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POST OFFICE COUNTERS LTD
- and -
PATHWAY GROUP LIMITED
INFORMATION TECHNOLOGY
SERVICES AGREEMENT FOR
BRINGING TECHNOLOGY TO
POST OFFICES AND
BENEFITS PAYMENTS
Bird & Bird
90 Fetter Lane
London
EC4A 1J0P
Tel: 0171 415 6000
Fax
Ref: HRS\CCTAG\013\POCLpwy.5-0
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Table of Contents
Clauses Page Numbers
RECITALS 2... ccc c cece ccc cee w cece eee c cece se esesseecsees
PART 1 : INTRODUCTION a
Clause 101. Contract Structure.
Clause 102. Interpretations ....
Clause 103. Severability.......
Clause 104. Law and Jurisdiction
Clause 105. Entire Agreement ...
Clause 106. General Principles.
Clause 107. Condition Precedent
PART 2 : PERFORMANCE OF POCL SERVICES AND SUPPLY OF
PRODUCTS 2... cece ccc r cree ence ccc e errr ences ce ecererecences 8
Clause 201. Performance of Basic POCL Services .......... 8
Clause 202. Performance of Optional POCL Services... 9
Clause 203. Performance of Additional POCL Services..... 9
Clause 204. Supply of Basic Products ...............000 ee
Clause 205. Supply of Optional Products
Clause 206. Supply of Additional Products
Clause 207. Supply of POCL Consumables
Clause 208. CONTRACTOR Consumables ..
PART 3 : CONSIDERATION
Clause 301. Charges ....
Clause 302. Packaging.. e
Clause 303. Payment ........
Clause 304. Value Added Tax
PART 4 : DEVELOPMENT, IMPLEMENTATION AND PERFORMANCE OF
POCL STEADY STATE SERVICES é
Clause 401. Initial Asset Transfer .
Clause 402. POCL Development Services
Clause 403. POCL Operational Trial .....................
Clause 404. Roll Out of POCL Service Infrastructure and
POCL Steady State Services ... cece eee eee cece ee ee eee 21
Clause 405. Performance of POCL Steady State Services ..21
Clause 406. Inspection of POCL Premises
Clause 407. Marking of Products .........ccc sce cecwcence
Clause 408. Delivery and Acceptance of Products and POCL
Consumables 2... ccc ccc cc ccc c cnc cn ees ces cesses cnssnssnees
Clause 409. Products and Services ..
Clause 410. POCL Contingency Services
Clause 411. Acceptance of POCL Steady State Services
PART 5 : OWNERSHIP, LICENCES AND RISK.
Clause 501. Ownership of Hardware ..
Clause 502. Ownership of Software .. es
Clause 503. Ownership of Documentation
Clause 504. Ownership of POCL Data and Intellectual
Property Rights in the POCL Service Architecture ....... 27
Clause 505. Ownership of POCL Consumables .............. 29
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Clause 506. Licences to use Intellectual Property Rights29
Clause 507. Risk in ProductS 1... .. cece cece cece cece eens 32
Clause 508. Damage to Plant, Tackle and Tools.......... 33
Clause 509. Licences for the CONTRACTOR to use
Intellectual Property Rights sscssaseassuneensus snes snes 33
PART 6 : CONTRACT AND SERVICE MANAGEMENT .........-+++-- 34
Clause 601. Monitoring .... cece cece cece ee ee eee eens 34
Clause 602. Management Interfaces and Service Management34
Clause 603. Communications ........ cece eee eee eee eee eee
Clause 604. Transfer and Sub-Contracting
Clause 605. POCL Responsibilities
Clause 606. Time a. sans anne cane nes snes ene cans sane nae
Clause 607. Confidentiality ........ @@
Clause 608. Health and Safety Hazards...
Clause 609. Protection of Personal Data.
Clause 610. PUDLICIEY «cusses oesnseseoues
Clause 611. CONTRACTOR's Personnel .
Clause 612. Waiver ..............4.-
Clause 613. Access to POCL Premises
Clause 614. Security Requirements .......
Clause 615. CONTRACTOR’s Key Personnel ...... % 5
PART 7 : WARRANTIES AND STANDARDS ..........eeeeeeeeeeee
Clause 701. Authority and Approval ........... cece enone
Clause 702. Performance of POCL Services
Clause 703. Performance of Products .........ssseeeeeeee
Clause 704. Intellectual Property Rights
Clause 705. Technical Standards
Clause 706. Statements and Representations
Clause 707. Disclaimer of Implied Terms
PART 8 : REMEDIES
Clause 801. Audit 2
Clause 802. Service Credits and Delay...
Clause 803. Additional Resources...
Clause 804. Recovery of Sums Due.. .
Clause 805. Intellectual Property Rights Indemnity..
Clause 806. Remedies Cumulative ............ eee eee eee
Clause 807. Alternative Dispute Resolution Procedure
Clause 808. Injury to Persons; Loss of Property.
Clause 809. Liability...... ® «
Clause 810. Limitation of Liability
PART 9 : TERM AND TERMINATION ...... sesees
Clause 901. Term ...ccsccccccscccccscescesees
Clause 902. Termination of POCL Agreement ..
Clause 903. Termination of POCL Services :
Clause 904. Rights on Termination of POCL Agreement ....70
Clause 905. Rights on Termination of POCL Application
SELVICES oes snes bape sae 5 ORs HORS haE SOARS SRS HAE A ORS Sas ©
Clause 906. Transfer ServiceS ..... cece cece eee eee eens
PART 10 : MISCELLANEOUS .....-. cece e cece cece eee eccteeee
Clause 1001. Corrupt Gifts and Payments of Commission.
Clause 1002. Discrimination
Clause 1003. Export of Products ......... ccc wcr cece ccees
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Clause 1004. Guarantee
Clause 1005. Insurance
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Schedules Clause Reference
1. POCL Service Environment 702, 703
2. Population of Schedules 107
3. Assumptions 102.5
Al. Interpretations 102.1
A2. Policies and Standards 614, 705
A3. Audit 801
A4. Contract Management 602
AS. Change Control 101
Ao. Approach to Remedies 802
Al. Contract Termination 906
A8. Sub-contractors 604.2
AQ. Initial Asset Transfer 401
A10. Ordering, Invoicing and Payment 303
All. Acceptance Procedures 403, 408, 411
Al2. [Not used]
Al3. Guarantee 1004
Al4. CONTRACTOR’s Key Personnel 615
A15. Requirements 201
Al6. Solutions 201
Bl. Software 502
B2. Hardware 501
B3. Documentation 503
B4. POCL Consumables 301
BS. POCL Acceptance Criteria 408, 411
B6. Roll out of POCL Service Infrastructure 404.1
B7. Measured Term Prices 406.2
B8. Validation Procedures 504.2
BO. Timetable 606.1
B10.Fraud Management 809
cl. Optional POCL Services 405.6
Benefit Encashment Service
D1 Service Definition 405.1
D2 Acceptance Criteria 403.2.1
D3 POCL Responsibilities 605
D4 Roll-out and Implementation 404.3
DS Service Management 602.2
D6 Service Transfer 906
D7 Charges 301
D8 Service Levels and Remedies 802
Dg POCL Contingency Services 410
Automated Payments Service
El Service Definition 405.2
E2 Acceptance Criteria 403.2.2
E3 POCL Responsibilities 605
E4 Roll-out and Implementation 404.4
ES Service Management 602.2
E6 Service Transfer 906
E7 Charges 301
E8 Service Levels and Remedies 802.2
EQ POCL Contingency Services 410
EPOSS
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Fl Service Definition
F2 Acceptance Criteria
F3 POCL Responsibilities
F4 Roll-out and Implementation
FS Service Management
F6 Service Transfer
F7 Charges
F8 Service Levels and Remedies
FQ POCL Contingency Services
POCL Infrastructure Services
G1 Office Platform
G2 TMS
G3 Systems Management
G4 Acceptance Criteria
G5 POCL Responsibilities
G6 Roll-out and Implementation
G7 Service Management
GB Service Transfer
G9 Charges
G10 Service Levels and Remedies
G11 POCL Contingency Services
POCL Operational Trial
Hl. Objectives
H2. Milestones and Plan
H3. Acceptance
H4. POCL Operational Trial Responsibilities
HS. POCL Operational Trial Remedies
405.3
403.2.2
605
404.5
602.2
410
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THIS AGREEMENT is made the fifteenth day of May 1996
BETWEEN:
(1) Post Office Counters Ltd whose registered office is
situated at Drury House, 1-16 Blackfriars Road, London
SE1 9UA ("POCL"); and
(2) Pathway Group Limited whose registered office is at
ICL House, Putney, London SW15 ("the CONTRACTOR") .
RECITALS
WHEREAS:
(a) The Secretary of State for Social Security acting
through and on behalf of the Department of Social
Security and on behalf of the Department of Health
and Social Services for Northern Ireland (“DSS”) and
POCL (collectively “the AUTHORITIES”) wish to
contract for the design, development, integration and
establishment of the Service Infrastructure (as
defined herein) and for the Services (as defined
herein);
(b) The AUTHORITIES and the CONTRACTOR have entered into
an Agreement on the same date herewith (“the
AUTHORITIES' Agreement”) for the supply of the
Service Infrastructure and the provision of certain
of the Services which are of common interest to both
AUTHORITIES;
(c) POCL and the CONTRACTOR wish to contract for the
provision of the POCL Services (as defined herein).
NOW THEREFORE IT IS HEREBY AGREED as follows:
PART 1 : INTRODUCTION
Clause 101. Contract Structure
101.1 The Related Agreements
This agreement forms part of a suite of three related
agreements between the parties (“the Related
Agreements”) comprising:
(a) a separate agreement between DSS, POCL and
the CONTRACTOR (“the AUTHORITIES’
Agreement”) ;
(b) a separate agreement between DSS and the
CONTRACTOR (“the DSS Agreement”); and
(c) this agreement between POCL and_ the
CONTRACTOR (“the POCL Agreement”).
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101.2 Precedence of the Related Agreements
In the event of and to the extent only of any
conflict or inconsistency between the provisions of
the AUTHORITIES’ Agreement and the provisions of the
POCL Agreement, the provisions of the AUTHORITIES’
Agreement shall prevail.
101.3 Amendments to Clauses, Schedules and Annexes of
the POCL Agreement
The provisions of the POCL Agreement may not be
amended unless such amendment is approved on behalf
of the parties at the appropriate levels of authority
as follows:
(a) except as provided by paragraph (b) below, and
subject to the change control procedures
specified in Schedule A5 of the AUTHORITIES’
Agreement, amendments to the Clauses, Schedules
and Annexes of the POCL Agreement must be
approved by the POCL Development Director or his
successor on behalf of POCL and by the Managing
Director or his successor on behalf of the
CONTRACTOR;
(b) any amendment to the Clauses, Schedules or
Annexes of the POCL Agreement which conflicts or
is inconsistent with the Double Key Requirements
in Schedule B4 of the AUTHORITIES’ Agreement or
of the Double Key Solutions in Schedule B5 of
the AUTHORITIES’ Agreement in whole or in part
shall be subject to the approval of all three
parties thereto in accordance with Clause
101.3.1 (a) thereof.
101.4 Other Changes
Changes in connection with the POCL Agreement which
do not require any amendment to the POCL Agreement
may be approved by the BA/POCL Procurement Manager or
his successor on behalf of POCL and by the Managing
Director or his successor on behalf of the CONTRACTOR
in accordance with the change control procedures
specified in Schedule A5 of the POCL Agreement.
101.5 Failure by the AUTHORITIES to perform
Obligations under the Related Agreements
The CONTRACTOR shall not be liable to POCL for
any failure to perform or delay in performing
its obligations hereunder where the CONTRACTOR
proves that such failure or delay has been
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directly caused by the failure of DSS or POCL to
perform any of its obligations under the Related
Agreements. This Clause shall not apply to
Clause 809, which shall be governed by the
specific rule stated in Clause 809.2.
Clause 102. Interpretations
102.1 As used in the POCL Agreement:
102.1.1 the terms and expressions set out in
Schedule Al shall have the meanings ascribed
therein;
102.1.2 the masculine includes the feminine
and the neuter; and
102.1.3 the singular includes the plural and
vice versa.
102.2 A reference to any statute, enactment, order,
regulation or other similar instrument shall be
construed as a reference to the statute, enactment,
order, regulation or instrument as amended by any
subsequent statute, enactment, order, regulation or
instrument or as contained in any subsequent re-
enactment thereof.
102.3 Headings are included in the POCL Agreement for
ease of reference only and shall not affect the
interpretation or construction of the POCL Agreement.
102.4 References in the POCL Agreement to Clauses,
Parts and Schedules are, unless otherwise provided,
references to the clauses, parts, and schedules of
the POCL Agreement.
102.5 In the event and to the extent only of any
conflict or inconsistency between the Clauses and
Schedule Al and the Schedules (other than Schedule
Al), the Clauses and Schedule Al shall prevail. In
the event and to the extent only of any conflict or
inconsistency between the Schedules (other than
Schedule Al), the provisions of Schedules 2, A2 to
All, A1l3 and Al4 shall prevail over those of all
other Schedules (other than Schedule Al), the
provisions of Schedule A15 shall prevail over those
of all other such Schedules, and the provisions of
Schedule A16 shall prevail over those of the other
Schedules, except those of the Schedules listed
above. Notwithstanding the foregoing, if and only to
the extent that Schedule 3 expressly states that a
particular requirement in Schedule A15 will be met in
a particular form, manner or quantity, or at a
particular time or place, the provisions of Schedule
3 will prevail. Moreover, for the avoidance of
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doubt, POCL acknowledges that a particular solution
in Schedule Al6 shall not be treated as being in
conflict or inconsistent with any requirement in
Schedule A15 merely because the solution states that
the requirement will be met in a particular form,
manner, quantity, time or place.
102.6 The Recitals are not legally binding, but are
intended as a guide to the interpretation and
construction of the POCL Agreement.
Clause 103. Severability
If any provision of the POCL Agreement is held invalid,
illegal or unenforceable for any reason by any court or
regulatory body of competent jurisdiction, such provision
shall be severed and the remainder of the provisions
hereof shall continue in full force and effect as if the
POCL Agreement had been executed with the invalid,
illegal or unenforceable provision eliminated. In the
event of a holding so fundamental as to prevent the
accomplishment of the purpose of the POCL Agreement, POCL
and the CONTRACTOR shall immediately commence good faith
negotiations to remedy such invalidity. However, if POCL
and the CONTRACTOR fail to conclude such negotiations
within a reasonable period of time, the POCL Agreement
shall terminate without further liability to any party
(subject to Clause 902.7). For purposes of the
foregoing, the parties acknowledge that a holding of
invalidity of any part of Clauses 106.7, 106.8 or 106.9
shall be treated as so fundamental as to prevent the
accomplishment of the purpose of the POCL Agreement.
Clause 104. Law and Jurisdiction
104.1 The POCL Agreement shall be considered as a
contract made in England and according to English Law
and, subject to Clause 807, shall be subject to the
exclusive jurisdiction of the English Courts to which
the parties hereby submit.
104.2 Except as specified in Clause 101, the POCL
Agreement is binding on POCL and its successors and
permitted assignees and on the CONTRACTOR and the
CONTRACTOR's successors and permitted assignees.
Clause 105. Entire Agreement
This POCL Agreement and the applicable provisions of the
AUTHORITIES’ Agreement constitute the entire
understanding between the parties relating to the subject
matter of the POCL Agreement and, save as may be
expressly referred to or referenced herein, supersede all
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prior representations, agreements, negotiations or
understandings with respect thereto, whether oral or in
writing, except in respect of any fraudulent
misrepresentation made by either party.
Clause 106. General Principles
106.1 POCL shall control the rights for using and
marketing the POCL Services provided in post offices,
other than in relation to benefit payments. The
CONTRACTOR shall have no control over the use or
marketing of the POCL Services, including in relation
to benefit payments.
106.2 The CONTRACTOR shall offer all reasonable
assistance to POCL in preventing fraudulent use of
the POCL Services and POCL Service Infrastructure by
POCL’s employees and Agents.
106.3 The POCL Service and the POCL Service
Infrastructure shall be provided in accordance with
and comply with all relevant applicable industry
standards, as these are listed in Schedule A2.
106.4 The CONTRACTOR shall, if so requested by POCL,
work with POCL to identify and develop new business
opportunities for POCL and the CONTRACTOR.
106.5 For the avoidance of doubt, the CONTRACTOR
shall ensure migration of appropriate automated
systems without any reduction in existing service or
security levels to POCL’s clients and customers.
106.6 Except as otherwise agreed from time to time
between POCL and the CONTRACTOR, POCL will retain
control itself of its critical business processes and
relationships, such as:
106.6.1 customer interface, including quality
of service (such as queuing time and other
customer charter measures) to its customers,
network format, location of offices and service
standards;
106.6.2 contractual relationships with Agents;
106.6.3 contractual relationships with its
clients;
106.6.4 policy control of its network;
106.6.5 its reconciliation, settlement and key
infrastructure support processes;
106.6.6 its relationship with its suppliers;
and
106.6.7 its product and service design.
