed in the Description of Data Processing.
33.2.22 Where Post Office has consented to the Processing of Post Office Personal Data by a
sub-contractor in accordance with Clauses 58.1 and 58.2, Fujitsu Services will ensure
that:
(a) the sub-contract between Fujitsu Services and the sub-contractor
includes all relevant obligations under this Clause 33.2 relating to the
Processing and security of Post Office Personal Data and, without
prejudice to the generality of the foregoing, contains provisions which
give effect to the terms set out in this Clause 33.2 such that they apply
to the sub-contractor;
(b) the sub-contract must comply with the requirements contained in the
Data Protection Legislation;
(c) the sub-contractor will cease processing of Post Office Personal Data
upon the expiration or earlier termination of the Agreement for any
reason; and
(d) the sub-contract between Fujitsu Services and the sub-contractor
allows for Fujitsu Services to provide Post Office with such information
regarding the sub-contractor's Processing of Post Office Personal Data
as Post Office may reasonably require.
33.2.23 Fujitsu Services shall maintain accurate written records of the Processing it
undertakes in connection with the Agreement which shall contain:
(a) the categories of Processing of Post Office Personal Data;
(b) details of any file transfers of Post Office Personal Data
CLAUSES Version 15.0
Page 60 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
(c)
(d)
FUJ00234905
FUJ00234905
details of any transfers of Post Office Personal Data outside of the
United Kingdom or European Economic Area, and the safeguards in
place for that transfer where any such transfer has been authorised by
Post Office in accordance with Clause 33.2.18(a); and
a general description of the Security Measures.
Fujitsu Services shall provide the records set out above to Post Office or a Data
Protection Regulator on request.
33.2.24 Fujitsu Services shall:
(a)
notify Post Office promptly and in any event within 48 hours of receipt
by a Key Personnel should it:-
(i)
(ii)
receive notice of any complaint made to a Data Protection
Regulator which has jurisdiction over the processing of Post Office
Personal Data under this Agreement or any finding by such Data
Protection Regulator in relation to its Processing of Post Office
Personal Data; and/or
become aware of any circumstance which may cause Fujitsu
Services to breach the obligations set out in this Clause 33.2 or
which may cause either party to breach Data Protection Legislation.
33.2.25 Fujitsu Services shall notify Post Office promptly (and in any event no later than within
48 hours of discovery) if it becomes aware of a Personal Data Breach of Post Office
Personal Data. This notification shall include:
22.2 26
33.2.27
33.2.28
(a)
(c)
the nature of the Personal Data Breach, including, where possible, the
categories and approximate number of Data Subjects and records
concerned;
the contact at Fujitsu Services who will liaise with Post Office
concerning the Personal Data Breach;
the remediation measures being taken to address the Personal Data
Breach, including, where appropriate, measures to mitigate and contain
the effects of the Personal Data Breach.
If Fujitsu Services is unable to provide all of the information required under Clause
33.2.25 in accordance with the time limits set out in that Clause, and without prejudice
to any right or remedy that Post Office may have, Fujitsu Services shall provide as
much information as it is able to within those time limits and shall provide all further
information as soon as reasonably practicable thereafter.
In the event of a Personal Data Breach of Post Office Personal Data, Post Office shall
at its sole discretion determine whether to provide notification to the Data Subject, any
third party or a Data Protection Regulator and Fujitsu Services shall not notify the Data
Subject, any third party or a Data Protection Regulator unless such disclosure by
Fujitsu Services is required by law or is expressly approved in writing by Post Office.
In the event of a Personal Data Breach of Post Office Personal Data, which is directly
attributable to the actions, errors or omission of Fujitsu Services in its performance of
its obligations under this Agreement and not caused by the acts, errors or omissions of
Post Office or a third party, Fujitsu Services will ensure that it fully co-operates with
Post Office in effecting any mitigating actions, or implementing any reasonable
solution or remedy advised to Fujitsu Services by Post Office and will promptly restore
any Post Office Personal Data at its own expense.
CLAUSES Version 15.0
Page 61 of 127
CONFIDENTIAL.
33.2.29
33.2.30
33.2.31
33.2.32
33.2.33
Subject to clause 33.2.16, in the event of a Personal Data Breach of Post Office
Personal Data, which is not directly attributable to the actions, errors or omissions of
Fujitsu Services in its performance of its obligations under this Agreement, Fujitsu
Services will ensure that it fully co-operates with Post Office in effecting any mitigating
actions, or implementing any reasonable solution or remedy advised to Fujitsu
Services by Post Office. Fujitsu Services may charge Post Office on a time and
materials basis, for time spent in providing assistance under this clause 33.2.29 at
Fujitsu Services' standard applicable rates.
On termination or expiry of the Agreement for whatever reason, or on Post Office's
written request at any time, Fujitsu Services shall immediately cease to Process any
and all Post Office Personal Data and shall, at Post Office’s discretion, and in
accordance with Post Office's instructions, either:
(a) return all Personal Data to Post Office, together with all copies of the
Personal Data in its possession or control; or
(b) provide the Personal Data to a third party as instructed by Post Office,
together with any copies of the Personal Data in its possession or control;
or
(c) carry out a certified and secure destruction of the Personal Data, together
with any copies of the Personal Data in its possession or control.
Fujitsu Services will not be required to provide the Services which use or relate to Post
Office Personal Data which has been deleted in accordance with a request from or
authorised by Post Office or which Post Office has prohibited Fujitsu Services from
continuing to process, unless a further copy or version of such Post Office Personal
Data has been collected and provided to be processed for a legitimate purpose under
the Data Protection Legislation, together with the consent required from the relevant
Third Party Data Controller to allow such processing by Fujitsu Services.
In the event of termination or expiry of this Agreement, Fujitsu Services shall not retain
any copy of any part of the Personal Data, in any form or media, and shall provide to
Post Office all information necessary to demonstrate compliance with the
requirements of this Clause 33.2.
If Fujitsu Services:
(a) receives notice pursuant to Clause 33.2.1(c); or
(b) otherwise becomes aware of any new categories of Personal Data that
Post Office intends will be Processed by Fujitsu Services in connection
with new types of Transaction using the AP-ADC Facility, or the APOP
Business Capability or PODG or from any other source (“New Personal
Data”);
and Fujitsu Services reasonably believes that, in order to comply with its obligations
set out in this Clause 33.2 regarding the Processing of such data, it will incur
additional costs or expenses that it would not incur if that data was not Post Office
Personal Data, then:
(c) Fujitsu Services shall notify Post Office of the reasons for such
additional costs and expenses; and
(d) the Parties shall agree any consequential changes to the provisions of
this Clause 33.2 and/or reasonable additional Charges (as the case
may be) under the Change Control Procedure (in the case of changes
to those provisions or to Charges for recurring services) or by approval
of a Work Order (in the case of Charges for work defined in a Work
CLAUSES Version 15.0
Page 62 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
33.3
34.
34.1
34.1A
Package description), before the Processing of any such New Personal
Data can commence.
Databases
For the avoidance of doubt, Post Office shall have the right to use the Services, the
Infrastructure to capture, develop and use databases containing information in relation to
its customers. Any assistance provided by Fujitsu Services pursuant to this Clause over
and above the performance of its other obligations hereunder shall be treated as
Development Services and shall be subject to agreement of a Work Order under
Schedules D2 and B1.1.
Intellectual Property Rights Indemnities
Fujitsu Services Indemnity
Subject always to (i) Post Office's proper observance of its obligations as an Indemnified
Party under this Clause 34 and (ii) Clauses 34.14 to 34.17 (inclusive) Fujitsu Services
shall indemnify Post Office against all claims, demands or actions by a third party (other
than any member of the Royal Mail Group) and all costs, expenses (including but not
limited to legal costs and disbursements reasonably incurred 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 proper use or possession
in accordance with this Agreement (i) by or on behalf of Post Office or a member of the
Royal Mail Group, or (ii) in connection with the Services, of:
For the avoidance of doubt, Clause 34.1 shall not apply either:
34.1A1 to the Microsoft Azure Services to the extent such services are provided by
Microsoft to Post Office under the Customer Agreement;or
34.1.A.2 to the extent any such infringement or alleged infringement arises as a result of
such Intellectual Property Rights being combined with or used on the Post
Office Cloud
34.1.1. the Infrastructure, the HNG-X Applications, and the Business Capabilities and
Support Facilities;
34.1.2 the documents, software, materials, items or other things whatsoever in which
Post Office Foreground IPRs or Licensed IPRs subsist;
34.1.3 the Listed Documentation and Horizon Design Documentation; and
34.1.4 the documents, software, materials, items or other things whatsoever supplied by
or on behalf of Fujitsu Services for use by Post Office in receiving the Services
(including the Banking IPR, Ingenico Central Platform, the Payment and Banking
Solution and the Ingenico Software),
CLAUSES Version 15.0
Page 63 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
34.2
34.3
provided that Fujitsu Services shall not be obliged to indemnify Post Office against any
claim, demand, action, cost, expense, loss or damage to the extent that the indemnity in
Clause 34.3 applies to that claim, demand, action, cost, expense, loss or damage.
Indemnities relating to confidential information
The indemnities set out at Clauses 34.1, 34.3.1 and 34.3.2 shall, subject to all limitations
and conditions set out therein, extend to any unauthorised use of the confidential
information of a third party (other than confidential information of any member of either
the Royal Mail Group or the Fujitsu Services Group and excluding any Confidential
Information of either Party) ("Third Party Confidential Information") and:
34.2.1 references in Clauses 34.1, 34.3.2 and 34.9 to 34.15 (inclusive) to
“infringement” and “Intellectual Property Rights” shall be read as if they were
references to “unauthorised use” and “Third Party Confidential Information”
respectively; and
34.2.2 references in Clause 34.3.1 to “infringement” and "copyright, moral rights,
database rights, design rights or trade marks" shall be read as if they were
references to “unauthorised use” and “Third Party Confidential Information”
respectively,
such indemnities to apply only to the extent that the unauthorised use of the Third Party
Confidential Information occurred after the Project HNG-X Commencement Date.
Post Office Indemnity
Subject always to (i) Fujitsu Services’ proper observance of its obligations as an
Indemnified Party under this Clause 34 and (ii) Clauses 34.14 to 34.17 (inclusive) and
without prejudice to any indemnities given by Post Office in favour of Fujitsu Services as
set out in any CCD (but provided that to the extent that Fujitsu Services is entitled to bring
a claim under any such indemnity, Fujitsu Services shall not be entitled to bring a claim
under this Clause 34.3 in respect of the same event), Post Office shall indemnify Fujitsu
Services against all claims, demands or actions by a third party (other than any member
of the Fujitsu Services Group) and all costs, expenses (including but not limited to legal
costs and disbursements reasonably incurred on a solicitor and client basis), losses and
damages arising from or incurred by reason of:
34.3.1 any infringement or alleged infringement (including but not limited to the defence
of such alleged infringement) in the United Kingdom of copyright, moral rights,
database rights, design rights or trade marks resulting from:
(a) _ the use or possession in accordance with this Agreement by or on behalf
of Fujitsu Services or a member of the Fujitsu Services Group of a HNG-X
Requirement for the HNG-X User Interface or Postal Services Business
Capability specified by Post Office as part of the Requirements Baseline
(as this may be amended from time to time in accordance with the
provisions of Schedule B6.1) (together, "UI Development Requirements");
or
CLAUSES Version 15.0
Page 64 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
(b)
the development by or on behalf of Fujitsu Services, or the possession or
use by or on behalf of Fujitsu Services, in each case in accordance with
this Agreement, of the HNG-X User Interface or Postal Services Business
Capability, but only to the extent that the infringement or alleged
infringement relates to a part of the HNG-X User Interface or Postal
Services Business Capability that could not reasonably have been
developed in accordance with the Ul Development Requirements without
giving rise to that infringement or alleged infringement; or
34.3.2 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 resulting from the use or possession in accordance with this Agreement by
or on behalf of Fujitsu Services or a member of the Fujitsu Services Group of:
(a)
(b)
(c)
Post Office Developed Documentation (but only to the extent that the
infringement is due to the material referred to in the second limb of the
definition of that term) or Post Office Cloud;
any documents, software, materials or items that Post Office has procured
or licensed from third parties which the Parties have agreed in writing will
be supplied by or on behalf of Post Office to Fujitsu Services for the
purpose of providing the Services, HNG-X Development and/or Associated
Change Development (including, without limitation, use as part of the
HNG-X User Interface or Postal Services Business Capability) or any other
more limited purpose agreed in writing by the Parties provided that (a) such
use or possession by Fujitsu Services is for the purpose of providing the
Services, HNG-X Development and/or Associated Change Development
(or such other more limited purpose as may be agreed in writing by the
Parties); and (b) the Post Office's only liability under this Clause 34.3.2(b)
shall be to pass on to Fujitsu Services the benefit of any indemnity (the
terms of which Post Office shall, unless unable to do so due to obligations
of confidentiality owed to the relevant third party owner or licensor, notify
to Fujitsu Services upon Fujitsu Services’ request) in respect of the
infringement or alleged infringement it receives from the relevant third party
owner or licensor; and
to the extent that Post Office has not procured or licensed it or them from
any third parties, any software and related documentation, graphic
designs, trade marks or Reference Data (and such other individual material
as the Parties may agree in writing should be covered by this indemnity)
supplied by or on behalf of the Post Office to Fujitsu Services for the
purpose of providing the Services, HNG-X Development and/or Associated
Change Development (including, without limitation, use as part of the
HNG-X User Interface or Postal Services Business Capability) or any other
more limited purpose agreed in writing by the Parties provided that such
use or possession by Fujitsu Services is for the purpose of providing the
Services, HNG-X Development and/or Associated Change Development
(or such other more limited purpose as may be agreed in writing by the
Parties),
CLAUSES Version 15.0
Page 65 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
34.4
34.5
excluding in each case the UI Development Requirements; or
34.3.3 any infringement or alleged infringement (including but not limited to the defence
of such alleged infringement) in the United Kingdom of any Intellectual Property
Rights resulting from the development by or on behalf of Fujitsu Services, or the
possession or use by or on behalf of Fujitsu Services, in each case in accordance
with this Agreement, of the HNG-X Service Infrastructure or the Business
Capabilities and Support Facilities, but only to the extent that the infringement or
alleged infringement results from any instruction given by Post Office to Fujitsu
Services in accordance with the provisions of Clause 34.5.2 (b)(a) and Fujitsu
Services had first notified Post Office of the risk of that infringement in accordance
with the provisions of Clause 34.5.
Fujitsu Services shall use its reasonable endeavours to, and observe good industry
practice in its efforts (including its monitoring and searching practices) to, be aware of any
third party Intellectual Property Rights covering the areas of technology and business
methods and processes to be developed by or on behalf of Fujitsu Services as part of the
HNG-X Infrastructure and the Business Capabilities and Support Facilities (including,
without limitation, the HNG-X User Interface or Postal Services Business Capability).
Without prejudice to Fujitsu Services' right to an indemnity under Clause 34.3.1 and/or
34.3.2, in the event that Fujitsu Services considers, at any time prior to Trigger Point T5
(Data Centre ready for HNG-X) (or within 30 days of the start of HNG-X Project
Workstream X4 (HNG-X Application Roll Out) for any HNG-X Requirement provided to
Fujitsu Services after Trigger Point T5 (Data Centre ready for HNG-X)), that a HNG-X
Requirement that forms part of (or is intended to form part of) the Requirements Baseline
(a “Queried Requirement”) would, if implemented, result in a reasonable risk of
infringement or alleged infringement of Intellectual Property Rights owned by a third party,
then:
34.5.1 it shall promptly on discovery notify Post Office in writing of its concern, such
notice to be accompanied by:
(a) a proposal for an alternative requirement that, if implemented, would fulfil
the relevant Development Obligation; and
(b) such relevant materials and information that it is reasonable for Fujitsu
Services to provide in order for Post Office to understand and assess such
risk and the alternative requirement proposed by Fujitsu Services under
paragraph 34.5.1(a);
34.5.2 within 14 days of its receipt of such notice (or such other time as the Parties may
agree), Post Office shall respond in writing to Fujitsu Services stating whether or
not it:
(a) agrees with Fujitsu Services’ concerns; and/or
(b) _ either (a) instructs Fujitsu Services to continue with the development cycle
in respect of that Queried Requirement in any event, in which case Post
CLAUSES Version 15.0
Page 66 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
34.5.3
34.5.4
34.5.5
34.5.6
34.5.7
Office shall indemnify Fujitsu Services under Clause 34.3.3, or (b) instructs
Fujitsu Services to implement the alternative requirement proposed under
Clause 34.5.1(a) in which case such alternative requirement shall form part
of the Requirements Baseline;
in the event that Post Office instructs Fujitsu Services to implement the alternative
requirement in accordance with Clause 34.5.2(b)(b), Fujitsu Services shall not be
able to invoke the process set out in this Clause 34.5 in respect of that alternative
requirement at any time after Post Office so instructs Fujitsu Services;
at all times during the process set out in this Clause 34.5, Fujitsu Services shall
provide Post Office with such assistance as Post Office may reasonably require
in order to understand and assess the risk notified to it and the alternative
requirement proposed by Fujitsu Services, provided that the Parties hereby
acknowledge that each Party shall be responsible for forming its own assessment
of such risk and alternative requirement;
either Party may request, at any time prior to an instruction being given under
Clause 34.5.2(b), that the Parties meet to discuss a risk notified, or an alternative
requirement proposed, to Post Office by Fujitsu Services in accordance with this
Clause and to agree in good faith a course of action which is mutually beneficial
to the Parties. If the Parties are unable to agree on the relevant risk and either
Post Office does not give Fujitsu Services an instruction under Clause 34.5.2(b)
and/or the Parties are unable to agree the suitability of the alternative requirement
proposed, then the matter shall be escalated in accordance with the DRP set out
in Annex 2 of Schedule A2 (Governance), up to and including the stage set out at
paragraph 3 of such Annex (Executive Review), provided that references in that
Annex to “five Working Days” shall be read as “two Working Days” for the
purposes of this Clause;
if, following the earlier of (i) the escalation of the matter and completion of the
process set out in Clause 34.5.5; or (ii) the date falling ten Working Days after the
date upon which the matter was first escalated in accordance with Clause 34.5.5,
the Parties are not able to agree on the risk or the suitability of the alternative
requirement proposed and Post Office fails to instruct Fujitsu Services to continue
with the development cycle in respect of that Queried Requirement, then Fujitsu
Services shall:
(a) be entitled to reject that Queried Requirement (such rejected Queried
Requirement being a "Rejected Requirement"), provided that in the event
that Fujitsu Services disagrees with any advice and guidance of a
Facilitator obtained as part of the escalation process, it shall provide Post
Office with a reasonably detailed statement of its reasons for doing so; and
(b) achieve the relevant Development Obligation for such Rejected
Requirement; and
in the event that Fujitsu Services rejects a Queried Requirement pursuant to this
Clause 34.5 and Fujitsu Services would, if it had complied with Clause 34.4, have
CLAUSES Version 15.0
Page 67 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
34.6
34.7
34.8
34.9
34.10
known about the risk relating to that Rejected Requirement earlier than the date
on which it actually became aware of that risk and notified the Post Office
pursuant to Clause 34.5.1, then Fujitsu Services shall refund to Post Office any
Charges paid or payable by Post Office in respect of development work
undertaken by or on behalf of Fujitsu Services in relation to that Rejected
Requirement in that intervening period (but excluding any Charges in respect of
development work which Fujitsu Services is able to demonstrate to the
reasonable satisfaction of Post Office is of continued use and benefit to Post
Office).
