CONFIDENTIAL
CLAUSES
Version History
POL00324964
POL00324964
Version No. Date Comments
1.0 31/08/06 Agreed version as at date of signature of CCN
1200
2.0 24/01/07 Baseline copy of v1.5
3.0 06/07/07 Baseline copy of v2.3
4.0 14/04/08 Baseline copy of v3.2
5.0 23/02/09 Baseline copy of 4.1
5.1 13/05/09 Applying changes as per CCN1258
5.2 19/05/09 RPI Increases for 2009
5.3 12/06/09 Applying changes as per CCN1252a
54 Moving contents page to front of Clauses
section
6.0 07/07/09 Moving all schedules to v6.0 as agreed with
Fujitsu
6.1 22/12/09 Applying changes as per CCN 1269
6.2 23/12/09 Applying changes as per CCN 1268
6.3 30/03/10 Applying Changes as per CCN 1276a
6.4 01/04/10 Applying changes as per CCN1270 and
CCN1277
6.5 23/04/10 Applying RPI increase for 2010
7.0 10/05/10 Moving all schedules to V7.0 as agreed with
Fujitsu
8.0 21/02/12 Applying changes as agreed in CCN1294d,
CCN1295a, CCN1296, CCN1303 and
CCN1302a
9.0 13/01/14 Applying changes as per
CCN1349,CCN1317,CCN1322b,CCN1343
and CCN1400)
10.0 10/09/15, Applying changes as per CCN1405,
CLAUSES Version 13.0
CONFIDENTIAL
POL00324964
POL00324964
CCN1415, CCN1421a, CCN1426 and as
subsequently amended in this CCN1506 and
moving all Schedules to V10.0 in accordance
with CCN1506
31/03/16
Applying changes as per CCN 1423c, CCN
1500a, CCN 1512c, CCN1600 and moving all
Schedules to V11.0 in accordance with
CCN1604
12.0
03/07/2017
Applying changes as per CCN1601b,
CCN1609d, CCN1610, CCN1614a and
moving all schedules to v12.0
Updating as per CCN1612b, CCN1613a,
CCN1616b, CCN1627a, CCN1630,
CCN1637b, CCN1638, CCN1645, CCN1647
and moving all Schedules to v13.0
CLAUSES Version 13.0
CONFIDENTIAL
CONTENTS
1. Funding Condition
2. Preferred Systems Integrator and Systems Integration Partnership
3. Governance
4. Change Control
5. Development and documentation of HNG-X
6. Associated Changes
7. Migration and Implementation
8. Performance of HNG-X Services prior to HNG-X Date and post HNG-X Date
9. Infrastructure prior to Trigger Point T5 and post Trigger Point TS
10. Performance of Services - General
11 Training
12. Changes to Services
13. Documentation
14. Consumables
15. Service Standards
16. Security
17. Service Levels
18. Service Level Remedies
19. Health and Safety Hazards
20. Policies and Standards
21. Charges
22. Payment
CLAUSES Version 13.0
PAGE
11
12
12
12
12
13
14
14
14
16
16
18
18
19
21
23
23
24
24
24
24
POL00324964
POL00324964
CONFIDENTIAL
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43,
44.
45.
46.
Gain Share
Open Book
Audit
Ownership of Assets
Intellectual Property Rights
Intellectual Property Rights owned by Fujitsu Services
Intellectual Property Rights owned by Post Office
Licences granted by Fujitsu Services or a Third Party to Post Office
Licences granted by Post Office or a third party to Fujitsu Services
Riposte 32 and WebRiposte Software
Data
Intellectual Property Rights Indemnities
Use Of Services and Infrastructure
Damage to Physical Property
Damage to Plant, Tackle and Tools
Access to Post Office Premises
Post Office Responsibilities
Fujitsu Services’ Personnel
Fujitsu Services’ Key Personnel
Injury to Persons; Loss of Property
Liability
Limitation of Liability
Insurance
Term
CLAUSES Version 13.0
25
25
25
28
29
30
31
33
46
49
50
51
59
59
61
61
61
67
67
68
69
76
80
81
POL00324964
POL00324964
CONFIDENTIAL
47.
48.
Expiring Service and termination of Project HNG-X
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61
62.
63.
64.
65.
66.
67.
68.
69.
70.
Termination
82
Rights on termination and expiry of this Agreement, Partial Termination, expiry of an
Additional Resources
Recovery of Sums Due
Authority and Approval
Statements and Representations
Disclaimer of Implied Terms.
Waiver
Relationship of Parties
Publicity
Communications & Notices
Transfer and Sub-Contracting
Non-Solicitation
Force Majeure
Confidentiality
Remedies Cumulative
Discrimination
Export
VAT
Guarantee
Interpretation
Amendments to Clauses, Schedules and Annexes of this Agreement and CCDs
Severability
Dispute Resolution Procedure
CLAUSES Version 13.0
87
92
93
93
93
93
93
93
94
95
95
96
97
98
102
102
102
102
102
102
105
105
105
POL00324964
POL00324964
CONFIDENTIAL
71. Law and Jurisdiction
72. Entire Agreement
73. Revising the Agreement to reflect matters agreed in CCNs
74. NBS CCNs
75. TUPE
CLAUSES Version 13.0
105
105
106
106
106
POL00324964
POL00324964
CONFIDENTIAL
Schedule 1
Schedule A1
Schedule A2
Schedule A3
Schedule A4
Schedule AS
Schedule A6
Schedule B1.1
Schedule B1.2
Schedule B1.3
Schedule B2
Schedule B3.1
Schedule B3.2
Schedule B3.3
Schedule B3.4
Schedule B4.1
Schedule B4.2
Schedule B4.3
Schedule B4.4
Schedule BS
Schedule B6.1
Schedule B6.2
Schedule B6.3
CLAUSES Version 13.0
SCHEDULES
Interpretation
Preferred Systems Integrator
Governance
Change Control
Policies and Standards
Post Office Responsibilities
Funding Condition
Development Services
Systems Integration Partnership
Branch Hardware Implementation Services
Business Continuity
HNG-X Services
Business Capabilities and Support Facilities
HNG-X Central and Telecommunications Infrastructure
Branch Infrastructure
Licenses
Existing Applications
Existing Central and Telecommunications Infrastructure
Existing Service Levels
Transition and Migration
HNG-X Business Requirements
HNG-X Design and Build
HNG-X Acceptance Process
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
Schedule C1 - Service Level Principles and Remedies
Schedule C2 - Sub-contractors
Schedule C3 - Licences
Schedule D1 - Charges
Schedule D2 - Ordering, invoicing and payment
Schedule D3 - Gain share
Schedule D4 - Open Book
Schedule DS - Audit
Schedule D6 - Market Testing
Schedule D7 - Migration Charges
Schedule D& - HNG-X and Associated Change Development Charges
Schedule E - Termination and the Exit Plan
Schedule F - Key Objectives of the Towers Model, Fujitsu
Collaboration Requirements and Responsibilities
Schedule G - Fujitsu Support Applications and Specified Third Party
Software
CLAUSES Version 13.0
POL00324964
POL00324964
CONFIDENTIAL
THIS AGREEMENT is made the 28th day of July, 1999
BETWEEN:
(1)
(2)
Post Office Ltd whose registered office is situated at 148 Old Street, London EC1V
9HQ (“Post Office”); and
Fujitsu Services Limited whose registered office is at 22 Baker Street, London W1U
3BW ("Fujitsu Services").
RECITALS
WHEREAS:
(A)
(B)
(c)
(D)
(E)
By an agreement dated 24 May 1999 originally entered into between Post Office (then
known as Post Office Counters Ltd) and ICL Pathway Limited and subsequently
novated and amended (the "Codified Agreement"), Fujitsu Services provides certain
services to Post Office;
The Codified Agreement came into effect on 28 July 1999;
On 31 December 2002 the Parties signed CCN1100 which incorporated agreed
changes to and restated the Codified Agreement;
Various changes have been made to the Codified Agreement since 31 December
2002, pursuant to the Change Control Procedure contained therein;
The Parties have agreed to the extension of the term of, and the making of certain
further changes to, the Codified Agreement with the aim of achieving, inter alia, the
following joint objectives (the “Joint Objectives”):
(a) the introduction of immediate and sustained reductions in certain Post
Office costs;
(b) subject to certain agreed exceptions, the continued provision to the
Post Office of services equivalent in their business outcome to the
services provided immediately prior to the introduction of the changes;
(c) fixed and variable pricing with variable elements based on the use of
particular service components and numbers of Branches, Counter
Positions and Transactions;
(d) continuous endeavour to make further cost savings and improve the
quality of service provision and value for money (“Strive”);
(e) improved joint working practices and the introduction of a new systems
integration relationship involving the pursuit of opportunities for both
CLAUSES Version 13.0
CONFIDENTIAL
(F)
(H)
(I)
(J)
(kK)
Parties to share the benefits of any cost reduction initiatives through a
new Systems Integration Partnership ;
(f) the maintenance and enhancement of the customer relationship
between Fujitsu Services and the Post Office so that the Post Office
remains as a key referenceable customer for Fujitsu Services; and
(g) the provision to Post Office of information relating to and/or access to
new technology, concepts and techniques developed by the Fujitsu
Services Group where such information or access would be relevant to
and capable of application to the Services;
On 31 August, 2006 the Parties signed CCN 1200 which extended the term of the
Codified Agreement and introduced certain further changes; and
This Agreement is the Codified Agreement as amended by CCN 1200, including the
Schedules thereto, the CCDs and CRDs.
On 26 September 2013 the Parties signed CCN 1400 which made certain changes to
the Codified Agreement to reflect Post Office's intention to transition the Services to a
new Towers Model. Under CCN 1400, the Codified Agreement was extended for a
transitional period until 31 March 2017, with certain Services expiring on 31 March
2015 (unless otherwise extended), to enable Post Office sufficient time to complete the
procurement process for transitioning to the Towers Model and to appoint suppliers for
each of the Towers (including Replacement Services).”
On 10 September 2015 the Parties signed CCN1500a which made certain changes to
the Codified Agreement to reflect Post Office’s need to extend the Agreement to enable
transition of the Services to a new Towers Model. Under CCN1500a, the Codified
Agreement was extended for a transitional period until 31°* March 2018, with certain
Services due to expire on 31% March 2016 and 31% March 2017 (unless otherwise
extended through the Change Control Procedure), to enable Post Office sufficient time
to transition to the Next Suppliers.”
On 22 February 2016 the Parties signed CCN1600 which made certain changes to the
Codified Agreement and the expiration date for the Codified Agreement was extended
to 31st March 2023 . The Expiring Services shall expire on 31st March 2016 and 31st
March 2017 as set out in the Codified Agreement (unless otherwise extended), with all
other Services (save where terminated early in accordance with the terms of this
Agreement) continuing until 31st March 2023.
On March 9th , the Parties signed CCN1638 in order to make certain changes to the
Codified Agreement in order to implement an updated service delivery framework,
attached hereto as Schedule I.
NOW THEREFORE IT IS HEREBY AGREED as follows:
CLAUSES Version 13.0
10
POL00324964
POL00324964
CONFIDENTIAL
PART A: RELATIONSHIP
Funding Condition
Post Office may at any time prior to the Conditionality Expiry Date deliver to Fujitsu
Services a Funding Notice.
During the Conditionality Period the provisions of Part A of Schedule A6 shall apply.
Where Post Office delivers a Funding Notice prior to the Conditionality Expiry Date, the
provisions of Part B of Schedule A6 shall apply with effect from the date of receipt by
Fujitsu Services of such Funding Notice.
Where Post Office does not deliver a Funding Notice prior to the Conditionality Expiry
Date, the provisions of Part C of Schedule A6 shall apply with effect from the
Conditionality Expiry Date.
Where Post Office notifies Fujitsu Services in writing prior to the Conditionality Expiry
Date that it will not deliver a Funding Notice, the provisions of Part C of Schedule A6
shall apply with effect from the date on which Fujitsu Services receives that notice in
writing.