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106.7 The CONTRACTOR shall not restrict POCL from
using the POCL Services and the POCL Service
Infrastructure for its existing and future clients,
Agents, customers, products and services. However,
for the avoidance of doubt, the foregoing provision
shall not prevent the CONTRACTOR from charging for
such use in accordance with Schedules A6 of the
AUTHORITIES’ Agreement and Schedules D7, E7, F7 and
G9 (as appropriate).
106.8 The CONTRACTOR’ s and Les subcontractors
contacts with Agents shall be arranged via POCL.
106.9 The POCL Service Infrastructure (other than any
Public Service Telecommunications Networks) may not
be used other than by POCL without the prior written
consent of POCL to provide any services to:
(a) POCL’s current clients in respect of current
products and services;
(b) POCL’s current clients in respect of new
products and services;
(c) new clients in respect of current products
and services;
(d) new clients in respect of new products and
services; or
(e) POCL’s current market domains (including:
. personal cash and banking services -
cash withdrawals and deposits, cashing
cheques, benefit payments and postal
orders;
. communications - letter and _ parcel
services including stationery and
greetings products, other
telecommunications retail products and
services;
. corporate cash services = cash
management services for business
customers, including business
deposits, cash handling and
processing;
. entertainment and leisure services -
lotteries, fishing licences,
membership applications, TV licences
and cable TV bill payment, tickets for
events;
. personal savings and budgeting -
savings and investment accounts,
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household bill payment and pre-
payment, credit services, personal
pensions, household insurance;
. travel services - foreign exchange,
international money transfer and
documentation including passports,
travel tickets and motor vehicle
licences, car insurance and membership
of motoring organisations, travel
insurance;
. insurance = other general risk
insurance and life assurance products;
. information services a about the
products and services offered by POCL
and its clients.)
106.10For the avoidance of doubt, and without
limitation to the generality of Clause 902.2, any
failure by the CONTRACTOR to comply with any of the
provisions of Clauses 106.7, 106.8 or 106.9 shall be
treated as a Default for the purposes of to Clause
902.2.
Clause 107. Condition Precedent
The parties hereto shall have no obligations or
liabilities hereunder until successful completion of the
process of extrapolation and transportation of Schedules
3, A6, Bl to BS, B7, B8 and C5 of the AUTHORITIES’
Agreement and of clarification of Schedule Bl of the
AUTHORITIES’ Agreement in accordance with Clause 201 of
the AUTHORITIES’ Agreement. The Schedules listed in
Schedule 2 shall be populated from Schedules 3, A6, Bl to
BS, B7, B8 and C5 of the AUTHORITIES’ Agreement as
specified in Schedule 2.
PART 2 : PERFORMANCE OF POCL SERVICES AND SUPPLY OF
PRODUCTS
Clause 201. Performance of Basic POCL Services
201.1 The CONTRACTOR shall be responsible for meeting
the requirements specified in Schedule A115 in
accordance with the Solutions specified in Schedule
Al6 by performing the Basic POCL Services referred to
in Clause 201.2. However, for the avoidance of
doubt, and subject to Clause 102.5, the parties
acknowledge that POCL’s acceptance of the
CONTRACTOR’s solutions in Schedule A16 and their
agreement to the service descriptions contained in
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the relevant Schedules of the POCL Agreement, shall
not relieve the CONTRACTOR of its obligation to meet
the requirements specified in Schedule Al5, as
modified by Schedule 3.
201.2 The CONTRACTOR shall perform the following
Basic POCL Services in accordance with all applicable
provisions hereof:
201.2.1 the POCL Development Services pursuant
to Clause 402;
201.2.2 the roll out Services pursuant to
Clause 404;
201.2.3 the POCL Steady State Services
pursuant to Clause 405;
201.2.4 the management Services pursuant to
Clause 602;
201.2.5 the POCL Contingency Services pursuant
to Clause 410; and
201.2.6 the Transfer Services pursuant to
Clause 906.
Clause 202. Performance of Optional POCL Services
POCL shall have the option, exercisable on prior written
notice thereof as specified in Schedule Cl to the
CONTRACTOR, of obtaining the following Optional POCL
Services:
202.1 the Optional POCL Services identified as such
in Schedule A6 of the AUTHORITIES’ Agreement.
Such Optional POCL Services shall be performed in
accordance with all applicable provisions hereof.
Clause 203. Performance of Additional POCL Services
The CONTRACTOR undertakes to perform at any time during
the term of the POCL Agreement such Additional POCL
Services as may be agreed by it and POCL in accordance
with the provisions of Clause 101.3 for the purposes
contemplated by the Related Agreements and within the
scope of the Advertisement. Such Additional POCL
Services shall be performed in accordance with all
applicable provisions of the POCL Agreement.
Clause 204. Supply of Basic Products
204.1 To support the performance of the POCL
Services, the CONTRACTOR shall supply the following
Basic Products in accordance with all applicable
provisions hereof:
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204.1.1 all of the Products comprising the
POCL Service Infrastructure;
204.1.2 the Documentation.
204.2 The CONTRACTOR warrants that the Documentation
comprises:
(a) a complete set of operating manuals; and
(b) a complete set of manuals for the POCL
Service Architecture, (which for the avoidance
of doubt shall not include the POCL Service
Architecture Design Document) .
Clause 205. Supply of Optional Products
POCL shall have the option, exercisable on prior written
notice thereof as specified in Schedules Bl and B2 to the
CONTRACTOR, of obtaining all or any of the following
Optional Products:
205.1 items of the same type as the elements of the
Service Infrastructure provided by the CONTRACTOR for
use on the Premises (other than any Public Service
Telecommunications Network equipment).
The Optional Products shall be supplied in accordance
with all applicable provisions hereof.
Clause 206. Supply of Additional Products
The CONTRACTOR undertakes to supply at any time during
the term of the POCL Agreement such Additional Products
as may be agreed by it and POCL in accordance with the
provisions of Clause 101.3 for the purposes contemplated
by the Related Agreements and within the scope of the
Advertisement. Such Additional Products shall be
supplied in accordance with all applicable provisions
hereof.
Clause 207. Supply of POCL Consumables
POCL shall have the option of obtaining all or any of the
POCL Consumables in such quantities as may be reasonably
required by POCL by giving the CONTRACTOR not less than
thirty (30) days prior written notice thereof. The POCL
Consumables shall be supplied in accordance with all
applicable provisions hereof.
Clause 208. CONTRACTOR Consumables
The CONTRACTOR shall at its own expense provide all
CONTRACTOR Consumables which are required for the
performance of the POCL Services.
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PART 3 : CONSIDERATION
Clause 301. Charges
301.1 Basic POCL Services
The Charges for the Basic POCL Services shall
be calculated in accordance with the Common
Charging Mechanism in Schedule A6 of the
AUTHORITIES’ Agreement and the provisions of
Schedules D7, E7, F7 or G9 (as appropriate).
301.2 Optional POCL Services
The Charges for any Optional POCL Services
shall be calculated in accordance with the
Common Charging Mechanism or such other
mechanism as may be specified to apply thereto
in Schedule A6 of the AUTHORITIES’ Agreement
and the provisions of Schedule cl (as
appropriate).
301.3 Additional POCL Services
Whenever possible, the Charges for any Additional
POCL Services shall be calculated in accordance with
the Common Charging Mechanism or such other mechanism
as may be specified to apply thereto in Schedule A6
of the AUTHORITIES’ Agreement. Where it is agreed
that this is not possible, such Charges shall be
calculated in accordance with such alternative
provisions as may be agreed by the parties and
specified in Schedule A6 of the AUTHORITIES’
Agreement.
301.4 Basic Products
The Charges for the supply of the Basic Products
shall be included within the Common’ Charging
Mechanism in ScheduleA6 of the AUTHORITIES’
Agreement.
301.5 Optional Products
The Charges for the supply of any Optional Products
shall either (a) be included within the Common
Charging Mechanism or such other mechanism as may be
specified to apply to Optional POCL Services in
Schedule A6 of the AUTHORITIES’ Agreement or (b), if
not so included, shall be calculated in accordance
with the CONTRACTOR’s then current list prices less
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the discount specified in Schedule A6 of the
AUTHORITIES’ Agreement, but shall in no event exceed
the prices then generally offered in the United
Kingdom for such products on similar terms.
301.6 Additional Products
The Charges for the supply of any Additional Products
shall either (a) be included within the Common
Charging Mechanism or such other mechanism as may be
specified to apply to Additional POCL Services in
Schedule Aé of the AUTHORITIES’ Agreement or (b), if
not so included, shall be calculated in accordance
with the CONTRACTOR's then current list prices but
shall in no event exceed the prices then generally
offered in the United Kingdom for such products on
similar terms.
301.7 POCL Consumables
The Charges for the supply of any POCL Consumables
shall be as specified in Schedule B4.
301.8 Variation of Charges
The Charges for Basic POCL Services, Optional POCL
Services and Additional POCL Services shall be
subject to annual variation in accordance with the
procedures set out in Schedule A6 of the AUTHORITIES’
Agreement.
Clause 302. Packaging
No additional charge shall be made for packaging used by
the CONTRACTOR. All such packaging shall be removed by
the CONTRACTOR at no additional cost when no _ longer
required.
Clause 303. Payment
303.1 In consideration of the supply of the Products
and the performance of the POCL Services in
accordance with the provisions of the POCL Agreement
POCL shall pay the Charges in accordance with the
invoicing and payment procedure specified in Schedule
Al0.
303.2 Payment of Charges in relation to the POCL
Services performed hereunder shall be made within
thirty (30) days of receipt by POCL (at its nominated
address for invoices) of a valid invoice, in
accordance with the provisions of Schedule A100, from
the CONTRACTOR.
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303.3 In the event that the CONTRACTOR, in accordance
with the terms of the POCL Agreement, enters into a
supply contract or a sub-contract in connection with
the POCL Agreement, the CONTRACTOR shall ensure that
a term is included in the supply contract or a
sub-contract which requires the CONTRACTOR to pay all
sums due thereunder to the relevant supplier or
sub-contractor within a specified period, not to
exceed thirty (30) days, from the date of receipt of
a valid invoice as defined by the terms of the supply
contract or sub-contract (as appropriate) .
Clause 304. Value Added Tax
It is hereby agreed that the Charges are exclusive of
Value Added Tax, which POCL
shall pay to the CONTRACTOR at the rate and in the manner
prescribed by law from time to time, subject to the
production by the CONTRACTOR of a valid tax invoice
giving the requisite details of the taxable supply.
PART 4 : DEVELOPMENT, IMPLEMENTATION AND PERFORMANCE OF
POCL STEADY STATE SERVICES
Clause 401. Initial Asset Transfer
401.1 Sale and Purchase
401.1.1 POCL, free of encumbrances, liens,
charges, mortgages, pledges or other third
party rights shall sell and transfer and the
CONTRACTOR shall purchase and accept the POCL
Transferred Assets listed in Schedule A9.
401.1.2 Subject to Clause 401.1.3, the POCL
Transferred Assets are sold and transferred by
POCL to the CONTRACTOR "as is" and POCL
provides no warranty as to the state, quality
or fitness for purpose of the POCL Transferred
Assets and all such statutorily implied
warranties are hereby excluded. POCL warrants
it has good title to the POCL Transferred
Assets.
401.1.3 To the extent to which POCL is legally
able to do so, POCL hereby assigns all POCL’s
rights against manufacturers, suppliers and
third parties in respect of the POCL
Transferred Assets to the CONTRACTOR. POCL
shall at the CONTRACTOR's request and expense
give to the CONTRACTOR reasonable assistance to
enable the CONTRACTOR to enforce such rights.
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401.1.4 Title to and risk in the POCL
Transferred Assets shall pass to the CONTRACTOR
on the Transfer Date.
401.2 Sale Consideration
401.2.1 As consideration for the agreement by
POCL to sell the POCL Transferred Assets, the
CONTRACTOR hereby agrees to pay to POCL an
amount to be agreed, which will be specified in
Schedule A9, and which shall be paid on the
Transfer Date.
401.2.2 It is hereby agreed that the sum to be
paid pursuant to this Clause 401.2 is exclusive
of Value Added Tax, which the CONTRACTOR shall
pay to POCL at the rate and in the manner
prescribed by law from time to time, in
addition to the sum payable in Clause 401.2.1,
subject to the production by POCL of a valid
tax invoice giving the requisite details of the
taxable supply.
401.3 Transferred Support Agreements
401.3.1 POCL and the CONTRACTOR hereby
acknowledge and agree that with respect to the
POCL Transferred Support Agreements listed in
Schedule A9 they have entered into deeds of
novation as a result of which the rights,
obligations and liabilities of POCL contained
in the POCL Transferred Support Agreements (as
amended pursuant to the terms of the said deeds
of novation) will following the Transfer Date
be assumed by the CONTRACTOR.
401.3.2 POCL undertakes to pay, discharge and
satisfy all liabilities and obligations arising
in the period up to the Transfer Date when the
same fall due to be paid, satisfied or
discharged in respect of the relevant POCL
Transferred Support Agreements and to indemnify
the CONTRACTOR from and against such
liabilities and against any and all losses,
costs, liabilities and expenses arising out of
or in connection therewith. The CONTRACTOR
undertakes to reimburse POCL upon the Transfer
Date in respect of all pre-payments made by
POCL which relate to any period following the
Transfer Date. The CONTRACTOR and POCL shall
prior to the Transfer Date prepare and agree a
written statement itemising such pre-payments.
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401.3.3 The CONTRACTOR undertakes to pay,
discharge and satisfy all liabilities and
obligations arising after the Transfer Date
when the same fall due to be paid, satisfied or
discharged in respect of the POCL Transferred
Support Agreements and to indemnify POCL from
and against such liabilities and against any
and all losses, costs, liabilities and expenses
arising out of or in connection therewith.
401.4 Completion
401.4.1 Completion of the sale and purchase
and/or transfer shall take place on _ the
Transfer Date at the offices of POCL.
401.4.2 Upon completion POCL shall deliver to
the CONTRACTOR:
401.4.2.1 quiet possession of all the
relevant POCL Transferred Assets;
401.4.2.2 executed documentation sufficient
for the purposes of transferring title to
the relevant POCL Transferred Assets;
401.4.2.3 copies of documentation relating
to the relevant POCL Transferred Support
Agreements including relevant technical
information and terms and conditions of
such POCL Transferred Support Agreements.
401.4.3 Upon completion of the Transfer the
CONTRACTOR shall deliver to POCL in a manner to
be agreed between the parties the sum specified
in Clause 401.2.1.
401.5 Initial Lease of Assets
POCL shall lease to the CONTRACTOR the POCL
Leased Assets in accordance with the provisions
of Schedule A9.
401.6 Transfer of Undertakings (Protection of
Employment) Regulations 1981
401.6.1 In the event that, by virtue of the
application for whatever reason of the Transfer
of Undertakings (Protection of Employment)
Regulations 1981 (as amended or replaced from
time to time) to the assumption of
responsibility by the CONTRACTOR for the
provision of all or any part of the Services
hereunder, there is transferred to the
CONTRACTOR any contract of employment of any
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employee of POCL, and provided that the
CONTRACTOR:
(i) shall not have offered employment to
such employee or otherwise have
encouraged him to seek or to claim
employment with the CONTRACTOR; and
(ii) shall have notified POCL in writing of
the CONTRACTOR’ s intention to
terminate the employment of such
employee at least fourteen (14) days
before terminating such employment;
and
(iii) shall immediately after such
notification to POCL have given POCL
reasonable opportunity to offer such
employee reemployment with POCL; and
(iv) shall have terminated the employment
of such employee as soon after the
date on which the CONTRACTOR first
became aware of the transfer to it of
his employment as permitted under the
relevant contract of employment,
POCL, subject always to the CONTRACTOR’s proper
observance of its obligations under this
Clause, shall fully indemnify the CONTRACTOR
from and against any and all liabilities and
obligations which the CONTRACTOR may incur in
connection therewith (including any liabilities
and obligations, accruing prior to such
transfer of employment, in relation to personal
injury, sexual discrimination and any
liabilities and obligations arising after such
transfer of employment on the subsequent
termination of employment by the CONTRACTOR of
any such employees so transferred to it).
401.6.2 In the event of any claim or demand
being made or action brought to which Clause
401.6.1 applies, POCL shall be promptly
notified thereof and POCL shall at its own
expense conduct all negotiations for settlement
of the same and any legal proceedings that may
rise therefrom. The CONTRACTOR, its sub-
contractors, agents and employees shall at the
request of POCL afford all reasonable
assistance for the purpose of contesting any
such claim or demand or action and shall be
repaid any reasonable expense incurred in so
doing and shall not make any admissions which
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may be prejudicial to the defence of any such
claim or demand or action.
Clause 402. POCL Development Services
402.1 The CONTRACTOR shall perform the following POCL
Development Services:
402.1.1 development of Optional POCL Services
as described in Schedule Cl;
402.1.2 development of the Benefits Encashment
Service as described in Schedule D1;
402.1.3 development of the Automated Payment
Service as described in Schedule El;
402.1.4 development of EPOSS as described in
Schedule Fl; and
402.1.5 development of the POCL Infrastructure
Services as described in Schedules G1, G2 and
G3.