The indemnities set out at Clause 34.3.1 shall not apply to any UI Development
Requirement to the extent that (a) Fujitsu Services or a member of the Fujitsu Services
Group was engaged by Post Office for the purposes of the development of that UI
Development Requirement and contributed to that Ul Development Requirement and (b)
such contribution resulted in the infringement or alleged infringement referred to in Clause
34.3.1.
In the event that, pursuant to Clause 34.5, Fujitsu Services rejects a Queried Requirement
in respect of which (a) Fujitsu Services or a member of the Fujitsu Services Group was
engaged by Post Office for the purposes of the development of such Queried
Requirement and (b) contributed towards such Queried Requirement, then (without
prejudice to any other rights or remedies available to Post Office) Fujitsu Services shall
refund to Post Office the Charges paid or payable by Post Office in respect of that
contribution.
Common Indemnity Provisions
Each Party shall promptly notify the other if any claim or demand is made or action
brought against it to which this Clause 34 applies.
The Party giving an indemnity under this Clause 34 (the “Indemnifying Party”) shall, at its
own expense, conduct any litigation arising therefrom and all negotiations in connection
therewith and the Party receiving the indemnity (the “Indemnified Party”) hereby agrees
to grant to the Indemnifying Party exclusive control of any such litigation and such
negotiations in relation to the indemnified infringement or alleged infringement. The
Indemnifying Party shall consult with and pay due regard to the interests (including, where
the Post Office is the Indemnified Party, the commercial interests of the Royal Mail Group
and the public interest and where Fujitsu Services is the Indemnified Party the commercial
interests of the Fujitsu Services Group) and views of the Indemnified Party in the conduct
of any defence to any claim or demand hereunder, and shall, where it is reasonable to do
so taking into account also the interests of the Indemnifying Party, comply with such
interests and views.
The Indemnified Party shall, at the request of the Indemnifying Party, afford to the
Indemnifying Party all reasonable assistance for the purpose of contesting any claim or
demand made or action brought against the Indemnified Party to which the indemnity may
apply or any claim or demand made or action brought against the Indemnifying Party to
which the indemnity may apply. The Indemnifying Party shall reimburse the Indemnified
CLAUSES Version 15.0
Page 68 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
34.11
34.12
34.13
Party for all reasonable costs and expenses (including but not limited to legal costs and
disbursements on a solicitor and client basis) incurred in so doing.
The Indemnified Party 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 brought against the Indemnified Party to which the indemnity may apply or
any claim or demand made or action brought against the Indemnifying Party to which the
indemnity may apply.
If a claim or demand is made or action brought to which the indemnity may apply or in the
reasonable opinion of the Indemnifying Party is likely to be made or brought, the
Indemnifying Party may at its own expense either:
34.12.1 modify any or all of the affected documents, software, materials, items or other
things whatsoever without reducing the performance and functionality of the
same, or substitute alternative items, products or services of equivalent
performance and functionality for any or all of the documents, software, materials,
items or other things whatsoever, so as to avoid the infringement or the alleged
infringement but without disrupting the performance of the 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
the Indemnified Party (whether by passing any form of acceptance testing or
otherwise), such acceptance not to be unreasonably withheld or delayed, and
shall reimburse the Indemnified Party all reasonable costs directly incurred by it;
or
34.12.2 procure a licence to use the affected documents, software, materials, items or
other things whatsoever on terms which afford to the Indemnified Party no more
extensive rights than those originally applicable hereunder and which are
acceptable to the Indemnified Party and shall reimburse the Indemnified Party all
reasonable costs directly incurred by it.
Notwithstanding anything to the contrary in this Clause 34:
34.13.1 to the extent that any actual or alleged infringement, to which this Clause 34
applies, relates to the development by Fujitsu Services under this Agreement of
the HNG-X Service Infrastructure or the Business Capabilities and Support
Facilities and does not result from (i) a breach by Fujitsu Services of the Clean
Room Rules or paragraph 4.2 of Annex 2 to Schedule B6.2 (ii) a failure by Fujitsu
Services to comply with Clause 15.1.5, or (iii) a breach by Fujitsu Services of
Clause 34.4; and
34.13.2 provided that the HNG-X Development Completion has not occurred at the time
of the claim, demand or action in respect of such infringement,
the costs of undertaking any modification or substitution or procuring a licence that may
be made or obtained pursuant to Clause 34.12 shall be treated as a normal cost of
development and Post Office shall pay Fujitsu Services:
CLAUSES Version 15.0
Page 69 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
34.14
34.15
34.16
34.17
(a) for such modification work on a time cost basis, subject to and in
accordance with the provisions of Schedule D8; and
(b) in respect of any such substitution or licence, an amount equivalent to
Fujitsu Services' cost of the product used as a substitute and/or of the
necessary licence, multiplied by 95 and divided by 100.
The indemnities set out in this Clause 34 (other than where Clause 34.3.1(b) applies)
shall not apply insofar as any such claim or demand or action is in respect of:
34.14.1 any use by or on behalf of the Indemnified Party of the affected documents,
software, materials, items or other things whatsoever in combination with any
item not supplied or approved (such approval not to be unreasonably withheld or
delayed) by the Indemnifying Party where such combined use directly gives rise
to the claim, demand or action; or
34.14.2 any modification carried out by or on behalf of the Indemnified Party to any item
supplied by the Indemnifying Party under this Agreement if such modification is
not authorised by the Indemnifying Party in writing; or
34.14.3 any use by the Indemnified Party of the affected documents, software, materials,
items or other things whatsoever in a manner not reasonably to be inferred from
their specification (if any) or the requirements of the Indemnified Party (including,
without limitation, where Post Office is the Indemnified Party, the Requirements
Baseline).
If the Indemnifying Party has availed itself of its rights to modify the affected documents,
software, materials, items or other things whatsoever or to supply substitute products or
services pursuant to Clause 34.12.1 or to procure a licence under Clause 34.12.2 and
such exercise of the said rights has avoided any claim, demand or action for infringement
or alleged infringement, or if the Indemnified Party has unreasonably withheld its
acceptance of any items modified or substituted by the Indemnifying Party in accordance
with Clause 34.12, then the Indemnifying Party shall have no further liability thereafter
under this Clause 34 in respect of the said claim, demand or action.
If a modification or substitution in accordance with Clause 34.12.1 is not possible so as
to avoid the infringement and the Indemnifying Party has been unable to procure a licence
in accordance with Clause 34.12.2, then Clause 34.1 or Clause 34.3 (as the case may
be) shall apply.
This Clause states the entire liability of:
34.17.1 Fujitsu Services with regard to the infringement of any Intellectual Property Right
by the use or possession of the things listed in Clause 34.1 by or on behalf of
Post Office or in connection with the Services;
34.17.2 Post Office with regard to the infringement of any Intellectual Property Right by
the use or possession of the things listed in Clause 34.3 by or on behalf of Fujitsu
Services; and
CLAUSES Version 15.0
Page 70 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
35.
35.1
35.2
35.3
36.
36.1
36.2
36.3
36.3.1
34.17.3 each Party with regard to the unauthorised use of any Third Party Confidential
Information by or on behalf of the other Party after the Project HNG-X
Commencement Date.
Use Of Services and Infrastructure
Fujitsu Services shall not restrict Post Office from using the Services and the
Infrastructure for its existing and future clients, Agents, customers, products and services.
Except as contemplated by this Agreement and subject to Clause 35.3, the Infrastructure
(other than any public service telecommunications networks) may not be used other than
by Post Office without the prior written consent of Post Office.
Post Office acknowledges and agrees that the HNG-X Services will be performed by
Fujitsu Services using certain facilities and/or elements of the Infrastructure, as described
in the Solution Architecture and/or the Solution Baseline and listed from time to time in
the Asset Register, that will be shared with customers of Fujitsu Services other than the
Post Office.
PART F: LIABILITY
Damage to Physical Property
Except where any of paragraphs 5.2, 6.3.2 and 6.3.3 of Schedule B1.3 apply, each Party
will be responsible for loss or damage caused by its own negligence or wilful acts or
omissions to the physical property of the other.
Hardware
36.2.1 Risk in the Infrastructure shall vest in Fujitsu Services, save to extent that any
elements of the Infrastructure are transferred to Post Office or the Next Supplier
pursuant to Clause 48.1 in which case risk in such elements shall pass to Post
Office or the Next Supplier when title passes; and
36.2.2 Other than in relation to infrastructure used to deliver the Post Office Cloud,
where damage occurs to hardware used by Fujitsu Services to provide the
Services, Fujitsu Services shall repair or replace the affected items with all
possible speed and (subject to any rights arising under Clause 36.1) at its own
cost, save to the extent that any hardware is transferred to Post Office pursuant
to Clause 48.1 in which case risk and the responsibility to repair and replace in
such elements shall pass to Post Office when title passes as provided for in
Clause 26.2.
Clause removed by CCN1616b
CLAUSES Version 15.0
Page 71 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
36.4
36.5
36.5.1
36.5.2
36.5.3
36.5.4
36.5.5
37.
37.1
37.2
37.3
38.
38.1
38.2
Branch Hardware
Fujitsu Services shall have no risk in respect of Branch Hardware save that Fujitsu
Services will exercise reasonable controls over any Branch Hardware that is being utilised
or stored by Fujitsu Services in provision of the Services.
Clause removed by CCN1610
Not Used
Not Used
Not Used
Not Used
Not Used
Damage to Plant, Tackle and Tools
All plant, tackle and tools at the Post Office Premises provided by or on behalf of Fujitsu
Services shall be at the risk of and in the sole charge of Fujitsu Services.
Fujitsu Services shall be required to remove all such plant, tackle and tools which it brings
to the Post Office Premises.
Fujitsu Services shall ensure that all such plant, tackle and tools shall meet minimum
safety standards required by law.
Access to Post Office Premises
Any land or Post Office Premises (including temporary buildings) made available to
Fujitsu Services by Post Office in connection with this Agreement shall be made available
to Fujitsu Services on such terms and conditions as may be agreed between Fujitsu
Services and Post Office. Fujitsu Services shall have the use of such land or Post Office
Premises as licensee and shall vacate the same upon the termination or expiry of this
Agreement or at such earlier date as Post Office may reasonably determine.
Post Office shall be responsible for maintaining the security of such land or Post Office
Premises in accordance with its standard security requirements. Fujitsu Services shall
comply with all reasonable security requirements of Post Office while on the Post Office
Premises, and shall procure that all of its employees, agents and subcontractors shall
likewise comply with such requirements. Post Office shall provide to Fujitsu Services upon
request copies of its written security procedures and shall afford to Fujitsu Services upon
request an opportunity to inspect its physical security arrangements.
CLAUSES Version 15.0
Page 72 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
39.
39.1
39.2
39.3
39.4
39.5
Post Office Responsibilities
Subject to paragraph 2.3 of Schedule A5, Post Office undertakes (at its own cost and
expense save where otherwise provided in or pursuant to this Agreement) to perform the
Post Office Responsibilities. Post Office shall use all reasonable endeavours to perform
such Post Office Responsibilities in a timely fashion or, where specified, in accordance
with the HNG-X Programme Plan or any other agreed timetable specified in this
Agreement.
Without limitation to Clause 39.1, Post Office shall use all reasonable endeavours to
ensure that its Agents, and any of the Post Office Cloud Sevice Providers co-operate with
Fujitsu Services to the extent reasonably necessary to permit Fujitsu Services to perform
the Services. In the event that any Agent or Post Office Cloud Service Provider fails to
provide such co-operation, and Post Office is unable to secure such co-operation:
(a) from an Agent within six months after receiving written notice thereof from Fujitsu
Services; or
(b) from any Post Office Cloud Service Provider within fifeen (15) Working Days after
receiving written notice from Fujitsu Services thereof,
then Fujitsu Services shall be relieved of liability for any failure or delay to perform the
Services which is directly caused by the Agent's or Post Office Cloud Service Provider's
failure to provide such co-operation and shall be entitled to any reasonable additional
costs and expenses which Fujitsu Services can show were directly incurred by it as a
result of the Agent's or Post Office Cloud Service Provider's failure to provide such co-
operation
Without prejudice to the provisions of paragraph 13 of Schedule B6.2 or Schedule A5,
Fujitsu Services shall not be liable to Post Office for any failure to perform or delay in
performing its obligations under this Agreement where Fujitsu Services proves that such
failure or delay has been directly caused by the failure of Post Office to perform any of
the Post Office Responsibilities.
This Clause 39.3 shall not apply in the circumstances to which Clause 43.6 applies, which
shall be governed by the specific rule stated in Clause 43.6.
In addition to the provisions of 39.3, in the event that the Post Office fails to perform or
delays performing its obligations regarding the processing of reference data for the
introduction of new, or updates to existing, APOP applications as described in the CCD
entitled “Fujitsu Services / Postt Office Ltd Interface Agreement for Operational Business
Change — Reference Data ” (CS/PRD/058) then in so far as such non-performance results
in costs being incurred by Fujitsu Services in rectification activities then such costs shall
be reimbursable by the Post Office to Fujitsu Services.
Post Office Obligations inserted by CCN 1400 shall be applicable to provisions relating to
the Towers Model only including but not limited to Clauses 39A, 39B and 39C and
Schedule F. Provisions relating to Post Office Responsibilities shall continue to apply in
CLAUSES Version 15.0
Page 73 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
the same manner as they applied prior to CCN 1400 and shall be unaffected by Post
Office Obligations.
39.6 39.6 Post Office acknowledges and agrees that in the event of a failure or a delay in the
performance of its Responsibilities, or any obligations of third parties under Post Office's
control, in each case which Fujitsu Services can demonstrate has directly affected wholly
or partially the performance of the Payment and Banking Service by Fujitsu Services then
Fujitsu Services shall not be responsible for non-compliance with its obligations directly
affected by such failure or delay. Fujitsu Services shall use reasonable efforts to mitigate
the consequences of the relevant Post Office failure or delay in the performance of its
obligations, and to continue to provide the Payment and Banking Services in accordance
with the relevant Service Level Targets
39A Effect on Service Levels of Post Office Cause or Tower Contractor Cause
39A.1 This Clause 39A is without prejudice to the obligations of Fujitsu Services to provide the
Services in accordance with the Agreement.
39A.2 If Fujitsu Services has failed to provide the Services in accordance with the Service
Levels as a direct result of a Post Office Cause, or a Tower Contractor Cause, Fujitsu
Services shall continue to provide the Services to the extent it is able in accordance with
the Service Levels but may apply for relief as set out in Clause 39A.3.
39A.3 To the extent that Fujitsu Services reasonably believes that Fujitsu Services would have
provided the Services in accordance with the Service Levels but has failed to do so as a
direct result of a Post Office Cause, or a Tower Contractor Cause, Fujitsu Services may
make a written submission to Post Office within 3 months of the commencement of the
Post Office Cause or the Tower Contractor Cause. Fujitsu Services shall not be entitled
to any relief, to the extent that Fujitsu Services cannot demonstrate to Post Office's
reasonable satisfaction that:
39A.3.1 Fujitsu Services’ failure to provide the Services in accordance with the Service
Levels is a direct result of a Post Office Cause, or a Tower Contractor Cause
(identifying the specific Post Office Obligation or Tower Contractor
Responsibility that has not been met);
39A.3.2 Fujitsu Services made all reasonable efforts to mitigate the consequences of
the relevant Post Office Cause or Tower Contractor Cause, and to continue to
provide the Services in accordance with the Service Levels; and
39A.3.3 Fujitsu Services’ failure to provide the Services in accordance with the Service
Levels arose from a cause beyond Fujitsu Services’ reasonable control.
39A.4 Post Office will consider any submission under Clause 39A.3 and advise Fujitsu Services
of its proposal in respect of a submission promptly and in any event within 15 Working
Days of receipt. If Fujitsu Services does not accept Post Office's submission, the Parties
shall meet within 5 Working Days of Fujitsu Services’ receipt of Post Office's proposal
and shall use reasonable endeavours to agree the rights and reliefs applicable to Fujitsu
CLAUSES Version 15.0
Page 74 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
39A.5
39A.6
39A.7
39A.8
39B.
39B.1
39B.2
Services in line with Clause 39A.5. Either Party may invite other interested Tower
Contractors to the meeting and in that event shall inform the other Party.
Where the Parties agree that Fujitsu Services would have provided the Services in
accordance with the Service Levels but has failed to do so as a direct result of a Post
Office Cause or a Tower Contractor Cause and has demonstrated compliance with
Clauses 39A.3.1 to 39A.3.3 inclusive then:
39A.5.1_ the period in which the relevant Service was affected by the Post Office Cause
or Tower Contractor Cause will not be included in measuring the performance
of any affected Service;
39A.5.2 Fujitsu Services will not be treated as being in breach of this Agreement to the
extent that non-performance or breach is due to the Post Office Cause or Tower
Contractor Cause; and
39A.5.3 Fujitsu Services will be entitled to the Charges for the relevant Services affected
by Post Office Cause or Tower Contractor Cause as if it had not occurred
provided that Fujitsu Services mitigates those Charges to the extent that it is
able and passes on any reduction in the Charges to Post Office.
In order to claim the rights and reliefs in Clause 39A.5, Fujitsu Services’ submission
pursuant to Clause 39A.3 will be provided within 15 Working Days after it has notified
Post Office of a claim that Clause 39A.2 applies and that Fujitsu Services is applying for
the rights and relief set out in Clause 39A.5.