Post Office shall ensure that during the Conditionality Period Fujitsu Services is
provided with confirmations by way of issue of a purchase order or a series of purchase
orders or otherwise in writing in respect of HNG-X Development to be carried out in
accordance with the HNG-X Programme Plan against which Fujitsu Services may raise
invoices for HNG-X Development Charges when entitled to do so in accordance with
the provisions of Schedule D2 and to the extent such Charges fall within the estimated
aggregate HNG-X T&M Budget in respect of a particular Planning Period (as set out in
the budget report to be delivered in accordance with paragraph 11 of Schedule B6.2)
("Purchase Order Cover"). In the absence of such Purchase Order Cover and failure
by Post Office to provide it within seven days of written notice from Fujitsu Services
requesting that Post Office do so, the provisions of Part C of Schedule A6 shall apply
upon expiry of such notice.
Post Office shall provide to Fujitsu Services, upon its reasonable request from time to
time, information that Post Office is reasonably able to disclose, without breaching any
confidentiality restrictions, for the purpose of updating Fujitsu Services on progress
being made by the Post Office in securing funding such that Post Office may deliver a
Funding Notice, and the steps being taken by Post Office to secure such funding.
In the event that, during the Conditionality Period, Project HNG-X is terminated by Post
Office for Default pursuant to Clause 47.11.1 and Post Office does not deliver a
Funding Notice to Fujitsu Services on or prior to the Conditionality Expiry Date, Post
CLAUSES Version 13.0
11
POL00324964
POL00324964
CONFIDENTIAL
2.1
2.2
23
3.1
3.2
5.1
5.2
Office shall not be entitled to recover any loss or damage from Fujitsu Services on the
basis that had this Agreement been duly performed according to its terms Post Office
would have delivered a Funding Notice on or prior to the Conditionality Expiry Date.
Preferred Systems Integrator and Systems Integration Partnership
It is Post Office’s present intention to confer upon Fujitsu Services the role of Preferred
Systems Integrator with a wider scope of operation than the Infrastructure and with the
potential to include all Relevant IT Systems in that scope. The role of the Preferred
Systems Integrator and the manner and timing of its appointment are set out in further
detail in Schedule A1 to this Agreement.
In its role as Preferred Systems Integrator (if appointed) Fujitsu Services shall pursue in
particular those Joint Objectives listed in Recitals (E)(d) and (E)(e).
The Parties shall, with effect from the Amendment Date, establish and operate the SIP
in accordance with the terms of Schedule B1.2.
Governance
The Parties shall, throughout the term of this Agreement, govern their relationship:
3.1.1. in accordance with the provisions of Schedule A2; and
3.1.2 with a view to monitoring, and assisting with the aim of achieving, the Joint
Objectives set out in Recitals E(d) to (g) (inclusive).
Any dispute arising between the Parties in relation to this Agreement shall be resolved
in accordance with Schedule A2.
Change Control
Save as expressly provided otherwise in any provision of this Agreement, this
Agreement may only be amended in accordance with the Change Control Procedure
set out in Schedule A3.
PART B: SERVICES
Development and documentation of HNG-X
Post Office shall develop the Requirements Baseline for the HNG-X Service
Infrastructure and the Business Capabilities and Support Facilities in accordance with
the process for such development set out in Schedule B6.1. Fujitsu Services shall
participate in that process in the manner described in that Schedule.
Fujitsu Services shall, subject to Clause 10.5, design and develop the HNG-X Service
Infrastructure (other than the Associated Changes) and the Business Capabilities and
Support Facilities:
CLAUSES Version 13.0
12
POL00324964
POL00324964
CONFIDENTIAL
5.3
5.4
5.5
5.6
6.1
6.2
5.2.1 to comply with the Requirements Baseline (as may be amended pursuant to
Schedule B6.1);
5.2.2 in accordance with the HNG-X Assumptions and the Solution Architecture; and
5.2.3. in accordance with the provisions of Schedule B6.2 (as supplemented by the
CCDs “Establishing and Assuring the HNG-X_ User _ Interface”
(REQ/GEN/PRD/0001) and “Postal Services Business and Operational
Context” (REQ/CUS/BRS/0001)),
and shall use reasonable endeavours to do so in compliance with the HNG-X
Programme Plan (as adjusted in accordance with the provisions of Schedule B6.2).
The Parties shall comply with their respective obligations set out in Schedule B6.3 in
relation to the acceptance of the HNG-X Service Infrastructure and the Business
Capabilities and Support Facilities.
As soon as reasonably practicable following HNG-X Final Acceptance, Schedules B3.2,
B3.3 and B3.4 and all other documents in the Solution Baseline Documentation Set
shall be amended under the Change Control Procedure, to the extent necessary, to be
consistent with the Solution Baseline (together with any rectification plans and
workarounds agreed pursuant to Schedule B6.3).
Until the date on which Schedules B3.2, B3.3 and B3.4 and all other documents in the
Solution Baseline Documentation Set are amended pursuant to Clause 5.4, Fujitsu
Services’ obligations under this Agreement in relation to the HNG-X System shall be
determined by reference to the Solution Baseline (and any subsequent changes to the
HNG-X System agreed pursuant to the Change Control Procedure) rather than those
Schedules and documents.
Save where the reference to XP is to it as the existing operating system, until such
time as a CCN to introduce a replacement operating system for NT (as envisaged by
paragraph 1.4 of Schedule C3) has been agreed by the Parties, any references to “XP”
in any of the Schedules, CCDs or CRDs, or to “Microsoft”, as the provider of XP, shall
be construed generically to mean a new operating system intended to replace NT and
the provider of that operating system respectively.
Associated Changes
Fujitsu Services shall perform the Associated Change Activities in accordance with the
provisions of Schedule B5 and shall use reasonable endeavours to do so in compliance
with the HNG-X Programme Plan (as adjusted in accordance with the provisions of
Schedule B6.2).
Software developed by Fujitsu Services as a product of the Associated Change
Activities shall be subject to the acceptance process in accordance with the principles
set out in Schedule B6.3.
CLAUSES Version 13.0
13
POL00324964
POL00324964
CONFIDENTIAL
8.1
8.2
8.3
9.1
9.2
10.1
10.2
Migration and Implementation
Fujitsu Services shall implement the HNG-X Service Infrastructure and the Business
Capabilities and Support Facilities in accordance with the requirements of Schedule BS
and in compliance with the HNG-X Programme Plan (as adjusted in accordance with
the provisions in Schedule B6.2).
Performance of HNG-X Services prior to HNG-X Date and post HNG-X Date
Prior to the HNG-X Date in respect of each Branch, Fujitsu Services shall perform in
respect of that Branch each of the HNG-X Services (other than BCSF Services) over
the Infrastructure and using the Horizon Applications.
On and after the HNG-X Date in respect of each Branch, Fujitsu Services shall perform
in respect of that Branch each of the HNG-X Services as described in Schedule B3.1
over the Infrastructure.
Subject to Clauses 8.1 and 8.2 and save as expressly provided otherwise, the
provisions of this Agreement relating to the provision of Services shall apply both to
Services to be provided before the HNG-X Date and to Services to be provided after
the HNG-X Date.
Infrastructure prior to Trigger Point T5 and post Trigger Point T5
Until Trigger Point T5 (Data Centre Ready For HNG-X), the Infrastructure over which
the HNG-X Services shall be provided shall be the Horizon Service Infrastructure
described in Schedule B4.3.
Following Trigger Point T5 (Data Centre Ready For HNG-X), the Infrastructure over
which the HNG-X Services shall be provided shall be the HNG-X Service Infrastructure
as described in Schedule B3.3 save to the extent of any variations applicable in
accordance with Part 1 of Annex 2 of Schedule B5 (Transitional Infrastructure) that
apply to Branches prior to their respective HNG-X Dates.
Performance of Services - General
Fujitsu Services shall:
10.1.1 perform the Development Services in accordance with Schedule B1.1;
10.1.2 perform the Transfer Services in accordance with Schedule E; and
10.1.3 throughout the term of this Agreement, comply with the provisions of Schedule
B2 (Business Continuity).
Subject to Clause 10.8, Fujitsu Services shall, throughout the term of this Agreement,
provide all HNG-X Services (except any terminated in accordance with Clause 47.10 or
which expire in accordance with Clause 46.3) in accordance with the terms of this
CLAUSES Version 13.0
14
POL00324964
POL00324964
CONFIDENTIAL
10.3
10.4
10.5
10.6
10.7
10.8
10.9
Agreement. Subject to Clause 10.3 and provided the limit on the number of Counter
Positions specified in Part 1 of Annex A to Schedule D1 is not exceeded, where an
HNG-X Service is to be provided at a Counter Position, it shall be capable of being
provided at such Counter Position.
Where a network connection is required to deliver a Service and such network
connection is unavailable at a Horizon Counter Position (due to characteristics
particular to that Horizon Counter Position) Fujitsu Services shall not be obliged to
deliver that Service at that Horizon Counter Position.
Each Party shall perform each of its obligations set out in the Schedules to this
Agreement and those in the CCDs subject to and in accordance with the provisions of
this Agreement, the Schedules to this Agreement and the CCDs.
Post Office may, by giving Fujitsu Services not less than six months’ notice in writing,
cease to use a POL Service Type. Upon expiry of that notice, the POL Service Type
shall be disabled by Fujitsu Services. Where a notice is given under this Clause in
respect of a POL Service Type listed in Annex 1 to Schedule B3.2 whose development
has not been completed at the date of provision of such notice, all work being
undertaken in respect of such development shall cease as soon as reasonably
practicable following receipt of the notice and the Change Control Procedure shall be
used to agree any consequential changes to this Agreement including, without
limitation, the extent to which the HNG-X Project Price should be lowered to reflect cost
savings resulting from the cessation of such work and the impact on the Requirements
Baseline if such development is no longer to be completed.
The removal by Fujitsu Services of any application code and/or infrastructure relating
to a POL Service Type disabled in accordance with Clause 10.5 shall be dealt with
under the Work Ordering Procedure.
Once a POL Service Type has ceased operation in accordance with Clause 10.5, such
POL Service Type may only be recommenced pursuant to the Change Control
Procedure set out in Schedule A3.
Claused removed by CCN1610
10.8.1 Not used
10.8.2 Not used
10.8.3 Not Used
It is the agreed intention of both parties that during the term of this Agreement the
Services and the underlying infrastructure from which they are provided shall evolve as
Post Office’s business requirements change and in line with new technology. The
parties acknowledge and agree that this evolution should include standardisation,
including but not limited to the interfaces and moving to a Fujitsu Services or third party
cloud based hosting capability, and that such standardisations should be capable of
CLAUSES Version 13.0
15
POL00324964
POL00324964
CONFIDENTIAL
12.1
12.2
12.3
being benchmarked in accordance with Schedule D6. Fujitsu Services and Post
Office will work together to jointly agree a technology roadmap and plan which will
cover issues such as standardisation and changes to support by third party licensors
(e.g. Oracle). The existing CCN and commercial terms processes shall be used to
agree the technology roadmap and plan and any subsequent changes. The parties
have a joint expectation that service will move to a Fujitsu Services or third party cloud
based shared infrastructure during the life of the contract, enabling lower run costs.
Training
Subject to the limits set out in Part 1 of Annex A to Schedule D1 not being exceeded,
Fujitsu Services shall supply Post Office with the Old CTO Configurations and New
CTO Configurations and install such configurations at locations agreed with Post
Office. New CTO Configurations and the locations where installed shall be deemed to
be Counter Positions and Branches respectively for the purposes of the Operational
Charges and the limits set out in Part 1 of Annex A to Schedule D1.
Fujitsu Services shall supply Post Office, on terms to be agreed between the Parties
under the Change Control Procedure, with such training systems and documents as
Post Office may reasonably require for the purposes of training Post Office employees
in the use of any Services provided under this Agreement.
Changes to Services
Subject to Clause 12.2, Fujitsu Services shall not introduce any product or service into
the Infrastructure, or the Services, nor make any change to the Services or to the
Infrastructure, without Post Office's prior written consent.
Fujitsu Services may issue further Releases of Software in accordance with the CCD
entitled “Pathway Release Policy” (PA/STR/003) from time to time as necessary to
remedy defects in the provision of the Services or for the purpose of maintenance of
the Infrastructure, the Horizon Applications and the Business Capabilities and Support
Facilities.