402.1.6 development of the POCL Service
Architecture Design Document; and
402.1.7 development of the POCL Contingency
Services as described in Schedules D9, E9, F9
and Gll.
Clause 403. POCL Operational Trial
403.1 The CONTRACTOR shall, during the POCL
Operational Trial Period, make available the POCL
Operational Trial System (which for the purposes of
this Clause 403 shall include the POCL Service
Architecture Design Document) for the POCL
Operational Trial as set out in Schedules H1 to H5 to
be performed in accordance with the timetable set out
in Schedule H2. POCL shall be entitled to subject
all Basic POCL Services and Optional POCL Services to
the POCL Operational Trial, but in relation to
Optional POCL Services, the rights of termination
granted pursuant to this Clause shall apply only to
the particular Optional POCL Service being tested.
403.2 The objectives of the POCL Operational Trial
shall be as specified in Schedule H1. The POCL
Operational Trial Criteria:
403.2.1 for the Benefit Encashment Service
shall be as set out in Schedule D2;
403.2.2 for the Automated Payment Service
shall be as set out in Schedule E2;
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403.2.3 for EPOSS shall be as set out in
Schedule F2;
403.2.4 for the POCL Infrastructure Services
shall be as set out in Schedule G4; and
403.2.5 for the POCL Contingency Services
shall be as set out in Schedules D9, E9, F9,
Gll.
403.3 POCL shall accept the POCL Operational Trial
System in accordance with the POCL Operational Trial
Procedures.
403.4 The POCL Operational Trial shall be recorded as
successful and the CONTRACTOR notified accordingly
where all the POCL Operational Trial Criteria are met
in accordance with the POCL Operational Trial
Procedures.
403.5 The POCL Operational Trial shall be recorded as
unsuccessful and the CONTRACTOR notified accordingly
where any of the POCL Operational Trial Criteria are
not met in accordance with the POCL Operational Trial
Procedures.
403.6 If the POCL Operational Trial in respect of the
POCL Operational Trial System has not been recorded
as successful pursuant to Clause 403.4 by the end of
the POCL Operational Trial Period, POCL shall have
the right, without prejudice to its other rights and
remedies:
403.6.1 to accept such part of the POCL
Operational Trial System as POCL may decide and
pay a pro-rated Charge therefor or such other
charge as may be agreed between the parties;
403.6.2 to extend the POCL Operational Trial
Period for up to two (2) consecutive additional
periods of the same duration or of such shorter
duration as POCL may notify the CONTRACTOR,
during which the CONTRACTOR shall use
reasonable endeavours to correct the deficiency
or Acceptance Incident which caused the POCL
Operational Trial to be recorded as
unsuccessful; or
403.6.3 (subject to Clause 403.10) to
terminate this POCL Agreement or, if
appropriate, the relevant POCL Application
Services in accordance with Clause 902.2 or
903.2 (as appropriate).
For the purposes of the foregoing, the “relevant”
POCL Application Services mean the POCL Application
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Services in respect of which the POCL Operational
Trial has been recorded as unsuccessful.
403.7 In the event that POCL extends the POCL
Operational Trial Period for a period pursuant to
Clause 403.6.2 and the POCL Operational Trial has not
been recorded as successful by the end of that
period, POCL shall have the right without prejudice
to its other rights and remedies:
403.7.1 to accept such part of the POCL
Operational Trial System as POCL may decide and
pay a pro-rated Charge therefor or such other
charge as may be agreed between the parties;
403.7.2 to extend the POCL Operational Trial
Period for a further period in accordance with
Clause 403.6.2 up to a maximum of three (3)
consecutive periods in total; or
403.7.3 (subject to Clause 403.10) to
terminate this POCL Agreement or, if
appropriate, the relevant POCL Application
Services in accordance with Clause 902.2 or
903.2 (as appropriate).
For the purposes of the foregoing, the “relevant”
POCL Application Services mean the POCL Application
Services in respect of which the POCL Operational
Trial has been recorded as unsuccessful.
403.8 POCL will perform the POCL Trial
Responsibilities as set out in Schedule H4.
403.9 For the avoidance of doubt, the CONTRACTOR
acknowledges that successful completion of any part
of the POCL Operational Trial Systems shall not
relieve it of its obligation to continue to perform
the POCL Services in accordance with all applicable
provisions hereof.
403.10Notwithstanding the foregoing provisions of
this Clause, POCL shall have no right of termination
of the POCL Agreement in relation to failure of the
POCL Operational Trial System successfully to
complete the POCL Operational Trial except in
accordance with Schedules All and H5.
Clause 404. Roll Out of POCL Service Infrastructure and
POCL Steady State Services
404.1 The CONTRACTOR shall implement the POCL Service
Infrastructure in accordance with the provisions and
timetable in Schedule Bé6. Elements of the POCL
Service Infrastructure shall be subject to POCL
Acceptance Testing in accordance with Clause 408.
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404.2 POCL may on prior written notice defer
implementation of any part of the POCL Steady State
Services and of any of POCL Service Infrastructure
until successful completion of the Operational Trial
under the AUTHORITIES’ Agreement.
404.3 The CONTRACTOR shall implement the Benefit
Encashment Service in accordance with the timetable
in, and provisions of, Schedule D4. Elements of the
Benefit Encashment Service shall be subject to POCL
Acceptance Testing in accordance with Clause 411.
404.4 The CONTRACTOR shall implement the Automated
Payment Service in accordance with the timetable in,
and the provisions of, Schedule E4. Elements of the
Automated Payment Service shall be subject to POCL
Acceptance Testing in accordance with Clause 411.
404.5 The CONTRACTOR shall implement EPOSS in
accordance with the timetable in, and the provisions
of, Schedule F4. Elements of EPOSS shall be subject
to POCL Acceptance Testing in accordance with Clause
411.
404.6 The CONTRACTOR shall implement the POCL
Infrastructure Services in accordance with the
timetable in, and the provisions of, Schedule G6.
Elements of the POCL Infrastructure Services shall be
subject to POCL Acceptance Testing in accordance with
Clause 411.
Clause 405. Performance of POCL Steady State Services
The CONTRACTOR shall, from the Operational Trial
Acceptance Date (as defined in the AUTHORITIES’
Agreement), perform the following POCL Steady State
Services:
405.1 the Benefit Encashment Service, in
accordance with the provisions of Schedule Dl;
405.2 the Automated Payment Service, in
accordance with the provisions of Schedule El;
405.3 EPOSS, in accordance with the
provisions of Schedule Fl;
405.4 the POCL Infrastructure Services, in
accordance with the provisions of Schedules Gl,
G2 and G3;
405.5 the POCL Contingency Services in
accordance with the provisions of Schedules D9,
E9, F9 and Gll; and
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405.6 any Optional POCL Services ordered
pursuant to Clause 202 in accordance with the
provisions of Schedule Cl.
Clause 406. Inspection of POCL Premises
406.1 The CONTRACTOR confirms that it has _ been
offered the opportunity to inspect the POCL Premises
in order to satisfy itself that the POCL Premises are
suitable for the installation and operation of the
Products in the POCL Service Infrastructure and the
supply of the POCL Services. However, the CONTRACTOR
does not warrant that the use of such Products when
installed will comply with applicable Health and
Safety legislation or that the POCL Premises will
comply with such legislation, only that installation
work carried out by the CONTRACTOR and the Products
as installed in their immediately surrounding
environment will so comply. The CONTRACTOR shall not
be liable for any delay or Default directly caused by
any delay or failure in obtaining any third party
consents or licences which are necessary to permit
such installation.
406.2 In relation to any changes to the POCL Premises
which are strictly necessary to ensure compliance
with relevant electrical standards and legislation
before any element of the POCL Service Infrastructure
can be installed, the CONTRACTOR shall inspect the
POCL Premises, specify the changes necessary and,
subject to POCL’s prior written approval of the
changes to be made and the costs thereof, make such
changes. The costs of such changes shall be
chargeable to POCL in accordance with Schedule B7.
POCL reserves the right to arrange for such changes
to be made by parties other than the CONTRACTOR in
accordance with procedures and specifications
reasonably agreed by the parties. The CONTRACTOR
will not be liable for any delay or Default, directly
caused by such changes being made by a party other
than the CONTRACTOR.
406.3 POCL shall only be liable to pay for the
CONTRACTOR’s costs for those changes to the POCL
Premises which are strictly necessary to install the
Products to enable the CONTRACTOR to perform the POCL
Services, and these costs shall only be chargeable
pursuant to the charging structure in Schedule A6 of
the AUTHORITIES’ Agreement. The CONTRACTOR will
minimise such installation and operations costs.
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Clause 407. Marking of Products
The CONTRACTOR shall ensure that each Product in the
POCL Service Infrastructure is clearly marked with a
functional title or code so that it can be readily
identified in the relevant Documentation and related
to its proper place in the POCL Service
Infrastructure.
Clause 408. Delivery and Acceptance of Products and
POCL Consumables
408.1 The CONTRACTOR shall deliver any Products and
POCL Consumables to an authorised representative of
POCL at times and locations to be mutually agreed
between the CONTRACTOR and POCL (such agreement not
to be unreasonably withheld or delayed). Any
Software supplied as a Product will be delivered in
object code.
408.2 POCL shall accept the relevant Product or POCL
Consumables in accordance with the POCL Acceptance
Procedures contained in Schedule All. The POCL
Acceptance Criteria for Basic Products shall be as
specified in Schedule B5.
408.3 A POCL Acceptance Test shall be recorded as
successful and the CONTRACTOR notified accordingly
where all the POCL Acceptance Criteria are met in
accordance with the POCL Acceptance Procedures.
408.4 A POCL Acceptance Test shall be recorded as
unsuccessful and the CONTRACTOR notified accordingly
where any of the POCL Acceptance Criteria are not met
in accordance with the POCL Acceptance Procedures.
408.5 If the POCL Acceptance Procedures, in respect
of the relevant Product or POCL Consumable have not
been recorded as successful pursuant to Clause 408.3
by the end of the POCL Acceptance Period, POCL shall
have the right without prejudice to its other rights
and remedies (excluding the right to terminate the
POCL Agreement under Clause 902.2 or any POCL
Application Services under Clause 903.2) either:
408.5.1 to accept such items of the relevant
Products or POCL Consumables as POCL may decide
and (where appropriate) pay a pro-rated Charge
therefor or such other charge as may be agreed
between the parties; or
408.5.2 to extend the POCL Acceptance Period
for a period or periods, specified by POCL
during which the CONTRACTOR shall use
reasonable endeavours to correct the deficiency
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or Acceptance Incident which caused the POCL
Acceptance Procedure to be recorded as
unsuccessful.
408.6 In the event that POCL extends the POCL
Acceptance Period for a period pursuant to Clause
408.5.2 and the POCL Acceptance Procedures have not
been recorded as successful by the end of that
period, POCL shall have the right without prejudice
to its other rights and remedies (excluding the right
to terminate the POCL Agreement under Clause 902.2 or
any POCL Application Services under Clause 903.2):
408.6.1 to accept such items of the relevant
Products or POCL Consumables as POCL may decide
and (where appropriate) pay a pro-rated Charge
therefor or such other charge as may be agreed
between the parties; or
408.6.2 to extend the POCL Acceptance Period
for a further period in accordance with Clause
408.5.2; or
408.6.3 to reject the relevant Product or POCL
Consumable, in which case the CONTRACTOR shall
return to POCL any payment made in respect of
the relevant Optional or Additional Product or
POCL Consumable, or, in the case of Basic
Products, shall provide replacement Basic
Products, or repair the relevant Basic Products
(as agreed by the parties, such agreement not
to be unreasonably withheld or delayed) in
which case such replacement or repaired Basic
Products shall be subject to POCL Acceptance
Testing in accordance with this Clause 408.
Clause 409. Products and Services
The CONTRACTOR shall not introduce any product or service
into the POCL Service Infrastructure or POCL Services,
nor make any change to any Products or POCL Services,
without POCL’s prior written consent in accordance with
Schedule A5.
Clause 410. POCL Contingency Services
The CONTRACTOR shall perform the POCL Contingency
Services in accordance with the provisions of Schedules
D9, E9, F9 and Gill. In providing the POCL Contingency
Services, the CONTRACTOR shall give priority, where
priority can be given, to restoration of the Benefit
Encashment Service in post offices, whilst taking account
of POCL’s other client and customer service obligations.
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Clause 411. Acceptance of POCL Steady State Services
411.1 POCL shall accept the elements of the POCL
Steady State Services in accordance with the POCL
Acceptance Procedures contained in Schedule All. The
POCL Acceptance Criteria for POCL Steady State
Services shall be as specified in Schedules D2, E2,
F2 and G4, as appropriate.
411.2 The POCL Acceptance Test in relation to any
such element shall be recorded as successful and the
CONTRACTOR notified accordingly where all the POCL
Acceptance Criteria are met in accordance with the
POCL Acceptance Procedures.
411.3 The POCL Acceptance Test in relation to any
such element shall be recorded as unsuccessful and
the CONTRACTOR notified accordingly where the
relevant POCL Acceptance Criteria are not met in
accordance with the POCL Acceptance Procedures.
411.4 If the POCL Acceptance Test, in respect of the
relevant element of the POCL Steady State Services
has not been recorded as successful pursuant to
Clause 411.2 by the end of the POCL Acceptance
Period, POCL shall have the right, without prejudice
to its other rights and remedies (excluding the right
to terminate the POCL Agreement under Clause 902.2 or
any POCL Application Services under Clause 903.2)
either:
411.4.1 to accept such part of the POCL Steady
State Services as POCL may decide and pay a
pro-rated Charge therefor or such other charge,
as may be agreed between the parties; or
411.4.2 to extend the POCL Acceptance Period
for a period or periods, specified by POCL
during which the CONTRACTOR shall use
reasonable endeavours to correct the deficiency
or Acceptance Incident which caused the POCL
Acceptance Test to be recorded as unsuccessful.
411.5 In the event that POCL extends the POCL
Acceptance Period for a period pursuant to Clause
411.4.2 and the POCL Acceptance Procedures have not
been recorded as successful by the end of that
period, POCL shall have the right, without prejudice
to its other rights and remedies (excluding the right
to terminate the POCL Agreement under Clause 902.2 or
any POCL Application Service under Clause 903.2):
411.5.1 to accept such part of the POCL Steady
State Services as POCL may decide and pay a
pro-rated Charge therfor or such other charge,
as may be agreed between the parties; or
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411.5.2 to extend the POCL Acceptance Period
for a further period in accordance with Clause
411.4.2.
PART 5 : OWNERSHIP, LICENCES AND RISK
Clause 501. Ownership of Hardware
Ownership of the Hardware shall either vest in POCL upon
acceptance thereof or shall remain in the CONTRACTOR (or
its licensors), as specified in Schedule B2. However,
POCL shall not acquire title to any Intellectual Property
Rights in the Hardware.
Clause 502. Ownership of Software
Ownership of the media on which such Software is supplied
by the CONTRACTOR shall either vest in POCL upon
acceptance thereof or shall remain in the CONTRACTOR (or
its licensors), as specified in Schedule Bl. However,
POCL shall not acquire title to any Intellectual Property
Rights in the Software, other than Specially Written
Software, the Intellectual Property Rights in which are
specified in Schedule Bl as vesting in POCL, the
ownership to which shall vest in POCL upon acceptance
thereof.
Clause 503. Ownership of Documentation
503.1 Ownership of the media on which such
Documentation is supplied by the CONTRACTOR shall
vest in POCL. However, POCL shall not acquire title
to the Intellectual Property Rights an, the
Documentation.
Clause 504. Ownership of POCL Data and Intellectual
Property Rights in the POCL Service Architecture
504.1 The CONTRACTOR acknowledges that the POCL Data
is the property of POCL and POCL hereby reserves all
Intellectual Property Rights which may subsist in the
POCL Data. The CONTRACTOR shall not delete or remove
any copyright notices contained within or relating to
the POCL Data.
504.2 The CONTRACTOR shall preserve the integrity of
the POCL Data once the CONTRACTOR has received such
POCL Data, shall prevent any corruption or loss of
the POCL Data and shall comply with the validation
procedures set out in Schedule B8 as such procedures
may be updated and amended from time to time. The
CONTRACTOR shall not be liable for any loss or
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corruption of POCL Data nor for any failure to
perform the POCL Services if it can prove that such
loss or corruption or failure to perform the POCL
Services was caused by POCL Data which was lost or
corrupted before the CONTRACTOR received it, and the
CONTRACTOR has complied with the validation rules in
relation to such POCL Data.
504.3 In the event that the POCL Data is corrupted or
lost in the course of performing the Services POCL
shall have the option, in addition to any other
remedies that may be available to it either under the
POCL Agreement or otherwise, to elect either of the
following remedies:
504.3.1 POCL may require the CONTRACTOR at
its own expense to restore or procure the
restoration of the POCL Data; or
504.3.2 POCL may itself restore or procure
restoration of the POCL Data, and shall be
repaid by the CONTRACTOR any reasonable
expenses so incurred.
