POL00210444
POL00210444
AGREEMENT TO APPOINT AN EXPERT
a *
THIS AGREEMENT is made on a ce) Aud 2014
BETWEEN
(1) Post Office Limited (company number 02154540) whose registered office is at 148 Old Street,
London EC1V 9HQ (POL) and
(2) 1 C Consultants Limited (company number 02478877) whose registered office is at Sherfield
Building, Exhibition Road, London, SW7 2AZ (the Expert)
IT IS AGREED AS FOLLOWS:
1 Interpretation
44 In this Agreement the following terms have the following meanings:-
Confidential the POL Information, the Purpose, this Agreement and any other
Information information which has been, is now or is at any time after the date of this
Agreement disclosed or made available by POL, its Representatives or
by a third party (including without limitation Fujitsu) to the Expert, its
Representatives or to any other person at the request of the Expert but
shall not include information which:-
(a) is accessible from public sources or is or becomes generally
available to third parties other than as a result of disclosure in
breach of this Agreement by the Expert or its Representatives; or
(b) was available to the Expert free of any restriction as to its use or
disclosure prior to it being so disclosed or made available or in
the Expert's possession; or
(c) becomes available to the Expert from a source other than POL or
Fujitsu (or either of their Representatives), free of any obligation
of confidentiality;
(d) to have been developed by or for the Expert at any time
independently of the information disclosed to it by POL; or
(e) which the Expert is advised by its information officer that it is
required to disclose under the Freedom of Information Act
2000; or
(f)_ to the extent it is required to disclose by Law.
Data Controller shall have the meaning set out in the Data Protection Act 1998
Data Processor shall have the meaning set out in the Data Protection Act 1998
Data Subject shall have the meaning set out in the Data Protection Act 1998
Horizon the software and hardware known as Horizon which is used by POL;
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2.2
2.3
3.4
Instructing Solicitors
Personal Data
POL Information
Processing
Purpose
Representative
Scheme
Services
Purpose
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Cartwright King solicitors or other such firm of solicitors that POL may
nominate in writing from time to time;
shall mean any POL Information that falls within the definition of person
data in the Data Protection Act 1998
all data and information belonging or licensed to POL and other
proprietary or confidential information relating to, Horizon and all other
proprietary or confidential information relating to POL’s business,
operations, technology and processes which is owned by, licensed to or
in the possession of POL (including without limitation accounts, business
plans, financial projection, data, technical information, know-how,
formulae, processes, intellectual property rights, client lists, actual or
prospective sales contacts, photographs, drawings, specifications,
software programs and samples);
shail have the meaning set out in the Data Protection Act 1998
As per clause 2; and
Any representative of a party to this Agreement or any authorised person
acting on behalf of such party or anyone to whom such party has
disclosed any Confidential Information including without limitation any
professional adviser, legal adviser, director, officer, permanent employee,
contractor or consultant.
The Initial Complaint Review and Mediation Scheme
The services to be provided by the Expert as Clause 3 to this
Agreement.
Horizon has been developed by Fujitsu for and on behalf of POL and is used to conduct and
record transactions in POL's branch network. It is relied upon to ensure that all transactions,
monies and stock are accounted for. Records from Horizon are also used as evidence in a
criminal proceedings and/or civil recoveries.
In light of concerns raised by Subpostmasters regarding the integrity and quality of Horizon, POL.
requires the Expert to scope and undertake a review of Horizon with a view to the Expert
producing reports and/or giving evidence in future Court proceedings in respect of Horizon’s
functionality and accuracy as further set out under Clause 3 below.
POL has appointed the Instructing Solicitors to instruct the Expert in respect of the Services the
Expert carries out for the Purpose and the Expert shall only accept instructions in respect of the
Services from the Instructing Solicitors. POL shall be responsible for paying the Expert's costs
for the Services in accordance with this Agreement.