For the purposes of this Clause 12.3, the network connections (being ISDN, PSTN,
ADSL, GPRS ) to Branches procured by Fujitsu Services from a public carrier that form
part of the Infrastructure from time to time are referred to as the “Branch Network
Connections”. For any reason including, without limitation, in order to achieve
consolidation of Royal Mail Group telecommunication provision and/or to reduce
overall costs, Post Office shall be entitled, in accordance with the provisions of Clauses
12.3.1 to 12.3.9 (inclusive) to put in place an alternative arrangement to that set out in
this Agreement for the provision of any or all of the Branch Network Connections (an
POL00324964
POL00324964
“Alternative Network Arrangement"). For avoidance of doubt the provisions of sub-
clauses 12.3.2 - 12.3.9 shall not apply to the Tower Branch Network Services:
12.3.1 Post Office shall give Fujitsu Services reasonable advance notice of its
intention to put in place an Alternative Network Arrangement and shall engage
with Fujitsu Services in relation to the matters set out in this paragraph below;
CLAUSES Version 13.0
16
POL00324964
POL00324964
CONFIDENTIAL
12.3.2 subject to Clause 12.3.8, Post Office may appoint, or may agree with Fujitsu
Services to appoint, whether as a result of a tendering process or otherwise,
any reputable organisation as a supplier of any or all of the Branch Network
Connections (the “Branch Telecommunications Supplier’) in substitution for the
relevant public carrier used by Fujitsu Services under this Agreement;
12.3.3. the appointment by Post Office of the Branch Telecommunications Supplier
shall be in accordance with terms agreed by Post Office with the Branch
Telecommunications Supplier, taking into account (i) any notice periods
applicable for the termination of the contractual arrangements with the public
carrier then used by Fujitsu Services for the provision of the relevant Branch
Network Connections and (ii) the matters to be agreed with Fujitsu Services in
accordance with this Clause 12.3;
12.3.4 Fujitsu Services shall manage the Branch Telecommunications Supplier as part
of its provision of the Third Party Management Services;
12.3.5 the costs or charges to be paid to such Branch Telecommunications Supplier
and any termination charges due to be paid to the public carrier used by Fujitsu
Services shall be met by or on behalf of Post Office or otherwise reimbursed to
Fujitsu Services by Post Office (as applicable in the circumstances) when they
arise;
12.3.6 Fujitsu Services shall be paid a margin in relation to such costs or charges
(whether met by or on behalf of Post Office or reimbursed to Fujitsu Services),
calculated by multiplying such costs or charges by 5 divided by 95;
12.3.7. the costs and expenses of undertaking the procurement and appointment of the
Branch Telecommunications Supplier shall all be borne by Post Office and, to
the extent that Fujitsu Services is involved or provides assistance with such
procurement, all costs and expenses reasonably incurred by Fujitsu Services
shall be reimbursed to Fujitsu Services by Post Office;
12.3.8 the Agreement shall be amended under the Change Control Procedure to give
effect (as between Post Office and Fujitsu Services) to the appointment of the
Branch Telecommunications Supplier by Post Office with the intention that
Fujitsu Services should be no worse off (i) financially and (ii) in relation to risk
or liability, under the revised Agreement than it is under the existing
Agreement; and
12.3.9 the matters to be addressed under the Change Control Procedure to give effect
to Clause 12.3.8 shall include, without limitation, amendments to the Third
Party Management Services in connection with Clause 12.3.4, transition to the
Alternative Network Arrangement, the charges for such transition (to be paid by
Post Office), project management, billing management, changes to central data
processing, security of the Alternative Network Arrangements and the impact of
the Alternative Network Arrangements on the HNG-X Services.
CLAUSES Version 13.0
17
CONFIDENTIAL
13.1
13.2
15.1
12.4 Post Office shall be entitled, in accordance with the provisions of Clauses
12.4.1 to put in place alternative arrangements to those set out in this
Agreement with the Next Supplier for the provision by the Next Supplier of
Replacement Services to the Branch Network Service and the CMT Service for
any Branches:
12.4.1 Post Office shall give Fujitsu Services reasonable advance notice, but not less
than 10 Working Days, of its intention to put in place Replacement Services to
the VSAT BB communications method of the Branch Network Service to be
supplied by the Next Supplier for any Branch, using the process agreed in the
Operational Business Change (Branch Change) Service and managed through
the Change Control Procedure.
Documentation
Fujitsu Services shall provide to Post Office one electronic copy of the Listed
Documentation, Specially Written Documentation and Developed Documentation at no
additional charge.
Fujitsu Services shall maintain and keep up to date the Core Document Set.
Consumables - Clause removed by CCN1616b
PART C: QUALITY OF SERVICE
Service Standards
Fujitsu Services undertakes that:
15.1.1 the Services, the HNG-X Development and the Associated Change
Development shall comply with, and be provided in accordance with, the
policies and standards specified in Schedule A4 and all components and
equipment used in the course of the provision of the Services shall operate in
accordance with their technical specifications;
15.1.2 neither the provision of the Services nor the operation of any testing and
monitoring instruments used in connection with the Services shall cause
electrical interference beyond the limits laid down in the relevant standard
specified in Schedule A4, save to the extent that any such interference is
caused by Rate Boards;
15.1.3. the Infrastructure, the Horizon Applications, the Business Capabilities and the
Support Facilities shall be provided in accordance with and comply with all
relevant applicable industry standards, as these standards are listed in
Schedule A4.
CLAUSES Version 13.0
18
POL00324964
POL00324964
CONFIDENTIAL
15.2
16.2
15.1.4
15.1.5
15.1.6
15.1.7
15.1.8
15.1.9
the Services, the HNG-X Development and the Associated Change
Development shall be supplied and rendered by appropriately experienced,
qualified and trained personnel with all due skill, care and diligence;
Fujitsu Services shall discharge its obligations under this Agreement with all
due skill, care and diligence including but not limited to good industry practice
and (without limiting the generality of this Clause 15) in accordance with the
best of its own established internal procedures;
the Services, the HNG-X Development and the Associated Change
Development shall be performed in compliance with all applicable laws,
enactments, orders, regulations, and other similar instruments;
the interfaces to all external systems connected to the Infrastructure shall
operate in accordance with the applicable Application Interface Specification
and Technical Interface Specification;
the Services shall be performed in such a way as to cause a minimum of
disruption to the business of Post Office and the End Users;
all components of the Infrastructure shall operate in accordance with their
respective specifications, except that, for the avoidance of doubt, it is agreed
that Post Office shall have no remedy for breach of this undertaking in relation
to errors or interruptions to Services which cause a failure of a Service Level
Target or an Additional Remedy Level; and
15.1.10 Clause removed by CCN1616b
Fujitsu Services warrants that in relation to the reliability, supportability, repair and/or
replacement of Existing Equipment:
15.2.1
15.2.2
Fujitsu Services has made all factual enquiries that it ought reasonably to have
made, including taking into consideration the Transaction volumes set out in
the CCD entitled "Horizon Capacity Management and Business Volumes"
(PA/PER/033) and the effect of the Business Capabilities and Support Facilities
on the use and expected use of the Existing Equipment, as known to Fujitsu
Services at the Amendment Date; and
a fair and accurate summary of, or extracts from, all information relevant to the
reliability, supportability, repair and/or replacement of Existing Equipment
obtained by Fujitsu Services pursuant to such enquiries, together with the
related analysis by Fujitsu Services based upon the factual enquiries referred to
in Clause 15.2.1, have been fairly disclosed to Post Office.
Security
Fujitsu Services shall deliver and continue to provide a secure system in respect of all
transactions which, as far as this Agreement requires, eliminates the potential for any
CLAUSES Version 13.0
19
POL00324964
POL00324964
CONFIDENTIAL
16.3
16.4
16.5
16.6
fraud or unauthorised disclosure of data and provides detection procedures and
significant barriers to attacks from internal conspiracy and collusion to defraud Post
Office.
Fujitsu Services shall use all reasonable endeavours to maintain the security of the
Services, the HNG-X Development and the Associated Change Development and shall
comply with the security requirements set out in Schedule A4.
Fujitsu Services shall offer all reasonable assistance to Post Office in preventing
fraudulent use of the Services, the HNG-X Development, the Associated Change
Development and the Horizon Service Infrastructure by Post Office's employees and
Agents.
In the event that the provisions of this Clause 16 or any other provisions of this
Agreement in relation to:
16.5.1 the elimination of the potential for any fraud or unauthorised disclosure of data;
or
16.5.2 provision of significant barriers to attacks from internal conspiracy and collusion
to defraud Post Office; or
16.5.3. prevention of corruption or loss of data; or
16.5.4 the security, accuracy, completeness, authenticity, validity or integrity of any
data,
conflict or are inconsistent with the provisions of the CCD entitled "Security Constraints"
(ARC/SEC/ARC/0001), the provisions of that CCD shall prevail.
Notwithstanding any other provision in this Agreement to the contrary:
16.6.1 Fujitsu Services shall not be responsible for the accuracy, completeness,
validity or integrity of any data (including, without limitation, and Personal Data)
in relation to the POL FS Data or the POLSAP Data.
(a) provided by or on behalf of Post Office for loading onto the POL FS
System;
(b) produced by the Infrastructure and held on the POL FS System; or
(c) contained in any Transaction Correction Record delivered by Fujitsu
Services to any Branch,
(together “POL FS Data”);
CLAUSES Version 13.0
20
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
16.6.2 Fujitsu Services shall not be responsible for extracting POL FS Data from the
POL FS System or dealing with subject information requests under the Data
Protection Act 1998 in relation to POL FS Data; or
16.6.3 Fujitsu Services shall not be responsible for manipulating or processing any
POL FS Data,
save to the extent that:
16.6.4 in relation to 16.5.1, 16.5.2 or 16.5.3 Fujitsu Services provides and is
responsible for the platforms on which POLSAP Data is held as part of the
POLSAP Services such responsibilities including, without limitation, application
of access controls; and
16.6.5 additionally in the case of Clause 16.5.1, the accuracy, completeness, validity
and integrity of POLSAP Data is adversely affected by the POLSAP Software
itself.
16.7 Notwithstanding any other provision in this Agreement to the contrary, Fujitsu Services
shall not be responsible for:
16.2.1 the accuracy, completeness, validity or integrity of any data (including), without
limitation, any Personal Data):
16.6.1.1 provided by or on behalf of Post Office for loading onto the POL MI
System; or
16.6.1.2 produced by the Infrastructure and held on the POL MI System,
(together “POL MI Data”);
16.6.2 extracting POL MI Data from the POL MI System or dealing with subject
information requests under the Data Protection Act 1998 in relation to POL
MI Data; or
16.6.3. manipulating or processing any POL MI Data,
save to the extent that:
16.6.4 Fujitsu Services provides and is responsible for the platforms on which POL
MI Data is held as part of the POL MI Services such responsibilities
including, without limitation, application of access controls; and
16.6.5 Additionally in the case of 16.6.1, the accuracy, completeness, validity and
integrity of POL MI Data is adversely affected by the POL MI System itself.
CLAUSES Version 13.0
21
CONFIDENTIAL
17.
18.2
18.3
18.4
18.5
19.2
19.3
Service Levels
The HNG-X Services provided by Fujitsu Services pursuant to this Agreement shall be
provided so as to achieve the Service Levels referred to in Schedule C1
Service Level Remedies
In the event that the Services fail to meet the Service Levels set out or referred to in
Schedules C1 or B4.4, Fujitsu Services shall pay Post Office liquidated damages (such
payment to be in the form of credit notes unless Post Office directs otherwise)
calculated or determined in accordance with Schedule C1 or Schedule B4.4 (as
applicable) and paid pursuant to Schedule D2.
Fujitsu Services shall pay Post Office the liquidated damages referred to in Clause 18.1
within 30 days of the date on which Fujitsu Services is due to deliver the Service
Management Report for the period to which the liquidated damages relate and Post
Office Additional Costs within 30 days of the Parties agreeing the amount of the same.
The Parties acknowledge that the liquidated damages referred to in this Clause are a
reasonable and genuine pre-estimate of the loss likely to be suffered by Post Office.
Without prejudice to Clause 47.2, paragraph 7 of Schedule C1 and paragraph 7 of
Schedule B4.4:
18.5.1 liquidated damages and/or any other amounts specified in this Agreement
payable by Fujitsu Services in respect of any LDT failure (save to the extent
that LDT failure is also an ARL failure in which case and to such extent Clause
18.4.2 shall apply), whether that LDT failure occurs at, above or below the
corresponding SLT, shall be Post Office's exclusive remedy in respect of any
failure of that LDT and/or SLT; and
18.5.2 Post Office Additional Costs, liquidated damages and/or any other amounts
specified in this Agreement payable by Fujitsu Services in respect of any ARL
failure shall be Post Office's exclusive remedy in respect of that failure.