504.4 For the purposes of Clauses 504.2 and 504.3,
the term “POCL Data” shall include the data of POCL’s
clients.
504.5 Ownership of any Intellectual Property Rights
in that part of the design of the POCL Service
Architecture (as set out in the POCL Service
Architecture Design Document) which is developed
during the performance of the POCL Services shall
vest in the CONTRACTOR. Any use by the CONTRACTOR of
the overall design of the POCL Service Architecture
within the United Kingdom for purposes other than in
connection with the Related Agreements shall be
subject to the prior written agreement of POCL on
reasonable commercial terms (such agreement not to be
unreasonably withheld or delayed).
504.6 POCL Data constitutes Confidential Information,
and may not be reproduced without the prior written
consent of POCL except as necessary to perform the
POCL Services.
504.7 The CONTRACTOR shall not do anything to
prejudice the security of the POCL Services.
Clause 505. Ownership of POCL Consumables
Ownership of any POCL Consumables supplied hereunder
shall vest in POCL upon acceptance thereof in accordance
with Clause 408.3.
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Clause 506. Licences to use Intellectual Property
Rights
506.1 In consideration of the payment of the
relevant Charges the CONTRACTOR hereby grants, or
shall procure that the owner of the Intellectual
Property Rights in the Specially Written Software and
the Documentation (other than the Specially Written
Software and Documentation in which ownership of the
Intellectual Property Rights vests in POCL pursuant
to Clause 502) grants POCL a perpetual, royalty-free,
irrevocable (subject to Clause 506.12) and
non-exclusive licence to Use the relevant Specially
Written Software and to use, copy and modify the
Documentation solely in connection with the Services.
506.2 [Not Used]
506.3 In consideration of the payment of the relevant
Charges the CONTRACTOR hereby grants to POCL a
royalty-free, non-exclusive licence to Use the
CONTRACTOR's Software. Such licence to Use the
CONTRACTOR's Software shall, subject to Clause
506.12, be perpetual and irrevocable. In the case of
any CONTRACTOR's Software for which the Charges are
periodic, the licence to Use shall subsist, subject
to Clause 506.12, until the expiry of written notice
by POCL terminating such licence. POCL’s licence to
Use such CONTRACTOR’s Software shall be subject to
any additional terms and conditions specified in
Schedule Bl which do not detract from the rights
granted to POCL hereunder.
506.4 In consideration of the payment of the relevant
Charges in respect of Third Party Software supplied
hereunder, the CONTRACTOR shall:
506.4.1 use all reasonable efforts to procure
the right to grant to POCL a_ perpetual,
royalty-free, irrevocable (subject to Clause
506.12) and non-exclusive sub-licence to Use
such Third Party Software, subject to
Clause 506.6 and Clause 506.7, and, by the
entering into of this POCL Agreement shall
grant such sub-licence; or
506.4.2 if the CONTRACTOR is unable to procure
the right to grant the sub-licence referred to
in Clause 506.4.1 the CONTRACTOR shall procure,
prior to the commencement of the POCL
Operational Trial Period (or in respect of
Optional Products or Additional Products, the
POCL Acceptance Period), that the third party
grants to POCL a royalty-free and non-exclusive
licence to Use the Third Party Software subject
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to Clause 506.6 and Clause 506.7, and shall use
all reasonable endeavours to ensure that such
licence is perpetual and (subject to Clause
506.12) irrevocable;
POCL’s licence or sub-licence to Use such Third Party
Software shall be subject to any additional terms and
conditions imposed by the licensor, provided that any
terms of any sub-licence granted under sub-Clause
506.4.1 or any licence granted under sub-Clause
506.4.2 shall not detract from the rights granted to
POCL hereunder.
506.5 In consideration of the payment of the relevant
Charges the CONTRACTOR hereby grants to POCL or shall
procure prior to the commencement of any use by POCL
that the relevant Third Party grants to POCL a
royalty-free non-exclusive licence to use the
Internal Code in connection with the Hardware of
which it forms an integral part. Such licence to use
the Internal Code shall, subject to Clause 506.12, be
perpetual and irrevocable. On the sale or transfer
of an item of Hardware of which Internal Code is an
integral part, licence to use such Internal Code in
combination with the said item of Hardware shall pass
to the purchaser or other transferee of the said item
of Hardware. POCL shall take all reasonable steps to
ensure that the purchaser or transferee of the said
item of Hardware agrees to comply with the licence to
use the Internal Code that was previously enjoyed by
POCL.
506.6 POCL shall be entitled to engage a third party
to Use the Specially Written Software and to Use the
CONTRACTOR's Software, (and the CONTRACTOR shall use
all reasonable endeavours to enable POCL to engage a
third party to use Internal Software and Third Party
Software) subject to and in accordance with this POCL
Agreement on behalf of POCL provided that such third
party shall have entered into a confidentiality
undertaking in accordance with Clause 607.5.2.
506.7 POCL shall be entitled to copy the appropriate
CONTRACTOR's Software, Internal Code and Third Party
Software in order to create as many archival or
back-up copies of the same as are necessary. When
copying Software POCL shall include the original
machine readable copyright notice, and a= label
affixed to the media identifying the Software and
stating: "This medium contains an authorised copy of
copyrighted software which is the property of [the
CONTRACTOR or the Third Party Software Owner]."
506.8 The CONTRACTOR shall place the Source Code of
the Deposited Software in escrow with the NCC on the
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basis of the appropriate standard agreement or on
such other terms as POCL, the CONTRACTOR the Third
Party Software Owner (if applicable) and the NCC
shall agree. Such escrow agreement to be entered
into within thirty (30) days of the date of this POCL
Agreement.
506.9 The CONTRACTOR hereby grants to POCL a
perpetual, royalty-free, irrevocable (subject to
Clause 506.12) and non-exclusive licence to Use,
reproduce, modify, adapt and = enhance (and to
authorise a third party to Use, reproduce, modify,
adapt and enhance) the Source Code version of the
Deposited Software. However, the foregoing licence
shall only become effective if POCL becomes entitled
to obtain access to the Source Code version of the
Deposited Software pursuant to the source code escrow
agreement referred to in Clause 506.8 and the licence
shall be subject to any restrictions contained herein
in respect of the object code version of the
Deposited Software.
506.10Subject to any necessary consents (which the
CONTRACTOR shall use all reasonable endeavours to
obtain) any licence or sub-licence granted by the
CONTRACTOR to POCL hereunder shall be transferable in
accordance with the provisions of Clause 604.4.
506.11Subject to any necessary consents (which the
CONTRACTOR shall use all reasonable endeavours to
obtain) any rights to Use granted hereunder to POCL
are hereby granted to and are fully exercisable by
members of the Post Office Group and End Users.
506.12The CONTRACTOR may at any time by notice in
writing terminate any licence granted under Clause
506.1, Clause 506.3, Clause 506.4, Clause 506.5,
Clause 506.9, Clause 904.1.2 or Clause 905.12 if POCL
is in Default of its obligations under the relevant
Clause in relation to such licence and POCL shall
fail to remedy such Default within thirty (30) days
of written notice to POCL specifying the Default and
requiring its remedy, provided that if the Default in
question is caused by an Agent, such licence shall
only be terminated in relation to Use by such Agent.
Upon termination of the relevant licence to POCL,
POCL shall cease to use the Software which is the
subject matter of such licence and shall either
return or destroy all copies of such Software, as
directed by the CONTRACTOR.
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Clause 507. Risk in Products
507.1 Risk in the Products shall pass to POCL upon
acceptance thereof or shall remain with the
CONTRACTOR, as specified in Schedules Bl and B2.
507.2 Notwithstanding the provisions of Clause 507.1,
POCL shall be liable for any loss of or damage to any
Products or part thereof supplied under this POCL
Agreement while it is at the Premises prior to
acceptance of the Products if such loss or damage is
occasioned by the negligence or wilful acts or
omissions of POCL.
507.3 The CONTRACTOR shall, on being so ordered by
POCL with all possible speed make good any loss or
damage affecting the Products, whether such loss or
damage arises in the circumstances referred to in
Clause 507.2 or otherwise, and shall notwithstanding
such loss or damage proceed with and complete the
installation of the POCL Service Infrastructure
(where appropriate) and the performance of the POCL
Services in accordance with the POCL Agreement. POCL
shall pay the costs of making good unless the loss or
damage is occasioned by the Default of the
CONTRACTOR.
Clause 508. Damage to Plant, Tackle and Tools
508.1 All plant, tackle and tools at the POCL
Premises provided by or on behalf of the CONTRACTOR
shall stand at the risk and be in the sole charge of
the CONTRACTOR.
508.2 The CONTRACTOR shall be required to remove all
such plant, tackle and tools which it brings to the
POCL Premises.
508.3 The CONTRACTOR shall ensure that all = such
plant, tackle and tools shall meet minimum safety
standards required by law.
Clause 509. Licences for the CONTRACTOR to use
Intellectual Property Rights
509.1 POCL hereby grants to the CONTRACTOR a non-
exclusive licence to use any software included within
the POCL Transferred Assets, the POCL Leased Assets
and the Software in which the Intellectual Property
Rights vest in POCL for the term of this POCL
Agreement solely for the purposes of performing the
POCL Services and for no other purposes. The
CONTRACTOR shall be entitled to copy such software
for operational purposes in accordance with the
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foregoing licence and in order to make back up copies
of such software. Upon termination of the POCL
Agreement or upon the CONTRACTOR ceasing to use such
software, the CONTRACTOR shall either return or
destroy all copies of such software as directed by
POCL.
509.2 Neither the CONTRACTOR nor any sub-contractor,
nor any other person, shall have a lien on any
Products owned by or leased to POCL for any sum due
to the CONTRACTOR, sub-contractor or other person,
and the CONTRACTOR shall take all reasonable steps to
ensure that the title of POCL and the exclusion of
any such lien are brought to the notice of all sub-
contractors and other persons dealing with such
Products.
PART 6 : CONTRACT AND SERVICE MANAGEMENT
Clause 601. Monitoring
POCL shall be entitled to monitor the performance by the
CONTRACTOR of its obligations under the POCL Agreement in
accordance with the procedures set out in Schedule A4.
Clause 602. Management Interfaces and Service
Management
602.1 The parties shall establish the management
interfaces set out in Schedule A4. All contract
management of the POCL Agreement shall be performed
in accordance with the provisions of Schedule A4.
602.2 In relation to the Benefit Encashment Service,
the Automated Payments Service, EPOSS and the POCL
Infrastructure Services, the POCL Services shall be
managed in accordance with the provisions of
Schedules D5, E5, F5 and G7 respectively. The
CONTRACTOR shall provide the contract management
services specified in Schedules D5, E5, F5 and G7.
In respect of the POCL Contingency Services and the
Transfer Services, the POCL Services shall be managed
in accordance with the provisions of Schedules D5,
ES, FS and G7.
Clause 603. Communications
603.1 Except as otherwise expressly provided no
communication from one party to another shall have
any validity under the POCL Agreement unless made in
writing by or on behalf of POCL or the CONTRACTOR, as
the case may be.
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603.2 Any notice or other communication whatsoever
which any party hereto is required or authorised by
the POCL Agreement to give or make to another shall
be given or made either by post in a prepaid letter,
or by telex or by facsimile transmission confirmed by
post in a prepaid letter, addressed to such other
party in the manner referred to in Clause 603.3 below
and if that letter is not returned as_ being
undelivered that notice or communication shall be
deemed for the purposes of the POCL Agreement to have
been given or made after two days, for a letter, or
four hours, for a telex or facsimile transmission.
603.3 For the purposes of Clause 603.2 above the
address of each party shall be:
603.3.1 For POCL:
3rd Floor
Terminal House
52 Grosvenor Gardens
London SW1W OAB
For the attention of:
Andrew Sto
Telephone
Facsimile I
603.3.2 For the CONTRACTOR
Pathway Group Limited
Forest Road
Feltham
Middlesex TW13 7EJ
For the attention of:
J.H. Benn
Telephone }
Facsimile
603.4 Any party may change its address for service by
notice as provided in this Clause 603.
Clause 604. Transfer and Sub-Contracting
604.1 The POCL Agreement in personal to the
CONTRACTOR. The CONTRACTOR shall not assign, novate,
sub-contract or otherwise dispose of the POCL
Agreement or any part thereof without the previous
written consent of POCL.
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604.2 POCL hereby consents to the CONTRACTOR's
sub-contracting of its obligations specified in
Schedule A8& to the respective sub-contractors
specified therein on the date hereof. Additional or
substitute sub-contractors may be approved from time
to time in accordance with Clause 604.1 after the
date hereof, in which case Schedule A8 shall be
amended accordingly. Notwithstanding any sub-
contracting permitted in the POCL Agreement, the
CONTRACTOR shall remain primarily responsible for the
acts and omissions of its sub-contractors committed
by them in the course of performing or purporting to
perform any of the POCL Services on the CONTRACTOR’s
behalf as though such acts or omissions were its own.
604.3 [Not used]
604.4 POCL shall be entitled to assign, novate or
otherwise dispose of its rights and obligations under
the POCL Agreement or any part thereof (including,
where appropriate, requiring the grant by the
CONTRACTOR or its licensors of a direct licence of
any Software other than Third Party Software, and
requiring the CONTRACTOR to use all _ reasonable
endeavours to procure the grant of a direct licence
of any Third Party Software) to any other body which
performs any of the functions that previously had
been performed by POCL, provided that any such
assignment, novation or other disposal shall not
increase the burden of the CONTRACTOR’s obligations
pursuant to the POCL Agreement.
604.5 POCL shall be entitled to disclose, to the
extent necessary for the purposes of the Related
Agreements, to any transferee any Confidential
Information of the CONTRACTOR which relates to the
performance of the POCL Services by the CONTRACTOR.
In such circumstances POCL shall authorise the
transferee to use such Confidential Information only
for purposes relating to the performance of the POCL
Services and for no other purposes and, for the
avoidance of doubt, the transferee shall be bound by
the confidentiality undertaking contained herein in
relation to such Confidential Information.
Clause 605. POCL Responsibilities
605.1 Subject to the provisions of Clause 607, POCL
undertakes to provide at its own cost and expense to
the CONTRACTOR, all information, services, facilities
and responses designated as POCL Responsibilities in
Schedules D3, E3, F3 and G5. POCL shall use all
reasonable endeavours to perform such POCL
Responsibilities in accordance with any agreed
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timetable specified in Schedule B9 or elsewhere
herein.
605.2 Without limitation to Clause 605.1, POCL shall
use all reasonable endeavours to ensure that its
Agents co-operate with the CONTRACTOR to the extent
reasonably necessary to permit the CONTRACTOR to
perform the POCL Services. In the event that any
Agent fails to provide such co-operation, and POCL is
unable to secure such co-operation within six (6)
months after receiving written notice thereof from
the CONTRACTOR, the CONTRACTOR shall be relieved of
liability for any failure or delay to perform the
POCL Services which is directly caused by the Agent’s
failure to provide such co-operation and shall be
entitled to any reasonable additional costs and
expenses which the CONTRACTOR can show were directly
incurred by it as a result of the Agent’s failure to
provide such co-operation.
Clause 606. Time
606.1 Timetable
606.1.1 The CONTRACTOR shall perform the POCL
Services in accordance with any timescales
specified in Schedule B9 and elsewhere herein
as “contractual milestones”, and shall use all
reasonable endeavours to perform the POCL
Services in accordance with any other
timescales specified in Schedule BO and
elsewhere herein, which shall be treated as
“target dates”. In the event of failure to
meet any target date, the CONTRACTOR shall
provide POCL with a method statement showing
how it intends to recover any lost time. For
the avoidance of doubt, time shall not be of
the essence in relation to any contractual
milestone unless notice is served in accordance
with Clause 606.4.
606.1.2 Before POCL exercises its option for
any Optional POCL Service, and before POCL and
the CONTRACTOR agree on the supply of any
Additional POCL Service, POCL and the
CONTRACTOR shall agree a timetable for the
performance of such POCL Services and such
timetable shall be incorporated into the POCL
Agreement as an additional Schedule in
accordance with Clause 101.3.
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606.2 Extension of Time
606.2.1 If the performance of the POCL
Agreement by the CONTRACTOR be delayed by
reason of Default by POCL or by its employees
or authorised agents, the CONTRACTOR shall be
entitled to a reasonable extension of time and
to any reasonable additional costs and expenses
which it can show were directly incurred by the
CONTRACTOR as a result of the delay. The
CONTRACTOR shall notify POCL in writing within
three (3) working days of becoming aware of
such Default.
606.2.2 If the performance of the POCL
Agreement by either party be delayed by reason
of any force majeure event (as defined in
Clause 606.3), both parties shall be entitled
to a reasonable extension of time subject to
there being no entitlement to any additional
costs or expenses incurred as a result of the
delay. The party so delayed shall notify the
other party in writing within one (1) working
day of becoming aware of the force majeure
event.