In the event of a dispute, either Party may refer the matter for resolution in accordance
with schedule A2 and, failing resolution through governance within 15 Working Days,
such Party may refer the dispute for resolution in accordance with the Dispute Resolution
Procedure. Pending the resolution of the Dispute both Parties will continue to resolve the
causes of, and mitigate the effects of such failure.
Costs incurred due to Post Office Cause or Tower Contractor Cause
In this Clause 39B, claims for reimbursement of additional costs and expenses may be
claimed insofar as the Parties have not agreed to recompense Fujitsu Services elsewhere
in this Agreement. Where the Parties have agreed to recompense Fujitsu Services
elsewhere in this Agreement, Fujitsu Services may not make any claim under this Clause
39B.
If Fujitsu Services reasonably believes that it has incurred additional costs and expenses
as a direct result of steps taken by Fujitsu Services in carrying out any additional work or
services to remedy or mitigate an issue caused by a Post Office Cause or Tower
Contractor Cause, then Fujitsu Services shall claim for reimbursement of those additional
costs and in accordance with the claim process set out in Clause 39B.3.
CLAUSES Version 15.0
Page 75 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
39B.3
39B.4
39B.5
39B.6
39B.7
To the extent that Fujitsu Services reasonably believes that Clause 39B.2 applies, Fujitsu
Services may make a written submission to Post Office within 3 months of the
commencement of the Post Office Cause or Tower Contractor Cause seeking
reimbursement of additional costs and expenses necessarily and reasonably incurred as
a direct result of steps taken by Fujitsu Services in carrying out any additional work or
services to remedy or mitigate an issue caused by a Post Office Cause or Tower
Contractor Cause. Fujitsu Services shall not be entitled to any additional costs and
expenses, unless Fujitsu Services can demonstrate to Post Office's reasonable
satisfaction that:
39B.3.1 Fujitsu Services could not have avoided the effect on the provision of the
Services and/or on its ability to perform its obligations under the Agreement by
using all reasonable endeavours to eliminate or mitigate the consequences of
the delay in accordance with Good Industry Practice and having regard to the
scope of the Services for which Fujitsu Services is responsible; and
39B.3.2 costs incurred were reasonable, demonstrable, necessarily and reasonably
incurred and that Fujitsu Services used all reasonable endeavours to minimise
such costs,
and Fujitsu Services will provide any additional information that Post Office may
reasonably require in order to assess the validity of Fujitsu Services’ claim.
Post Office will consider any submission under Clause 39B.3 and advise Fujitsu Services
of its proposal in respect of a submission promptly and in any event within 15 Working
Days of receipt. If Fujitsu Services does not accept Post Office's submission, the Parties
shall meet within 5 Working Days of Fujitsu Services’ receipt of Post Office's proposal
and shall use reasonable endeavours to agree the amount of compensation applicable
to Fujitsu Services. Either Party may invite other interested Tower Contractors to the
meeting and in that event shall inform the other Party.
The agreed costs will be shown as an additional amount on the next Operational Charges
invoice due to be issued under this Agreement. If no Operational Charges invoice is due
to be issued then Fujitsu Services will issue an invoice.
In the event of a dispute, either Party may refer the matter for resolution in accordance
with schedule A2 and, failing resolution through governance within 15 Working Days,
such Party may refer the dispute for resolution in accordance with the Dispute Resolution
Procedure. Pending the resolution of the Dispute both Parties will continue to resolve the
causes of, and mitigate the effects of such failure.
Fujitsu Services acknowledges that in respect of a Post Office Cause or a Tower
Contractor Cause, a materiality threshold applies in respect of costs claimed for
reimbursement pursuant to Clause 39B.3 and that Fujitsu Services will not be entitled to
claim for reimbursement of costs pursuant to that Clause unless and until additional costs
and expenses incurred by Fujitsu Services in consequence of the circumstances listed in
Clause 39B.2 in respect of each individual Post Office Cause or of each individual Tower
Contractor Cause exceed £5,000.
CLAUSES Version 15.0
Page 76 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
39C _— Effects of a Fujitsu Dependency Failure
39C.1 For the avoidance of doubt, prior to the earlier of notification to Fujitsu Services of the
appointment of the Post Office Service Integrator by Post Office or the termination of any
Terminable Service and the contracting of a replacement for said service by Post Office
with a Tower Contractor under its Towers Model, there shall be no Fujitsu Dependencies.
39C.2 Upon agreement of any Fujitsu Dependencies, Fujitsu Services undertakes to notify Post
Office as soon as reasonably practicable after becoming aware that it has not, will not, or
is unlikely to fulfil any Fujitsu Services Dependency or will be delayed from doing so (a
“Fujitsu Dependency Failure”). In the event that Post Office has not been notified by
Fujitsu Services in accordance with this Clause 39C.2 but Post Office is aware or
becomes aware of a Fujitsu Dependency Failure, then Post Office shall notify Fujitsu
Services of such Fujitsu Dependency Failure.
39C.3 Notwithstanding actions to be taken under any Incident management process to resolve
a Fujitsu Dependency Failure, within 5 Working Days after providing notice or receiving
notice under Clause 39C.2, Fujitsu Services shall submit a report relating to the Fujitsu
Dependency Failure (the “Fujitsu Dependency Failure Report”) to Post Office setting
out full details of the reasons for, the issues arising out of and the steps which Fujitsu
Services is taking to minimise the impact of the Fujitsu Dependency Failure on Post Office
and/or the Tower Contractors to the extent to which the potential impact of a particular
Fujitsu Dependency Failure was agreed as part of the agreement of the particular Fujitsu
Dependency. In addition, it shall notify Post Office of the actions it intends to take to
prevent the recurrence of the Fujitsu Dependency Failure in the future.
39C.4 Fujitsu Services shall take reasonable steps to perform its obligations under the Agreement
and use its reasonable endeavours to take precautions which it ought reasonably to have
taken in accordance with Good Professional Practice in order to avoid or mitigate the
potential impacts of the Fujitsu Dependency Failure on Post Office, and/or the relevant
Tower Contractors.
39C.5 Fujitsu Services shall co-operate and work with Post Office, the Tower Contractors and/or
any third parties (as reasonably directed by Post Office) to mitigate the Fujitsu
Dependency Failure.
39C.6 In the event of a Post Office Cause or Tower Contractor Cause, Fujitsu Services shall co-
operate, support, collaborate and work with Post Office, other Tower Contractors and/or
any third parties (as reasonably directed by Post Office) so that Post Office and/or
relevant Tower Contractors are able to mitigate the effect of the Post Office Cause or
Tower Contractor Cause.
39C.7 Once a Fujitsu Dependency Failure has been resolved and in any event no later than 30
days (or such period as may be agreed by the Parties) after the occurrence of the Fujitsu
Dependency Failure, the Subject Leads for the Relationship best qualified to deal with
the Fujitsu Dependency Failure, taking into account its nature and the responsibilities of
each Subject Lead, shall convene an occasional meeting of the relevant Relationship in
accordance with paragraph 3.3 of Schedule A2 to agree responsibility for the Fujitsu
CLAUSES Version 15.0
Page 77 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
Dependency Failure (including where appropriate the preparation of a root cause
analysis).
39C.8 Post Office may make a written request to Fujitsu Services seeking reimbursement of
demonstrable additional costs and expenses necessarily and reasonably incurred as a
direct result of steps taken by Post Office and/or a Tower Contractor in carrying out any
additional work or services to remedy or mitigate an issue caused by a Fujitsu
Dependency Failure (the “Compensation Amount”). Post Office shall make any claim
for a Compensation Amount within 3 months of commencement of the Fujitsu
Dependency Failure. Post Office shall not be entitled to any Compensation Amount for
itself or any Tower Contractor unless Post Office can demonstrate to Fujitsu Services’
reasonable satisfaction that:
39C.8.1 Post Office and/or the Tower Contractor could not have avoided the effect on the
provision or receipt of the relevant services and/or on its ability to perform its
obligations under its agreement(s) by using all reasonable endeavours to
eliminate or mitigate the consequences of the delay in accordance with Good
Industry Practice; and
39C.8.2 costs incurred were reasonable, demonstrable, necessarily and reasonably
incurred and that Post Office and/or the Tower Contractor used all reasonable
endeavours to minimise such costs,
and Post Office will provide any additional information that Fujitsu Services may
reasonably require in order to assess the validity of Post Office's request.
39C.9 Fujitsu Services will consider any request under Clause 39C.8 and advise Post Office of
its proposal in respect of the Compensation Amount promptly and in any event within 15
Working Days of receipt. If Post Office does not accept Fujitsu Services’ proposal, the
Parties shall meet within 5 Working Days of Post Office's receipt of Fujitsu Services’
proposal and shall use reasonable endeavours to agree the Compensation Amount
applicable. Either Party may invite other interested Tower Contractors to the meeting and
in that event shall inform the other Party.
39C.10 The agreed Compensation Amount will be shown as a credit on the next Operational
Charges invoice due to be issued under this Agreement. If no Operational Charges
invoice is due to be issued then Post Office will issue a credit note.
39C.11 In the event of a dispute under this Clause 39C, either Party may refer the matter for
resolution in accordance with Schedule A2 and, failing resolution through governance
within 15 Working Days, such Party may refer the dispute for resolution in accordance
with the Dispute Resolution Procedure. Pending the resolution of the Dispute both Parties
will continue to resolve the causes of, and mitigate the effects of such failure.
39C.12 Post Office acknowledges that in respect of a Fujitsu Dependency Failure, a materiality
threshold applies in respect of costs claimed for reimbursement pursuant to Clause 39C.8
and that Post Office and/or any other Tower Contractor will not be entitled to claim for
reimbursement of costs pursuant to that Clause unless and until additional costs and
expenses incurred by Post Office and/or any other Tower Contractor in consequence of
CLAUSES Version 15.0
Page 78 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
40.
40.1
40.2
40.3
40.4
40.5
41.
414
41.2
the circumstances listed in Clause 39C.8 in respect of each individual Fujitsu Dependency
Failure exceed £5,000.
Fujitsu Services' Personnel
Post Office reserves the right under this Agreement to refuse to admit to any premises
occupied by or on behalf of any member of the Royal Mail Group (which expression shall
in this Clause 40 include all persons employed or engaged by the Royal Mail Group and
all persons other than Fujitsu Services and its sub-contractors providing services to the
Royal Mail Group), or to any Branch any person employed or engaged by Fujitsu
Services, or by a sub-contractor, whose admission would be, in the reasonable opinion
of Post Office, undesirable.
If and when directed by Post Office, Fujitsu Services 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 Agreement to any premises occupied by or on behalf any member of
the Royal Mail Group or to any Branch, specifying the capacities in which they are
concerned with this Agreement and giving such other particulars as Post Office may
reasonably require. Fujitsu Services shall comply with any reasonable directions issued
by the designated representative of Post Office as to which persons may be admitted to
such premises and at what times.
If and when directed by Post Office, Fujitsu Services shall secure that any person
employed or engaged by Fujitsu Services 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 Agreement.
Fujitsu Services' representatives, engaged within the boundaries of a Royal Mail Group
establishment or Branch, 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 Branch and when outside that
establishment or Branch.
The decision of Post Office as to whether any person is to be refused admission to any
premises occupied by or on behalf of the Royal Mail Group or to a Branch shall be final
and conclusive.
Fujitsu Services’ Key Personnel
The Parties acknowledge that the Key Personnel are essential to the fulfilment of Fujitsu
Services’ obligations hereunder.
Notwithstanding anything to the contrary in Clause 61, Post Office shall keep the CCD
entitled “Fujitsu Services Key Personnel” (HR/CON/001) (including any proposed or
agreed amendments to it) and the information contained in it (“Personnel Information”)
confidential. Except as provided for in this Clause 41.2, Post Office shall not copy,
reproduce or disclose Personnel Information to any third party.
CLAUSES Version 15.0
Page 79 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
41.3
414
42.
42.1
42.2
41.2.1 Post Office may reproduce, copy and disclose Personnel Information:
(a) to Post Office's Subject Leads for (i) the Systems Integration Partnership
and Executive Relationship and (ii) the Commercial Relationship;
(b) to its professional advisers provided such reproduction, copying and
disclosure is necessary for the purposes of this Agreement; or
(c) as required by law,
provided that Post Office shall procure that the persons referred to in paragraphs
(a) and (b) above shall not themselves disclose Personnel Information (except
amongst themselves) without the express written consent of Fujitsu Services.
41.2.2 Post Office may discuss Personnel Information with and disclose Personnel
Information to FS Listed Personnel.
Fujitsu Services undertakes to use all reasonable endeavours to ensure that the Key
Personnel are not removed or replaced for the duration of the activities relevant to them
(described as “Tasks” in the CCD entitled “Fujitsu Services Key Personnel”
(HR/CON/001)). However, in the event that any of the Key Personnel become unavailable
for any reason (including without limitation death, injury, sickness, promotion or
resignation), Fujitsu Services shall have the right upon giving 30 days’ notice in writing
(or such shorter period of notice as may be reasonably practicable) to Post Office to
replace such an individual with another individual whose abilities and qualifications are
appropriate for the services to be performed by such individual.
The Parties acknowledge and agree that in order for Fujitsu Services to successfully
complete its obligations under this Agreement, additional key personnel may be identified
after the date of this Agreement. The Parties shall identify and agree any such additional
key personnel (together with any activities which are relevant to them).
Injury to Persons; Loss of Property
Subject always to Post Office's proper observance of its obligations under this Clause 42
and except where paragraphs 5.2 or 6.3.3 of Schedule B1.3 apply, Fujitsu Services shall
fully indemnify Post Office in respect of any personal injury or loss of or damage to
Property incurred by Post Office, its contractors or their respective employees and
authorised agents to the extent that such personal injury or loss of Property is caused by
any Default of Fujitsu Services, its employees or agents in connection with the
performance or purported performance of this Agreement.
In the event of any claim or demand being made or action brought to which Clause 42.1
applies, Fujitsu Services shall be promptly notified thereof and Fujitsu Services shall at
its own expense conduct all negotiations for settlement of the same and any legal
proceedings that may arise therefrom. Fujitsu Services shall consult with and pay due
regard to the interests and views of Post Office (including the commercial interests of the
Royal Mail Group and the public interest) 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
CLAUSES Version 15.0
Page 80 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
42.3
43.
43.1
43.2
43.3
43.4
and views. Post Office, its employees and agents, shall at the request of Fujitsu Services
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.
Notwithstanding Clause 42.2, Post Office shall have the option to take over the conduct
over any claim, demand or action to which this Clause applies. Should Post Office
exercise the aforementioned option it shall indemnify Fujitsu Services against any loss,
damage, cost or expense which it incurs in respect of that claim, demand or action over
and above the monetary amount (which Fujitsu Services shall have notified to Post Office
prior to Post Office exercising its option) at which Fujitsu Services was prepared to settle
said claim, demand or action.
Liability
Subject to the remaining sub-clauses of this Clause 43, Fujitsu Services shall be liable
for all losses and shall indemnify Post Office against all costs, expenses, losses and
damages incurred, including any legal costs (together referred to in this Clause 43 only
as “Losses”), as a result of:
43.1.1 any unauthorised third party access to the Infrastructure;
43.1.2 any unauthorised third party access to the Post Office Service Environment which
is gained through the Infrastructure;
43.1.3 any "hacking" into the systems used by Fujitsu Services to provide the Services
(whether or not constituting an offence under the Computer Misuse Act 1990); or
43.1.4 any other form of fraud.
Removed by CCN1648b
In the event of Partial Termination for any reason of the Data Centre Operations Service
and the Central Network Service (as a single Terminable Service) or the Systems
Management Service, Third Line Software Support Service or Application Support
Service (Fourth Line), with effect from the date of termination of the first such Service to
be Partially Terminated, the provisions of Clause 43.1 shall not apply unless Post Office
proves that any of the matters referred to in sub-clauses 43.1.1 to 43.1.4 (inclusive) have
been caused by Fujitsu Services’ Default in respect of any of its obligations or
responsibilities under this Agreement.
In the event of Partial Termination for any reason of any of the Terminable Services
referred to in Clause 43.3 Fujitsu Services shall promptly provide to Post Office all
correspondence, audit trails, documentation and other information (in whatever media)
as Post Office may reasonably require in order to establish the cause of any of the matters
referred to in sub-clauses 43.1.1 to 43.1.4 (inclusive).
CLAUSES Version 15.0
Page 81 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
43.5
43.6
43.7
43.8
43.9
In the event of Partial Termination for any reason of any Terminable Service the provisions
of Clause 43.1 shall continue to apply subject to Clause 43.3 and any exceptions or
qualifications agreed by the Parties pursuant to paragraph 2.2.6 of Schedule E.
If and to the extent that Fujitsu Services proves that any of the matters referred to in
Clause 43.1 have been caused by Post Office's non-performance of any of its obligations
or responsibilities under this Agreement upon the performance of which Fujitsu Services’
obligations depend, the provisions of Clause 43.1 shall not apply.
In the event that:
43.7.1 Post Office agrees pursuant to paragraph 2.2.4 of Schedule E to perform any
security related obligations or responsibilities; or
43.7.2 the Post Office responsibility set out in paragraph 2.4.3 of Schedule E applies,
in connection with any Partial Termination, Post Office shall promptly provide to Fujitsu
Services all correspondence, audit trails, documentation and other information (in
whatever media) as Fujitsu Services may reasonably require in order to establish the
cause of any of the matters referred to in Clause 43.1.
Where an act of fraud relates to the Superstock Solution, Clause 43.1.4 shall not apply
unless the fraud in question was perpetrated by a:
43.3.1. person who was at the time in question an employee, agent or sub-contractor of
Fujitsu Services (or an employee or agent of its sub-contractors);
43.3.2 third party whose fraudulent actions resulted from or were made possible by
Fujitsu Services' failure to comply with its obligations under this Agreement.
In the case of the Banking Functions or in relation to the operation of the Banking
Functions, Clause 43.1.4 shall not apply unless the fraud in question was perpetrated by
a person who was at the time in question:
43.9.1 an employee, agent or sub-contractor of Fujitsu Services (such agents or
subcontractors being together referred to as "Current Banking Participants");
43.9.2 a former employee, agent or sub-contractor of Fujitsu Services, who was an
employee, agent or sub-contractor (as the case may be) of Fujitsu Services at
any time on or after 14 April 2001 (such agents or subcontractors being together
referred to as “Former Banking Participants") and who satisfies the Information
Condition;
43.9.3 an employee, agent or sub-contractor of the Current Banking Participants who
satisfies the Information Condition;
43.9.4 a former employee, agent or sub-contractor of a Current Banking Participant who
was an employee, agent or sub contractor (as the case may be) of that Current
CLAUSES Version 15.0
Page 82 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
43.9.5
Banking Participant at any time on or after 14 April 2001 and who satisfies the
Information Condition; or
a former employee, agent or sub-contractor of a Former Banking Participant who
was an employee, agent or sub-contractor (as the case may be) of such Former
Banking Participant while that Former Banking Participant was a Current Banking
Participant and who satisfies the Information Condition.