Health and Safety Hazards
Fujitsu Services shall notify Post Office of any health and safety hazards in relation to
Post Office Premises owned by or leased to Post Office which may arise in connection
with Fujitsu Services’ performance of this Agreement.
Post Office shall notify Fujitsu Services of any known health and safety hazards which
may exist or arise at the Post Office Premises owned by or leased to Post Office and
which may affect Fujitsu Services. Fujitsu Services shall draw these hazards to the
attention of its employees and sub-contractors or any persons engaged by Fujitsu
Services in the performance of this Agreement at such Post Office Premises.
CLAUSES Version 13.0
22
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
19.4
20.
21.
22.
22.2
22.3
23.
24.
24A
Fujitsu Services shall inform all persons engaged in the performance of this Agreement
at the Post Office Premises owned by or leased to Post Office of all such hazards and
shall instruct such persons in connection with any necessary associated safety
measures.
Policies and Standards
Each of the Parties shall comply with the obligations imposed on it by Schedule A4.
PART D: REWARD
Charges
Post Office shall pay to Fujitsu Services the Charges set out in Schedules D1, D7 and
D8 and any other charges provided for in this Agreement or agreed under a Work
Order.
Clause removed by CCN1616b
Except as otherwise expressly agreed in this Agreement, or as generally provided for
under the Change Control Procedure or in Work Orders, no other amounts shall be
payable by Post Office to Fujitsu Services in consideration of the Services to be
provided by Fujitsu Services under this Agreement.
Payment
Payment of Charges shall be made in accordance with the terms set out in Schedule
D2.
In the event that Fujitsu Services, in accordance with the terms of this Agreement,
enters into a supply contract or a sub-contract in connection with this Agreement,
Fujitsu Services shall ensure that a term is included in the supply contract or sub-
contract which requires Fujitsu Services to pay all sums due thereunder to the relevant
supplier or sub-contractor within a specified period, not to exceed 30 days, from the
date of receipt of a valid invoice as defined by the terms of the supply contract or sub-
contract (as appropriate).
Gain Share
The provisions of Schedule D3 shall apply.
Open Book
The provisions of Schedule D4 shall apply.
Market Testing
CLAUSES Version 13.0
23
CONFIDENTIAL
25.
25.2
25.3
25.4
25.5
The provisions of Schedule D6 shall apply save that with respect to the provisions of
paragraph 3 of Schedule D6 it shall be limited to the right to benchmark:
a) the on-shore and off-shore Rate Cards but Post Office shall only be entitled to
benchmark these rate cards after 1st April 2020; and
b) where the parties agree to a Gain Share project to transform an element of the
Services and where it is agreed (both parties acting reasonably) that the
transformed element of the Service is then delivered in a more industry
standard way (for example via a Cloud laaS mechanism), that standard
element of the service shall be subject to the right to benchmark provided that
such benchmark shall not apply until 18 months after the transformed element
of the Services goes live.
Audit
Fujitsu Services shall keep or cause to be kept the Records.
Fujitsu Services shall grant or procure the grant to Post Office, any statutory or
regulatory auditors of Post Office and their respective authorised agents the right of
reasonable access to the Records and shall provide all reasonable assistance at all
times for six years after the creation of the relevant Records for the purposes of
carrying out an audit of Fujitsu Services' compliance with this Agreement including all
activities, Charges, performance, security and integrity in connection therewith. Each
Party shall bear its own expenses incurred pursuant to this Clause. On termination of
the Agreement, Partial Termination, expiry of the Agreement or expiry of an Expiring
Service, Fujitsu Services shall within a reasonable time to be agreed by the Parties,
transfer the Records to Post Office or a Next Supplier, as instructed by Post Office.
Following settlement of all Charges due and payable under this Agreement, Fujitsu
Services shall be released from any further liabilities under this Clause 25.2 in relation
to such Records.
Without prejudice to the foregoing, in the event of an investigation into suspected
fraudulent activity or other impropriety by Fujitsu Services or any third party, Post
Office reserves for itself, any statutory or regulatory auditors of Post Office and their
respective authorised agents the right of immediate access to the Records described in
Clauses 25.1 and 25.2 and Fujitsu Services agrees to render all necessary assistance
to the conduct of such investigation at all times during the currency of this Agreement
or at any time thereafter. To the extent any fraudulent activity or impropriety is found
to be attributable to Post Office as a result of that investigation, Post Office shall take
all reasonable measures to prevent recurrence of its acts or omissions that resulted in
such fraudulent activity or impropriety.
Fujitsu Services shall provide Post Office at no additional cost with copies of the annual
and interim audited accounts of Fujitsu Services and its approved subcontractors within
14 days of such accounts having been lodged at Companies House or the relevant
local equivalent to Companies House.
CLAUSES Version 13.0
24
POL00324964
POL00324964
CONFIDENTIAL
25.6
25.7
25.8
25.9
25.10
The Parties shall comply with the provisions of Schedule D5.
All information obtained by Post Office or Post Office's Agents pursuant to this
Clause 25 and Schedule D5 shall be treated as Confidential Information.
Notwithstanding the provisions of this Clause 25 and anything else to the contrary in
this Agreement, all access to the audit trail of Transactions held by Fujitsu Services in
respect of Transaction data created on or after the date of commencement of NB Pilot
(Soft Launch) shall be conducted as Audit Record Queries and shall be subject to the
limits and Service Level Targets set out in the information retrieval and audit
sections of the following CCDs, as applicable in accordance with the provisions of
Schedule B3.1: “Service Description for the Security Management Service”
(CS/SER/016) and "Security Management Service: Service Description"
(SVM/SDM/SD/0017).
In addition to its obligations under Clauses 25.2 and 25.3, Fujitsu Services shall provide
the Court Case Support Services to Post Office in relation to prosecutions and other
disputes (whether civil or criminal) with any third party including but not limited to any
fraud, theft, breach of contract or impropriety (the “Court Case Support Services”). The
Court Case Support Services shall include any matters whether they relate to Horizon,
HNG-X or any other system provided by or on behalf of Fujitsu Services to Post Office,
its agents or its subcontractors (including Post Office Service Integrator and any Tower
Contractor). Fujitsu Services shall provide the Court Case Support Services within the
timeframes required by Post Office or the relevant court or other authority.
Without prejudice to Clause 25.3, the Court Case Support Services shall comprise:
25.10.1 the provision of copy reports;
25.10.2 the provision of data (including transaction data, event logs, helpdesk call logs,
non-polled data and remuneration data) where such data is held by or in the
control of Fujitsu Services;
25.10.3 the compilation of data (including transaction data, event logs, helpdesk call
logs, non-polled data and remuneration data);
25.10.4 the interpretation of data (including transaction data, event logs, helpdesk call
logs, non-polled data and remuneration data);
25.10.5 the provision of technical reports regarding technical aspects of any system
(whether Horizon, HNG-X or otherwise);
25.10.6 live witness evidence at Court if any of the information provided (including
without limitation that provided pursuant to Clauses 25.9.1 to 25.9.5) is
challenged to the extent to which Fujitsu Services provided said information;
and
CLAUSES Version 13.0
25
POL00324964
POL00324964
CONFIDENTIAL
25.11
25.12
25.13
26.
26.2
26.3
25.10.7 the right of access to Records, including but not limited to information, reports
and data, held by or in the control of Fujitsu Services, and the assistance of
Fujitsu Services’ personnel with appropriate knowledge of the applicable
Records (to the extent any such personnel remain employed or contracted to
Fujitsu Services) for any independent experts and/or legal advisors instructed
by Post Office and/or any other claimant(s) or defendant(s) and the Prosecution
in any mediation, arbitration tribunal, court case or dispute in which Post Office
is involved in relation to the Horizon and HNG-X or any other system provided
by or on behalf of Fujitsu Services to Post Office.
The Parties agree that to the extent Fujitsu Services’ costs for the Court Case Support
Services are not recovered via the Charges relating to the Security Management
Service (for example where additional resource is required), Fujitsu Services shall be
entitled to charge (and Post Office shall pay) additional reasonable and demonstrable
costs provided Fujitsu Services can evidence such costs to Post Office’s reasonable
satisfaction and wherever possible agree them in advance with Post Office.
For the avoidance of doubt, the Parties agree the provision of the Court Case Support
Services may continue after expiry or termination of this Agreement. For the
avoidance of doubt, where assistance is requested by the Post Office and/or Next
Supplier of Fujitsu Services then such assistance shall continue to be chargeable after
expiry/termination of the Agreement.
In addition to its obligations under clauses 25.8 and 25.9, Fujitsu Services may make
suggestions and recommendations to Post Office and request other involvement which
Post Office may (acting reasonably) permit in relation to any claim/ proceedings
associated with the Horizon Application and/or HNG-X Application relating to a time
when Fujitsu Services was supporting and/or providing Services associated with said
application. Where Fujitsu Services elects to do this itself, such involvement shall be
at no additional charge to the Post Office.
PART E: OWNERSHIP OF ASSETS AND INTELLECTUAL PROPERTY RIGHTS
Ownership of Assets
Infrastructure
26.2.1 Subject to Clause 26.1.2, 26.2 and 48.1, ownership of the Infrastructure shall
vest in Fujitsu Services, save to the extent the Parties agree otherwise in
writing.
26.2.2 Clause removed by CCN1616b.
Branch Hardware
Unless the Parties agree otherwise, ownership of Branch Hardware shall vest in the
Party that procures that hardware until such time as that hardware has been installed at
the Branch and accepted by Fujitsu Services as part of the Infrastructure at which time
CLAUSES Version 13.0
26
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
such title shall transfer to Fujitsu Services. With effect from 1% April 2015 title to
Branch Hardware previously owned by Fujitsu Services shall transfer to the Post Office
on the date(s) stipulated in the Asset Transfer Agreement.
26.4 Clause removed by CCN1610
26.4.1 Not Used
26.4.2 Not Used
26.5 Clause removed by CCN1616b
26.6 Post Office Data
Fujitsu Services acknowledges that the Post Office Data is the property of Post Office
and Post Office hereby reserves all Intellectual Property Rights which may subsist in
the Post Office Data.
26.7 NoLien
Neither Fujitsu Services nor any sub-contractor, nor any other person, shall have a lien
on any item owned by or leased to Post Office for any sum due to Fujitsu Services, sub-
contractor or other person, and Fujitsu Services shall take all reasonable steps to
ensure that the title of Post Office and the exclusion of any such lien are brought to the
notice of all sub-contractors and other persons dealing with such items.
27. Intellectual Property Rights
27.2 The ownership and, where applicable, licensing of the following Intellectual Property
Rights and the Intellectual Property Rights in the following categories of documentation,
software or other things are set out in Clauses 28 (IPRs owned by Fujitsu Services), 29
(IPRs owned by Post Office), 30 (IPRs licensed by Fujitsu Services or a third party to
Post Office) and 31 (IPRs licensed by Post Office or a third party to Fujitsu Services):
27.2.1 Listed Documentation;
27.2.2 Fujitsu Services Software;
27.2.3. Specially Written Software;
27.2.4 Specially Written Documentation;
27.2.5 Developed Documentation;
27.2.6 Horizon Design Documentation;
27.2.7 Horizon Materials;
CLAUSES Version 13.0
27
POL00324964
POL00324964
CONFIDENTIAL
27.2.8 Internal Code;
27.2.9 Horizon Third Party Software;
27.2.10 Third Party Items;
27.2.11 Post Office Foreground IPR;
27.2.12 Licensed IPR;
27.2.13 Fujitsu Background IPR;
27.2.14 Post Office Background Materials; and
27.2.15 Deposited Software.
General
27.3
27.4
27.5
27.6
27.7
Except as explicitly stated herein, nothing in this Agreement shall transfer ownership of
or grant licences (including rights under patents) of any pre-existing or independently
developed Intellectual Property Rights of either Party.
Where Post Office Foreground IPR or Licensed IPR subsists in software within Fujitsu
Services or its Sub-contractors’ possession or control, Fujitsu Services shall, at the
request of Post Office, provide Post Office with one up-to-date copy (and other copies
as may reasonably be requested) of that software (in both Source Code and object
code formats) and all related engineering, design and test data, configuration files and
programming notes.