Expert's Services
The Expert shall:
3.1.4 carry out work as set out in any instructions from the Instructing Solicitors and such work
may include the Expert making preliminary enquiries of POL and its Representatives and
undertaking preliminary investigations into Horizon in order to scope the work and costs
involved in the Expert producing more detailed reports (the Initial Review);
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3.2
3.3
3.4
3.5
3.6
44
4.2
5.1
5.2
5.3
5.4
5.5
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3.1.2 if instructed to do so by the Instructing Solicitors, provide to the Instructing Solicitors a
written proposal (which shall include a scope of work and a cost for that work) in respect
of the Expert producing further reports (the Proposal);
3.1.3 work in good faith with the Instructing Solicitors to refine and agree the Expert's initial
Review and/or Proposal.
If the above reports are commissioned by the Instructing Solicitors, the final scope of work and
costs thereof shall be set out in a written set of instructions from the Instructing Solicitors (which
may be amended from time to time by agreement between the Expert and the Instructing
Solicitors).
For the avoidance of doubt, the Instructing Solicitors (on behalf of POL) are not obliged to
commission any work in addition to the Initial Review.
if commissioned to prepare the reports, the Expert shall produce all work in accordance with the
instructions it receives from the Instructing Solicitors.
The Expert shall obtain POL's prior written approval before engaging or instructing any
Representative in carrying out any of the Services in relation to this Agreement.
In relation to the Services to be provided by the Expert in connection with this Agreement, the
Expert shall:
3.6.1 conduct the Services using the skill and care expected of experts in the field of
information technology systems like Horizon and in accordance with best practice for
conducting such work; and
3.6.2 act in accordance with any reasonable instructions given by the Instructing Solicitors;
and
3.6.3 not solicit or accept instructions from POL.
POL's obligations
The Expert shall notify the Instructing Solicitors as soon as reasonably practicable if it requires
access to any personnel, documentation, information and/or Horizon in order to produce the
Initial Review, the Proposal or any further reports.
POL shall provide the Expert with reasonable access to any personnel, documentation,
information and/or Horizon as is requested by the Expert pursuant to clause 4.1.
Payment and timings
POL shall pay the Expert £15,000 plus VAT for the Initial Review.
The Expert shall use its reasonable endeavours to complete the Initial Review by the date
agreed with the Instructing Solicitors.
POL shall pay to the Expert any other payment that is set out in any scope of work that has been
agreed under clause 3.2.
The Expert shall use its reasonable endeavours to complete any agreed scope of work under
clause 3.2 in accordance with any agreed timings set out therein.
All payments by POL to the Expert shall be made within 45 days of the completion of the
relevant Services (which in the absence of any other agreement, shall be deemed to be on
production of the Initial Review, the Proposal or any other report as the case may be).
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5.6
6.1
6.2
7A
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The Expert shall provide POL with invoices for any payments due to the Expert and comply with
any other reasonable administrative requirements of POL.
Undertakings of the Expert
The Expert shall, and will procure that its Representatives shall:
6.1.1 not make any announcement or publicise the Purpose (unless prior written consent is
given by POL, such consent being in POL's absolute discretion);
6.1.2 keep secret and maintain confidential the Confidential Information (unless prior written
consent is given by POL, such consent being in POL's absolute discretion);
6.1.3 use the Confidential Information only for the Purpose and in particular not use any of the
Confidential Information for any investigation, research, development, manufacture,
marketing, sale or licensing other than so far as any activity is essential for the Purpose
and not to obtain a commercial, trading or any other advantage;
6.1.4 not copy, adapt or otherwise reproduce the Confidential Information except as strictly
necessary for the purposes of the Purpose or permitted by law;
6.1.5 upon demand by the Instructing Solicitors:-
(a) procure the return to POL of all documents and material which incorporate any
Confidential Information (including copies);
(b) permanently expunge all Confidential Information from any computer, word
processor or other similar device and any electronic storage media or other
storage media into which it was programmed; and
(c) destroy all notes, analyses or memoranda containing or referring to
Confidential Information; and
6.1.6 not transfer any Confidential Information outside the UK (unless prior written consent is
given by POL, such consent being in POL's absolute discretion).
The Expert shall continue to adhere to the obligations for Confidential Information as set out
above for a period of five (5) years from the date of Termination of this Agreement.