43.10 Fujitsu Services shall not be liable for or indemnify Post Office in respect of any Losses:
43.10.1 where the Losses incurred by Post Office relate solely to the Banking Function or
the operation of Banking Function;
43.10.2where such Losses were incurred as a result of any unauthorised access or
hacking referred to therein into an element or elements (used solely for the
operation of the Banking Functions) of either the Post Office Service Architecture
or the NB System (excluding elements of the Post Office Service Architecture or
the NB System located at Branches);
43.10.3where the unauthorised access, hacking or fraud was perpetrated through or by
any employee, agent, contractor or sub-contractor of, any Bank or through or by
any element of the Infrastructure at any Bank premises other than by the persons
referred to in Clause 43.9;
43.10.4where such Losses were incurred as a result of any unauthorised access or
hacking or fraud arising as a result of Post Office's design, development and/or
introduction of new Transaction types using the AP-ADC Facility, or the APOP
Facility, or any fraud perpetrated by Post Office contractors, subcontractors,
employees or agents in connection with such design, development, introduction
or use unless the root cause of such unauthorised access, hacking or fraud was:
(a) defects in Fujitsu Services’ design or implementation of the AP-ADC
Facility or the APOP Facility;
(b) a failure by Fujitsu Services to maintain the AP-ADC Facility or the APOP.
Facility or to process such new Transactions, in accordance with its
obligations set out in this Agreement; or
(c) a defect in such design, development, introduction or use resulting from
an error in the CCD entitled “AP-ADC Reference Manual”
(DES/GEN/MAN/0002) or the CCD entitled “ APOP Authorisation Service
Reference Manual” (AP/MAN/004); the presence of which is solely or
mainly attributable to a breach by Fujitsu Services of its obligations set out
in Clauses 15.1.4 and 15.1.5 when it assisted Post Office to produce that
CCD under Work Order;
43.10.5 Clause removed by CCN1725a;
CLAUSES Version 15.0
Page 83 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
43.11
43.12
43.13
43.10.6 where the Losses incurred by the Post Office relate solely to the Superstock
Solution or the operation of the Superstock Solution;
43.10.7 where such Losses were incurred as a result of any unauthorised access or
hacking, as referred to in Clause 43.1, into, through or by use of an element or
elements of the Superstock Infrastructure used to provide the Superstock
Services; or
43.10.8where such Losses were occurred as a result of any unauthorised, hacking or
fraud perpetrated through or by use of communications links into the POL MI
System which are not the responsibility of Fujitsu Services.
43.10.9where such Losses were incurred as a result of a breach by Post Office of the
Customer Agreement other than where such breach is caused by the acts or
omissions of Fujitsu Services.”
Post Office shall not have any right of action against Fujitsu Services in respect of any
costs, expenses, losses or damages arising as a result of the loss, theft or compromise
of a password/passphrase shared between the Merchant Acquirer and the Data Centres
or the subsequent use of such password/passphrase (as the case may be) except to the
extent that such loss, theft or compromise or such costs, expenses, losses, or damages
arise as a result of the fraud or Default of Fujitsu Services or of its employees, agents or
subcontractors.
In this Clause 43, the "Information Condition" means that the person concerned either:
43.12.1is or has been entitled to have access in the course of fulfilling their duties or
obligations as employee, agent or sub-contractor (as the case may be) to
information concerning the design or performance of security measures used by
or in the NB System; or
43.12.2is not or was not entitled to have access to information concerning the design or
performance of security measures used by or in the NB System, but:
(a) used such information obtained as a result of their relationship with Fujitsu
Services in perpetrating the fraud in question; and
(b) Fujitsu Services fails to show that it had taken all reasonable steps and
precautions to prevent that information being obtained.
In the case of Debit Card, Fujitsu Services shall not be liable for and Post Office shall not
have any right of action against Fujitsu Services in respect of any costs, expenses, losses
or damages arising as a result of:
43.13.1 fraud in connection with or unauthorised disclosure of;
43.13.2loss or corruption of; or
43.13.3hacking in connection with,
CLAUSES Version 15.0
Page 84 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
43.14
43.15
43.16
DC Data, irrespective of whether such DC Data are inside or outside the Infrastructure
unless and to the extent that such arises from a Default of Fujitsu Services.
In the case of Banking Functions, Debit Card and ETU, Fujitsu Services shall not be liable
for any costs, expenses, losses or damages suffered or incurred by Post Office in relation
to:
43.14.1 Banking Transactions falsely or incorrectly authorised unless and to the extent
caused by a failure of the NB System or of the Banking Functions which is (in
either case) a Default;
43.14.2DC Transactions or ETU Transactions falsely or incorrectly authorised unless and
to the extent caused by a failure of Debit Card or ETU respectively which is a
Default; and
43.14.3fraudulent use of token supported by the Banking Functions, Debit Card or ETU
by any person, unless and to the extent that such use is carried out by or involves
collusion with Fujitsu Services' employees, or otherwise arises from a Default or
fraud of Fujitsu Services.
If Post Office:
43.15.1 accepted a Design Proposal (as that term was defined and used in this Agreement
in its form prior to CCN1200); or
43.15.2accepts in a specification or other document agreed by the Parties pursuant to
the Work Ordering Procedure or Change Control Procedure,
which included or includes a third party interface or third party application which was.
either not selected by Fujitsu Services or was selected by Fujitsu Services subject to
clearly disclosed limitations notified to Post Office, Fujitsu Services shall not, under
Clause 43.1, be liable for or indemnify Post Office against any Losses incurred by Post
Office resulting from unauthorised access to the Infrastructure, "hacking" and other
fraudulent and criminal activities provided Fujitsu Services has operated such interfaces
or applications in accordance with the technical and operational specifications agreed
between Post Office and Fujitsu Services in respect of such interfaces or applications and
has exercised reasonable care and skill in implementing such interfaces and carrying out
the integration of such applications.
For the purposes, but without prejudice to the generality, of Clause 43.15:
43.16.1 Configured POL MI shall be deemed to be a third party application; and
43.16.2Clause removed by CCN1725a
43.16.3Clause removed by CCN1613a
not selected by Fujitsu Services and included in a Design Proposal accepted by Post
Office.
CLAUSES Version 15.0
Page 85 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
43.17
43.18
43.19
43.20
In relation to data processing (involving either automated or manual processing or both)
under this Agreement, Fujitsu Services shall not be in breach and shall not be liable to
Post Office for any failure to perform its obligations, or delay in performing such
obligations, to the extent it can demonstrate to Post Office's satisfaction (Post Office
acting reasonably) that such failure or delay occurred as a result of a Design Limit being
exceeded
Fujitsu Services shall not be liable for any failure to perform or delay in performing its
obligations and Post Office shall have no right of action against Fujitsu Services in respect
of any costs, expenses, losses or damages arising as a result of:
43.18.1 Clause removed by CCN125a
43.18.2any unauthorised access, hacking or fraud of the kind described in
Clause 43.10.5;
43.18.3 Clause removed by CCN1613a
43.18.4 or subsequent to the POLSAP R1 Go Live Date, any fault or problem with the
POLSAP Software related to its configuration by Post Office or a third party on
behalf of Post Office (other than Fujitsu Services or its subcontractors).
43.18.5 the unavailability of POLSAP Software due to any maintenance or support work
being required in respect of POLSAP Software that Fujitsu Services is not obliged
to perform;
43.18.6any failure by any Branch to complete any Branch Trading Statement prior to the
expiry of the 42 day period during which Fujitsu Services retains data for the
period covered by that Branch Trading Statement; or
43.18.7any failure by any Branch to accept or implement any Transaction Correction
Record,
save to the extent that a failure by Fujitsu Services to perform any of its obligations (such
failure not itself arising as a result of the matters referred to in Clauses 43.18.1 to 43.18.6
inclusive) directly caused such costs, expenses, losses or damages.
Fujitsu Services shall provide to Post Office copies of or access to all relevant records
produced by Fujitsu Services in the course of performing the HNG-X Services (such
records to include, where produced by Fujitsu Services, operational change proposals,
help desk records, release notes, change logs, firewall logs, event records, error logs and
audit records) that Post Office reasonably requires in order to establish the cause of any
failure to perform or delay in performing Fujitsu Services’ obligations, where Fujitsu
Services asserts that Clauses 43.18.1 or 43.18.2 are applicable in respect of such failure
or delay. All information obtained by Post Office pursuant to this Clause 43.19 shall be
treated as Confidential Information.
Not Used
CLAUSES Version 15.0
Page 86 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
43.21
43.22
43.23
44.
44.4
In the case of the Superstock Solution Fujitsu Services shall not be liable for any failure
to perform or delay in performing its obligations and Post Office shall have no right of
action against Fujitsu Services in respect of any costs, expenses, losses or damages
arising as a result of:
43.21.1 Not Used
43.21.2 any unauthorised access, hacking or fraud of the kind described in
Clause 43.10.7.
Fujitsu Services shall not be liable for any failure to perform or delay in performing its
obligations and Post Office shall have no right of action against Fujitsu Services in
respect of any costs, expenses, losses or damages arising as a result of:
43.22.1 any fault or problem with, or the unavailability of, any communications links into
the POL MI System which are not the responsibility of Fujitsu Services; or
43.22.2 any unauthorised access, hacking or fraud of the kind described in Clause
43.10.8;
43.22.3 any fault or problem with Configured POL MI related to its configuration by Post
Office or a third party on behalf of Post Office; or
43.22.2 the unavailability of Configured POL MI due to any maintenance or support
work being required in respect of Configured POL MI that Fujitsu Services is not obliged
to perform,
Save to the extent that a failure by Fujitsu Services to perform any of its obligations
(such failure not itself arising as a result of the matters referred to in Clauses 43.22.1 to
43.22.4 inclusive) directly causes such costs, expenses, losses or damages.
Fujitsu Services shall provide to Post Office copies of or access to all relevant records
produced by Fujitsu Services in the course of performing the Operational Services (such
records to include, where produced by Fujitsu Services, operational change proposals,
help desk records, release notes, change logs, firewall logs, event records, error logs
and audit records) that Post Office reasonably requires in order to establish the cause of
any failure to perform or delay in performing Fujitsu Services’ obligations, where Fujitsu
Services asserts that Clauses 43.22.1 0r43.22.2 are applicable in respect of such failure
or delay. All information obtained by Post Office pursuant to this Clause 43.23 shall be
treated as Confidential Information.
Limitation of Liability
Neither Party hereto excludes or limits its liability to the other Party:
44.1.1 for death or personal injury; or
44.1.2 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; or
CLAUSES Version 15.0
Page 87 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL.
44.1.3 for its fraudulent misrepresentation; or
44.1.4 for its fraud or for fraud for which it is responsible, save (in the case of Fujitsu
Services) where the liability in question would not have arisen but for the
provisions of Clauses 16 or 43.
44.2 Subject always to Clause 44.1, 44.3, 44.4, 44.4A and 44.4B, the liability of each Party for
Defaults shall be subject to the financial limits set out in this Clause 44.2.
44.2.1 The aggregate liability in relation to all Defaults arising during the period 15 May
2002 to 31 March 2003 (inclusive) or in any Financial Year thereafter which results
in direct loss of or damage to the Property of the other Party shall in no event
exceed:
(a) £1,500,000 per Financial Year in the case of a liability of Post Office; and
(b) £10,000,000 per Financial Year in the case of Fujitsu Services.
44.2.2Subject to Clause 44.2.2A, the
aggregate liability of Post Office for all
Defaults and any liability arising from
a Post Office Cause:
(a) (other than a Default governed by Clause 44.2.1) arising during the
period 15 May 2002 to 31 March 2003 (inclusive) or in any Financial
Year thereafter shall in no event exceed £5,870,689 per Financial
Year; and
(b) (including a Default governed by Clause 44.2.1) arising at any time after
the end of the last Financial Year shall in no event exceed £10,436,783.
44.2.2A With respect to any liability of Post Office for any liability arising from a Tower
Contractor Cause, Post Office's liability in any Financial Year shall in no event
exceed the higher of:
(a) the aggregate liability set out in Clause 44.2.2; or
(b) the amount Post Office is able to recover under its contract with the
relevant Tower Contractor for the default that gave rise to the Tower
Contractor Cause.
44.2.3 The aggregate liability under this Agreement of Fujitsu Services for all Defaults
and any Compensation Amount payable as a result of a Fujitsu Dependency
Failure::
(a) (other than a Default governed by Clauses 44.2.1, 44.2.4 or 44.2.5)
arising during:
CLAUSES Version 15.0
Page 88 of 127
CONFIDENTIAL.
44.2.4
44.2.5
44.2.6
44.2.7
(1) the period from 1 January 2003 to 31 March 2003
(inclusive) shall not exceed £1,729,000;
(2) the Financial Year ending on 31 March 2004 shall
not exceed £7,139,000; and
(3) Financial Year NN shall not exceed £15,000,000;
and
(b) (including a Default governed by Clause 44.2.1 but other than a Default
governed by Clauses 44.2.4 or 44.2.5) arising at any time after the end of
the last Financial Year shall not exceed £15,000,000.
For the purposes of sub-clause 44.2.3(a)(3), "Financial Year NN" means, in
relation to a Default by Fujitsu Services liability for which arose after 31 March
2004, the Financial Year in which that liability arose.
Subject to Clause 44.2.5 the aggregate liability of Fujitsu Services for all Defaults
(other than a Default governed by Clause 44.2.1) relating to a particular Work
Order shall not exceed 100% of the Charges payable pursuant to that Work
Order.
Where Fujitsu Services is engaged under a series of related Work Orders
covering two or more of the following Development Lifecycle Stages:
(a) Solution Specification Stage;
(b) Solution Build and Test Stage; and
(c) Implementation Stage,
the aggregate liability of Fujitsu Services for all Defaults (other than a Default
governed by Clause 44.2.1) relating to such Work Orders shall not exceed 100%
of the aggregate Charge for all such Work Orders and this limit shall apply in lieu
of the limit in Clause 44.2.4.
The aggregate liability of Fujitsu Services for all Defaults (other than a Default
governed by Clause 44.2.1) relating to NBS prior to NBS Acceptance shall not
exceed 100% of the Network Banking Implementation Charges.
Subject to Clause 44.1, 44.2.4 and 44.2.5 but notwithstanding any other provision
in this Clause 44 (save for Clause 44.2.8 as noted), the aggregate liability of
Fujitsu Services for all Defaults (other than a Default governed by Clause 44.2.8)
relating to the Superstock Solution in any Financial Year shall in no event exceed
10% of the estimated Superstock Charges for the Financial Year commencing
1st April 2010 or £25,000 whichever is the greater. Any such liability shall count
as part of Fujitsu Services’ aggregate liability under Clause 44.2.3.
CLAUSES Version 15.0
Page 89 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
44.3
44.4
44.40
44.4B
44.5
44.6
44.2.8 Subject to Clause 44.1, 44.2.4 and 44.2.5 but notwithstanding any other provision
in this Clause 44, the aggregate liability of Fujitsu Services for all Defaults relating
to the Superstock Solution which result in direct loss or damage to the Property
of the Post Office shall in no event exceed £1 million. Any such liability shall
count as part of Fujitsu Services' aggregate liability under Clause 44.2.1.
Subject to Clause 44.1 and to the extent permitted at law, the aggregate liability of Fujitsu
Services under Clauses 16 and 43 of this Agreement for the fraud or other criminal
activities of its employees or subcontractors shall be limited to £21,896,142 per Fraud
Event.
Subject to Clauses 44.4A, 44.4B and 44.5, the financial limits specified in Clause 44.2.2
and 44.2.3 shall apply to, and limit the Parties' respective liability for, the aggregate of all
claims for monetary relief arising in the period in question which either Party may have
against the other either under this Agreement, in tort (including negligence), breach of
statutory duty or otherwise in relation to the subject matter of this Agreement, including,
without limitation, all claims arising for Defaults, all claims for liquidated damages and
Post Office Additional Cost pursuant to Clause 18, Schedule C1 and/or the provisions of
the Service Descriptions, all claims to be indemnified pursuant to Clauses 34, 42 or 43
and all other claims or costs which are compensatable in money or money's worth as
though all such claims for monetary relief represented liability for Defaults occurring in
the period in question.
For the purposes of Clauses 44.2 and 44.4,
a liability or claim for monetary relief arises when the act, omission, event or
circumstance giving rise to that liability or claim occurs; and
Notwithstanding that Clause 44.2 is stated to be subject to Clause 44.4, Clause 44.4
shall not limit:
44.4B.1 liability of the type referred to in Clauses 44.1;
44.4B.2 _ liability for Defaults governed by 44.2.1, 44.2.4 or 44.2.5; or
44.4B.3 liability governed by Clause 44.3.
The financial limits on the liability of Post Office under Clause 44.2 shall be exclusive of
and additional to any liability of Post Office to pay any Charges, other amounts, the
Transfer Payment, the Termination Charge, any Partial Termination Charge or the HNG-
X Termination Charge which may become properly due and payable to Fujitsu Services
in accordance with the provisions hereof or any sum by way of interest thereon that a
court may award.
Subject always to Clause 44.1, in no event shall either Party be liable to the other Party
for indirect or consequential loss or damage. However:
(a) Fujitsu Services acknowledges and agrees that it shall not be entitled to
claim that a loss incurred by a Tower Contractor is an indirect loss solely
CLAUSES Version 15.0
Page 90 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
44.7
44.8
44.9
44.10
44.11
44.12
because it was not incurred by the Post Office. As such, any loss
incurred by a Tower Contractor that would have been a direct loss if it
had been incurred by the Post Office shall, for the purposes of
determining a Compensation Amount, be deemed to be a direct loss;
and
(b) Post Office acknowledges and agrees that all claims that Fujitsu
Services may make for relief under Clause 39A.3 or Clause 39A.5.3
and for compensation under Clause 39B.3 including for any payments
under Clause 39B.5 shall be made to Post Office and not any of the
Tower Contractors and that all payments of such relief or compensation
shall be by Post Office and not any Tower Contractor.