In the event that Fujitsu Services, a member of the Fujitsu Services Group or its HNG-
X Sub-contractor, transfers or assigns any Licensed IPR or Fujitsu Background IPR
used for the purposes of performing the Services to any third party, Fujitsu Services
shall ensure that such assignment or transfer is subject to the licences granted
hereunder and shall notify Post Office of such transfer or assignment as soon as
reasonably practicable.
Each Party undertakes (at no additional charge) to do all such things and execute all
such documents as may be reasonably required to give full effect to any assignment or
licence made or granted hereunder of, in the case of Fujitsu Services, Post Office
Foreground IPR, Licensed IPR or Fujitsu Background IPR and, in the case of Post
Office, Intellectual Property Rights in Post Office Background Materials.
Fujitsu Services warrants and represents that:
27.7.1 Fujitsu Services has full capacity and authority to grant the licences granted by
it under Clauses 30, 48.8, 48.9 and 48.10; and
CLAUSES Version 13.0
28
CONFIDENTIAL
27.8
28.
28.2
29.
29.2
27.7.2 Post Office's use of the Infrastructure, Horizon Applications, the Business
Capabilities and Support Facilities, and the receipt of the Services in
accordance with the provisions of this Agreement shall not infringe any
Intellectual Property Rights of any third party (other than any infringement that
is subject to any indemnity given by Post Office pursuant to Clause 34.3). For
the avoidance of doubt, this shall not apply to the Post Office’s receipt of
Microsoft Azure Services to the extent such services are provided by Microsoft
to Post Office pursuant to the Customer Agreement; and
Post Office warrants and represents that Post Office has full capacity and authority to
grant the licences granted by it under Clause 31.
Intellectual Property Rights owned by Fujitsu Services
Subject to express agreement to the contrary in any Work Order or CCN and subject
also to the licences contained in this Agreement:
28.2.1 the Intellectual Property Rights in Fujitsu Developed Documentation, Fujitsu
Services Software, Internal Design Documentation, Listed Documentation and
Internal Code;
28.2.2 the Intellectual Property Rights in all other Horizon Materials (other than
Specially Written Software, Specially Written Documentation and Post Office
Developed Documentation);
28.2.3 Fujitsu Background IPR; and
28.2.4 Licensed IPR,
shall, as between Post Office and Fujitsu Services, be vested on creation in Fujitsu
Services, Fujitsu Services’ licensors, HNG-X Sub-contractors or a member of the
Fujitsu Services Group.
Intellectual Property Rights owned by Post Office
Subject to express agreement to the contrary in any Work Order or CCN and subject
also to the licences contained in this Agreement the Intellectual Property Rights in:
29.2.1 Post Office Developed Documentation;
29.2.2 Specially Written Software; and
29.2.3 Specially Written Documentation,
shall be vested in Post Office upon acceptance of the Post Office Developed
Documentation, Specially Written Software or Specially Written Documentation (as
applicable).
CLAUSES Version 13.0
29
POL00324964
POL00324964
CONFIDENTIAL
29.3
29.4
29.5
Fujitsu Services hereby:
29.3.1 assigns all future copyright and database rights subsisting in; and
29.3.2 agrees to assign (and, in relation to any Post Office Developed Documentation,
Specially Written Software or Specially Written Documentation created by
another member of the Fujitsu Services Group or Sub-contractor, procure the
assignment of) all other Intellectual Property Rights subsisting in,
Post Office Developed Documentation, Specially Written Software and Specially
Written Documentation absolutely to Post Office for the full term during which the rights
in such Intellectual Property Rights and any renewals and extensions shall subsist.
Any Intellectual Property Rights created by a Fujitsu Services SIP Team Member,
solely or jointly with any other person in relation to the business or activities of Post
Office or any member of the Royal Mail Group arising out of or in connection with, and
during, their engagement as a member of the SIP Team and in the course of fulfilling
their agreed role within the SIP, shall become the sole property of Post Office (or a
member of the Royal Mail Group, as applicable) and Fujitsu Services shall procure that
the Fujitsu Services SIP Team Member agrees that he has no right to compensation in
respect of such Intellectual Property Rights. Fujitsu Services shall procure that the
Fujitsu Services SIP Team Member shall execute all such documents and do all such
things reasonably required to enable Post Office or any member of the Royal Mail
Group (as the case may be) to obtain registration or other protection in respect of such
Intellectual Property Rights or (if necessary) to vest ownership of such Intellectual
Property Rights in Post Office or any member of the Royal Mail Group.
All Intellectual Property Rights created by Fujitsu Services, any member of the Fujitsu
Services Group or any HNG-X Sub-contractor (or, in relation to any work referred to in
Clause 29.4.2, any Sub-contractor of Fujitsu Services who carries out that work) in
relation to:
29.5.1 all applications and other software developed for Project HNG-X to fulfil the
Functional Requirements, System Capacity and Performance Requirements,
User Interface Requirements, Training Requirements, Design and Architecture
Requirements and Security Requirements (each as referred to in paragraph 4.1
of Schedule B6.1 as such may be developed or modified from time to time),
together with the databases and any background documents and materials
associated with or relating to such applications and software and, in each case,
all subsequent developments and modifications thereto during the term of this
Agreement;
29.5.2 all software, together with any databases, background documents and materials
associated with or relating to such software (in each case, including all
subsequent developments and modifications thereto), which are created to
meet agreed requirements or specifications under a Work Order or CCN
entered into after the Project HNG-X Commencement Date; and
CLAUSES Version 13.0
30
POL00324964
POL00324964
CONFIDENTIAL
29.6
29.7
29.8
30.
30.2
30.3
29.5.3 such other software, documents or materials developed for Project HNG-X or
any other work as the Parties may agree in writing from time to time.
(together, "Post Office Foreground IPR") shall vest in Post Office.
Fujitsu Services hereby:
29.6.1 assigns all future copyright and database rights comprised in the Post Office
Foreground IPR; and
29.6.2 agrees to assign (and, in relation to any Post Office Foreground IPR created by
another member of the Fujitsu Services Group or an HNG-X Sub-contractor,
procure the assignment of) all other Post Office Foreground IPR,
absolutely to Post Office for the full term during which the rights and any renewals or
extensions shall subsist.
Fujitsu Services shall procure that its employees, sub-contractors and sub-contractors’
employees shall waive absolutely and irrevocably in favour of Post Office their moral
rights in Post Office Developed Documentation, Specially Written Software, Specially
Written Documentation and/or Post Office Foreground IPR granted under the Copyright
Designs and Patents Act 1988 or equivalent or analogous rights under laws of other
jurisdictions in relation to such property.
Without prejudice to Clause 26.6 and the generality of Clause 27.2, Fujitsu Services
acknowledges and agrees that Post Office or its licensors shall own all Intellectual
Property Rights in Post Office Background Materials.
Licences granted by Fujitsu Services or a Third Party to Post Office
In consideration of the payment of the relevant Charges, Fujitsu Services hereby grants
to Post Office or shall procure that Post Office is granted in respect of each category of
IPR, documentation and software listed in Table 1 in Clause 30.3 a licence which has
the characteristics, affords the rights and is subject to the restrictions designated with
ticks in Table 1 in respect of that category (as such may be supplemented by the rights
set out in Clauses 30.14 and 30.18). In addition, Clauses 48.7 to 48.13 shall apply in
the event that a Terminable Service is terminated pursuant to Clause 47.10.1 or
47.10.2 or this Agreement expires or is terminated as provided herein (other than by
Fujitsu Services pursuant to Clause 47.4).
For the purposes of Table 1:
30.3.1 "terminable by FS" means Fujitsu Services may at any time, notwithstanding
any provision herein describing the licence as irrevocable, by notice in writing
terminate the licence in question if Post Office is in Default of such licence and
Post Office shall fail to remedy such Default within 30 days of written notice to
Post Office specifying the Default and requiring its remedy, provided that if the
Default in question is caused by an Agent, such licence shall only be terminated
CLAUSES Version 13.0
34
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
30.3.2
30.3.3
30.3.4
30.3.5
30.3.6
30.3.7
30.3.8
30.3.9
in relation to Use by such Agent. Upon termination of the relevant licence to
Post Office, Post Office shall cease to use the software or document which is
the subject matter of such licence and shall either return or destroy all copies of
such software and documentation, as directed by Fujitsu Services;
"FS Limitation One" means the rights granted under the licence in question may
be exercised solely for the purposes of receiving the Services;
"FS Limitation Two" means the right to use granted under the licence in
question may be exercised solely in connection with the Hardware of which the
software forms an integral part;
"FS Limitation Three" means the licence in question shall be granted or
procured by Fujitsu Services solely to the extent necessary for Post Office to
receive:
(a) the HNG-X Services over the HNG-X Service Infrastructure; or
(b) the benefit of its other rights under this Agreement;
"during the term" means the licence in question is granted during the term of
this Agreement only;
"Third Party Use" means:
(a) in the case of Internal Code, Fujitsu Services shall use all reasonable
endeavours to enable a third party engaged by Post Office to use, and
(b) in the case of Fujitsu Services Software, Post Office shall be entitled to
engage a third party to Use,
the software or documentation which is the subject of the licence, subject to
and in accordance with this Agreement on behalf of Post Office provided that
such third party shall have entered into an appropriate Agreed Form NDA;
"Archival Copies" means Post Office shall be entitled to copy the software
which is the subject of the licence in order to create as many archival or back-
up copies of the same as are necessary. When copying such software, Post
Office shall include the original machine readable copyright notice, and a label
affixed to the media identifying the software and stating: "This medium contains
an authorised copy of copyrighted software which is the property of [Fujitsu
Services] [the Third Party Software Owner]";
"Transferable" means the licence in question shall be fully transferable and fully
sub-licensable; and
“Any Purpose" means the licence in question is for any purpose whatsoever.
CLAUSES Version 13.0
32
POL00324964
POL00324964
CONFIDENTIAL
CLAUSES Version 13.0
33
POL00324964
POL00324964
CONFIDENTIAL
30.4 Table 1: Licences Granted by Fujitsu Services to Post Office
IPR, software or document Licence characteristics, rights and restrictions
category
¢ I 8
@
2 ole Elsie
5 2 $ S = e\3 = o
3 eo 2 S S 5 ei) 28
sizialgislé 3 ele I Se, o1e I 3
sI/2I2I2/38I £1 ¢14 22 I8 I 8152 81 &
ZI 0/8] 2/2/2138] 2] ol oI 2] 8) E1£/8/2) 8) 212
gis 2) 21S 2) 8] alas} 5 tia] assets I 2) &
Ble GPE SI S\ es fl 2 2S cre ie tee oI 82
Sia bi sisI 28181 2) siete si@ I ki elelel 2
Listed Documentation v viv v viv viv v
Fujitsu Services Software v v v v v v viv
Fujitsu Developed v v v v v
Documentation
Internal Code v viv v viv v viv
Licensed IPR v v viv v viv
Fujitsu Background IPR v v v v v v
CLAUSES Version 12.0 34
POL00324964
POL00324964
CONFIDENTIAL
30.4
30.5
30.6
If and to the extent that any Fujitsu Services Software, Listed Documentation or Fujitsu
Developed Documentation necessary for Post Office to receive the HNG-X Services
over the HNG-X Service Infrastructure is included in the licence granted to Post Office
pursuant to this Clause 30 of Fujitsu Background IPR, then no other licence under this
Clause 30 in respect of that Fujitsu Services Software, Listed Documentation or Fujitsu
Developed Documentation shall apply for Post Office to receive the HNG-X Services
over the HNG-X Service Infrastructure.
IPR owned by Third Parties
Post Office acknowledges and agrees that all Intellectual Property Rights in Horizon
Third Party Software and Third Party Items (excluding Intellectual Property Rights in
Third Party Items required to be assigned to Post Office pursuant to Clause 29) shall
remain vested in the relevant third party proprietor of those rights.