606.3 Force Majeure
606.3.1 For the purposes of the POCL Agreement
the expression "Force Majeure" shall mean any
cause affecting the performance by a party
hereto of its obligations arising from acts,
events, omissions, happenings or non-happenings
beyond its reasonable control including (but
without limiting the generality thereof) (i)
Governmental Regulations (subject to Clause
606.5), (ii) fire, (iii) flood, or (iv) any
disaster or an industrial dispute affecting a
third party. Any act, event, omission,
happening or non-happening will only be
considered Force Majeure if it is not
attributable to the wilful act, neglect or
failure to take reasonable precautions of the
affected party, its agents or employees, and
only if a substitute third party is not
reasonably available (having regard, without
limitation, to the cost and quality of such
substitute) to perform the affected
obligation. In no event shall any fraudulent
act or omission by any third party or party in
relation to the POCL Services for which the
CONTRACTOR is liable under Clause 809.1)
constitute a force majeure event.
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606.3.2 Neither party hereto shall in any
circumstances be liable to the other party
hereto for any loss of any kind whatsoever
including but not limited to any damages or
abatement of Charges whether directly or
indirectly caused to or incurred by the other
party by reason of any failure or delay in the
performance of its obligations under the POCL
Agreement which is due to Force Majeure.
Notwithstanding the foregoing, each party shall
use all reasonable endeavours to continue to
perform, or resume performance of, such
obligations under the POCL Agreement for the
duration of such Force Majeure event. In the
case of the CONTRACTOR, the parties shall agree
an orderly process for such continuation or
resumption of performance (such consent not to
be unreasonably withheld or delayed), and the
CONTRACTOR shall comply with such process. The
CONTRACTOR shall remain liable to perform the
POCL Contingency Services, save where such POCL
Contingency Services are themselves also
affected by Force Majeure, in which case the
CONTRACTOR shall be required to use all
reasonable endeavours to perform such POCL
Contingency Services.
606.3.3 If the CONTRACTOR shall become aware
of circumstances of Force Majeure which give
rise to or which are likely to give rise to any
such failure or delay on its part it shall
forthwith notify POCL within one (1) working
day and shall inform POCL of the period which
it is estimated that such failure or delay
shall continue. If POCL shall become aware of
circumstances of Force Majeure which give rise
to any such failure or delay on its part, it
shall forthwith notify the CONTRACTOR within
one (1) working day and shall inform the
CONTRACTOR of the period which it is estimated
that such failure or delay shall continue.
606.3.4 It is expressly agreed that any
failure by the CONTRACTOR to perform, or any
delay by the CONTRACTOR in performing, its
obligations under the POCL Agreement which
results from any failure or delay in the
performance of its obligations by any person,
firm or company with which the CONTRACTOR shall
have entered into any contract, supply
arrangement or sub-contract or otherwise shall
be regarded as a failure or delay due to Force
Majeure only in the event that such person firm
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606
606.
or company shall itself be prevented from or
delayed in complying with its obligations under
such contract, supply arrangement or
sub-contract or otherwise as a result of
circumstances of Force Majeure and there is no
substitute person, firm or company reasonably
available (having regard, without limitation,
to the cost and quality of such substitute) to
perform the affected obligation.
606.3.5 [Not used]
606.3.6 If any Force Majeure event prevents
any party from performing its obligations
hereunder for a period in excess of ninety (90)
consecutive days, POCL may after consulting
with the CONTRACTOR and taking into account the
CONTRACTOR’ Ss views, terminate the POCL
Agreement or the POCL Application Services
affected by the Force Majeure event in
accordance with Clause 902.1.6 or 903.1.6.
iA Time of the Essence
Where POCL after undue delay by the CONTRACTOR
notifies the CONTRACTOR that time is of the essence
of the POCL Agreement and any of its obligations
stated in such notice shall not have been performed
by the CONTRACTOR by any reasonable date stated in
the notice, POCL may terminate the POCL Agreement in
accordance with Clause 902.2.3 or the relevant POCL
Application Service in accordance with Clause
903.2.3. In relation to the timescales specified
herein, POCL may only give notice making time of the
essence in relation to timescales specified herein as
“contractual milestones”.
5 Political Risk
Notwithstanding the provisions of Clause 606.3, a
change of, or new, Governmental Regulation:
606.5.1 shall not excuse POCL from performing
its obligations to meet any minimum revenue
guarantees applicable under Schedule A6 of the
AUTHORITIES’ Agreement and, without limitation
to the foregoing, if the due date for
implementation such minimum revenue guarantees
(or any agreed extension thereof) is delayed
directly as a result of any change in, or new,
Governmental Regulation, POCL agrees to meet
such minimum revenue guarantees from the date
when they would have come into effect but for
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such change in, or new, Governmental
Regulation;
606.5.2 shall not entitle POCL to terminate
the POCL Agreement under Clause 606.3.6, and
any such purported termination shall be treated
as a termination for convenience in accordance
with Clause 902.6; and
606.5.3 shall not require the CONTRACTOR to
perform any additional obligations, or any
reduced or modified obligations resulting in
increased cost to the CONTRACTOR, without its
agreement in accordance with Clause 101.3.
Clause 607. Confidentiality
607.1 Without prejudice to the application of the
Official Secrets Acts 1911 to 1989 (where relevant)
to any Confidential Information the CONTRACTOR
acknowledges that any Confidential Information (other
than its own Confidential Information) obtained from
or relating to POCL, or its servants or agents, is
the property of POCL.
607.2 The CONTRACTOR hereby agrees that (other than
as required by law):
607.2.1 the CONTRACTOR (and any person
employed or engaged by the CONTRACTOR in
connection with the POCL Agreement in the
course of such employment or engagement) shall
only use Confidential Information of POCL for
the purposes of the POCL Agreement;
607.2.2 the CONTRACTOR (and any person
employed or engaged by the CONTRACTOR in
connection with the POCL Agreement in the
course of such employment or engagement) shall
not disclose any Confidential Information of
POCL to any third party (except its approved
sub-contractors as listed in Schedule As)
without the prior written consent of POCL.
(POCL shall from time to time notify the
CONTRACTOR of items of POCL’s information which
are not to be treated as Confidential
Information in relation to DSS);
607.2.3 the CONTRACTOR shall take all
necessary precautions to ensure that all
Confidential Information of POCL is treated as
confidential and not disclosed (save as
aforesaid) or used other than for the purposes
of the POCL Agreement by the CONTRACTOR's
employees, servants, agents or sub-contractors
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including, without limitation, obtaining from
any such agent or sub-contractor a_ signed
confidentiality undertaking on substantially
the same terms as are contained in this Clause;
and
607.2.4 without prejudice to the generality of
the foregoing neither the CONTRACTOR nor any
person engaged by the CONTRACTOR whether as a
servant or a consultant or otherwise shall use
the Confidential Information of POCL for the
solicitation of business from POCL or from any
third party by the CONTRACTOR or by such
servant or consultant or by any third party.
607.3 POCL (other than as required by law):
607.3.1 shall treat as confidential all
Confidential Information, obtained from the
CONTRACTOR, including but not limited to the
Source Code of the Specially Written Software
(other than Specially Written Software in which
ownership of the Intellectual Property Rights
vests in POCL pursuant to Clause 502); and
607.3.2 shall not, subject to Clause 607.5,
disclose to any third party without the prior
written consent of the CONTRACTOR any
Confidential Information obtained from _ the
CONTRACTOR.
607.4 The provisions of Clauses 607.1, 607.2 and
607.3 shall not apply to any information which:
607.4.1 is or becomes public knowledge other
than by breach of this Clause 607; or
607.4.2 is in the possession of the receiving
party without restriction in relation to
disclosure before the date of receipt from the
disclosing party.
607.4.3 is received from a third party who
lawfully acquired it and who is under no
obligation restricting its disclosure.
607.4.4 is independently developed without
access to the Confidential Information.
607.5 Nothing in this Clause shall be deemed or
construed to prevent POCL from disclosing any
Confidential Information relating to the POCL
Agreement obtained from the CONTRACTOR to the extent
necessary for purposes connected with the Related
Agreements:
607.5.1 to any other member of the Post Office
Group, provided that POCL has required that
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such information is treated as confidential by
such members of the Post Office Group, and
their servants or agents, including requiring
servants or agents to enter into a
confidentiality undertaking where appropriate;
and
607.5.2 to any third party (in which case POCL
shall notify the CONTRACTOR of such
disclosure), provided that POCL shall _ have
taken reasonable steps to ensure that the third
party shall observe substantially the same
terms as are contained in this Clause,
including without limitation, obtaining a
signed Confidentiality Undertaking between the
third party and POCL or the CONTRACTOR.
607.6 Nothing in this Clause 607 shall prevent the
CONTRACTOR or POCL from using data-processing
techniques, ideas and know-how gained during the
performance of the POCL Agreement in the furtherance
of its normal business, to the extent that this does
not relate to a disclosure of Confidential
Information or an infringement by POCL or _ the
CONTRACTOR of any Intellectual Property Right.
Clause 608. Health and Safety Hazards
608.1 The CONTRACTOR shall notify POCL of any health
and safety hazards in relation to POCL Premises owned
by or leased to POCL which may arise in connection
with the performance of the POCL Agreement.
608.2 POCL shall notify the CONTRACTOR of any known
health and safety hazards which may exist or arise at
the POCL Premises owned by or leased to POCL and
which may affect the CONTRACTOR. The CONTRACTOR
shall draw these hazards to the attention of its
employees and sub-contractors or any persons engaged
by the CONTRACTOR in the performance of the POCL
Agreement at such POCL Premises.
608.3 The CONTRACTOR shall inform all persons engaged
in the performance of the POCL Agreement at the POCL
Premises owned by or leased to POCL of all such
hazards and shall instruct such persons in connection
with any necessary associated safety measures.
Clause 609. Protection of Personal Data
609.1 The CONTRACTOR's attention is hereby drawn to
the Data Protection Act 1984.
609.2 Both parties warrant that they will duly
observe all their obligations under the Data
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Protection Act which arise in connection with the
POCL Agreement.
Clause 610. Publicity
610.1 Except with the written consent of POCL (which
shall not be unreasonably withheld or delayed), the
CONTRACTOR shall not make any press announcements
about or publicise the POCL Agreement in any way.
POCL shall consult the CONTRACTOR before making any
press announcements about or publicising the POCL
Agreement, other than pursuant to any legal
obligation or in any internal publication of the Post
Office Group.
610.2 The CONTRACTOR shall take all reasonable steps
to ensure the observance of the provisions of Clause
610.1 by all its servants, employees, agents,
consultants, and sub-contractors.
610.3 The CONTRACTOR shall have no right to use the
brand or logo of any Post Office Group member without
POCL’s prior written consent. The CONTRACTOR shall
have no right to use the brand or logo of any part of
POCL without POCL’s prior written consent. The
CONTRACTOR shall do nothing to injure such logos and
brands or the reputation of POCL and, if it uses such
brands or logos, it shall take all reasonable steps
to enable POCL to protect such logos and brands and
the reputation of POCL but in no event less than the
steps it would take in relation to its own logos,
brands and reputation.
610.4 POCL shall have no right to the brands or logo
of the CONTRACTOR or its sub-contractors without the
CONTRACTOR’s prior written consent. POCL shall do
nothing to injure such logo and brands or the
reputation of the CONTRACTOR or its sub-contractors
and, if it uses such brands or logos, it shall take
all reasonable steps to enable the CONTRACTOR and its
sub-contractors to protect such logo and brands and
the reputation of the CONTRACTOR and its sub-
contractors, but in no event less than the steps it
would take in relation to its own logos, brands and
reputation.
Clause 611. CONTRACTOR's Personnel
611.1 POCL reserves the right under the POCL
Agreement to refuse to admit to any premises occupied
by or on behalf of any member of the Post Office
Group (which expression shall in this Clause 611
include all persons employed or engaged by the Post
Office Group and all persons other than the
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CONTRACTOR and its sub-contractors providing services
to the Post Office Group), or to any post office any
person employed or engaged by the CONTRACTOR, or by a
sub-contractor, whose admission would be, in the
reasonable opinion of POCL undesirable.
611.2 If and when directed by POCL, the CONTRACTOR
shall provide a list of the names and addresses of
all persons who it is expected may require admission
in connection with the performance of the POCL
Agreement to any premises occupied by or on behalf
any member of the Post Office Group or to any post
office, specifying the capacities in which they are
concerned with the POCL Agreement and giving such
other particulars as POCL may reasonably require.
The CONTRACTOR shall comply with any reasonable
directions issued by the designated representative of
POCL as to which persons may be admitted to such
premises and at what times.
611.3 If and when directed by POCL, the CONTRACTOR
shall secure that any person employed or engaged by
the CONTRACTOR or by a _ sub-contractor, who is
specified in the direction or is one of a class of
persons who may be so specified, shall sign a
statement that he understands that the Official
Secrets Acts 1911 to 1989 apply to him both during
the term of and after the expiry or termination of
the Related Agreements.
611.4 The CONTRACTOR's representatives, engaged
within the boundaries of a Post Office Group
establishment or post office, shall comply with such
rules, regulations and requirements (including those
relating to security arrangements) as may be in force
from time to time for the conduct of personnel when
at that establishment or post office and when outside
that establishment or post office.
611.5 The decision of POCL as to whether any person
is to be refused admission to any premises occupied
by or on behalf of the Post Office Group or to a post
office shall be final and conclusive.
Clause 612. Waiver
612.1 The failure of either party to insist upon
strict performance of any provision of the POCL
Agreement, or the failure of either party to exercise
any right or remedy to which it is entitled
hereunder, shall not constitute a waiver thereof and
shall not cause a diminution of the obligations
established by the POCL Agreement.
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612.2 A waiver of any Default shall not constitute a
waiver of any subsequent Default.
612.3 No waiver of any of the provisions of the POCL
Agreement shall be effective unless it is expressly
stated to be a waiver and communicated to the other
parties in writing in accordance with the provisions
of Clause 603.
Clause 613. Access to POCL Premises
613.1 Any land or POCL Premises (including temporary
buildings) made available to the CONTRACTOR by the
AUTHORITIES in connection with the POCL Agreement
shall be made available to the CONTRACTOR on such
terms and conditions as may be agreed between the
CONTRACTOR and POCL. The CONTRACTOR shall have the
use of such land or POCL Premises as licensee and
shall vacate the same upon the termination or expiry
of the POCL Agreement or at such earlier date as POCL
may reasonably determine.
613.2 POCL shall be responsible for maintaining the
security of such land or POCL Premises in accordance
with its standard security requirements. The
CONTRACTOR shall comply with all reasonable security
requirements of POCL while on the POCL Premises, and
shall procure that all of its employees, agents and
subcontractors shall likewise comply with such
requirements. POCL shall provide the CONTRACTOR upon
request copies of its written security procedures and
shall afford the CONTRACTOR upon request with an
opportunity to inspect its physical security
arrangements.
Clause 614. Security Requirements
The CONTRACTOR shall comply with the security
requirements as set out in Schedule A2.
Clause 615. CONTRACTOR’s Key Personnel
The parties acknowledge that the CONTRACTOR’s’ key
personnel specified in Schedule Al4 are essential to the
fulfilment of its obligations hereunder. The CONTRACTOR
undertakes to use all reasonable endeavours to ensure
that such key personnel are not removed or replaced
during the term hereof. However, in the event that any
of its key personnel becomes unavailable for any reason
(including without limitation death, injury, sickness,
promotion or resignation), the CONTRACTOR shall have the
right upon giving thirty (30) days’ notice in writing (or
such shorter period of notice as may be reasonably
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practicable) to POCL to replace such an individual with
another individual whose abilities and qualifications are
appropriate for the services to be performed by such
individual.
PART 7 : WARRANTIES AND STANDARDS
Clause 701. Authority and Approval
The CONTRACTOR warrants and represents that it has full
capacity and authority and all necessary consents
(including but not limited to, where its procedures so
require, the consent of its Parent Company) to enter into
and to perform the POCL Agreement and that the POCL
Agreement is executed by a duly authorised representative
of the CONTRACTOR.
Clause 702. Performance of POCL Services
The CONTRACTOR warrants and represents that:
702.1 the POCL Services shall be supplied and
rendered by appropriately experienced, qualified and
trained personnel with all due skill, care and
diligence;
702.2 the CONTRACTOR shall discharge its obligations
under the POCL Agreement with all due skill, care and
diligence including but not limited to good industry
practice and (without limiting the generality of this
Clause) in accordance with the best of its own
established internal procedures;
702.3 the POCL Services shall be performed in
compliance with all applicable laws, enactments,
orders, regulations, and other similar instruments;
702.4 the POCL Services shall be performed in
accordance with all applicable service levels in the
POCL Agreement;
702.5 the POCL Services shall be fully integrated
within the POCL Service Architecture and the Service
Infrastructure;
702.6 the POCL Services shall be performed in
accordance with all applicable provisions of the POCL
Service Architecture Design Document and the Service
Architecture Design Document;
702.7 the POCL Services shall be compatible with the
POCL Service Environment as at the date hereof, as
set out in Schedule 1;
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702.8 the POCL Services shall be performed in such a
way as to cause a minimum of disruption to the
business of POCL and the End Users.