The provisions of Clause 44.6 shall not be taken as limiting the right of Post Office to
claim from Fujitsu Services for:
44.7.1 additional operational and administrative costs and expenses; and/or
44.7.2 expenditure or charges rendered unnecessary as a result of any Default by Fujitsu
Services, and/or
44.7.3 any compensation arising out of a Fujitsu Dependency Failure due to Post Office,
Post Office Service Integrator or a Tower Contractor.
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.
For the avoidance of doubt, it is acknowledged that nothing in this 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.
Not Used
Not Used
Each of the sums referred to in Clauses 44.2.2, 44.2.3(a)(3), 44.3 and 44.10 shall be
increased at the end of the Financial Year ending on or around 31 March, 2007 and at
the end of each subsequent Financial Year by an amount equal to the difference
(expressed as a percentage) between the level of the Retail Price Index most recently
published in respect of December of the Financial Year in question and the level of the
Retail Price Index in December of the preceding Financial Year.
CLAUSES Version 15.0
Page 91 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
44.13 Notwithstanding the provisions of Clause 44.2 and without prejudice to the provisions of
45.
Clause 44.1, the aggregate liability of Fujitsu Services for all Defaults and all claims,
demands, actions, costs (including legal costs), expenses, losses and damages arising
from or incurred by reason of any breach by Fujitsu Services of the provisions of Clause
33.2 howsoever arising shall be limited in any Financial Year to 150% of the aggregate
annual Operational Charges in such Financial Year.
Insurance
Fujitsu Services 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 Services, including workman's compensation, public liability, product
liability, property damage and professional indemnity. Fujitsu Services will, if requested in
writing by Post Office, produce to Post Office a certificate of insurance showing the
applicable coverage currently in force, and will also give Post Office prior written notice
of (where possible), or written notice no later than 30 days after, alteration or cancellation
of such insurance.
PART G: TERMINATION AND EXIT
46. Term
46.1 The term of this Agreement shall, unless terminated earlier in accordance with the provisions
of Clause 47 or extended in accordance with the provisions of Clause 46.2, be for a period
commencing on the 28 July 1999 and ending on 31 March 2024.
46.2 Post Office may, in its absolute discretion extend the term of this Agreement, by a further
one year period by giving notice to Fujitsu Services on or before 318 March 2023 of its
requirement to extend to 318 March 2025.
46.3 Each Expiring Service shall, unless terminated earlier in accordance with the provisions of
Clause 47 or extended in accordance with the provisions of paragraph 10 of Schedule E
(where applicable or otherwise extended through the Change Control Procedure), be
provided for the period up to the relevant date specified in Table A of Schedule B3.1 on which
date such Expiring Service shall expire. Liquidated damages shall continue to apply during
any extension in accordance with Clause 18. For the avoidance of doubt, all other provisions
of the Agreement shall continue to apply during any extension period.
46.4 Notwithstanding Clause 46.3, some of the Expiring Services have been extended and as
such the Expiring Services as at signature of CCN1600 and as amended by CCN1700 shall
be:
46.4.1 the, Branch Network Service and CMT Service, due to expire on 31% March 2017;
and.
CLAUSES Version 15.0
Page 92 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
46.4.2 the POLSAP Hosting Service, POLSAP Applications Support Service and support
for the Credence/MDM Service and the Salesforce Support Service, due to expire
on 31% March 2016.
The Expiring Services shall, unless terminated earlier in accordance with the provisions
of Clause 47, or extended in accordance with either the provisions of paragraph 10 of
Schedule E or using the Change Control Procedure, be provided for the period up to the
dates specified in Clause 46.4.1 and 46.4.2 above. For the avoidance of doubt, no Partial
Termination Charge or Termination Charge shall be payable in relation to these Expiring
Services if they expire on the dates set out above.
Both Parties acknowledge that Post Office may request further extensions to the Expiring
Services. Both Parties agree to act reasonably in the event of any such request and any
associated negotiation of terms. In particular, Fujitsu Services agrees to mitigate its costs
of supply and stranded costs with respect to any further extension of the Expiring Services
to the extent that it is reasonably possible to do so having regard to, amongst other things,
the timing of any request relative to the expiry date of the Expiring Services.
46.5 The Terminating Services shall cease on 31st March 2025. Termination of the Data Centre
46.6
47.
47.1
47.2
Operations Service does not include termination of the Belfast Data Centre Facilities.
In preparation for the cessation of the Terminating Services on 31st March 2025, from
1st April 2024, the Parties shall commence Termination Assistance Service which shall
include such obligations on the Post Office as are necessary to ensure that Post Office
is able to provide the Terminating Services itself on and from 1 April 2025 and the
Termination Assistance Service shall cease on 31st March 2025, any further details of
which shall be agreed through the Change Control Procedure. For the avoidance of
doubt. The Belfast Data Centre Facilities shall continue to be provided until 31st March
2025 unless terminated otherwise in accordance with Clause 47.11.2(f).
Termination
Termination of whole Agreement
Post Office may at any time by notice in writing terminate this Agreement with effect from
the date of service of such notice or such later date as
may be specified therein if:
47.2.1 there is a change of control, as defined by Section 416 of the Income and
Corporation Taxes Act 1988, in Fujitsu Services or the Guarantor; or
47.2.2 Fujitsu Services or the Guarantor, being an individual, or where Fujitsu Services
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
CLAUSES Version 15.0
Page 93 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
47.2.3
47.2.4
47.2.5
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 the benefit of his creditors; or any similar event occurs under the law of
any other jurisdiction; or
Fujitsu Services or the Guarantor, being a company, passes a resolution, or the
Court makes an order that Fujitsu Services 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 Fujitsu Services or of the Guarantor) of Fujitsu
Services 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 Fujitsu Services 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
any provision hereof other than Clause 47 expressly entitles Post Office to
terminate this Agreement; or
the circumstances in Clause 60.5 arise and either the obligation in question is not
capable of being performed again, or, if itis so capable, is not so performed again
within 30 days of written notice to Fujitsu Services specifying the obligation in
question and requiring it to be performed or within such other period as may be
requested by Fujitsu Services and agreed by Post Office, such agreement not to
be unreasonably withheld or delayed.
47.3 Post Office may at any time by notice in writing terminate this Agreement with effect from
the date of service of such notice or such later date as may be specified therein, if Fujitsu
Services is in material or persistent Default of any obligation under this Agreement and:
47.3.1
47.3.2
such Default is capable of remedy and Fujitsu Services shall have failed to
remedy the Default within 30 days of written notice to Fujitsu Services specifying
the Default and requiring its remedy or within such other period as may be
requested by Fujitsu Services and agreed by Post Office, such agreement not to
be unreasonably withheld or delayed; or
such Default is not capable of remedy (and for the purposes of this Clause 47.2,
failure to comply with a timescale shall not of itself be considered a Default not
capable of remedy).
474 Removed by CCN1648b
CLAUSES Version 15.0
Page 94 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
475
476
477
478
479
47.10
47.11
Fujitsu Services may at any time by notice in writing to Post Office terminate this
Agreement with effect from the date of service of such notice or such later date as may
be specified therein, in the event of the material or persistent failure by Post Office to pay
Charges which have not been disputed by Post Office and Post Office shall have failed
to remedy such failure to pay within 30 days of written notice to Post Office specifying
such failure to pay and requiring its remedy or within such other period as may be
requested by Post Office and agreed by Fujitsu Services, such agreement not to be
unreasonably withheld or delayed.
In the event of any termination of this Agreement pursuant to Clause 47.1, Clause 47.2,
Clause 47.4, Clause 47.7 or termination of a Terminable Service pursuant to
Clause 47.10 or expiry of an Expiring Service, Post Office shall return the Infrastructure
or any part thereof (other than any part (a) in relation to which it has exercised the option
to acquire under Clause 48 and (b) (in the event of Partial Termination of a Terminable
Service or expiry of an Expiring Service) that is required for continuing Services or for a
Next Supplier), in which case Fujitsu Services shall at no additional cost to Post Office,
remove such parts of the Infrastructure as soon as reasonably practicable and shall make
good any damage to the Post Office Premises occasioned by such removal.
Post Office shall only be permitted to exercise its rights pursuant to Clause 47.1.1 for
three months after each such change of control and shall not be permitted to exercise
such rights where Post Office has agreed in advance in writing to the particular change
of control and such change of control takes place as proposed. Fujitsu Services shall
notify Post Office 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
month after such change of control taking place.
Post Office may terminate this Agreement for convenience on or after 1 April 2021 by
giving Fujitsu Services not less than twelve months' notice. For the avoidance of doubt,
such notice may be given before 1 April 2021, but the Agreement may not terminate under
this Clause 47.7 before to 1April 2021. In the event of such notice being given, Post
Office shall on termination hereof pay to Fujitsu Services the Termination Charge
calculated in accordance with Schedule E.
Termination shall not prejudice or affect any right of action or remedy which shall have
accrued or shall thereafter accrue to either Party.
The provisions of Clauses 10.1.2, 25, 27, 30.19, 31 (to the extent applicable in respect of
the Transfer Services), 33.2, 34, 39.3, 43, 44, 47, 48, 50, 53, 56, 57, 59, 61, 62, 65, 67,
68, 69, 70, 71, 72, 75, the provisions of Schedules 1, D1, D5 and E, paragraphs 2.2.3.4
and 2.4 of Schedule B4.1 and paragraph 3.4 of Schedule D3 shall survive the termination
of this Agreement by Post Office or Fujitsu Services or the expiry of this Agreement.
Partial Termination
Post Office may in the manner and in the circumstances set out in this Clause 47.10
terminate the provision of one or more Terminable Services.
CLAUSES Version 15.0
Page 95 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
47.11.1 Market Testing
If entitled to terminate a Terminable Service under paragraph 4.3.3(b)(ii) of
Schedule D6, Post Office may, by giving Fujitsu Services not less than six months’
notice in writing, terminate that Terminable Service.
47.11.2 Convenience
(a)
(b)
(c)
Post Office may terminate the provision of any Terminable Service on or
after the earliest date for termination or occurrence of the event required
for termination of that Service specified in Annex 1 to Schedule E by giving
Fujitsu Services not less than
(i) 3 months’ notice in writing (or 6 months’ notice in writing in the event of
termination of the Service Desk Service and 1 month's notice in writing for
CMT Services) provided such notice is deemed duly given in accordance
with Clause 57.2 on or prior to 318t March 2017; or
(ii) 6 months' notice in writing where such notice is deemed duly given in
accordance with Clause 57.2 on or after 15‘ April 2017, with the exception
of the Operational Business Change (Branch Change) Service, which shall
require 3 months’ notice in writing.
In the event such notice is given a Partial Termination Charge shall be
paid by Post Office to Fujitsu Services upon such Partial Termination.
For the avoidance of doubt, it is noted that during the 6 months’ notice
period for the Service Desk Service, Post Office retains the option to
“ramp down’ the services, noting that it must take account of Post Office's
and the Next Supplier's obligations (where relevant) to consult with any
staff potentially subject to transfer under the TUPE Regulations.
Post Office may terminate the provision of the CMT Service by giving
Fujitsu Services not less than:
(i) one month's notice in writing provided such notice is deemed duly
given in accordance with Clause 57.2 on or prior to 318 March 2017; or
(ii) 6 months’ notice in writing where such notice is deemed duly given in
accordance with Clause 57.2 on or after 1%t April 2017.
No termination or compensation charge shall be payable to Fujitsu
Services in the event of such termination and the provisions of Schedules
D6 and E shall not apply in respect of the CMT Service.
Post Office may terminate the provision of the Superstock Service by giving
Fujitsu Services not less than twelve months’ notice in writing. No
termination or compensation charge shall be payable to Fujitsu Services in
the event of such termination and the provisions of Schedules D6 and E
shall not apply in respect of the Superstock Service.
CLAUSES Version 15.0
Page 96 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
(d)
(e)
()
(g)
Unless the Parties agree otherwise in the relevant CCN:
(i) Post Office may terminate the provision of any Service Integration
Service or Third Party Management Service introduced under the
Change Control Procedure after the date of signature of CCN1200
by giving not less than twelve months’ notice in writing; and
(ii) no termination or compensation charge shall be payable to Fujitsu
Services in the event of such termination and the provisions of
Schedules D6 and E shall not apply in respect of any such Service
Integration Service or Third Party Management Service.
Post Office may terminate the provision of the Track and Trace Despatch
Report Cut-off monthly workaround (introduced in CCN1627a as part of
the Third Line Software Support Service) by giving Fujitsu Services not less
than one months' notice in writing. No termination or compensation charge
shall be payable to Fujitsu Services in the event of such termination and
the provisions of Schedules D6 and E shall not apply in respect of the Track
and Trace Despatch Report Cut-off monthly workaround.
The HNG-X Test Infrastructure services shall be co-terminus with the Data
Centre Operations Service and therefore shall cease when the Data Centre
Operations Services ceases on 31st March 2025. The extended term from
1st April 2024 to 31st March 2025 is dependent upon Change Work Orders
being agreed and signed for implementation of Test Rigs Refresh
Programme before 3 November 2023.
Post Office may terminate early the provision of the Belfast Data Centre
Facilities by giving Fujitsu Services not less than twelve months’ notice in
writing on or before 31st March 2023 to cease on 31st March 2024. No
termination or compensation charge shall be payable to Fujitsu Services in
the event of such termination and the provisions of Schedules D6 and E
shall not apply in respect of the Belfast Data Centre Facilities. Termination
of the Belfast Data Centre Facilities is subject to expiry or termination of
the Terminating Services prior to cessation of this Belfast Data Centre
Facilities.
Termination of Project HNG-X
47.12 Removed by CCN1648b
47.13 Removed by CCN1648b
47.14 Removed by CCN1648b
47.15 Removed by CCN1648b
CLAUSES Version 15.0
Page 97 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
47.16 Removed by CCN1648b
47.17 Removed by CCN1648b
48.
48.1
48.2
Rights on termination and expiry of this Agreement, Partial Termination, and expiry
of an Expiring Service
In the event of termination or expiry of this Agreement, or of any Terminable Service for
any reason whatsoever, or the expiry of any Expiring Service, Post Office shall, without
prejudice to Post Office's other rights and remedies but subject to payment of all sums
due and payable to Fujitsu Services up to the date of termination or (if applicable) expiry,
have the option (subject to Clause 48.2.3), exercisable in the applicable period referred
to in the General Exit Plan or HNG-X Exit Plan (as applicable), to acquire from Fujitsu
Services or to require Fujitsu Services to permit the Next Supplier to acquire from it, in
consideration of the Transfer Payment the Project Assets which shall comprise:
48.1.1 any or all of the hardware that is comprised within the Infrastructure and/or that:
is being used
in connection with the performance of the Services (other than where such
hardware is either (i) not owned by Fujitsu Services or any of its subsidiary
companies or (ii) those shared elements of the Infrastructure referred to in Clause
35.3); and
48.1.2 the right to require that Fujitsu Services shall assign or novate, or (if assignment
or novation is not possible) arrange for the benefit thereof to be transferred, in
favour of Post Office or to any person as may be designated for the purpose by
Post Office any sub-contracts, equipment rental or lease agreements and all
other agreements (other than employment agreements and agreements in
relation to Third Party Software, Third Party Items or Non-standard Third Party
Materials), except in respect of Fujitsu Services Subcontract agreement with
Ingenico for Payment and Banking Service which Fujitsu Services shall assign or
novate where required in accordance with clause 58.6.3, entered into by Fujitsu
Services which are necessary to the performance of the Services as Post Office
may designate,
provided that, if termination is in respect of a Terminable Service rather than the entire
Agreement, the above provisions shall apply only to those Project Assets (or, in the case
of agreements, that part thereof) that are not reasonably required by Fujitsu Services for
the provision of any continuing Services under this Agreement.
Notwithstanding the generality of Clause 48.1 Post Office agrees:
48.2.1 only to exercise its rights under such Clause to the extent that the relevant Project
Assets apply to, and are required for the provision or receipt of the Services or
Terminable Services that are the subject of the termination or expiry or are
otherwise to be provided pursuant to Schedule E (including, for the avoidance of
doubt, the Exit Plan);
CLAUSES Version 15.0
Page 98 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
48.3
48.4
48.5
48.2.2 the rights provided for in Clauses 48.1 shall not apply to the Superstock Solution;
and
48.2.3 in the case of Partial Termination of the Engineering Service, that it shall acquire
or shall ensure that the Next Supplier acquires from Fujitsu Services all of the
Project Assets referred to in Clause 48.1.1 that relate to the Engineering Service
comprising the Counter Equipment used in Branches up to the network
connection sockets in each Branch, as well as spare Counter Equipment held by
Fujitsu Services intended for such use.
In the event that Post Office exercises any of the options in Clause 48.1 or Clause 48.2.3
applies, Post Office shall pay to Fujitsu Services on completion of such option or, in the
case of Clause 48.2.3, such acquisition, a sum equal to the Transfer Payment. If Post
Office exercises the option in Clause 48.1 in respect of any Partial Termination or in
respect of the expiry of an Expiring Service or Clause 48.2.3 applies, the Project Assets
acquired by it shall cease to form part of the Infrastructure and this Agreement shall be
amended accordingly as provided in Schedule E.
In the event that this Agreement expires or is terminated, an Expiring Service expires or
a Terminable Service is terminated as provided for herein:
48.4.1 Fujitsu Services shall return to Post Office all Property of the Royal Mail Group in
the possession of Fujitsu Services that is not required for the provision of any
continuing Services under this Agreement.
48.4.2 Fujitsu Services shall, after being given notice of termination, or on the expiry of
the Agreement or expiry of an Expiring Service render all practicable assistance
to Post Office, if requested, to the extent necessary to effect an orderly
assumption by Post Office or a replacement contractor of the services theretofore
performed by Fujitsu Services under this Agreement and Post Office shall
reimburse Fujitsu Services for such assistance at the rates set out at paragraph
12 of Schedule D1. Any terms required to govern the post-termination Services
shall survive only to the extent required to govern such Services.
48.4.3 Upon termination or expiry, Post Office shall be entitled to offer employment (or
an agreement for services with Post Office) to any employee or sub-contractor
(being an individual) (“Worker”) of Fujitsu Services who has during the six months
prior to such offer been involved for at least 75 percent. of his contracted working
time in performing Fujitsu Services’ obligations under this Agreement which are
the subject of the termination or expiry. Fujitsu Services agrees that if that Worker
accepts such offer Fujitsu Services shall release that Worker 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.