In consideration of the payment of the relevant Charges:
30.6.1 subject to Clauses 30.11 and 30.12, Fujitsu Services hereby grants or shall
grant, as the case may be, to Post Office a perpetual (subject to Clause 30.6.3),
royalty-free, irrevocable and non-exclusive sub-licence:
(a) to Use Horizon Third Party Software and HNG-X Third Party Software;
and
(b) to use Third Party Items (other than HNG-X Third Party Software);
in each case where Fujitsu Services has procured the rights to grant such sub-
licences; or
30.6.2 subject to Clause 30.11, if Fujitsu Services is unable to procure the right to
grant the sub-licence referred to in Clause 30.6.1, having used all reasonable
endeavours to procure such right, Fujitsu Services shall procure that the
relevant third party grants to Post Office a royalty-free and non-exclusive
licence:
(a) to Use Horizon Third Party Software and HNG-X Third Party Software;
and
(b) to use Third Party Items (other than HNG-X Third Party Software),
and shall use all reasonable endeavours to ensure that such licence is
perpetual (subject to Clause 30.6.3) and irrevocable.
30.6.3 Each of the sub-licences and/or licences granted or procured pursuant to this
Clause 30.6 in respect of Horizon Third Party Software shall terminate upon the
later of:
(a) the occurrence of Trigger Point T6 (Counter Application Rollout
Complete); and
CLAUSES Version 13.0 35
CONFIDENTIAL
30.7
30.8
30.9
30.10
(b) the date when the Horizon Third Party Software is no longer used in the
provision or receipt of the Existing Services in accordance with this
Agreement or, in the case only of “Windows NT Workstation” (identified
as Horizon Third Party Software in Schedule B4.1), the date when that
software is no longer used in the provision or receipt of the HNG-X
Services in accordance with this Agreement.
Each of Post Office's sub-licences and licences under Clauses 30.6.1 and 30.6.2
respectively shall be subject to any additional terms and conditions imposed by the
licensor, provided that any terms of any such sub-licence or licence shall not detract
from the rights granted to Post Office hereunder. Without prejudice to the generality of
the foregoing, Post Office accepts the licence terms relating to the Escher Upgrade
Software set out in Schedule B4.1 and that such terms satisfy the requirements of this
Clause 30.7,
Fujitsu Services shall use all reasonable endeavours to enable a third party engaged by
Post Office to use Horizon Third Party Software subject to and in accordance with this
Agreement on behalf of Post Office provided that such third party shall have entered
into an appropriate Agreed Form NDA.
Post Office shall be entitled to copy Horizon Third Party Software and HNG-X Third
Party Software in order to create as many archival or back-up copies of the same as
are necessary. When copying such software, Post Office shall include the original
machine readable copyright notice, and a label affixed to the media identifying the
software and stating: "This medium contains an authorised copy of copyrighted
software which is the property of [the Third Party Software Owner]."
In respect of any Non-standard Third Party Material to be (i) included in or used as part
of the HNG-X Service Infrastructure or the Business Capabilities and Support Facilities,
or (ii) used to provide or receive the HNG-X Services over the HNG-X Service
Infrastructure, Fujitsu Services shall procure such rights for Post Office to use those
materials as are set out in Clause 48.8, such rights only to be granted in accordance
with the provisions of Clause 48.8 (in each case as if references to Fujitsu Background
IPR were to the IPR in the Non-standard Third Party Material). Without prejudice to
Post Office's rights and remedies under this Agreement, in the event that Fujitsu
Services cannot procure such rights, it shall not procure the development or make use
of that Non-standard Third Party Material in connection with this Agreement without the
prior written consent of Post Office and shall, at Post Office's request and at no
additional charge to Post Office:
30.10.1 provide Post Office with such information as it may reasonably request in order
to understand and assess the reasons for, and the benefits of, the use of that
Non-standard Third Party Material (including, without limitation, identifying any
alternative software or materials which possess substantially equivalent
functionality, performance and interoperability to that of the Non-standard Third
Party Material and in relation to which the above rights can be obtained with
minimum additional costs or restrictions); and
CLAUSES Version 13.0 36
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
30.11
30.12
30.13
30.14
30.10.2 either jointly approach the third party supplier with Post Office or provide
reasonable assistance to Post Office in its negotiations with such third party, in
each case with a view to obtaining the above rights.
Post Office acknowledges and agrees that Fujitsu Services may be unable and, if so,
shall not be obliged to fulfil its obligations pursuant to Clauses 30.6.1, 30.6.2 or 30.17
(as the case may be) in respect of an item of Horizon Third Party Software or a Third
Party Item in the event that an act or omission of Post Office gives rise to a right for the
proprietor of the relevant item of Horizon Third Party Software or Third Party Item to:
30.11.1 terminate its licence to Fujitsu Services of the relevant item of Horizon Third
Party Software or Third Party Item;
30.11.2 terminate its licence to Post Office of the relevant Horizon Third Party Software
or Third Party Item; or
30.11.3 require Fujitsu Services to terminate its sub-licence to Post Office of the
relevant Horizon Third Party Software or Third Party Item.
In the event that Post Office is in breach of a sub-licence of an item of Horizon Third
Party Software or a Third Party Item granted pursuant to Clause 30.6.1 and Fujitsu
Services reasonably believes that Post Office's breach will result in the termination of
Fujitsu Services’ right to use such Third Party Item:
30.12.1 Fujitsu Services shall give Post Office notice in writing specifying the breach
and requiring Post Office to remedy that breach within 30 days of receipt of
such notice; and
30.12.2 if Post Office fails to remedy the breach within 30 days of receipt of such
notice, Fujitsu Services may by notice in writing terminate the relevant sub-
licence.
In the event that a sub-licence is terminated pursuant to Clauses 30.11 or 30.12.2,
Fujitsu Services shall not be liable for any failure or delay in providing any Service to
the extent that the failure or delay is caused by the cessation of Post Office’s right to
use the material or thing the subject of that sub-licence, provided that Fujitsu Services
has used its reasonable endeavours to continue providing the affected Service or
Services to the extent possible and to mitigate the impact of the failure or delay.
Fujitsu Services shall provide such assistance as Post Office may reasonably require in
order for Post Office to assess, and procure the necessary rights to use, suitable
replacement materials to those the subject of the terminated licence.
Subject to any necessary consents (which Fujitsu Services shall use all reasonable
endeavours to obtain) in relation to Horizon Third Party Software, HNG-X Third Party
Software or other materials or things in which the Intellectual Property Rights are
owned by a third party, any licence or sub-licence granted by Fujitsu Services to Post
Office hereunder:
30.14.1 shall be transferable in accordance with the provisions of Clause 58.3; and
CLAUSES Version 13.0 37
CONFIDENTIAL
30.14.2 is hereby granted to and are fully exercisable by members of the Royal Mail
Group, End Users and, in respect of HNG-X Third Party Software only,
individuals under contract to the Post Office fulfilling a role ordinarily performed
by employees of the Post Office.
30.15 Use of Internal Design Documentation and Specially Commissioned Design
Documentation
30.15.1 Subject to Clause 30.15.2, Post Office and a third party engaged by Post Office
including but not limited to any bona fide potential Next Suppliers (in particular during
any tender, due diligence or implementation process) where reasonably required (i) to
comply with the Public Contracts Regulations 2006 (in particular without limitation
Regulation 4(3)) and (ii) by Post Office for a Design Purpose, shall be entitled to have
access to and use Horizon Design Documentation.
30.15.2 Post Office agrees:
(a) that (irrespective of ownership of the Intellectual Property Rights in Developed
Documentation) it will not use or permit to be used any Horizon Design
Documentation for any purpose other than a Design Purpose;
(b) not to disclose Horizon Design Documentation to any third party save where
such disclosure is required for a Design Purpose and the third party to whom it
is disclosed has (1) entered into such confidentiality commitments as Fujitsu
Services may reasonably request (written confirmation of which shall be
provided by Post Office to Fujitsu Services prior to release of such
documentation), and (2) delivered a written undertaking to Fujitsu Services that
it will use such Horizon Design Documentation solely for the Design Purposes;
and
(c) access to and use of any Horizon Design Documentation in accordance with
this Clause 30.15.2 shall not serve to transfer any Intellectual Property Rights in
the documentation or information contained therein to the Post Office or any
third party.
30.15.3 For the purposes of determining ownership of, and any licences granted in respect of,
Intellectual Property Rights in any Specially Commissioned Design Documentation,
such documentation shall be deemed to fall within the definition of Developed
Documentation or Specially Written Documentation, whichever is applicable. Licences
granted by Fujitsu Services under Clause 30.1 in respect such Specially Commissioned
Design Documentation that is deemed to be Fujitsu Developed Documentation shall be
subject to the additional restrictions imposed by Clause 30.15.2.
Deposited Software
30.16 Fujitsu Services shall place the Source Code of the Deposited Software in escrow with
a reputable escrow company agreed upon by the Parties (if the Parties are unable to
agree then the escrow company shall be NCC), on the basis of the appropriate
standard agreement or on such other terms as Post Office, Fujitsu Services, the third
party licensor (if applicable) and the escrow company shall agree (each such
CLAUSES Version 13.0 38
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
30.17
30.18
agreement, a "Source Code Escrow Agreement") such terms, unless the parties agree
and record otherwise in their Source Code Escrow Agreement, to be consistent with
Post Office’s rights under Clauses 48.7 to 48.13.
Without prejudice to the generality of Clauses 48.7 to 48.13, Fujitsu Services hereby
grants to Post Office a perpetual, royalty-free and non-exclusive licence (which shall
(subject to Clause 30.11) be irrevocable) to Use, reproduce, modify, adapt and
enhance (and to authorise a third party to Use, reproduce, modify, adapt and enhance)
the Source Code version of the Deposited Software. However, the foregoing licence
shall only become effective if Post Office becomes entitled to obtain access to the
Source Code version of the Deposited Software pursuant to the Source Code Escrow
Agreement referred to in Clause 30.16 and the licence shall be subject to any
restrictions contained herein in respect of the object code version of the Deposited
Software.
Miscellaneous Licence Provisions
30.18.1.On the sale or transfer of an item of Hardware of which Internal Code is an integral
part, the licence to use such Internal Code in combination with the said item of
Hardware shall pass to the purchaser or other transferee of the said item of Hardware.
Post Office shall take all reasonable steps to ensure that the purchaser or transferee of
the said item of Hardware agrees to comply with the licence to use the Internal Code
that was previously enjoyed by Post Office.
30.18.2The licence to use Listed Documentation granted under this Clause 30 does not
authorise any use or disclosure of the Listed Documentation in question which would
constitute a breach of the obligations of confidentiality contained in Clause 61 or any
other obligations of confidentiality which have been accepted by Post Office.
30.18.3 Notwithstanding and without prejudice to 30.11 above and any other relevant provisions
30.19
of this Clause 30, in relation to the use of Third Party Items by Accenture as the Next
Supplier of the POLSAP Applications Support Services (which were terminated by
CCN1609d Post Office and Fujitsu Services hereby agree that in consideration of the
payments by Post Office outlined in CCN1609d Fujitsu Services shall enable Post
Office and Accenture as the Next Supplier to continue to be sub-licensed to use until
31% March 2017 the Third Party Item known as Data Archiving for SAP Solutions (as
listed in Schedule G Annex A) after the termination of the POLSAP Applications
Support Services on 4" October at 11.59 pm, as if Fujitsu Services were continuing to
supply those services. Further Post Office will in consideration of the continuity of such
usage rights procure that Accenture complies with the provisions of the Open Text
licence until 23:59 on 31% March 2017 when the Fujitsu Services /OpenText sub-
contract will terminate, unless otherwise agreed in writing between the Parties, and Post
Office acknowledges and accepts that Fujitsu Services will continue to benefit from
and/or enforce the waiver, rights and/or relief contained in Clauses 30.11, 30.12, and
30.13 as if Fujitsu Services were continuing to supply the POLSAP Applications
Support Services on and after the 5'" October 2016.
Licenses granted by Fujitsu Services
CLAUSES Version 13.0 39
POL00324964
POL00324964
CONFIDENTIAL
This Clause 30.19 has been agreed by both Parties on the basis that this Agreement
has been extended such that it expires on 31st March 2023. In the event that the term
of this Agreement is shortened following a declaration of ineffectiveness pursuant to
Regulation 98(2) of the Public Contracts Regulations 2015 SI 2015/102, then this
Clause 30.19 shall lapse and have no effect.