Clause 703. Performance of Products
The CONTRACTOR warrants and represents that:
703.1 At the POCL Operational Trial Acceptance Date,
the POCL Operational Trial System shall meet the
POCL Operational Trial Criteria and the regulations
and standards specified in Schedule A2;
703.2 During the term of the POCL Agreement all
components of the POCL Service Infrastructure shall
operate in accordance with their respective
specifications , except that, for the avoidance of
doubt, it is agreed that POCL shall have no remedy
for breach of this warranty in relation to errors or
interruptions to POCL Services covered by paragraph
4.1(a) of Schedule A6);
703.3 POCL shall acquire title to the Products in
which it is to acquire title under Clauses 501, 502
and 503 free from all encumbrances and POCL shall
have the right to quiet possession of such Products
supplied hereunder;
703.4 the Basic Products will be compatible with the
POCL Service Environment as at the date hereof, as
specified in Schedule 1 and the Service Environment;
703.5 all Optional and Additional Products and POCL
Consumables shall be compatible with the POCL Service
Infrastructure, the Service Infrastructure and the
POCL Service Environment.
Clause 704. Intellectual Property Rights
The CONTRACTOR warrants and represents that:
704.1 POCL's use and operation of the Products and
the POCL Service Architecture and the provision of
the POCL Services shall not infringe any Intellectual
Property Rights of any third party;
704.2 the CONTRACTOR has the full capacity and
authority to grant the licences referred to in
Clause 506;
704.3 it can comply with Clauses 904.1.3, 904.1.4,
905.1.3 and 905.1.4.
Clause 705. Technical Standards
The CONTRACTOR warrants and represents that:
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705.1 the POCL Services shall comply with, and be
provided in accordance with, the policies and
standards specified in Schedule A2 and all components
and equipment used in the course of the provision of
the POCL Services shall operate in accordance with
their technical specifications;
705.2 the provision of the POCL Services shall not
cause electrical interference beyond the limits laid
down in the relevant standard specified in Schedule
A2, provided that for the purpose of this Clause
705.2 the POCL Services shall be deemed to include
the operation of any testing and monitoring
instruments used in connection with the provision of
the POCL Services.
Clause 706. Statements and Representations
The CONTRACTOR warrants and represents that all
statements and representations made to POCL in connection
with tendering for and entering into the POCL Agreement
are, to the best of its knowledge, information and
belief, true and accurate at the time of making such
statements and representations and that, from the date of
execution hereof, it will advise POCL of any fact, matter
or circumstance of which it may become aware which would
render any such statement or representation to be false
or misleading.
Clause 707. Disclaimer of Implied Terms
Except as expressly stated in the POCL Agreement, all
terms, warranties and conditions, whether express or
implied by statute, common law or otherwise (including
but not limited to satisfactory quality and fitness for
purpose) are hereby excluded to the extent permitted by
law.
PART 8 : REMEDIES
Clause 801. Audit
801.1 The CONTRACTOR shall keep or cause to be kept
the Records".
801.2 The CONTRACTOR shall grant or procure the grant
to POCL, any statutory or regulatory auditors of POCL
and their respective authorised agents the right of
reasonable access to the Records and shall provide
all reasonable assistance at all times for six (6)
years after the creation of the relevant Records for
the purposes of carrying out an audit of the
CONTRACTOR's compliance with the POCL Agreement
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including all activities, Charges, performance,
security and integrity in connection therewith. Each
party shall bear its own expenses incurred pursuant
to this Clause. On termination, the CONTRACTOR shall
within a reasonable time to be agreed by the parties,
transfer the Records to POCL or a_ replacement
contractor, as instructed by POCL. The CONTRACTOR
shall thereafter be released from any further
liabilities under this Clause in relation to such
Records.
801.3 Without prejudice to the foregoing, in the
event of an investigation into suspected fraudulent
activity or other impropriety by the CONTRACTOR or
any third party POCL reserves for itself, any
statutory or regulatory auditors of POCL and their
respective authorised agents or the right of
immediate access to the Records described in Clause
801.1 and Clause 801.2 above and the CONTRACTOR
agrees to render all necessary assistance to the
conduct of such investigation at all times during the
currency of the POCL Agreement or at any time
thereafter.
801.4 The CONTRACTOR shall provide POCL at no
additional cost with copies of the annual and interim
audited accounts of the CONTRACTOR and its approved
subcontractors within fourteen (14) days of such
accounts having been lodged at Companies House or its
local equivalent to Companies House.
801.5 All information obtained by POCL pursuant to
this Clause and Schedule A3 shall be treated as
Confidential Information.
801.6 The parties shall comply with provisions of
Schedule A3.
Clause 802. Service Credits and Delay
802.1 In the event that:
802.1.1 the CONTRACTOR fails to make available
the POCL Operational Trial System or any part
thereof for the POCL Operational Trial; or
802.1.2 the POCL Operational Trial is not
recorded as successful pursuant to the relevant
provisions of the POCL Agreement, and POCL
elects to extend the relevant testing period in
accordance with the relevant provisions hereof,
the CONTRACTOR shall at the option of POCL either
credit against the Charges or pay to POCL liquidated
damages calculated in accordance with Schedule H5.
Unless POCL exercises its option to recover such
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liquidated damages as a payment to it, POCL shall be
deemed to have exercised its option to recover such
liquidated damages as a credit against the Charges.
802.2 In the event that the POCL Services fail to
meet the Service Levels contained in Schedules D8,
E8, F8 and G10, the CONTRACTOR shall, without
prejudice to any other rights and remedies of POCL at
the option of POCL either (i) as an adjustment to the
Charges, credit POCL with Service Credits calculated
in accordance with Schedules D8, E8, F8 and G10
respectively, or (ii) pay POCL liquidated damages
calculated in accordance with Schedules D8, E8, F8
and G10 respectively. Unless POCL exercises its
option to recover liquidated damages as a payment to
it, POCL shall be deemed to have exercised its option
to recover Service Credits as credit to it.
802.3 The CONTRACTOR shall credit POCL with the
Service Credits or pay POCL the liquidated damages
within thirty (30) days of receipt of a valid claim
by POCL.
802.4 The parties acknowledge that the liquidated
damages and Service Credits specified in the relevant
Schedules referred to in this Clause are a genuine
pre-estimate of the loss likely to be suffered by
POCL and that the figures therein are reasonable.
802.5 The liquidated damages and Service Credits
specified in this Clause are without prejudice to any
other rights and remedies of POCL, except where they
are specified in Schedules A6 and H5 to be POCL’s
exclusive remedy in damages, in which case such
credit or payment of the relevant liquidated damages
or Service Credits shall be in full and final
settlement of the CONTRACTOR’s liability in respect
of the Default to which they relate. Except in
accordance with Schedules A6 and H5, POCL shall have
no right of termination in relation to any such
Default.
Clause 803. Additional Resources
In the event that the POCL Services are not provided in
accordance with all applicable provisions hereof as a
result of the Default of the CONTRACTOR, the CONTRACTOR
shall, at the request of POCL and without prejudice to
POCL's other rights and remedies, arrange all such
additional resources as are reasonably necessary to
correct the said failure as early as_ practicable
thereafter and at no additional charge to POCL.
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Clause 804. Recovery of Sums Due
If any sum of money shall be due from the CONTRACTOR, the
same may be deducted from any sum then due or which at
any time thereafter may become due to the CONTRACTOR
under the Related Agreements or under any other agreement
between the CONTRACTOR
and POCL or with any member of the Post Office Group.
Clause 805. Intellectual Property Rights Indemnity
805.1 Subject always to POCL's proper observance of
its obligations under this Clause , the CONTRACTOR
shall indemnify POCL against all claims, demands,
actions, costs, expenses (including but not limited
to legal costs and disbursements on a solicitor and
client basis), losses and damages arising from or
incurred by reason of any infringement or alleged
infringement (including but not limited to the
defence of such alleged infringement) in the United
Kingdom of any Intellectual Property Right by the use
or possession of the Products or POCL Services by or
on behalf of POCL or in connection with the POCL
Services.
805.2 The CONTRACTOR shall promptly notify POCL if
any claim or demand is made or action brought against
the CONTRACTOR to which this Clause applies.
805.3 POCL shall promptly notify the CONTRACTOR if
any claim or demand is made or action brought against
POCL to which Clause 805.1 may apply. The CONTRACTOR
shall at its own expense conduct any litigation
arising therefrom and all negotiations in connection
therewith and POCL hereby agrees to grant to the
CONTRACTOR exclusive control of any such litigation
and such negotiations. The CONTRACTOR should consult
with and pay due regard to the interests (including
the commercial interests of the Post Office Group and
the public interest) and views of POCL in the conduct
of any defence to any claim or demand hereunder, and
shall, where it is reasonable to do so, comply with
such interests and views.
805.4 POCL shall at the request of the CONTRACTOR
afford to the CONTRACTOR all reasonable assistance
for the purpose of contesting any claim or demand
made or action brought against POCL to which Clause
805.1 may apply or any claim or demand made or action
brought against the CONTRACTOR to which Clause 805.2
may apply. The CONTRACTOR shall reimburse POCL for
all costs and expenses (including but not limited to
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legal costs and disbursements on a solicitor and
client basis) incurred in so doing.
805.5 POCL shall not make any admissions which may be
prejudicial to the defence or settlement of any
claim, demand or action for infringement or alleged
infringement of any Intellectual Property Right to
which Clause 805.1 may apply or any claim or demand
made or action brought against the CONTRACTOR to
which Clause 805.2 may apply.
805.6 If a claim or demand is made or action brought
to which Clause 805.1 may apply or in the reasonable
opinion of the CONTRACTOR is likely to be made or
brought, the CONTRACTOR may at its own expense
either:
805.6.1 modify any or all of the Products or
the POCL Services without reducing the
performance and functionality of the same, or
substitute alternative products or services of
equivalent performance and functionality for
any or all of the Products or the POCL
Services, so as to avoid the infringement or
the alleged infringement but without disrupting
the performance of the POCL Services, provided
that the terms herein shall apply mutatis
mutandis to such modified or substituted items
or services and such modified or substituted
items shall be acceptable to POCL (whether by
passing any form of acceptance testing or
otherwise), such acceptance not to be
unreasonably withheld or delayed, and _ shall
reimburse POCL all reasonable costs directly
incurred by them; or
805.6.2 procure a licence to use the Products
and POCL Services on terms which afford to POCL
no more extensive rights than those originally
applicable hereunder and which are acceptable
to POCL and shall reimburse POCL all reasonable
costs directly incurred by it.
805.7 The foregoing provisions of this Clause 805
shall not apply insofar as any such claim or demand
or action is in respect of:
805.7.1 any use by or on behalf of POCL of the
Products or POCL Services in combination with
any item not supplied or approved (such
approval not to be unreasonably withheld or
delayed) by the CONTRACTOR where such use of
the Products or POCL Services directly gives
rise to the claim, demand or action; or
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805.7.2 any modification carried out by or on
behalf of POCL to any item supplied by the
CONTRACTOR under the POCL Agreement if such
modification is not authorised by the
CONTRACTOR in writing; or
805.7.3 any use by POCL of the Products or POCL
Services in a manner not reasonably to be
inferred from the specification or requirements
of POCL.
805.8 If the CONTRACTOR has availed itself of its
rights to modify the Products or the POCL Services or
to supply substitute products or services pursuant to
Clause 805.6.1 (or POCL has unreasonably withheld its
acceptance of such substitute products or services)
or to procure a licence under Clause 805.6.2 and such
exercise of the said rights has avoided any claim,
demand or action for infringement or alleged
infringement, or if POCL has unreasonably withheld
its acceptance of any items modified or substituted
by the CONTRACTOR in accordance with Clause 805.6,
then the CONTRACTOR shall have no further liability
thereafter under this Clause 805 in respect of the
said claim, demand or action.
805.9 If a modification or substitution in accordance
with Clause 805.6.1 above is not possible so as to
avoid the infringement and the CONTRACTOR has been
unable to procure a licence in accordance with Clause
805.6.2, Clause 805.1 shall apply.
805.10POCL hereby warrants and represents that any
instructions given in relation to the CONTRACTOR's
use of any third party item supplied directly or
indirectly by POCL shall not cause the CONTRACTOR to
infringe any third party's Intellectual Property
Rights in such item. POCL shall, to the extent
reasonably possible, assign to the CONTRACTOR any
indemnity in its favour in relation to the
Intellectual Property Rights in such third party
items.
805.11The foregoing states the entire liability of
the CONTRACTOR with regard to the infringement of any
Intellectual Property Right by the use or possession
of the Products by or on behalf of POCL or in
connection with the receipt of the POCL Services.
Clause 806. Remedies Cumulative
Except as otherwise expressly provided in the POCL
Agreement, all remedies available to the CONTRACTOR or to
POCL for breach of the POCL Agreement are cumulative and
may be exercised concurrently or separately and the
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exercise of any one remedy shall not be deemed an
election of such remedy to the exclusion of other
remedies.
Clause 807. Alternative Dispute Resolution Procedure
807.1 All disputes between POCL and the CONTRACTOR
arising out of or relating to the POCL Agreement
shall be referred, by either party involved in the
dispute, to the Contract Administration Group (as
specified in Schedule A4) for resolution.
807.2 If any dispute cannot be resolved pursuant to
Clause 807.1 within a maximum of fourteen (14) days
after it has been referred under Clause 807.1, that
dispute shall be referred to the Contracts Steering
Group (as specified in Clause A4 of the AUTHORITIES’
Agreement) for resolution.
807.3 If the dispute cannot be resolved by the
parties' representatives nominated under Clause 807.2
within a maximum of fourteen (14) days after it has
been referred under Clause 807.2 the dispute may be
referred:
807.3.1 if the dispute is of a technical
nature or is expressed by the POCL Agreement to
be subject to expert determination, by
agreement between the parties it may be
referred for final determination to an expert
(the "Expert") who shall be deemed to act as
expert and not as arbitrator; and
807.3.2 in all other aspects it shall be
determined pursuant to Clause 104.1.
807.4 The Expert shall be selected by mutual
agreement or, failing agreement, within fourteen (14)
days after a request by one party to the other, shall
be chosen at the request of any party by the
President for the time being of the Institution of
Electrical Engineers who shall be requested to choose
a suitably qualified and experienced Expert for the
dispute in question.
807.5 Fourteen (14) days after the Expert has
accepted the appointment the parties shall submit a
written report on the dispute to the Expert and to
each other and seven (7) days thereafter shall submit
any written replies they wish to make to the Expert
and to each other.
807.6 The parties will then afford the Expert all
necessary assistance which the Expert requires to
consider the dispute including but not limited to
full access to the POCL Service Environment and any
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documentation or correspondence relating to the POCL
Service Environment.
807.7 The Expert shall be instructed to deliver his
determination to the parties within fourteen (14)
days or such other period as may be agreed between
the parties after the submission of the written
reports pursuant to Clause 807.5.
807.8 Decisions of the Expert shall be final and
binding and not subject to appeal.
807.9 The Expert shall have the same powers to
require any party to produce any documents or
information to him and the other party as an
arbitrator and each party shall in any event supply
to him such information which it has and is material
to the matter to be resolved and which it could be
required to produce on discovery.
807.10The fees of the Expert shall be borne by the
parties in the proportions determined by the Expert
having regard (amongst other things) to the conduct
of the parties in relation to the dispute in
question.
807.11Work and activity to be carried out under the
POCL Agreement shall not cease or be delayed by this
alternative dispute resolution procedure. However,
during the currency of any alternative dispute
resolution procedure, POCL shall not be entitled to
exercise any right of termination which would
otherwise arise in respect of the dispute which forms
the subject matter of such procedure.
Clause 808. Injury to Persons; Loss of Property
808.1 Subject always to POCL’s proper observance of
its obligations under this Clause, the CONTRACTOR
shall fully indemnify POCL in respect of any personal
injury or loss of or damage to Property incurred by
POCL or its respective employees and authorised
agents to the extent that such personal injury or
loss of Property is caused by any Default of the
CONTRACTOR, its employees or agents in connection
with the performance or purported performance of the
POCL Agreement.
808.2 In the event of any claim or demand being made
or action brought to which Clause 808.1 applies, the
CONTRACTOR shall be promptly notified thereof and the
CONTRACTOR shall at its own expense conduct all
negotiations for settlement of the same and any legal
proceedings that may arise therefrom. The CONTRACTOR
shall consult with and pay due regard to. the
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interests (including the commercial interests of the
Post Office Group and the public interest) and views
of POCL in the conduct of any defence to any claim or
demand hereunder, and shall, where it is reasonable
to do so, comply with such interests and views.
POCL, its employees and agents, shall at the request
of the CONTRACTOR afford all reasonable assistance
for the purpose of contesting any such claim or
demand or action and shall be repaid any reasonable
expense incurred in so doing and shall not make any
admissions which may be prejudicial to the defence of
such claim or demand or action.