All the assets to be acquired pursuant to the exercise by Post Office of its option under
Clause 48 shall be acquired and any software, documents materials or other things
provided by Fujitsu Services pursuant to the licences granted under Clauses 48.8 to 48.13
CLAUSES Version 15.0
Page 99 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
48.6
48.7
48.8
shall be provided “as is", but (apart from such licences) 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.
The Parties have agreed to populate the CCD entitled “Transfer Asset Register”
(COM/MGT/REP/0001) with details of all Software data, tools, utilities, documentation
and other items necessary to perform the Services and run the Applications (and to
indicate those that relate exclusively to a Terminable Service or Expiring Service and
those that are shared between one Terminable Service or Expiring Service and another
Service or Services), and to agree, in accordance with the guidance contained in that
CCD, the most appropriate treatment of such item. Notwithstanding any other provision
of this Agreement, the categorisation and proposed treatment of such items agreed in
that CCD shall take precedence over Clause 48.13 which shall be deemed superseded
by such CCD when agreed by the Parties.
In the event that:
48.7.1 a Terminable Service is terminated pursuant to Clause 47.10.1 or 47.10.2; or
48.7.2 this Agreement expires or is terminated as provided for herein (other than by
Fujitsu Services pursuant to Clause 47.4),or
48.7.3 an Expiring Service expires pursuant to Clause 46.3 and 46.4,
the provisions of Clauses 48.8 to 48.13 (inclusive) shall apply, provided that where
termination is in respect of a Terminable Service or expiry is in respect of an Expiring
Service rather than the entire Agreement, those Clauses shall apply only to that Service
and any software, documents and materials that were used in the provision or receipt of
that Service.
Subject to:
48.8.1 the payment of the Termination Charge in the case of termination of the
Agreement by Post Office pursuant to Clause 47.7;
48.8.2 the payment of the Partial Termination Charge in the case of Partial Termination
by Post Office pursuant to Clause 47.10.2; and
48.8.3 in all cases, Clause 48.9,
Fujitsu Services shall grant to Post Office a non-exclusive, perpetual, irrevocable licence
to use, modify, adapt, enhance and develop all documents, software or other materials or
things in which Fujitsu Background IPRs vest that:
48.8.4 exist at the date of termination or expiry;
48.8.5 Post Office has the right to use at the date of termination or expiry in the receipt
of the Relevant Services; and
CLAUSES Version 15.0
Page 100 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
48.9
48.10
48.8.6 are reasonably necessary for the purposes ("Background IPR Purposes") of Post
Office making use of the Project Assets transferred to it under Clause 48.1 and
the rights granted to it under Clauses 29 and 30 in respect of Post Office
Foreground IPR and Licensed IPR (including, without limitation, any Fujitsu
Background IPRs relating to (i) the configuration of the Project Assets, Post Office
Foreground IPR or Licensed IPR or (ii) the configuration of the Project Assets,
Post Office Foreground IPR or Licensed IPR with any other assets used by
Fujitsu Services at the date of termination or expiry in the provision of the
Relevant Services).
Post Office shall not use, modify, adapt, enhance or develop any document, software or
other material or thing licensed to it under this Clause 48.8 for any purpose other than the
Background IPR Purposes. Post Office shall be entitled to grant sub-licences of its rights
under this Clause to third parties, other than those whose use of Fujitsu Background IPR
is not for the purposes of providing services to Post Office for Post Office's business,
provided that such third parties shall have entered into an Agreed Form NDA.
In the event that Fujitsu Services is able to demonstrate to the reasonable satisfaction of
Post Office, that a document, piece of software or other material which would be (but for
this Clause) the subject of the licence granted under Clause 48.8 is made generally
available by a member of the Fujitsu Services Group and licensed by that member on
commercial terms to at least two other third parties, then Fujitsu Services shall grant a
licence or procure that a licence is granted to Post Office of that document, software or
material on terms (including the amount of any royalty or fee) which are no less favourable
to Post Office than the commercial terms in place with any such third parties. In all other
respects the licence granted pursuant to Clause 48.8 shall be royalty-free.
Subject to:
48.10.1the payment of the Termination Charge in the case of termination of the
Agreement by Post Office pursuant to Clause 47.7;
48.10.2 the payment of the Partial Termination Charge in the case of Partial Termination
by Post Office pursuant to Clause 47.10.2; and
48.10.3 in all cases, Clauses 48.11 and 48.12,
Fujitsu Services shall:
48.10.4to the extent that any software, documents or other materials in which the
Intellectual Property Rights are owned by a third party (other than Third Party
Items and Horizon Third Party Software) are used by the Parties (or which the
Parties have the right to use) at the date of termination or expiry to provide or
receive the Relevant Services over the Horizon Service Infrastructure using the
Horizon Applications, use reasonable endeavours to procure that Post Office is
granted the rights to use such software, documents or materials on normal fair
and commercial terms; and
CLAUSES Version 15.0
Page 101 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
48.11
48.12
48.13
48.10.5in respect of the HNG-X Service Infrastructure and Business Capabilities and
Support Facilities, in the event that Post Office consented to the use of Non-
standard Third Party Material which is used by the Parties (or which the Parties
have the right to use) at the date of termination or expiry to provide or receive the
Relevant Services and the Parties could not obtain the rights referred to in
Clause 30.10 at the time intended by that Clause, use reasonable endeavours to
procure that Post Office is granted the rights to use such Non-standard Third
Party Material.
In the case of both Clause 48.10.4 and Clause 48.10.5:
48.11.1 the use of reasonable endeavours by Fujitsu Services shall include without
limitation, jointly approaching the relevant third party with Post Office or providing
reasonable assistance to Post Office in its negotiations with such third party;
48.11.2 Fujitsu Services shall not be obliged to pay any licence fees or incur any other
external costs or expenses in relation to such assistance or negotiations; and
48.11.3 Fujitsu Services shall use reasonable endeavours to obtain rights of use which
are non-exclusive and on such terms which do not detract from Post Office's or
the Next Supplier's ability to provide Replacement Services.
Where this Agreement terminates prior to the occurrence of Trigger Point T6 (Counter
Application Rollout Complete), the applicable provisions of paragraph 2 of Schedule B4.1
shall apply in respect of the Escher Upgrade Software.
Without limiting the generality of Clause 48.8, the licences granted pursuant to that
Clause shall permit use by all members of the Royal Mail Group and End Users and,
subject to Clause 48.6, shall pertain to the versions of all software, tools, utilities,
documentation and other materials that are then in use by Fujitsu Services in the provision
of the Relevant Services and Fujitsu Services shall deliver one copy of each of such to
Post Office promptly following the date of termination (including an up-to-date copy of
archive and back-up versions of any software), provided that where Fujitsu Services is
unable to provide any such version of software, tools or utilities it shall provide Post Office
with the then commercially available version of such software, tools and utilities.
Interface Costs
48.14
Fujitsu Services shall bear or Post Office shall pay to Fujitsu Services the Interface Costs
arising in connection with any Partial Termination in accordance with the provisions of
Schedule E.
Termination Charge Credit
48.15
48.16
The provisions of CCN 1246 relating to credits due to Post Office upon termination or
expiry of the Agreement shall apply upon termination or expiry of this Agreement.
The provisions of CCN 1268 relating to: unspent sums under, or the failure by the Parties
to enter into, the new business (as stated at paragraph 10.10 of Schedule D1 as
CLAUSES Version 15.0
Page 102 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
49.
50.
51.
52.
53.
introduced by CCN 1268); and release of Fujitsu Services from further liability in relation
to the credits (as stated at paragraph 6.7 of Schedule D1 as introduced by CCN 1268),
in each case as at termination or expiry of the Agreement, shall apply upon termination
or expiry of this Agreement.
PART H: GENERAL
Additional Resources
In the event that the Services are not provided in accordance with all applicable provisions
hereof as a result of the Default of Fujitsu Services, Fujitsu Services shall, at the request
of Post Office and without prejudice to Post Office'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 Post Office.
Recovery of Sums Due
If any sum of money shall be due from Fujitsu Services under this Agreement, the same
may be deducted from any sum then due or which at any time thereafter may become
due to Fujitsu Services under this Agreement. There shall be no other right of set-off or
deduction in respect of sums due to Fujitsu Services under this Agreement.
Authority and Approval
Fujitsu Services 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 Agreement and that this
Agreement is executed by a duly authorised representative of Fujitsu Services.
Statements and Representations
Fujitsu Services warrants and represents that all statements and representations made
to Post Office in connection with tendering for and entering into this Agreement or CCN
1200 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 Post Office 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.
Disclaimer of Implied Terms
Except as expressly stated in this 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.
CLAUSES Version 15.0
Page 103 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
54.
55.
55.1
55.2
55.3
56.
56.1
56.2
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.
Relationship of Parties
Post Office shall control the rights for using and marketing the Services provided in
Branches. Fujitsu Services shall have no control over the use or marketing of the
Services.
Except as otherwise agreed from time to time between Post Office and Fujitsu Services,
Post Office will retain control itself of its critical business processes and relationships,
such as:
55.2.1 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;
55.2.2 contractual relationships with Agents;
55.2.3 contractual relationships with its clients;
55.2.4 policy control of its network;
55.2.5 its reconciliation, settlement and key infrastructure support processes;
55.2.6 its relationship with its suppliers; and
55.2.7 its product and service design.
Fujitsu Services’ and its subcontractors’ contacts with Agents shall be arranged only via
Post Office.
Publicity
No public announcement or public circular (including a media release) relating to the
subject matter of this 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.
Each Party shall take all reasonable steps to ensure the observance of the provisions of
Clause 56.1 by all its employees, agents, consultants and sub-contractors.
CLAUSES Version 15.0
Page 104 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
56.3
56.4
56.5
57.
57.1
Fujitsu Services shall have no right to use the brand or logo of any Royal Mail Group
member without Post Office's prior written consent. Fujitsu Services shall have no right to
use the brand or logo of any part of Post Office without Post Office's prior written consent.
Fujitsu Services shall do nothing to injure such logos and brands or the reputation of Post
Office and, if it uses such brands or logos, it shall take all reasonable steps to enable Post
Office to protect such logos and brands and the reputation of Post Office but in no event
less than the steps it would take in relation to its own logos, brands and reputation.
Post Office shall have no right to use the brands or logo of Fujitsu Services or its sub-
contractors without Fujitsu Services’ prior written consent. Post Office shall do nothing to
injure such logo and brands or the reputation of Fujitsu Services or its sub-contractors
and, if it uses such brands or logos, it shall take all reasonable steps to enable Fujitsu
Services and its sub-contractors to protect such logo and brands and the reputation of
Fujitsu Services and its sub-contractors, but in no event less than the steps it would take
in relation to its own logos, brands and reputation.
Communications & Notices
Except where expressly stated otherwise, a notice under this Agreement shall only be
effective if it is in writing and sent to a Party at its address or number and for the attention
of the individual set out below:
PARTY AND ADDRESS EMAIL TELEPHONE
TITLE OF INDIVIDUAL NO.
Post Office Limited 3rd Floor, 100
Wood Street,
London EC2V
7ER,
For the attention of:
Contract Manager (FS)
Fujitsu Services Limited Lovelace Road,
Bracknell,
Berkshire,
RG12 8SN
For the attention of:
Director of Delivery
Post Office Account
Fujitsu Services Limited
Provided that a Party may change its notice details on giving notice to the other Party of
the change in accordance with this Clause.
CLAUSES Version 15.0
Page 105 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
57.2
58.
58.1
58.2
58.3
58.4
Any notice given under this Agreement in accordance with Clause 57.1 shall, in the
absence of earlier receipt, be deemed to have been duly given as follows:
57.2.1 if delivered personally, on delivery;
57.2.2 if sent by first class post, two clear Working Days after the date of posting;
57.2.3 Notice may also be supportedby email
provided that in each case where delivery by hand or by facsimile occurs after 6.00 p.m.
on a Working Day or on a day which is not a Working Day, service shall be deemed to
occur at 9.00 a.m. on the next following Working Day.
Transfer and Sub-Contracting
This Agreement is personal to Fujitsu Services. Fujitsu Services shall not assign, novate,
sub-contract or otherwise dispose of this Agreement or any part thereof without the
previous written consent of Post Office.
Subject to Clause 58.5 Post Office hereby consents to Fujitsu Services having
subcontracted its obligations specified in Schedule C2 to the respective sub-contractors
specified therein. Additional or substitute sub-contractors may be approved from time to
time in accordance with Clause 58.1 after the date hereof, in which case Schedule C2
shall be amended accordingly. Fujitsu Services may permit its Subcontractor, Ingenico,
to further subcontract to one of its group undertakings (as defined in Section 1161 of the
Companies Act 2006) located within the European Union and the Australian affiliate
provided in Schedule C2 to deliver the Payment and Banking Service without the prior
consent of Post Office, provided that such Fujitsu Services’ Subcontractor provides notice
in writing to Post Office within one (1) month of such subcontracting. Notwithstanding any
sub-contracting permitted in this Agreement, Fujitsu Services 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 Fujitsu Services’ obligations on
Fujitsu Services’ behalf as though such acts or omissions were its own.
Post Office shall be entitled to assign, novate or otherwise dispose of its rights and
obligations under this Agreement or any part thereof (including, where appropriate,
requiring the grant by Fujitsu Services or its licensors of a direct licence of any Software
other than Third Party Software, and requiring Fujitsu Services to use all reasonable
endeavours to procure the grant of a direct licence or obtain consent to the transfer of the
sub-licence of any Third Party Software) to any other body which performs any of the
functions that previously had been performed by Post Office, provided that any such
assignment, novation or other disposal shall not increase the burden of Fujitsu Services’
obligations pursuant to this Agreement.
Post Office shall be entitled to disclose, to the extent necessary for the purposes of this
Agreement, to any transferee any Confidential Information of Fujitsu Services which
relates to the performance of the Services by Fujitsu Services. In such circumstances
Post Office shall authorise the transferee to use such Confidential Information only for
purposes relating to the performance of the Services and for no other purposes and, for
CLAUSES Version 15.0
Page 106 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
58.5
58.6
the avoidance of doubt, the transferee shall be bound by the confidentiality undertaking
contained herein in relation to such Confidential Information.
The consent referred to in Clause 58.2 and any approval which may be granted in respect
of additional or substitute sub-contractors pursuant to Clause 58.2 is provided, and shall
be granted (as the case may be), on the understanding that Fujitsu Services shall keep
Post Office informed of the general nature and scope of the work to be sub-contracted
and the duration of the relevant sub-contracts (such information to be recorded in
Schedule C2) and shall consult with Post Office prior to amending or supplementing such
arrangements or commitments and shall take account of all reasonable requests and
comments that Post Office shall make in connection therewith.
Fujitsu Services shall procure that the Subcontract agreement with Ingenico for the
Payment and Banking Service shall contain the following terms:
58.6.1 such Subcontract may, subject to 48.6.3, be novated to Post Office or its nominee
at any time, and provided that Post Office remains in ultimate ownership of the
Crown at the time of novation, and the terms of such novation shall provide that
the Subcontract is amended following novation such that:
(a) the Subcontract is capable of extension at the option of the entity to whom
the Subcontract has been novated for up to two (2) periods of one (1) year
each;
on the extension dates, the service charges (but not transaction charges)
under the Subcontract shall be increased by the annual percentage
increase in the Retail Prices Index during the previous twelve (12) months;
Ingenico shall cooperate, acting reasonably and in good faith, with the entity
to whom the Subcontract has been novated to carry out any necessary
integrations to new systems required as a result of the novation; and
(d) any additional required integration will be agreed between the parties
through the change control procedure; and
(e) terms equivalent to clauses 20.1 and 30.21.2.
(b
S
58.6.2 Further, Fujitsu Services shall not make any material amendment or variation to
its subcontract in respect of the Payment and Banking Services with its
Subcontractor Ingenico (including any amendments to the charges and fees
payable thereunder, the term, the licences of intellectual property, applicable
service levels or the provisions mandated by this clause) without the prior written
consent of Post Office.
58.6.3 Where Post Office wish for the Fujitsu Services’ Subcontract agreement with
Ingenico for the Payment and Banking Service to be novated to a Post Office
nominee, Post Office shall provide details of the Post Office nominee as soon as
reasonably practical. Where there are Grounds for Rejection which gives rise to
a legitimate commercial reason for Fujitsu Services’ Subcontractor, Ingenico, not
wanting to contract with the Post Office nominee, Fujitsu Services shall promptly
notify Post Office of these and shall provide reasonable evidence to support such
Grounds for Rejection. Fujitsu Services shall procure that its Subcontractor,
Ingenico, shall in good faith enter into discussions with Post Office to attempt to
resolve any such Grounds for Rejection. Where Fujitsu Services’ Subcontractor,
CLAUSES Version 15.0
Page 107 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
59.
59.1
59.2
59.3
Ingenico, does not provide approval to Fujitsu Services’ Subcontract agreement
with Ingenico for the Payment and Banking Service being novated to the Post
Office nominee, such Subcontract will instead be novated to Post Office. For the
purpose of this clause 13.3, “Grounds for Rejection” shall mean the following:
(a) the Post Office nominee has a credit rating of less than BBB as classified by
Standard & Poor's or an equivalent rating by another comparable credit
rating agency;
(b) the Post Office nominee has committed fraudulent behaviour, criminal
activity, or breach of a regulator's requirement;
(c) the Post Office nominee is subject to any trade, economic or financial
sanction or embargos;
(d) integration of Fujitsu Services' Subcontractor, Ingenico, into the Post Office
nominee would give rise to a security and/or data protection risk to Fujitsu
Services' Subcontractor, Ingenico;
(e) the Post Office nominee provides services similar to the Services in
competition with Fujitsu Services’ Subcontractor, Ingenico;
(f) the Post Office nominee is involved in or has been involved in litigations with
Fujitsu Services' Subcontractor, Ingenico, or a member of its group;
(g) contracting with the Post Office nominee would have a negative tax impact
on Fujitsu Services' Subcontractor, Ingenico; and/or
(h) the Post Office nominee presents an actual or anticipated adverse impact or
risk to the Fujitsu Services’ Subcontractor, Ingenico's: (i) ability to perform
its business; (ii) market value; (iii) reputation, (iv) operational security; or (v)
ability to service new or existing customers.
Non-Solicitation
Subject to Clause 48.4.3, neither Party shall during the currency of the Agreement or for
a period of six months thereafter without the written permission of the other (not to be
unreasonably withheld) either on its own account or for any other person, firm or
undertaking either directly or indirectly knowingly solicit or entice away from the other (the
“Previous Employer") any Key Individual who is then or shall have been in the previous
three months either:
59.1.1 an employee of the Previous Employer; or
59.1.2 engaged by the Previous Employer as a contractor performing the services of
such an employee.