Upon expiry or termination of this Agreement for whatever reason (including but not
limited to Post Office terminating this Agreement for cause under Clause 47.1) the
following provisions shall apply:
30.19.1 Subject to Clause 30.19.4, upon expiry of this Agreement (on 31st March 2023) Post
Office shall pay to Fujitsu £10,000,000 in accordance with Clause 30.19.5. Both
Parties agree that if this Agreement is extended beyond 31st March 2023 that the fee
payable on expiry of this Agreement shall be reduced based on the length of the
extended term by reference to the equivalent time to value calculations used to
calculate the Termination Licence Fee (in Clause 30.19.3) below.
30.19.2 In the event that either Party terminates this Agreement, then Post Office shall pay to
Fujitsu Services the sum calculated in accordance with Clause 30.19.3 (the
“Termination Licence Fee") in accordance with Clause 30.19.5. For the avoidance of
doubt, where Post Office terminates the Agreement and pays to Fujitsu Services the
fee pursuant to this Clause 30.19.2, it shall not be required to make any further
payment referred to in Clause 30.19 .1 or 30.19.4.
30.19.3 Where Post Office terminates this Agreement, the obligation to pay the Termination
Licence Fee will not arise until after the actual termination of this Agreement (the
“Agreement Termination Date”), unless Post Office at any time after serving notice to
terminate this Agreement gives notice to Fujitsu Services requiring Fujitsu Services to
provide earlier access to the Horizon Software IPR and Horizon IPR Materials (i.e. prior
to the termination date of this Agreement). Where Post Office gives notice requiring
such earlier access, Fujitsu Services shall provide such access in accordance with the
provisions of this Agreement, provided that:
(a) Fujitsu Services shall not be obliged to provide such access earlier than a date
that is 12 months prior the date of termination of this Agreement; and
(b) the fee that would otherwise be payable by Post Office on termination of this
Agreement will be modified in these circumstances to reflect the date when
Post Office requires access to the Horizon IPR Materials (the “Termination
Early Release Date”).
The Termination Licence Fee payable pursuant to Clause 30.19.2 is calculated using
the table below:
Agreement Termination Date or (where I Termination Licence Fee
applicable) Termination Early Release Date
CLAUSES Version 13.0 40
CONFIDENTIAL
POL00324964
POL00324964
(whichever is the earlier)
Up to and including 31% March 2018 £25,000,000
From 1* April 2018 to 31% March 2019 £22,500,000
From 1* April 2019 to 31% March 2020 £20,000,000
From 1 April 2020 to 318 March 2021 £17,500,000
From 1* April 2021 to 31% March 2022 £15,000,000
From 1% April 2022 to 30" March 2023 £12,500,000
30.19.4 Without prejudice to Clause 30.19.2, in the event that Post Office requires earlier
access to the Horizon Software IPR and Horizon IPR Materials (i.e. prior to expiry of
this Agreement) as part of the re-procurement of the Services similar to the services
provided under this Agreement, Post Office may give notice to Fujitsu Services
requiring access up to one year prior to the expiry date of this Agreement provided that:
(a) Post Office shall only require such access to the Horizon Software IPR and
Horizon IPR Materials after down selection of the replacement contract to the
Next Supplier;
(b) the fee that would otherwise be payable by Post Office under Clause 30.19.1 to
Fujitsu Services shall in these circumstances be increased to £12,500,000 to
reflect the early access; and
(c) Post Office pays Fujitsu Services the amount payable under Clause 30.19.4.(b)
in accordance with Clause 30.19.5.
Where the conditions described above in this Clause 30.19.4 are met, Fujitsu Services
shall provide such access in accordance with the provisions of this Agreement.
For the avoidance of doubt, where Post Office pays to Fujitsu Services the fee
pursuant to this Clause 30.19.4, it shall not be required to make any additional payment
referred to in Clause 30.19.1 or 30.19.2.
30.19.5 Post Office shall pay the sum due to Fujitsu Services pursuant to Clause 30.19.1,
30.19.2 or 30.19.4 (as applicable) within 30 days following receipt by Post Office of an
invoice that shall be issued by Fujitsu Services no later than 10 working days following
receipt of a valid purchase order by Fujitsu Services and subject to paragraph 10 of
Schedule D2. All sums referred to above are exclusive of any applicable VAT, which
where applicable shall be payable by Post Office in addition to any sum in respect of
which it is calculated.
CLAUSES Version 13.0 41
POL00324964
POL00324964
CONFIDENTIAL
30.19.5.1 In consideration of the payment by Post Office of the Expiry Licence Fee or
Termination Licence Fee (as applicable), Fujitsu Services hereby grants to
Post Office (such licence being effective from and including the Licence Date)
a non-exclusive, perpetual, irrevocable, fully paid-up, worldwide licence under
the Horizon Software IPR, for the purpose of using, copying, modifying,
adapting, advancing and developing the Horizon Software, in both object
code and source code formats (and doing all other acts that would otherwise
amount to an infringement of the Horizon Software IPR). Post Office shall be
entitled to use, support, maintain, enhance, modify and develop the Horizon
Software for Post Office’s and Post Office’s Affiliates’ business purposes only
(which shall include, for the avoidance of doubt but without limitation, the use
of the Horizon Software by or on behalf of British Forces Post Office and use
of the Horizon Software by or behalf of Post Office's franchisees and agents)
(the “Specified Purpose”), provided always that, for the avoidance of doubt,
Post Office and the Post Office Affiliates shall not otherwise under any
circumstances sell or transfer the Horizon Software to third parties (other than
to Post Office Affiliates) or otherwise market or commercially exploit the
Horizon Software by permitting third parties (other than to Post Office
Affiliates) to use the Horizon Software for their own business purposes.
30.19.5.2 Post Office shall be entitled to sub-license its rights in and to the Horizon
Software through multiple tiers of sub-licensee without the prior written
consent of Fujitsu Services, provided that:
(a) the sub-licensees shall only be entitled to use the Horizon Software for
the Specified Purpose (including the provision of services to Post
Office and Post Office's Affiliates);
(b) the provisions of the agreement under which Post Office sub-licenses
its rights:
i. are consistent with the provisions of this Clause 30.19;
ii. contain restrictions equivalent to those set out in this Clause
30.19 in relation to the use of the Horizon Software;
iii. without prejudice to any liability Fujitsu Services may have to
Post Office pursuant to this Clause 30.19 or as otherwise under
this Agreement or at law, ensure that Fujitsu Services shall
have no liability whatsoever to any sub-licensee save for that
which cannot be excluded by law; and
iv. contain termination provisions allowing Post Office to terminate
such agreement in the event the sub-licensee commits a
material breach of the agreement by allowing any third party
(other than Post Office or its Affiliates) to use the Horizon
Software other than for the Specified Purpose, and fails to
remedy such breach within a period of 30 days after being
notified in writing to do so by Post Office.
CLAUSES Version 13.0 42
POL00324964
POL00324964
CONFIDENTIAL
(c) Save as provided in Clause 30.19.5.2. Post Office shall not sub-license
its rights under this Agreement without the prior written consent of
Fujitsu Services.
(d) Except as expressly set out in this Clause 30.19.5.2, and without
prejudice to its right to sub-license, Post Office shall remain responsible
for all acts and omissions of all sub-licensees in relation to their use of
the Horizon Software as if such acts and/or omissions were Post
Office’s own.
(e) Post Office shall notify Fujitsu Services annually of the execution of
any such agreements under which Post Office sub-licences its rights
under the Horizon Software IPR, or otherwise on the request of Fujitsu
Services (acting reasonably).
30.19.6 Upon thirty (30) days' prior written notice from Fujitsu Services, Post Office shall permit
an independent certified or chartered public accounting firm (“Accounting Firm’) of
nationally recognised standing selected by Fujitsu Services and acceptable to Post
Office (acting reasonably), to examine, at Fujitsu Services’ expense, the relevant books
and records of Post Office as may be reasonably necessary to audit Post Office’s use
of the Horizon Software to ensure it is being used only for the Specified Purpose. An
examination by Fujitsu Services under this Clause shall occur not more than once in
any calendar year (except where Fujitsu Services has reasonable grounds to suspect
that Post Office is not complying with the provisions of this Agreement of which
grounds it provides evidence to Post Office's satisfaction (acting reasonably), in which
case it may carry out an audit at any time) and shall be limited to the pertinent books
and records for calendar years ending not more than thirty-six (36) months before the
date of the request. The Accounting Firm shall be provided access to such books and
records at such facility(ies) where such books and records are normally kept and such
examination shall be conducted during normal business hours for such facility(ies).
The Accounting Firm may be required to sign a standard non-disclosure agreement
before providing the Accounting Firm access to such facilities or records. Upon
completion of the audit, the Accounting Firm shall provide both Fujitsu Services and
Post Office with a written report disclosing whether Post Office’s use of the Horizon
Software is only for the Specified Purpose, and, in each case, the specific details
concerning any discrepancies. No other information shall be provided to Fujitsu
Services.
30.19.7 Fujitsu Services shall deliver to Post Office, on a date or dates agreed between the
Parties, but in any event (unless agreed otherwise by Post Office) within 30 Working
Days following receipt of payment of the Expiry Licence Fee or Termination Licence
Fee (as applicable) an electronic copy of:
(a) the Horizon Software in use in the delivery of services to Post Office pursuant
to this Agreement (in object and source code formats);
(b) all legacy versions of the Horizon Software (in object and source code formats),
to the extent such versions are in the possession or control of Fujitsu Services
CLAUSES Version 13.0 43
POL00324964
POL00324964
CONFIDENTIAL
or its Affiliates (Post Office acknowledges that such legacy versions may not
have been maintained by Fujitsu Services); and
(c) any documents or other materials relating to the Horizon Software, which are
necessary to enable Post Office to use (and make such other use as is
permitted under this Agreement of) the Horizon Software and which are in
existence at the date of the expiry or termination of this Agreement,
(together, the “Horizon IPR Materials’).
30.19.8 Fujitsu Services represents and warrants on a continuing basis throughout the term of
this Agreement that:
30.19.8.1 the Horizon Software, taken together with the Fujitsu Support Applications,
the Specified Third Party Software and the software and databases the
Intellectual Property Rights in which are licensed by Post Office to Fujitsu
Services pursuant to this Agreement, comprises all the software and databases
used by Fujitsu Services to provide the HNG-X Applications and to perform the
associated Services in accordance with the terms of this Agreement; and
30.19.8.2 the use by Post Office of the Horizon Software as authorised under this
Agreement, the doing of any other act licensed under this Clause 30.19 and
the granting of any sub-licence of the Horizon Software IPR in accordance
with the terms of this Agreement does not and shall not infringe or otherwise
misappropriate the Intellectual Property Rights or database rights of any third
party.
For the avoidance of doubt all other representations and warranties (other than as set
out in Clause 27.6.1), including as to fitness for purpose and any indication that the
Intellectual Property Rights and/or Horizon Software licensed under this Clause 30.19
will be sufficient to enable a third party to support the HNG-X Applications and/or to
provide services equivalent to the Services (as such terms are defined in the
Agreement), are expressly excluded by Fujitsu Services.
30.19.9 Fujitsu Services shall indemnify on demand, and keep indemnified, Post Office, its
Affiliates and any sub-licensees from and against all damages, claims, losses,
liabilities, costs and/or expenses (including, without limitation, properly incurred legal
expenses and other advisers’ fees) incurred by Post Office, its Affiliates or any sub-
licensees arising out of and/or in connection with a claim made by a third party alleging
that the use of the Horizon Software, and/or the documents or materials in which the
Horizon Software IPR subsists as provided by Fujitsu Services under this Agreement,
or the doing of any other act licensed under this Clause 30.19 in accordance with this
Agreement, infringes or otherwise misappropriates the Intellectual Property Rights or
database rights of a third party provided that Post Office promptly upon becoming
aware of a claim which might give rise to any liability on Fujitsu Services to indemnify
Post Office under this Clause 30.19.9 Post Office will:
30.19.9.1 give written notice of the claim to Fujitsu Services;
CLAUSES Version 13.0 44
CONFIDENTIAL
30.19.9.2 allow Fujitsu Services to assume the control and conduct of the defence and
settlement of the claim;
30.19.9.3 at the expense of Fujitsu Services, give such reasonable assistance as may
reasonably be required by Fujitsu Services in the defence, settlement or
compromise of the claim; and
30.19.9.4 have the right to participate in (but not control) the defence of a claim and to
retain its own counsel in connection with such claim at Post Office’s own
expense.