Clause 809. Liability
809.1 Except as otherwise specified in Schedule B10
in relation to benefit payment, the CONTRACTOR shall
be liable for all losses and shall indemnify POCL
against all costs, expenses, losses and damages
incurred (including any legal costs) as a result of:
(a) use of copied, altered or forged Cards;
(b) any unauthorised third party access to the POCL
Service Architecture;
(c) any impersonation of Card holders which
successfully defeats extended validation
procedures;
(d) any “hacking” into the systems used by the
CONTRACTOR to provide the POCL Services (whether
or not constituting an offence under’ the
Computer Misuse Act 1990)
(e) drawing of any benefit payments by Card holders
or their proxies where at the time of payment
notification had been given by DSS to the
CONTRACTOR to withhold payment or cancel a proxy
authorisation;
(f) any other form of fraud (in relation to any of
the POCL Services).
809.2 Except as otherwise specified in Schedule B10
in relation to benefit payment, Clause 809.1 shall
not apply if and to the extent that any of the
matters referred to therein have been caused by
POCL’s non-performance of any obligation under the
POCL Agreement upon the performance of which the
CONTRACTOR's obligations under the POCL Agreement in
respect of risk for fraud are expressed to depend.
The foregoing is in place of the general rule stated
in Clause 101.5.
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809.3 In any case where POCL incurs any costs,
expenses, losses or damages as referred to in Clause
809.1, Clause 809.1 shall be presumed to apply unless
the CONTRACTOR proves that Clause 809.2 applies.
809.4 In relation to benefit payment only, the
responsibilities of the parties for the investigation
of fraudulent losses and the agreed apportionment of
costs under this POCL Agreement are defined in
Schedule B10.
Clause 810. Limitation of Liability
810.1 Neither party hereto excludes or limits its
liability to any other party for death or personal
injury or any breach of any obligations implied by
Section 12 of the Sale of Goods Act 1979 or Section 2
of the Supply of Goods and Services Act 1982.
810.2 Subject always to Clause 810.1, the liability
of each party for Defaults shall be subject to the
financial limits set out in this Clause 810.2.
810.2.1 The aggregate liability for all
Defaults resulting in direct loss of or damage
to the Property of any other party under the
POCL Agreement shall in no event exceed:
810.2.1.1 nine million pounds (£9,000,000),
in the case of POCL; and
810.2.1.2 ten million pounds (£10,000,000)
per Year in relation to such Defaults
arising during that Year, in the case of
the CONTRACTOR.
810.2.2 The aggregate liability per Year under
the POCL Agreement of POCL for all Defaults
(other than a Default governed by Clause
810.2.1) arising during that Year shall in no
event exceed four million five hundred thousand
pounds (£4,500,000).
810.2.3 The aggregate liability under the POCL
Agreement of the CONTRACTOR for all Defaults
(other than a Default governed by Clause
810.2.1) shall in no event exceed two hundred
million pounds (£200,000,000).
810.2.4 Subject to Clause 810.2.5, the
financial limits specified in Clause 810.2
apply to all claims for monetary relief which
either party may have against the other either
under the POCL Agreement or otherwise in
relation to the subject matter of the POCL
Agreement, including all claims for liquidated
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damages and Service Credits pursuant Clause
802, all claims to be indemnified pursuant to
Clauses 805 or 808 and all other claims or
costs which are compensable in money or money’s
worth.
810.2.5 The financial limits applicable to
POCL under Clause 810.2 shall be exclusive of
and additional to any liability of POCL to pay
any Charges, any Termination Charges or any
Transfer Payment which may become properly due
and payable to the CONTRACTOR in accordance
with the provisions hereof or any sum by way of
interest thereon that a court may award.
810.3 Subject always to Clause 810.1, in no event
shall any party be liable to any other party for
indirect or consequential loss or damage. For the
avoidance of doubt, this Clause shall not be deemed
or construed to affect the CONTRACTOR’s liability
under Clause 809.
810.4 The provisions of Clause 810.3 shall not be
taken as limiting the right of POCL to claim from the
CONTRACTOR for:
810.4.1 additional operational and
administrative costs and expenses; and/or
810.4.2 expenditure or charges rendered
unnecessary as a result of any Default by the
CONTRACTOR.
810.5 The parties expressly agree that should any
limitation or provision contained in this Clause be
held to be invalid under any applicable statute or
rule of law it shall to that extent be deemed omitted
but if any party thereby becomes liable for loss or
damage which would otherwise have been excluded such
liability shall be subject to the other limitations
and provisions set out herein.
810.6 For the avoidance of doubt, it is acknowledged
that nothing in the POCL Agreement shall be deemed or
construed to relieve either party of its common law
duty to the other party against which a claim may be
made to mitigate any loss which is the subject of
such claim.
PART 9 : TERM AND TERMINATION
Clause 901. Term
The term of the POCL Agreement shall, unless terminated
earlier in accordance with the provisions of Clause 902,
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be for a period commencing on the date hereof and ending
five (5) years from the Roll-Out Completion Date.
Clause 902. Termination of POCL Agreement
902.1 POCL may at any time by notice in writing
terminate the POCL Agreement with effect from the
date of service of such notice or such later as date
as may be specified therein if:
902.1.1 there is a change of control, as
defined by Section 416 of the Income and
Corporation Taxes Act 1988, in the CONTRACTOR
or the GUARANTOR ; or
902.1..2 the CONTRACTOR or the GUARANTOR,
being an individual, or where the CONTRACTOR or
the GUARANTOR is a firm, any partner or
partners in that firm who together are able to
exercise direct or indirect control, as defined
by Section 416 of the Income and Corporation
Taxes Act 1988, shall at any time become
bankrupt or shall have a receiving order or
administration order made against him or shall
make any composition or arrangement with or for
the benefit of his creditors, or shall make any
conveyance or assignment for the benefit of his
creditors, or shall purport to do _ so, or
appears unable to pay or to have no reasonable
prospect of being able to pay a debt within the
meaning of Section 268 of the Insolvency Act
1986 or he shall become apparently insolvent
within the meaning of the Bankruptcy (Scotland)
Act 1985 as amended by the Bankruptcy
(Scotland) Act 1993 or any application shall be
made under any bankruptcy or insolvency act for
the time being in force for sequestration of
his estate, or a trust deed shall be granted by
him for behoof of his creditors; or any similar
event occurs under the law of any other
jurisdiction; or
902.1.3 the CONTRACTOR, being a company,
passes a resolution, or the Court makes an
order that the CONTRACTOR or the GUARANTOR be
wound up otherwise than for the purpose of a
bona fide reconstruction or amalgamation, or a
receiver, manager or administrator on behalf of
a creditor is appointed in respect of the
business or any part thereof (which for the
avoidance of doubt shall not include any
subsidiary company of the CONTRACTOR or of the
GUARANTOR) of the CONTRACTOR or the GUARANTOR,
or circumstances arise which entitle the Court
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or a creditor to appoint a receiver, manager or
administrator or which entitle the Court
otherwise than for the purpose of a bona fide
reconstruction or amalgamation to make a
winding-up order, or the CONTRACTOR or the
GUARANTOR is unable to pay its debts within the
meaning of Section 123 of the Insolvency Act
1986 or any similar event occurs under the law
of any other jurisdiction; or
902.1.4 if notice of termination of the
AUTHORITIES’ Agreement is given pursuant to
Clause 902 of the AUTHORITIES’ Agreement in the
previous six (6) months (provided that if such
notice is given pursuant to Clause 902.6 of the
AUTHORITIES’ Agreement, or is treated as having
been so given by virtue of Clause 902.10 of the
AUTHORITIES’ Agreement, termination pursuant to
this sub-Clause shall be treated as termination
for convenience in accordance with Clause
902.6);
902.1.5 any provision hereof other than Clause
902 or any provision of the AUTHORITIES’
Agreement other than Clause 902 thereof
expressly entitles POCL to terminate the POCL
Agreement; or
902.1.6 the circumstances in Clause 606.3.6
arise and either the obligation in question is
not capable of being performed again, or, if it
is so capable, is not so performed again within
thirty (30) days of written notice to the
CONTRACTOR specifying the obligation in
question and requiring it to be performed or
within such other period as may be requested by
the CONTRACTOR and agreed by POCL, such
agreement not to be unreasonably withheld or
delayed; or
902.1.7 the circumstances in Clause 201.8 of
the AUTHORITIES’ Agreement arise.
902.2 POCL may at any time by notice in writing
terminate the POCL Agreement with effect from the
date of service of such notice or such later date as
may be specified therein, if the CONTRACTOR is in
Default of any obligation under the POCL Agreement
and:
902.2.1 the Default is capable of remedy and
the CONTRACTOR shall have failed to remedy the
Default within thirty (30) days of written
notice to the CONTRACTOR specifying the Default
and requiring its remedy or within such other
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period as may be requested by the CONTRACTOR
and agreed by POCL, such agreement not to be
unreasonably withheld or delayed;
902.2.2 the Default is not capable of remedy
(and for the purposes of this Clause, failure
to comply with a timescale shall not of itself
be considered a Default not capable of remedy
except pursuant to Clause 606.4); or
902.2.3 notice has been served pursuant to
Clause 606.4 making time of the essence and all
or any of the obligations specified in the
notice have not been performed by the time
limit stated in the notice.
902.3 [Not Used]
902.4 In the event of any termination of the POCL
Agreement pursuant to Clause 902.1 or Clause 902.2,
POCL shall return the POCL Service Infrastructure or
any part thereof (other than any part in relation to
which either or both of the AUTHORITIES has exercised
an option to purchase under the Related Agreement),
in which case the CONTRACTOR shall at no additional
cost to POCL, remove such parts of the POCL Service
Infrastructure and shall make good any damage to the
POCL Premises occasioned by such removal.
902.5 POCL shall only be permitted to exercise its
rights pursuant to Clause 902.1.1 for three (3)
months after each such change of control and shall
not be permitted to exercise such rights where POCL
has agreed in advance in writing to the particular
change of control and such change of control takes
place as proposed. The CONTRACTOR shall notify POCL
in advance of any change of control taking place, if
legally possible, or if not so possible as soon as
reasonably practicable, and in any event no later
than one (1) month after such change of control
taking place.
902.6
902.6.1 POCL may terminate the POCL Agreement
by giving the CONTRACTOR not less than twelve
(12) months' notice.
902.6.2 [Not used].
902.6.3 In the event of such notice being
given, POCL shall on termination hereof pay to
the CONTRACTOR the Termination Charge
(calculated in accordance with Schedule A7.
902.6.4 [Not used].
902.6.5 [Not used].
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902.7 Termination shall not prejudice or affect any
right of action or remedy which shall have accrued or
shall thereafter accrue to either party.
902.8 The provisions of Clauses 101, 102, 104, 506,
607, 609, 610, 801, 804, 805, 810, 902, 903, 904, 905
and 906 and the provisions of Schedules Al, A3, AT,
D6, E6, F6 and G8 shall survive the termination of
this POCL Agreement by POCL.
902.9 The CONTRACTOR may terminate the POCL Agreement
by notice in writing in accordance with Clause
201.8.2 of the AUTHORITIES’ Agreement.
Clause 903. Termination of POCL Services
903.1 POCL may at any time by notice in writing
terminate any or all of the POCL Application Services
with effect from the date of service of such notice
or such later date as may be specified therein if:
903.1.1 there is a change of control, as
defined by Section 416 of the Income and
Corporation Taxes Act 1988, in the CONTRACTOR
or the GUARANTOR; or
903.1.2 the CONTRACTOR or the GUARANTOR, being
an individual, or where the CONTRACTOR or the
GUARANTOR is a firm, any partner or partners in
that firm who together are able to exercise
direct or indirect control, as defined by
Section 416 of the Income and Corporation Taxes
Act 1988, shall at any time become bankrupt or
shall have a receiving order or administration
order made against him or shall make any
composition or arrangement with or for the
benefit of his creditors, or shall make any
conveyance or assignment for the benefit of his
creditors, or shall purport to do so, or
appears unable to pay or to have no reasonable
prospect of being able to pay a debt within the
meaning of Section 268 of the Insolvency Act
1986 or he shall become apparently insolvent
within the meaning of the Bankruptcy (Scotland)
Act 1985 as amended by the Bankruptcy
(Scotland) Act 1993 or any application shall be
made under any bankruptcy or insolvency act for
the time being in force for sequestration of
his estate, or a trust deed shall be granted by
him for behoof of his creditors; or any similar
event occurs under the law of any other
jurisdiction; or
903.1.3 the CONTRACTOR, being a company,
passes a resolution, or the Court makes an
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order that the CONTRACTOR or the GUARANTOR be
wound up otherwise than for the purpose of a
bona fide reconstruction or amalgamation, or a
receiver, manager or administrator on behalf of
a creditor is appointed in respect of the
business or any part thereof (which for the
avoidance of doubt shall not include any
subsidiary company of the CONTRACTOR or of the
GUARANTOR) of the CONTRACTOR or the GUARANTOR,
or circumstances arise which entitle the Court
or a creditor to appoint a receiver, manager or
administrator or which entitle the Court
otherwise than for the purpose of a bona fide
reconstruction or amalgamation to make a
winding-up order, or the CONTRACTOR or the
GUARANTOR is unable to pay its debts within the
meaning of Section 123 of the Insolvency Act
1986 or any similar event occurs under the law
of any other jurisdiction; or
903.1.4 if notice of termination of the
AUTHORITIES’ Agreement is given pursuant to
Clause 902 of the AUTHORITIES’ Agreement in the
previous six (6) months; or
903.1.5 any provision hereof other than
Clauses 902 or 903 or any provision of the
AUTHORITIES’ Agreement other than Clause 902
thereof expressly entitles POCL to terminate
the POCL Agreement or any of the POCL
Application Services; and
903.1.6 the circumstances in Clause 606.3.6
arise and either the obligation in question is
not capable of being performed again, or, if it
is so capable, is not so performed again within
thirty (30) days of written notice to the
CONTRACTOR specifying the obligation in
question and requiring it to be performed or
within such period as may be requested by the
CONTRACTOR and agreed by POCL, such agreement
not to be unreasonably withheld or delayed.
903.2 POCL may at any time by notice in writing
terminate any or all of the POCL Application Services
with effect from the date of service of such notice
or such later date as may be specified therein, if
the CONTRACTOR is in Default of any obligation under
the POCL Agreement and:
903.2.1 the Default is capable of remedy and
the CONTRACTOR shall have failed to remedy the
Default within thirty (30) days of written
notice to the CONTRACTOR specifying the Default
and requiring its remedy or within such other
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period as may be requested by the CONTRACTOR
and agreed by POCL, such agreement not to be
unreasonably withheld or delayed; or
903.2.2 the Default is not capable of remedy
(and for the purpose of this Clause, failure to
comply with a timescale shall not of itself be
considered a Default not capable of remedy
except pursuant to Clause 606.4); or
903.2.3 notice has been served pursuant to
Clause 606.4 making time of the essence and all
or any of the obligations specified in the
notice have not been performed by the time
limit specified in the notice.
903.3 [Not Used]
903.4 POCL shall only be permitted to exercise its
rights pursuant to Clause 902.1.1 for three (3)
months after each such change of control and shall
not be permitted to exercise such rights where POCL
has agreed in advance in writing to the particular
change of control and such change of control takes
place as proposed.
903.5
903.5.1 POCL may terminate any or all of the
POCL Application Services by giving the
CONTRACTOR not less than twelve (12) months
notice.
903.5.2 [Not used].
903.5.3 In the event of such notice being
given, POCL shall on termination of the POCL
Application Service pay to the CONTRACTOR the
Termination Charge (calculated in accordance
with Schedule D6, E6, F6, or G8 (as
appropriate)).
903.5.4 [Not used].
903.5.5 [Not used].
903.6 [Not Used]
903.7 Termination of POCL Application Services shall
not prejudice or affect any right of action or remedy
which shall have accrued or shall thereafter accrue
to either party.
903.8 For the avoidance of doubt, the parties
acknowledge that POCL may not terminate the POCL Core
Services without terminating this POCL Agreement.
903.9 In the event of the termination of any DSS
Services or POCL Services, or of any Related
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Agreement, the parties should negotiate in good faith
to make any necessary consequential amendments to the
POCL Agreement in accordance with Clause 101.3.
Until such consequential amendments have been made,
the CONTRACTOR shall not be liable for any delay or
failure in the performance of its obligations under
the POCL Agreement which is directly covered by the
termination of any DSS Services, POCL Services or
Related Agreement.
Clause 904. Rights on Termination of POCL Agreement
904.1 In the event of termination hereunder, in
circumstances where POCL does not intend inviting the
CONTRACTOR to continue to provide the POCL Services
or to provide services equivalent to the POCL
Services, POCL shall, without prejudice to POCL’s
other rights and remedies, have the option,
exercisable at any time within four (4) months after
notice of termination:
904.1.1 to purchase from the CONTRACTOR, or to
require the CONTRACTOR to permit a replacement
contractor to purchase from it, any or all of
the hardware comprised within the POCL Service
Infrastructure and/or used in connection with
the performance of the POCL Services (other
than where such hardware is not owned by the
CONTRACTOR) ;
904.1.2 to acquire from the CONTRACTOR a
non-exclusive licence to use (or authorise a
replacement contractor to use) for the
continuation of services equivalent to the POCL
Services in respect of any necessary
Intellectual Property Rights which are owned by
the CONTRACTOR and used in connection with the
performance of the POCL Agreement. Such
licence shall:
904.1.2.1 not be subject to payment other
than pursuant to Clause 904.1.6;
904.1.2.2 be perpetual and irrevocable
(subject to Clause 506.12); and
904.1.2.3 permit use by members of the Post
Office Group and End Users.