In the event that such Key Individual is employed or engaged by the other Party with the
agreement of the other Party (such agreement to include without limitation agreed transfer
of work and associated staff between the Parties during the term of the Agreement) or
after redundancy from the Previous Employer, the Previous Employer shall not (unless
agreed otherwise) be paid any sum by the other Party by way of compensation.
If either Party is in breach of this condition that Party will pay to the other Party by way of
liquidated damages and not by way of penalty the Solicitation Fee.
CLAUSES Version 15.0
Page 108 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
59.4
60.
60.1
60.2
60.3
60.4
Nothing in this Clause 59 is intended to prevent or frustrate the right of any individual to
seek employment as he thinks fit.
Force Majeure
For the purposes of this 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 60.7), (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 Services for which Fujitsu Services
is liable under Clause 43.1 constitute a Force Majeure event.
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 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 Agreement for the duration of such Force Majeure event. In the case of any such
failure or delay on the part of Fujitsu Services, the Parties shall agree an orderly process
for such continuation or resumption of performance (such consent not to be unreasonably
withheld or delayed), and Fujitsu Services shall comply with such process. Fujitsu
Services shall remain liable to perform the Business Continuity Services, save where
such Business Continuity Services are themselves also affected by Force Majeure, in
which case Fujitsu Services shall be required to use all reasonable endeavours to perform
such Business Continuity Services.
If Fujitsu Services 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 Post Office within one Working Day and shall inform Post Office of the period which
it is estimated that such failure or delay shall continue. If Post Office shall become aware
of circumstances of Force Majeure which give rise to any such failure or delay on its part,
it shall forthwith notify Fujitsu Services within one Working Day and shall inform Fujitsu
Services of the period which it is estimated that such failure or delay shall continue.
It is expressly agreed that any failure by Fujitsu Services to perform, or any delay by
Fujitsu Services in performing, its obligations under this Agreement which results from
any failure or delay in the performance of its obligations by any person, firm or company
with which Fujitsu Services 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
CLAUSES Version 15.0
Page 109 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
60.5
60.6
60.7
61.
61.2
substitute person, firm or company reasonably available (having regard, without
limitation, to the cost and quality of such substitute) to perform the affected obligation.
If any Force Majeure event prevents any Party from performing its obligations hereunder
for a period in excess of 90 consecutive days, Post Office may after consulting with Fujitsu
Services and taking into account Fujitsu Services’ views, terminate this Agreement in
accordance with Clause 47.1.5.
Extension of Time
If the performance of this Agreement by either Party is delayed by reason of any Force
Majeure event (as defined in Clause 60.1), 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 Working Day of becoming aware of the Force Majeure event.
Political Risk
Notwithstanding the provisions of Clauses 60.1 to 60.5, a change of, or new,
Governmental Regulation:
60.7.1 shall not entitle Post Office to terminate this Agreement under Clause 60.5, and
any such purported termination shall be treated as a termination for convenience
in accordance with Clause 47.7; and
60.7.2 shall not require Fujitsu Services to perform any additional obligations, or any
reduced or modified obligations resulting in increased cost to Fujitsu Services,
without its agreement in accordance with the Change Control Procedure.
Confidentiality
Without prejudice to the application of the Official Secrets Acts 1911 to 1989 (where
relevant) to any Confidential Information Fujitsu Services acknowledges that any
Confidential Information (other than its own Confidential Information) obtained from or
relating to Post Office, or its servants or agents, is the property of Post Office.
Each Party agrees to keep confidential, and not to disclose to anyone else, Confidential
Information.
Notwithstanding the above, any Party may disclose Confidential Information:
61.2.1 if and to the extent required by law;
61.2.2 if and to the extent that the other Party has given prior written consent to the
disclosure;
61.2.3 to its professional advisers;
61.2.4 to the extent requested by H.M. Government;
CLAUSES Version 15.0
Page 110 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
61.3
61.2.5 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);
61.2.6 to Royal Mail Group;
61.2.7 to Fujitsu Services Holdings Plc, Fujitsu Services Limited or its Parent
Companies;
61.2.8 to Fujitsu Services’ approved sub contractors as listed in Schedule C2;
61.2.9 if and to the extent reasonably necessary to be disclosed for the purpose of
arranging and maintaining funding generally for Fujitsu Services Holdings Pic or
Fujitsu Services;
61.2.10which is in the possession of the receiving Party without restriction in relation to
disclosure before the date of receipt from the disclosing Party;
61.2.11 which is received from a third party who lawfully acquired it and who is under no
obligation restricting its disclosure;
61.2.12which is independently developed without access to the Confidential Information;
61.2.13as may be required or permitted by paragraph 2.9 of Schedule A4;
61.2.14if and to the extent permitted under paragraphs 5.5 or 6.5 of Schedule D6 (as
applicable), to any bona fide potential sub-contractor or replacement provider (as
applicable) for the purposes of Competitive Tendering;
61.2.15to a person listed in a CCD if and to the extent that person is an approval authority
for or otherwise permitted access under the relevant CCD to the relevant
Confidential Information; or
61.2.16subject to, and in accordance with, paragraph 10 of Schedule B1.2, to any
member of the SIP.
From the date of signature of CCN 1400, notwithstanding any other provision of this
Agreement, Post Office shall be entitled to use Confidential Information and disclose
Confidential Information to:
(i) bona fide potential Next Suppliers to the extent that such disclosure is reasonably
required to comply with the Public Contracts Regulations 2006 (in particular
without limitation Regulation 4(3) of the Public Contracts Regulations 2006) to
enable any bona fide potential Next Suppliers to prepare a reasonably detailed
tender proposal to Post Office and carry out due diligence; and/or
(ii) Next Suppliers to the extent such disclosure is reasonably required to effect
transition and implementation,
CLAUSES Version 15.0
Page 111 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
61.4 Post Office shall ensure that prior to any Confidential Information being disclosed to any
such bona fide potential Next Suppliers and/or Next Suppliers, such potential bona fide
potential Next Suppliers and/or Next Suppliers shall enter into an Agreed Form NDA and
shall immediately inform Fujitsu Services if it has reason to believe that the bona fide
potential Next Suppliers and/or Next Suppliers is in breach of the undertakings contained
in that confidentiality agreement. The Parties hereby agree that (other than as required by
law):
61.4.1 each Party (and any person employed or engaged by it in connection with this
Agreement in the course of such employment or engagement) shall only use
Confidential Information of the other Party for the purposes of this Agreement;
61.4.2 each Party receiving Confidential Information from the other Party shall take all
necessary precautions to ensure that no Confidential Information of the other
Party is used other than for the purposes of this Agreement by the receiving
Party'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
61.4.3 without prejudice to the generality of the foregoing:
(a)
(b)
neither Fujitsu Services nor any person engaged by Fujitsu Services
(whether as an employee, consultant or otherwise) shall use the
Confidential Information of Post Office for the solicitation of business from
any third party or away from Post Office; and
Post Office may discharge the obligation imposed on it by Clause 61.4.2
to obtain signed confidentiality undertakings, in so far as such Clause
relates to individuals who are provided to the Post Office to perform the
tasks of Post Office employees under a framework resource agreement
(“Framework Agreement”) with a third party (such individuals being
referred to in this Clause as “Contractors”) by including within such
Framework Agreement:
(i) an obligation of confidentiality in respect of Fujitsu Services’
Confidential Information which shall be binding on such third party
and each Contractor and continue in effect until at least three years
after the Framework Agreement is terminated or expires; and
(ii) a provision requiring all of Fujitsu Services' Confidential Information
held by each Contractor in tangible form to be returned to the Post
Office, and all such information held in electronic form to be
irretrievably deleted or destroyed, on termination or expiry of that
Contractor's assignment.
61.5 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.
CLAUSES Version 15.0
Page 112 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
61.6
61.7
62.
63.
63.1
Nothing in this Clause 61 shall restrict the Post Office from using, or disclosing to a third
party for use on its behalf, documents or materials (including, without limitation, project
plans and documentation, architecture and design documents, requirements statements,
specifications and other preparatory materials) in which it owns, or has the right to grant
a licence to a third party of, any Intellectual Property Rights pursuant to this Agreement,
provided that:
61.6.1 it shall not disclose to a third party any parts of such documents that contain the
prices, pricing methodologies or trade secrets of Fujitsu Services; and
61.6.2 it shall not disclose any Listed Documentation, Fujitsu Developed Documentation,
Fujitsu Background IPR or Third Party Items (excluding any Third Party Items, the
Intellectual Property Rights in which are required to be assigned to Post Office
pursuant to Clause 29) to any third party unless it has entered into a confidentiality
agreement with that third party which:
(a) _ is enforceable against that third party by Fujitsu Services;
(b) provides Fujitsu Services with no less favourable protections than this
Clause 61; and
(c) restricts the use and (if applicable) modification of that Listed
Documentation, Fujitsu Developed Documentation, Fujitsu Background
IPR or Third Party Item by that third party to that contemplated by Clause
30.
This Clause 61.6 shall not apply in respect of Horizon Design Documentation, the
permitted use and disclosure of which shall be governed by Clause 30.15.
Nothing in this Clause 61 shall prevent Fujitsu Services or Post Office from using data-
processing techniques, ideas and know-how gained during the performance of this
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 Post Office or Fujitsu
Services of any Intellectual Property Right.
Remedies Cumulative
Except as otherwise expressly provided in this Agreement, all remedies available to
Fujitsu Services or to Post Office for breach of this 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.
Discrimination
Fujitsu Services 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.
CLAUSES Version 15.0
Page 113 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
63.2
64.
65.
66.
66.1
66.2
66.3
67.
67.1
Fujitsu Services shall take all reasonable steps to ensure the observance of the provisions
of Clause 63.1 by all employees, agents and consultants of Fujitsu Services and all sub-
contractors.
Export
For the purpose of this Agreement only, Post Office confirms that no hardware, software
or documentation provided to Post Office pursuant to this Agreement nor their direct
product(s) will be exported by Post Office unless in accordance with any appropriate UK
Government export licensing controls.
VAT
All sums payable under this Agreement are stated exclusive of VAT. Where VAT is
properly chargeable by either Party in respect of any taxable supply, the other Party shall
pay to the first-mentioned Party an amount equal to the amount of any VAT chargeable
in respect of the supply in question (subject to the production by the first-mentioned Party
of a valid tax invoice giving the requisite details of the taxable supply).
Guarantee
Fujitsu Services undertakes that its obligations hereunder during the period up to and
including 31% March 2023 are and will continue to be effectively guaranteed by the Fujitsu
Guarantees until 31st March 2023.
If, at any time, the Guarantor provides a deed of amendment to the Fujitsu Guarantee to
amend it so that Fujitsu Services’ obligations hereunder during the period up to and
including 31st March 2023 (but not obligations during the period after 31st March 2023)
are guaranteed, without further amendment to the Fujitsu Guarantee, then Post Office
shall execute such deed of amendment.
Breach of Clause 66.1 shall constitute a Default not capable of remedy.
Interpretation
As used in this Agreement:
67.1.1 the terms and expressions set out in Schedule 1 shall have the meanings
ascribed therein;
67.1.2 the masculine includes the feminine and the neuter;
67.1.3 the singular includes the plural and vice versa; and
67.1.4 unless stated otherwise or the context requires otherwise, any reference within
any Schedule, CCD or CRD to an Annex, Attachment, Section or Paragraph is to
the relevant annex, attachment, section or paragraph of that Schedule, CCD or
CRD.
CLAUSES Version 15.0
Page 114 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL.
67.2 Areference 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. The preceding sentence shall be
without prejudice to any rights under Clause 60.7 and any rights Fujitsu Services may
have under Schedule A4 to charge Post Office for the cost of compliance with any such
subsequent statute, enactment, order, regulation or instrument or subsequent re-
enactment thereof.
67.3 Headings are included in this Agreement for ease of reference only and shall not affect
the interpretation or construction of this Agreement.
67.4 References in this Agreement to Clauses, Annexes and Schedules are, unless otherwise
provided, references to the clauses of, and annexes and schedules to, this Agreement
(and the Schedules and Annexes form part of this Agreement). References to CCDs and
CRDs are to the documents agreed as such from time to time.
67.5 Subject to Clauses 67.6 and 67.7, in the event and to the extent only of any conflict or
inconsistency between provisions of this Agreement, the following order of precedence
shall apply:
(a) the Clauses and Schedule 1;
(b) all other Schedules (other than Schedules B6.1, B6.2 and B6.3) and the
Solution Architecture;
(c) I CCDs (other than the Solution Architecture);
(d) I Work Orders and CRDs; and
(e) Schedules B6.1, B6.2 and B6.3.
67.6 Notwithstanding any reference in this Agreement to either Party complying with Working
Documents, Working Documents shall not affect or introduce any contractual obligations
between the Parties.
67.7 To the extent that:
67.7.1 a Work Order purports:
(a) to describe the terms on which a particular Work Package will be
performed it shall govern the terms on which the particular Work Package
will be performed and shall take precedence over any provision of this
Agreement in conflict with those terms; or
(b) purports to make other amendments to the terms of this Agreement it
shall have the precedence priority stated in Clause 67.5, or
CLAUSES Version 15.0
Page 115 of 127
CONFIDENTIAL.
67.8
67.9
68.
69.
70.
71.
71.2
72.
72.1
72.2
67.7.2 aCCN purports to describe terms on which changes to this Agreement
specified in that CCN will be made, or terms ancillary to those changes, it shall
govern the terms on which those changes will be made and shall take
precedence over any provision of this Agreement in conflict with those terms.
The Recitals are not legally binding, but are intended as a guide to the history,
interpretation and construction of this Agreement.
References in CCDs and CRDs to items, services or matters affected by subsequent
agreements between the Parties shall be construed to reflect most appropriately the effect
of such subsequent agreements.
Amendments to Clauses, Schedules and Annexes of this Agreement and CCDs
Unless expressly provided otherwise in the provisions of this Agreement, the provisions
of this Agreement shall only be amended in accordance with the Change Control
Procedure.
Severability
If any of the provisions of this 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.
Dispute Resolution Procedure
Any dispute arising out of or in connection with this Agreement shall be resolved in
accordance with the procedure set out in Annex 2 to Schedule A2.
Law and Jurisdiction
Without prejudice to Clause 70, this Agreement shall be governed by and shall be
interpreted in accordance with English Law and the Parties submit to the exclusive
jurisdiction of the English Courts.
This Agreement is binding on Post Office and its successors and permitted assignees
and on Fujitsu Services and its successors and permitted assignees.
Entire Agreement
This Agreement constitutes the entire agreement and understanding between the Parties
relating to the subject matter of this Agreement.
Each of the Parties acknowledges and agrees that:
CLAUSES Version 15.0
Page 116 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
73.
74
75.
75.1
75.2
72.2.1 in entering into this Agreement and CCN1200 it has not relied on and shall have
no remedy (except in the case of fraud) in respect of any statement,
representation, warranty, promise or assurance, whether or not in writing, and
whether or not negligent, given or made by any person (whether party to this
Agreement or not) other than as expressly set out in this Agreement or in
CCN1200; and
72.2.2 the only remedy available to it for breach of any of the provisions of this
Agreement or CCN1200 shall be for breach of contract under the terms of this
Agreement and CCN1200.
Revising the Agreement to reflect matters agreed in CCNs
The Parties agree that:
73.1.1 the CCNs listed in section 3.1/Part A of the CCN List are no longer relevant to this
Agreement and have no effect;
73.1.2 to the extent that amendments were required to the provisions of the Clauses and
Schedules of this Agreement in order to reflect the matters agreed in the CCNs
listed in section 3.2/Part B of the CCN List those amendments have been made.
Such CCNs have accordingly been superseded by this Agreement to that extent
but this shall be without prejudice to the application of such CCNs to matters
other than the Clauses and Schedules of this Agreement (including, without
limitation, their application to, or the introduction of, CCDs or CRDs and/or to any
charges or credits specified in such CCNs which are due or which shall become
due to be paid or allowed); and
73.1.3. the provisions of the CCNs listed in section 3.3/Part C of CCN List (including any
provisions set out in any attachments to those CCNs) have not been reflected by
amendment to this Agreement and accordingly shall remain in effect insofar as
applicable.
Removed by CCN1672a
TUPE
In the event that it is anticipated that the Transfer Regulations will apply on the
commencement of the POLSAP Services so that employees of Post Office, its agents or
contractors shall transfer to Fujitsu Services or its sub-contractors, either directly from
Post Office or from one of its agents or contractors, clauses 75.2 - 75.5 will apply.
No later than three months prior to the intended transfer, Post Office shall, or shall use
reasonable endeavours to procure that its agents or contractors shall, at the request of
Fujitsu Services provide Fujitsu Services a list providing details of the terms of
employment of all personnel who are then employed wholly or mainly (at least 51 per
cent. of their working time or as otherwise agreed by the parties) in the performance of
CLAUSES Version 15.0
Page 117 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
75.3
75.4
the relevant services as reasonably required by Fujitsu Services, save that nothing in this
Clause 75.2 shall have the effect of requiring Post Office to produce information in breach
of the Data Protection Act 1998 or in breach of any express duty of confidentiality which
Post Office or its agents or contractors may owe to their respective personnel. In such
circumstances, Post Office shall use its reasonable endeavours to obtain appropriate
consent for the release of such information.
Post Office shall fully indemnify Fujitsu Services (on its own behalf and on behalf of any
sub-contractor) from and against:
75.3.1 any and all liabilities which Fujitsu Services or any sub-contractor incurs in
connection with or as a result of any claim or demand whatsoever by any
employee or former employee of Post Office or its agents or contractors in respect
of his employment with Post Office or such agent or contractor and/or its
termination save to the extent such claim or demand:
(A) both (i) is made by an employee identified within the relevant employment
details referred to in Clause 75.2 as transferring pursuant to the Transfer
Regulations and (ii) relates to employer's liabilities arising in relation to that
employee's service after the said transfer of employment which are
disclosed in writing to Fujitsu Services and/or any of its sub-contractors
prior to the said transfer or relates to the employee's termination after the
said transfer; or
(B) is made by an employee who is not identified within the relevant
employment details referred to in clause 75.2 and such termination occurs
after the period set out in clause 75.5; and
75.3.2 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Post
Office or any of its agents or contractors to comply with its or their obligations
under Regulation 13 of the Transfer Regulations save to the extent such failure
is attributable to the failure of Fujitsu Services to comply with its obligations under
the same Regulation.