Security Arrangements
To secure the confidentiality attaching to the Confidential Information, the Expert shall:-
7.1.1 keep separate all the Confidential Information and all information generated by the
Expert based on the Confidential Information from all documents and other records of the
Expert;
7.1.2 keep all the Confidential Information and any copies of it at the Expert's premises in
secure storage and/or in locked premises;
7.1.3 not use, copy, photocopy, reproduce, transform or store any of the Confidential
Information in an externally accessible computer or electronic retrieval system or transmit
it in any form or by any means whatsoever outside of its usual place of business; and
7.1.4 not allow access to or disclose the Confidential Information by or to any person except to
such Representatives as have a need to know but only insofar and to the extent
absolutely necessary or required or in order to fulfil the Purpose and shall inform each of
such Representatives of the confidential nature of the Confidential Information and of the
obligations of the Expert in this respect.
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8.41
9.1
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Remedies
Without prejudice to any other rights and remedies POL may have, the Expert agrees that:-
8.1.1 the Confidential Information is valuable and that damages may not be an adequate
remedy for any breach by the Expert of this Agreement; and
8.1.2 the Expert agrees that POL shall be entitled without proof of special damage to the
remedies of an injunction or other equitable relief for any actual or threatened breach by
the Expert of this Agreement.
Insurance
The Expert shall take out and maintain all insurances required by any law, regulation or guideline
and shall take out and maintain public liability insurance cover with a minimum cover of at least
fifty million (£50,000,000) and professional indemnity insurance with a minimum cover of at least
ten million (£10,000,000). The Expert shall produce to POL at any time on its request, a copy of
any insurance policy.
Intellectual Property Rights
The Expert acknowledges and confirms that POL retains all intellectual property rights in the
Confidential Information (including copyright or any other intellectual property right in materials
produced by the Expert relating to Confidential Information or in accordance with this
Agreement) and nothing in this Agreement shall:-
10.1.1 be construed as granting to or conferring on the Expert or their Representatives any
licence or other right, title or interest in the Confidential Information or under any
intellectual property now or subsequently owned, licensed to or controlled by POL except
as expressly stated in this Agreement; and
10.1.2. oblige the parties to enter into any further agreement or relationship.
Data Protection
POL is the Data Controller of any Personal Data in the POL Information or on Horizon.
The Expert and its Representatives are Data Processors of any Personal Data in the POL
Information or on Horizon.
The Expert shall
11.3.2 at all times comply with obligations equivalent to the obligations of a Data Controller
under the provisions of the Seventh Data Protection Principle in the Data Protection Act
41998 and shall take appropriate technical and organisational measures against
unauthorised or unlawful processing of Personal Data and against accidental loss or
destruction of, or damage to, Personal Data.
11.3.3 at all times process the Personal Data solely in accordance with the Purpose or POL's
written instructions from time to time;
11.3.4 ensure the reliability of its Representatives by vetting its staff appropriately who have
access to the Personal Data;
11.3.5 not transfer the Personal Data outside the UK without POL's prior written consent;
11.3.6 immediately inform POL of any breach of this clause and take such steps as POL may
reasonably request to remedy such a breach.
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13.4
14
14.4
Signed by
For and on behalf of Post Office Limited
Signed by
For and on behalf of I C Consultants Limited
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POL00210444
11.3.7 immediately notify POL if any Data Subject or regulator of Personal Data makes a
complaint or access request and take such steps as POL may reasonably request in
response to such a complaint or access request.
No partnership/agency
Nothing in this Agreement will make any party the agent or employee of the other nor will it
create a partnership, joint venture or employment relationship between the parties. Neither shall
one party use the name, crest, logo or registered image of the other party nor the name of any
Representative of the other party for any purpose without the express, prior written permission of
the other party.
Contracts (Rights of Third Parties) Act 1999
No other person who is not a party to this Agreement shall have any rights, whether under the
Contract (Rights of Third Parties) Act 1999 or otherwise, to enforce any terms of this Agreement.
Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject
matter or formation (including non-contractual disputes or claims) shall be governed by and
construed in accordance with English law.
The courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or
claim (including any non-contractual dispute or claim) which may arise between the parties to this
Agreement in respect of its subject matter, construction, validity or performance or as to the rights
and liabilities of the parties hereunder.
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