904.1.2.4 [Not used]
904.1.2.5 [Not used]
904.1.3 to require that the CONTRACTOR shall
assign or novate, or (if assignment or novation
is not possible) arrange for the benefit
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thereof to be transferred, in favour of POCL
or to any person as may be designated for the
purpose by POCL any sub-contracts, equipment
rental or lease agreements and all other (non-
employment) agreements entered into by the
CONTRACTOR which are necessary to the
performance of the POCL Services as POCL may
designate;
904.1.4 to require that the CONTRACTOR shall
at no cost to POCL (or a replacement
contractor) forthwith release to POCL (or a
replacement contractor) a copy of all the
Software and all other software, data, tools,
utilities, documentation and any other item
necessary to provide the POCL Service
hereunder. Such software (other than any in
respect of which POCL has exercised its option
under Clause 904.1.2) shall be subject to any
applicable licence terms, provided that such
terms shall not detract from POCL’s or a
replacement contractor’s ability to provide
services equivalent to the POCL Services.
904.1.5 Notwithstanding the generality of
Clauses 904.1.1 to Clause 904.1.4 POCL agrees
only to exercise their rights under such
Clauses when and only to the extent that it is
necessary for POCL either to fulfil the
purposes of the POCL Agreement itself or to
engage a third party so to do.
904.1.6 In the event that POCL exercises any
of the options in Clause 904.1, POCL shall pay
to the CONTRACTOR the Transfer Payment
calculated in accordance with Schedule A7.
904.1.7 If the POCL Agreement expires and POCL
does not recompete the POCL Services, POCL
shall be obliged to exercise all of the options
in this Clause in relation to any POCL Services
not so re-competed, unless the CONTRACTOR
elects to relieve POCL of this obligation in
whole or in part.
904.2 In the event that the POCL Agreement is
terminated as provided for herein:
904.2.1 the CONTRACTOR shall repay forthwith
to POCL all monies paid in relation to POCL
Services up to and including such date of
termination other than monies in respect of any
POCL Services or part thereof properly
performed in accordance with the POCL
Agreement;
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904.2.2 the CONTRACTOR shall return to POCL
all Post Office Group Property in its
possession;
904.2.3 the CONTRACTOR shall render all
practicable assistance to POCL, if requested,
to the extent necessary to effect an orderly
assumption by POCL or a replacement contractor
of the services theretofore performed by the
CONTRACTOR under the POCL Agreement and POCL
shall reimburse the CONTRACTOR for such
assistance at the rates then prevailing for
customers of the CONTRACTOR for the same or
similar services;
904.2.4 POCL shall be entitled on termination
to offer any employee or sub-contractor (being
an individual) of the CONTRACTOR who has during
the six (6) months prior to such offer been
involved for at least seventy five per cent
(753%) of his contracted working time in
performing the CONTRACTOR's obligations under
the POCL Agreement employment or an agreement
for services with POCL and the CONTRACTOR
agrees that if such person accepts such offer
the CONTRACTOR shall release such person from
any breach of contract with it (other than in
relation to such person’s obligations of
confidentiality and notice of termination)
which such acceptance may otherwise involve;
and
904.2.5 (a)
three (3) months prior to the expiry of the
POCL Agreement (in the case of the
termination of the POCL Agreement through
the effluxion of time) the CONTRACTOR shall
at the request of POCL provide to POCL or to
a replacement contractor nominated by POCL
details of the terms of employment of all
CONTRACTOR personnel who are then employed
in the performance of the POCL Services as
reasonably required by POCL in order to
permit compliance with the Transfer of
Undertakings (Protection of Employment)
Regulations 1981 by POCL or a replacement
contractor;
(b) subject always to POCL’s proper
observance of their obligations under Clause
904.2.5(c), the CONTRACTOR shall fully
indemnify POCL from and against any and all
liabilities which POCL may incur in
connection with or as a result of any claim
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or demand whatsoever by any employee or
former employee of the CONTRACTOR or of any
of the CONTRACTOR’s sub-contractors or
agents in respect of his employment with the
CONTRACTOR or such sub-contractor or agent
(or, pursuant to the application of the
Transfer of Undertakings (Protection of
Employment ) Regulations 1981, with POCL or
any replacement contractor) and/or its
termination save to the extent such claim or
demand both (i) is made by an employee
identified within the relevant employment
details referred to in Clause 904.2.5(a) as
transferring pursuant to the Regulations and
(ii) relates to employer’s obligations
accruing after the said transfer of
employment which are clearly identified
within the relevant employment details;
(c) in the event of any claim or demand being
made or action brought to which Clause
904.2.5(b) applies, the CONTRACTOR shall be
promptly notified thereof and the CONTRACTOR
shall at its own expense conduct all
negotiations for settlement of the same and
any legal proceedings that may rise
therefrom. POCL, its sub-contractors,
agents and employees shall at the request of
the CONTRACTOR afford all reasonable
assistance for the purpose of contesting any
such claim or demand or action and shall be
repaid any reasonable expense incurred in so
doing and shall not make any admissions
which may be prejudicial to the defence of
any such claim or demand or action.
904.3 POCL shall only be entitled to exercise the
options in Clause 904.1 and 904.2.4 to the extent
that such exercise does not affect the CONTRACTOR’s
ability to perform any surviving Services.
Clause 905. Rights on Termination of POCL Application
Services
905.1 In the event of termination of any POCL
Application Service, in circumstances where POCL does
not intend inviting the CONTRACTOR to continue to
provide the POCL Application Service or to provide
services equivalent to the POCL Application Service,
POCL shall, without prejudice to POCL’s other rights
and remedies, have the option, exercisable at any
time within four (4) months after notice of
termination:
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905.1.1 to purchase from the CONTRACTOR, or to
require the CONTRACTOR to permit a replacement
contractor to purchase from it, any or all of
the hardware comprised within the POCL Service
Infrastructure and/or used in connection with
the performance of the relevant POCL
Application Services (other than where such
hardware is not owned by the CONTRACTOR) ;
905.1.2 to acquire from the CONTRACTOR a
non-exclusive licence to use (or authorise a
replacement contractor to use) for the
continuation of services equivalent to the
relevant POCL Application Services in respect
of any necessary Intellectual Property Rights
which are owned by the CONTRACTOR and used in
connection with the performance of the POCL
Agreement. Such licence shall:
905.1.2.1 not be subject to payment other
than pursuant to Clause 905.1.6;
905.1.2.2 be perpetual and irrevocable
(subject to Clause 506.12); and
905.1.2.3 permit use by members of the
Post Office Group and by End Users.
905.1.2.4 [Not used]
905.1.2.5 [Not used]
905.1.3 to require that the CONTRACTOR shall
assign or novate, or (if assignment or novation
is not possible) arrange for the benefit
thereof to be transferred, in favour of POCL or
to any person as may be designated for the
purpose by POCL any sub-contracts, equipment
rental or lease agreements and all other (non-
employment) agreements entered into by the
CONTRACTOR which are necessary to the
performance of the relevant POCL Application
Services as POCL may designate;
905.1.4 to require that the CONTRACTOR shall
at no cost to POCL (or a replacement
contractor) forthwith release to POCL (or a
replacement contractor) a copy of all the
Software and all other software, data, tools,
utilities, documentation and any other item
necessary to provide the relevant POCL Service
hereunder. Such software (other than any in
respect of which POCL has exercised its option
under Clause 905.1.2) shall be subject to any
applicable licence terms, provided that such
terms shall not detract from POCL’s or a
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replacement contractor’s ability to perform
Services equivalent to the relevant POCL
Services.
905.1.5 Notwithstanding the generality of
Clauses 905.1.1 to Clause 905.1.4 POCL agrees
only to exercise its rights under such Clauses
when and only to the extent that it is
necessary for POCL either to fulfil the
purposes of the POCL Agreement itself or to
engage a third party so to do.
905.1.6 In the event that POCL exercises any
of the options in Clause 905.1, POCL shall pay
to the CONTRACTOR the relevant Transfer
Payment calculated in accordance with Schedule
Al.
905.2 In the event that any POCL Service is
terminated as provided for herein:
905.2.1 the CONTRACTOR shall repay forthwith
to POCL all monies paid up to and including
such date of termination in respect of the
relevant POCL Application Service other than
monies in respect of any such POCL Service or
part thereof properly performed in accordance
with the POCL Agreement;
905.2.2 the CONTRACTOR shall render all
practicable assistance to POCL, if requested,
to the extent necessary to effect an orderly
assumption by POCL or a replacement contractor
of the services theretofore performed by the
CONTRACTOR under the POCL Agreement and POCL
shall reimburse the CONTRACTOR for such
assistance at the rates then prevailing for
customers of the CONTRACTOR for the same or
similar services;
905.2.3 shall be entitled on termination of
the relevant POCL Application Service to offer
any employee or sub-contractor (being an
individual) of the CONTRACTOR who has during
the six (6) months prior to such offer been
involved for at least seventy five per cent
(75%) of his contracted working time in
performing the CONTRACTOR's obligations under
the POCL Agreement in relation to the relevant
POCL Application Service employment or an
agreement for services with POCL and _ the
CONTRACTOR agrees that if such person accepts
such offer the CONTRACTOR shall release such
person from any breach of contract with it
(other than in relation to such person’s
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obligations of confidentiality and notice of
termination) which such acceptance may
otherwise involve; and
905.2.4 (a) as soon as possible following any
notice of termination being given (in the
case of an early termination of the relevant
POCL Application Service) the CONTRACTOR
shall at the request of POCL provide to POCL
or to a replacement contractor nominated by
POCL details of the terms of employment of
all CONTRACTOR personnel who are then
employed in the performance of the relevant
POCL Application Services as reasonably
required by POCL in order to permit
compliance with the Transfer of Undertakings
(Protection of Employment) Regulations 1981
by POCL or a replacement contractor.
(b) subject always to POCL’s proper observance
of their obligations under Clause
905.2.4(c), the CONTRACTOR’ shall fully
indemnify POCL from and against any and all
liabilities which POCL may incur in
connection with or as a result of any claim
or demand whatsoever by any employee or
former employee of the CONTRACTOR or of any
of the CONTRACTOR’s sub-contractors or
agents in respect of his employment with the
CONTRACTOR or such sub-contractor or agent
(or, pursuant to the application of the
Transfer of Undertakings (Protection of
Employment ) Regulations 1981, with POCL or
any replacement contractor) and/or its
termination save to the extent such claim or
demand both (i) is made by an employee
identified within the relevant employment
details referred to in Clause 905.2.4(a) as
transferring pursuant to the Regulations and
(ii) relates to employer’s obligations
accruing after the said transfer of
employment which are clearly identified
within the relevant employment details.
(c) In the event of any claim or demand being
made or action brought to which Clause
905.2.4(b) applies, the CONTRACTOR shall be
promptly notified thereof and the CONTRACTOR
shall at its own expense conduct all
negotiations for settlement of the same and
any legal proceedings that may rise
therefrom. POCL, its sub-contractors,
agents and employees shall at the request of
the CONTRACTOR afford all reasonable
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assistance for the purpose of contesting any
such claim or demand or action and shall be
repaid any reasonable expense incurred in so
doing and shall not make any admissions
which may be prejudicial to the defence of
any such claim or demand or action.
905.3 POCL shall only be entitled to exercise the
options in Clause 905.1 and 905.2.3 to the extent
that such exercise does not affect the CONTRACTOR’s
ability to perform any surviving Services.
Clause 906. Transfer Services
906.1 In the event of termination of the POCL
Agreement or the Benefit Encashment Service, the
CONTRACTOR shall perform the Transfer Services as set
out in Schedule D6.
906.2 In the event of termination of the POCL
Agreement or the Automated Payment Service, the
CONTRACTOR shall perform the Transfer Services as set
out in Schedule E6.
906.3 In the event of termination of the POCL
Agreement or EPOSS, the CONTRACTOR shall perform the
Transfer Services as set out in Schedule F6.
906.4 In the event of termination of the POCL
Agreement or the POCL Infrastructure Services, the
CONTRACTOR shall perform the Transfer Services as set
out in Schedule G8.
906.5 In the event of termination of the POCL
Agreement, the CONTRACTOR shall perform the Transfer
Services specified in Schedule A7.
PART 10 : MISCELLANEOUS
Clause 1001. Corrupt Gifts and Payments of Commission
1001.1The CONTRACTOR shall neither:
1001.1.1 offer or give or agree to give any
person employed by the Post Office Group (which
term shall include all persons employed or
engaged by the Post Office Group and all
persons providing services to the Post Office
Group) any gift or consideration of any kind as
an inducement or reward for doing or forbearing
to do or for having done or forborne to do any
act in relation to the obtaining or performance
of the POCL Agreement or any other agreement
with the Post Office Group or for showing or
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forbearing to show favour or disfavour to any
person in relation to the POCL Agreement; nor
1001.1.2 enter into the POCL Agreement if in
connection with it commission has been paid or
agreed to be paid to any person employed by the
Post Office Group by the CONTRACTOR or on the
CONTRACTOR's behalf or to the CONTRACTOR's
knowledge, unless before the POCL Agreement is
made particulars of any such commission and of
the terms and conditions of any agreement for
the payment thereof have been disclosed in
writing to POCL.
1001.2In the event of any breach of this Clause 1001
by the CONTRACTOR or by anyone employed by the
CONTRACTOR or acting on the CONTRACTOR's behalf
(whether with or without the knowledge of the
CONTRACTOR) or the commission of any offence by the
CONTRACTOR or by anyone employed by the CONTRACTOR or
acting on behalf of the CONTRACTOR under’ the
Prevention of Corruption Acts, 1889 to 1916 in
relation to this or any other contract with the Post
Office Group, POCL may terminate the POCL Agreement
by notice in writing to the CONTRACTOR pursuant to
Clause 902).1.5)5 Provided always that such
termination shall not prejudice or affect any right
of action or remedy which shall have accrued or shall
accrue thereafter to POCL and provided always that
POCL may recover from the CONTRACTOR the amount or
value of any such gift, consideration or commission.
1001.3The decision of POCL shall be final and
conclusive in any dispute, difference or question
arising in respect of:
1001.3.1 the interpretation of this Clause
(except so far as the same may relate to the
amount recoverable from the CONTRACTOR under
Clause 1001.2 in respect of any loss resulting
from such termination of POCL Agreement); or
1001.3.2 the right of POCL under this
Clause 1001 to terminate the POCL Agreement;
or
1001.3.3 the amount or value of any such gift,
consideration or commission.
Clause 1002. Discrimination
1002.1The CONTRACTOR shall not unlawfully
discriminate within the meaning and scope of any law,
enactment, order, regulation or other similar
instrument relating to discrimination (whether in
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relation to race, gender, religion or otherwise) in
employment.
1002.2The CONTRACTOR shall take all reasonable steps
to ensure the observance of the provisions of
Clause 1002.1 by all servants, employees, agents and
consultants of the CONTRACTOR and all
sub-contractors.
Clause 1003. Export of Products
For the purpose of the Related Agreements only, POCL
confirms that neither the Products nor their direct
product(s) will be exported by POCL unless in accordance
with any appropriate UK Government export licensing
controls.
Clause 1004. Guarantee
The CONTRACTOR shall procure that the GUARANTOR shall
within thirty (30) days after the date hereof enter into
and maintain a guarantee in the form set out in Schedule
Al3. Breach of this Clause shall constitute a Default
not capable of remedy.
Clause 1005. Insurance
The CONTRACTOR shall to the extent reasonably possible
insure or make provision for self-insurance against all
losses and damages which are the result of its fault or
negligence in performing the POCL Services, including
workman’s compensation, public liability, product
liability, property damage and professional indemnity.
The CONTRACTOR will, if requested in writing by POCL,
produce to POCL a certificate of insurance showing the
applicable coverage currently in force, and will also
give POCL prior written notice of (where possible), or
written notice no later than thirty (30) days after,
alteration or cancellation of such insurance.
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IN WITNESS WHEREOF this Agreement has been executed on
behalf of the parties as follows:
Signed for and on behalf of POCL
i: SERRE RLERELERELETELUSELILTELIETT ITE LIIT LITT Lire Lei
Name: STUART SWEETMAN
Title: Managing Director, Post Office Counters Ltd
DATOS cc pee TARE HSE THER THIGT DIG THERE HIGTHIGTHIBTHIGES
Signed for and on behalf of the CONTRACTOR
IYO shia eetGaHIGS Hsu Hee ehiGS HSER Hse SHiae HtaE Red EHiGS®
Name: JOHN H. BENNETT
Title: Managing Director, Pathway Group Limited
Dates cee e cece ee eee cee cece eee e cece n cece ree seee
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