In the event that the Transfer Regulations apply on the commencement of the POLSAP
Services, Fujitsu Services shall indemnify Post Office (on its own behalf and on behalf of
its agents and contractors) against:
75.4.1 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Fujitsu
Services or its sub-contractors to comply with its obligations under Regulation 13
of the Transfer Regulations;
75.4.2 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any change in the terms
and conditions of employment of the employees identified within the relevant
employment details referred to in Clause 75.2 made by Fujitsu Services or its
sub-contractors on or after the transfer date or any change in the terms and
CLAUSES Version 15.0
Page 118 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
75.5
75.6
conditions of the employment of the employees identified within the relevant
employment details referred to in Clause 75.2 proposed by Fujitsu Services or its
sub-contractors and whether before, on or after the transfer date but only to the
extent in each case such change or proposed change in the terms and conditions
of employment constitutes a repudiatory breach of the relevant employee's
contract of employment or involves a substantial change in his working conditions
to his material detriment; and
75.4.3 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any act or omission of
Fujitsu Services or its sub-contractors in respect of the employment or
termination of employment of the employees identified within the relevant
employment details referred to in Clause 75.2 on or after the date of transfer of
the relevant employee's employment.
If the contract of employment of any individual who is not a listed transferring employee
under Clause 75.2 shall have effect on and after the transfer date as if originally made
between Fujitsu Services or any of its sub-contractors and the individual concerned as a
result of the provisions of the Transfer Regulations and/or any judicial decision
interpreting the same:
75.5.1 the Party first informed of it shall notify the other within ten (10) business days
after becoming aware of the same;
75.5.2. if Fujitsu Services, upon becoming aware or being notified of the same, decides
that it does not wish to employ such an individual, Fujitsu Services shall, within
ten (10) business days of such date, notify Post Office of this in writing;
75.5.3 if Fujitsu Services so notifies Post Office under Clause 75.5.2, Post Office shall
be entitled to make an offer of re-employment or re-engagement to any such
individual within ten (10) business days of the date of receipt of such notification;
75.5.4 Post Office shall notify Fujitsu Services in writing of any offer of re-employment or
re-engagement which is made and any such offer which is accepted by any such
individual; and
75.5.5 if any such offer of re-employment or re-engagement by Post Office is either not
made to such individual in accordance with Clause 75.5.3 or is not accepted by
such individual within fifteen (15) business days of the date of notification under
Clause 75.5.2, Fujitsu Services may terminate his contract of employment at any
time not later than twenty (20) business days after the date of notification under
Clause 75.5.2.
As soon as possible following any notice of termination being given, or any termination
without notice, of all or part of the relevant services under this Agreement and no later
than six months prior to the expiry of an Expiring Service pursuant to Clause 46.3 and
46.4 or to the expiry of this Agreement at the end of the term set out in Clause 46.1,
Fujitsu Services shall at the request of Post Office provide to Post Office (or to Post Office
and the Next Supplier nominated by Post Office) a list providing details of the terms of
CLAUSES Version 15.0
Page 119 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
employment of all Fujitsu Personnel who are then employed wholly or mainly (at least 51
per cent. of their working time or as otherwise agreed by the parties) in the performance
of the relevant services under this Agreement as reasonably required by Post Office, save
that nothing in this Clause 75.6 shall have the effect of requiring Fujitsu Services to
produce information in breach of the Data Protection Act 1998 or in breach of any express
duty of confidentiality which Fujitsu Services or its sub-contractors may owe to the Fujitsu
Personnel. In such circumstances, Fujitsu Services shall use its reasonable endeavours
to obtain appropriate consent for the release of such information.
75.6A Where the Parties envisage a change in the scope of the Operational Services or part
75.7
75.8
thereof (the “Relevant Services”) Post Office may (without prejudice to Post Office's right
to request information pursuant to any other provision of this Agreement or pursuant to a
relevant legal obligation) request a Work Package from Fujitsu Services (agreement to
which shall not be unreasonably withheld or delayed) in relation to the supply, of
aggregate employee information of Fujitsu Personnel which may include pay, benefits,
pensions age, notice period, length of service, location and severance costs) who are, at
the time of the request wholly or mainly assigned (at least 51 per cent of their working
time or as otherwise agreed by the parties) in the performance of the Relevant Services
under this Agreement.
Fujitsu Services shall fully indemnify Post Office (on its own behalf and on behalf of any
Next Supplier) from and against:
75.7.1 any and all liabilities which Post Office or any Next Supplier incurs in connection
with or as a result of any claim or demand whatsoever by any employee or former
employee of Fujitsu Services or of any of Fujitsu Services’ sub-contractors or
agents in respect of his employment with Fujitsu Services or such sub-contractor
or agent and/or its termination save to the extent such claim or demand:
(A) both (i) is made by an employee identified within the relevant employment
details referred to in Clause 75.6 as transferring pursuant to the Transfer
Regulations and (ii) relates to employer's liabilities arising in relation to that
employee's service after the said transfer of employment which are
disclosed in writing to Post Office and/or the Next Supplier prior to the said
transfer or relates to the employee's termination after the said transfer; or
(B) is made by an employee who is not identified within the relevant
employment details referred to in Clause 75.6 and such termination occurs
after the period set out in clause 75.9.
75.7.2 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Fujitsu
Services or any of its sub-contractors or agents to comply with its or their
obligations under Regulation 13 of the Transfer Regulations save to the extent
such failure is attributable to the failure of Post Office or a Next Supplier to comply
with its obligations under the same Regulation.
In the event that the Transfer Regulations apply on any termination (with or without notice)
or expiry of all or part of the relevant services under this Agreement , Post Office shall
CLAUSES Version 15.0
Page 120 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
75.9
indemnify Fujitsu Services (on its own behalf and on behalf of its sub-contractors and
agents) against:
75.8.1 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Post
Office or any Next Supplier to comply with its obligations under Regulation 13 of
the Transfer Regulations;
75.8.2 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any change in the terms
and conditions of employment of the employees identified within the relevant
employment details referred to in Clause 75.6 made by Post Office or a Next
Supplier on or after the transfer date or any change in the terms and conditions
of the employment of the employees identified within the relevant employment
details referred to in Clause 75.6 proposed by the Post Office or a Next Supplier
and whether before, on or after the transfer date but only to the extent in each
case such change or proposed change in the terms and conditions of
employment constitutes a repudiatory breach of the relevant employee's contract
of employment or involves a substantial change in his working conditions to his
material detriment; and
75.8.3 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any act or omission of
Post Office or any Next Supplier in respect of the employment or termination of
employment of the employees identified within the relevant employment details
referred to in Clause 75.6 on or after the date of transfer of the relevant
employee's employment. The indemnity referred to in this Clause 75.8.3 shall not
apply in relation to any Worker who makes or brings a claim, demand or action
referred to in this Clause 75.8.3 to the extent that Fujitsu Services has failed to
comply with its obligation under Clause 48.4.3 in respect of such Worker.
If the contract of employment of any individual who is not a listed transferring employee
under Clause 75.6 shall have effect on and after the transfer date as if originally made
between Post Office or any Next Supplier and the individual concerned as a result of the
provisions of the Transfer Regulations and/or any judicial decision interpreting the same:
75.9.1 the Party first informed of it shall notify the other within ten (10) business days
after becoming aware of the same;
75.9.2 if Post Office, upon becoming aware or being notified of the same, decides that it
does not wish to employ such an individual, Post Office shall, within ten (10)
business days of such date, notify Fujitsu Services of this in writing;
75.9.3 if Post Office so notifies Fujitsu Services under Clause 75.9.2, Fujitsu Services
shall be entitled to make an offer of re-employment or re-engagement to any such
individual within ten (10) business days of the date of such notification;
CLAUSES Version 15.0
Page 121 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
75.10
75.11
75.12
75.9.4 Fujitsu Services shall notify Post Office in writing of any offer of re-employment
or re-engagement which is made and any such offer which is accepted by any
such individual; and
75.9.5 if any such offer of re-employment or re-engagement by Fujitsu Services is either
not made to such individual in accordance with Clause 75.9.3 or is not accepted
by such individual within fifteen (15) business days of the date of notification
under Clause 75.9.2, Post Office may terminate his contract of employment at
any time not later than twenty (20) business days after the date of notification
under Clause 75.9.2.
Fujitsu Services agrees that it shall promptly provide to Post Office and/or such other
person(s) as Post Office may nominate upon request at any time (though in any event no
more than twice in any 12 month period) an up-to-date list of all Fujitsu Personnel who
are then employed in the performance of the relevant services under this Agreement at
least 33 per cent. of their working time. Where information is provided in advance of a
likely transfer of employment in accordance with Clause 75.6, Fujitsu Services agrees
that it shall promptly provide to Post Office and/or such other person(s) as Post Office
may nominate updated information in the event of a change in the data set out therein
between the date on which the information was provided under Clause 75.6 and the
transfer date.
Fujitsu Services further warrants and undertakes that during the six months prior to the
transfer date or during any period of notice to terminate this Agreement or the provision
of part or all of the relevant services under this Agreement given by either Party or any
period during which Fujitsu Services contemplates or anticipates giving such notice or
terminating part or all of this Agreement or the Service provision (whether lawfully or
otherwise), Fujitsu Services shall not, and shall procure that its employees and workers
and sub-contractors (as applicable) shall not, other than with Post Office's prior written
consent or in the ordinary course of Fujitsu Services’ business:
(A) increase or amend any salary, emolument, fee or contractual benefit or
entitlement provided to or afforded to any Fujitsu Personnel;
(B) vary the terms and conditions of employment of any Fujitsu Personnel;
(C) increase the proportion of working time spent on the relevant services under
this Agreement by any employees or Fujitsu Personnel;
(D) employ any person or assign any other existing employees or workers to the
provision of all or part of the relevant services under this Agreement so that they
become Fujitsu Personnel; or
(E) replace or remove or terminate or give notice to terminate the employment of
any Fujitsu Personnel.
For the avoidance of doubt, Fujitsu Services shall indemnify Post Office (on its own behalf
and on behalf of any Next Supplier) from and against all and any costs, liabilities, awards,
decisions, losses and expenses (including reasonable legal fees) arising from any
employees employed in the normal course of their employment, wholly or principally
CLAUSES Version 15.0
Page 122 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
75.13
75.14
75.15
outside the UK in the provision of all or part of the relevant services under this Agreement
(the “Overseas Personnel”) transferring or alleging that they have or will transfer to the
employment of (or any liabilities in respect of them will transfer to) Post Office and/or any
Next Supplier on any termination or partial termination, expiry or partial expiry of the
relevant services provided under this Agreement and all and any related claims including,
without limitation, any failure to inform and consult in connection with such a transfer
and/or any termination of employment of such Overseas Personnel.
In the event of any claim or demand being made or action brought to which Clauses 75.3,
75.4, 75.7, 75.8 apply, the indemnified Party shall promptly notify the indemnifying Party
of such claim, demand or action. The indemnifying Party shall at its own expense conduct
all negotiations for settlement of the same and any legal proceedings that may arise
therefrom. The indemnified Party shall, and shall use reasonable endeavours to procure
that its suppliers, contractors, sub-contractors, agents and employees (as the case may
be) shall, at the request of the indemnifying Party, afford all reasonable assistance for the
purpose of contesting any such claim, demand or action. The indemnifying Party shall
promptly reimburse any reasonable expense incurred by the indemnified Party in so
doing. The indemnified Party shall not make any admissions which may be prejudicial to
the defence of any such claim, demand or action.
Not Used and the termination of employment of such OBCS Transferring
Employees.
This Clause 75.15 shall only apply to those Services (excluding any Expiring Services)
which continue to be provided by Fujitsu Services after 1st April 2017. Notwithstanding
any other provision in this Agreement, in the event that a contract of employment of any
Fujitsu Personnel wholly or mainly assigned (other than on a temporary basis) at the
date of expiry or termination of the relevant service in the provision of the Services
(excluding any Expiring Services) (“In-Scope Employees”) does not transfer to Post
Office or the Next Supplier on the termination or expiry of any element of the Services
(excluding any Expiring Services) as a result of the provisions of the Transfer
Regulations and/or any judicial decision interpreting the same (a “Non-Transferring In-
Scope Employee”) then:
75.15.1 the Party first aware of it shall notify the other within ten (10) business days after
becoming aware of the same;
75.15.2 if Fujitsu Services, upon becoming aware or being notified of the same, decides
that it does not wish to employ such an individual, Fujitsu Services shall, within
ten (10) business days of such date, notify Post Office of this in writing;
75.15.3 if Fujitsu Services so notifies Post Office under Clause 75.15.2, Post Office shall
be entitled to, or use reasonable endeavours to procure that a Next Supplier shall,
make an offer of employment or engagement to any such individual within ten
(10) business days of the date of such notification;
CLAUSES Version 15.0
Page 123 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
75.15.4 Post Office shall notify Fujitsu Services in writing of any offer of employment or
engagement which is made and any such offer which is refused or accepted by
any such individual;
75.15.5 if any such offer of employment or engagement by Post Office or a Next Supplier
is either not made to such individual in accordance with Clause 75.15.3 or is not
accepted by such individual within fifteen (15) business days of the date of
notification under Clause 75.15.2, Fujitsu Services may give notice to terminate
his contract of employment at any time not later than thirty (30) business days
after the date of notification under Clause 75.15.2; and
75.15.6 provided that Fujitsu Services acts in accordance with this Clause 75.15 or in
such other way as may be agreed between Fujitsu Services and Post Office, Post
Office shall indemnify and keep indemnified Fujitsu Services against all costs,
liabilities, awards, decisions, losses and expenses (including reasonable legal
fees) reasonably incurred arising out of the termination of employment of such
Non-Transferring In-Scope Employees, including payment in lieu of notice,
following the termination or expiry of any element of the Services (excluding any
Expiring Services) provided that Fujitsu Services takes reasonable steps to
mitigate such exposure.
For the avoidance of doubt, any employee who objects to the transfer of their employment in
accordance with regulation 4(7) of the Transfer Regulations shall not be a Non-Transferring In-
Scope Employee.
The total payments made under the indemnity in Clause 75.15.6 shall be capped at £3,000,000
(three million pounds) in respect of the period to 31st March 2023. With effect from 1st April 2023,
such cap shall be increased to £4,500,000 (four million and five hundred thousand pounds). In
each case this cap shall exclude any costs of employing the Non-Transferring In-Scope
Employees during the period in which Fujitsu Services has the benefit of their services.
76 Fujitsu Global Cloud
76.1 I Where the Fujitsu Global Cloud Service is used in the provision of services then it shall
be subject to:
76.1.1 Schedule I4 (K5 Cloud Services) where the Post Office does not have direct access to
the K5 Cloud Platform; or
76.1.2. The K5 standard terms and conditions where Post Office does not have direct access to
the K5 Cloud Platform
76.1.3. .(in respect of Microsoft software used in the cloud) the “Microsoft Software End User
License Agreement which is available directly from Microsoft.
as updated from time to time in accordance with their terms, which together shall be the “Cloud
Terms”.
76.2 Fujitsu Services shall use reasonable endeavours to notify Post Office Ltd in writing
within 30 days of any change to the Cloud Terms
CLAUSES Version 15.0
Page 124 of 127
FUJ00234905
FUJ00234905
CONFIDENTIAL.
76.3
In the event of any conflict the Cloud Terms shall take priority over the Clauses (and the
relevant Schedules) but only in relation to the Fujitsu Global Cloud Service, and any event or
consequence directly arising from it.
76.4
The Salesforce Support Service Hosting is, until 23.59 on 318' March 2016, a Fujitsu
Global Cloud Service and for the avoidance of doubt the following clauses of the Agreement
shall not apply to the Salesforce Support Service Hosting:
77
Clause 23 Gainshare and Schedule D3
*Clause 24 Open Book and Schedule D4
*Clause 25 Audit and Schedule DS
*Clause 27 to 32 inclusive
*Clause 34 Intellectual Property Rights Indemnities
*Clause 58 Transfer and Subcontracting
*Schedule A2 Governance
*Schedule A3 Change Control
*Schedule D6 Market Testing
Belfast Datacentres
It is noted by both Parties that it has not been possible to conclude the extension to the
leases to the Belfast datacentres prior to 16th February 2016. To this end, there
remains a risk that the lease extensions will not be concluded and that Fujitsu Services
will be required to transition the hosted equipment to a replacement datacentre or
alternative service solution agreed by both Parties. In the unlikely event that this risk
crystalises such that Fujitsu Services has to exit a datacentre, Fujitsu Services shall not
be entitled to charge Post Office its own costs of moving and re-installing the equipment
(nor any moving and installing costs relating to Fujitsu Service's Sub-contractors or
suppliers). However, Post Office shall (and shall procure its third party suppliers, clients
and customers shall) facilitate such a transition (at no additional cost to Fujitsu
Services) by:
76.1 arranging and procuring Post Office's third party suppliers, clients and
customers shall install and parallel run network connections needed to the
existing and new datacentres; and
76.2 participating (and procuring participation by its third party suppliers, clients and
customers shall participate) in the planning and implementation for the
connection migrations in line with an agreed project plan,
CLAUSES Version 15.0
Page 125 of 127
FUJ00234905
FUJ00234905
FUJ00234905
FUJ00234905
CONFIDENTIAL.
and a let on any relevant Service Levels to enable the movements and/or replacement
of the relevant hardware/infrastructure.
78. The terms of Schedule I shall apply as set out therein. Notwithstanding Clause 67.5, In
the event of any conflict or inconsistency between the terms of the Clauses (including
this Clause 78) and Schedule I, the provisions of Schedule I shall take precedence to
the extent of such conflict or inconsistency.
CLAUSES Version 15.0
Page 126 of 127
CONFIDENTIAL
IN WITNESS WHEREOF this Agreement has been executed on behalf of the Parties as
follows:
Signed by
for and on behalf of
POST OFFICE LTD
in the presence of:
Paul Lam-Po-Tang
Visiting Lawyer
Slaughter and May
35 Basinghall Street
London EC2V 5DB
Signed by
for and on behalf of
FUJITSU SERVICES LIMITED
in the presence of:-
Myles Blewett
Masons
30 Aylesbury Street
London EC1R OER
CLAUSES Version 15.0
Page 127 of 127
S.J. Sweetman
(signed on 28th July, 1999)
R. Christou
(signed on 28th July, 1999)
FUJ00234905
FUJ00234905