30.19.10 Fujitsu Services shall update Annex 1 of Schedule G and Annex 2 of Schedule G,
detailing the Fujitsu Support Applications and Specified Third Party Software
respectively, upon each major release of the Software.
30.19.11 Notwithstanding any other provision of this Agreement no confidentiality obligation
shall restrict Post Office's ability to disclose confidential information to the extent
necessary or useful for it to exercise its rights under this this Clause 30.19.
30.19.12 Fujitsu Services shall at the request of Post Office do or procure the doing of all such
further acts and execute or procure the execution (as a deed or otherwise) of all such
documents as may from time to time be necessary in Post Office’s opinion (acting
reasonably) to give full effect to this Clause 30.19 and to vest in Post Office the full
benefit of the rights and benefits to be provided to Post Office under this Clause
30.19.
30.19.13 Fujitsu Services shall, within twelve months following execution of CCN 1600 work
with Post Office to provide reasonable written descriptions of the Fujitsu Support
Applications and the Specified Third Party Software, including by reference to the
specific elements of the Services that they relate to and in such detail to enable Post
Office to understand the purpose of each of the elements of Fujitsu Support
Applications and the Specified Third Party Software it being anticipated by both
Parties that this shall comprise not more than a couple of sentences about each item
which defines the spirit of its purpose (the “Understanding Exercise”). Where
requested by Post Office, Fujitsu Services shall:
30.19.13.1 meet with a reasonably competent IT professional(s) of Post Office and
discuss and document the descriptions of the Fujitsu Support Applications
and the Specified Third Party Software;
30.19.13.2 answer any questions asked by a reasonably competent IT professional(s)
of Post Office (acting reasonably) in relation to the Understanding Exercise
and the outcomes thereof; and
30.19.13.3 make such amendments to the descriptions as reasonably requested by the
reasonably competent IT professional(s) of Post Office, whether following
discussions, answers to questions or otherwise.
Fujitsu Services shall every twelve months provide updated written descriptions that
reflect any updates or changes to the Fujitsu Support Applications and the Specified
CLAUSES Version 13.0 45
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
31.
31.4
Third Party Software (including additions thereto) since the last descriptions were
provided to Post Office and, where requested by Post Office, the process in Clauses
30.19.13.1 to 30.19.13.3 (inclusive) shall be repeated in relation to such updates or
changes. Each Party shall bear its own costs in relation to its obligations under this
Clause 30.19.13.
30.19.14 The terms of Schedule H shall apply as set out therein. Notwithstanding
Clause 67.5, In the event of any conflict or inconsistency between the terms
of the Clauses (including this Clause 30) and Schedule H, the provisions of
Schedule H shall take precedence to the extent of such conflict or
inconsistency.
Licences granted by Post Office or a third party to Fujitsu Services
Post Office hereby grants to Fujitsu Services or shall procure that Fujitsu Services is
granted in respect of each category of IPR, documentation and software listed in Table
2 in Clause 31.3 a licence which has the characteristics, affords the rights and is
subject to the restrictions designated in Table 2 with ticks in respect of that category.
For the purposes of Table 2:
31.5.1 "during the term" means the licence in question is granted only during the term
of this Agreement and for the purposes of the provision of the Transfer
Services beyond such term;
31.5.2 "merge", in the case of software, means the right to merge with other computer
programs and, in the case of documents means the right to merge with other
documents;
31.5.3 "PO Limitation One" means the rights granted under the licence in question
may be exercised solely for the purposes of providing the Services and/or HNG-
X Development and/or Associated Change Development;
31.5.4 “Other Purposes” means the rights granted under the licence in question may
be exercised for purposes other than those set out in PO Limitation One,
subject to obtaining the prior written consent of Post Office, such consent not to
be unreasonably withheld or delayed;
31.5.5 "Sub-licensable" means the rights granted under the licence in question include
a right to grant sub-licences to sub-contractors of a member of the Fujitsu
Services Group subject to the relevant member of Fujitsu Services Group
imposing obligations of confidentiality on those sub-contractors similar to those
set out in Clause 61. Where the sub-licence only permits use by the sub-
contractor in question for the purpose of providing, or in connection with the
provision of, the Services and/or HNG-X Development and/or Associated
Change Development, no prior consent of Post Office to the sub-licence shall
be required. In any other case the prior written consent of Post Office, such
consent not to be unreasonably withheld or delayed, shall be required;
CLAUSES Version 13.0 46
POL00324964
POL00324964
CONFIDENTIAL
31.5.6 "Extends to FSG" means the licence in question is for each member of the
Fujitsu Services Group; and
31.5.7 "Copy/Incorporate" means Fujitsu Services shall be entitled to copy all material
which is the subject of the licence provided any Post Office copyright markings
and security markings are preserved and adhered to and, subject to
Clause 56.4, Fujitsu Services shall be entitled to incorporate parts of such
material into a document subject to the source of the material being
acknowledged in the receiving document.
CLAUSES Version 13.0 47
CONFIDENTIAL
31.6
Table 2: Licences granted by Post Office or third party to Fujitsu Services
IPR, software or document
category
Licence characteristics, rights and restrictions
perpetual
during the term
irrevocable
royalty free
exclusive
non-exclusive
to use
to operate
to merge
to copy
to modify
Copy/incorporate
Other Purposes
Specially Written Software
<
<
<
NS
Specially Written
Documentation
\ IS I Po Limitation One
‘SI S I Sub-licensable
S/S
<]s
S/S
aN
<
<
SI S I Extends to FSG
SIN
Post Office Developed
Documentation
Post Office Foreground IPR
Post Office Background
Materials (other than the
software referred to in
paragraph 1.2 of Schedule
B4.1 and/or paragraph 1.2 of
Schedule C3 and/or the Third
Party Data referred to in the
tables in paragraph 1.3 of
Schedule B4.1 and/or
paragraph 1.3 of Schedule C3)
CLAUSES Version 12.0
48
POL00324964
POL00324964
CONFIDENTIAL
31.7
31.10
32.
32.4
Upon the cessation of Fujitsu Services' need to use Post Office Foreground IPR or Post
Office Background Material for the purposes of providing the Services (which, in the
case of the Transfer Services, may be after termination or expiry of this Agreement),
Fujitsu Services shall either return or destroy all copies of such material as directed by
Post Office.
Post Office hereby grants to Fujitsu Services a non-exclusive sub-licence or right, as
specified in the tables in paragraph 1.2 of Schedule B4.1 and/or paragraph 1.2 of
Schedule C3, to use the software listed in those tables for the term of this Agreement
solely for the purposes of performing the Services, HNG-X Development, Associated
Change Development, operating the Infrastructure, running the Horizon Applications
and/or providing the Business Capabilities and Support Facilities. Such sub-licence or
right shall in respect of each item of software (other than in respect of the term of such
sub-licence or right which shall be for the term of the Agreement unless agreed
otherwise by the Parties in writing):
31.8.1 be on the terms;
31.8.2 subject to the restrictions; and
31.8.3 include any additional rights (for example, to operate, copy, modify, or merge
the software with other software),
that are specified or referred to in the tables in paragraph 1.2 of Schedule B4.1 and/or
paragraph 1.2 of Schedule C3 as being applicable to that software. References in this
Clause 31.5 to the term of this Agreement shall, in the case of licences granted under
this Clause for the purposes of performing the Transfer Services, include any period
after termination or expiry of this Agreement during which the Transfer Services are
provided.
Post Office hereby grants Fujitsu Services the rights, in respect of the Third Party Data,
specified or referred to in the tables in paragraph 1.3 of Schedule B4.1 and/or
paragraph 1.3 of Schedule C3, subject to the restrictions specified or referred to in that
table.
Post Office shall, on the written request of Fujitsu Services and subject to the Parties
agreeing fair commercial terms (any licence fee being by way of rebate or otherwise),
grant Fujitsu Services a non-exclusive licence to use and modify the documents,
software, materials, items or other things whatsoever in which the Post Office
Foreground IPRs subsist for purposes other than performing the Services, HNG-X
Development and Associated Change Development.
Riposte 32 and WebRiposte Software
Fujitsu Services has deposited a copy of the source code of the Riposte 32 and
WebRiposte Software at Fujitsu Services’ offices in Bracknell and shall retain such
source code at those offices for so long as the Riposte 32 and WebRiposte Software
are used by Fujitsu Services in the performance of the HNG-X Services.
CLAUSES Version 13.0 49
POL00324964
POL00324964
CONFIDENTIAL
32.5
32.6
33.
33.4
Fujitsu Services has provided to Post Office certificates signed by Fujitsu Services’
Managing Director confirming that the source code of the Riposte 32 and WebRiposte
Software has been deposited at Fujitsu Services' offices in Bracknell as required by
Clause 32.1, and has provided to Post Office a copy of the relevant contractual
documentation confirming Fujitsu Services' right of access to such source code and
confirming that Fujitsu Services has all other rights to such source code necessary for
the performance of its obligations under this Agreement.
Post Office agrees that upon the Riposte 32 and WebRiposte Software becoming
Deposited Software and the relevant source code being deposited with a reputable
escrow company agreed upon by the Parties in accordance with Clause 30.16, Fujitsu
Services shall no longer be obliged to retain a copy of the source code at its offices in
Bracknell and Fujitsu Services and each officer of Fujitsu Services shall be released
from any liability arising from the certificates referred to in Clause 32.2.
Data
Post Office Data
33.4.1 Fujitsu Services shall not delete or remove any copyright notices contained
within or relating to the Post Office Data.
33.4.2 Fujitsu Services shall preserve the integrity of the Post Office Data once Fujitsu
Services has received such Post Office Data, shall prevent any corruption or
loss of such Post Office Data and shall comply with the validation procedures
set out in the applicable CCDs (relating to the Horizon Applications or the
Business Capabilities and Support Facilities) referred to in Schedules B4.2 or
B3.2 (as the case may be) as such procedures may be updated and amended
from time to time (save that where any Post Office Data received by Fujitsu
Services is stored, transmitted or otherwise processed as part of the
Superstock Solution, Fujitsu Services’ applicable obligation in respect of that
data shall be to use all reasonable endeavours to preserve the integrity and
prevent loss or corruption of the data and, for the avoidance of doubt, none of
the validation procedures set out in the CCDs (relating to the Horizon
Applications or the Business Capabilities and Support Facilities) referred to in
Schedules B4.2 or B3.2 (as the case may be) shall apply to the Superstock
Solution). Fujitsu Services shall not be liable for any loss or corruption of Post
Office Data nor for any failure to perform the Services if it can prove that such
loss or corruption or failure to perform the Services was caused by Post Office
Data which was lost or corrupted before Fujitsu Services received it, and
Fujitsu Services has complied with the validation rules in relation to such Post
Office Data.
33.4.3. In the event that the Post Office Data is altered, corrupted or lost in the course
of performing the Services (in breach of Fujitsu Services’ obligations under
Clause 33.1.2) Post Office shall have the option, in addition to any other
remedies that may be available to it either under this Agreement or otherwise,
to elect either of the following remedies:
CLAUSES Version 13.0 50
POL00324964
POL00324964
CONFIDENTIAL
33.5
33.6
34.
34.4
(a) Post Office may require Fujitsu Services at its own expense to restore or
procure the restoration of the Post Office Data; or
(b) Post Office may itself restore or procure restoration of the Post Office
Data, and shall be repaid by Fujitsu Services any reasonable expenses
so incurred.
33.4.4 For the purposes of Clauses 33.1.2 and 33.1.3, the term "Post Office Data"
shall include the data of Post Office's clients.
33.4.5 Post Office Data constitutes Confidential Information, and may not be
reproduced without the prior written consent of Post Office except as necessary
to perform the Services, HNG-X Development or Associated Change
Development.
33.4.6 Not Used.
33.4.7 Notwithstanding any other provision in this Agreement to the contrary, Fujitsu
Services shall not be responsible for the accuracy, completeness, validity or
integrity of any data (including, without limitation, any Personal Data) provided
by or on behalf of Post Office for use in the performance and/or operation of
the Superstock Solution or any resulting data inaccuracy, incompleteness,
invalidity or integrity problems.
Personal Data
Both Parties warrant that if and to the extent they have obligations under the Data
Protection Act 1998 which arise in connection with any personal data (as referred to in
that Act) processed under this Agreement, they will duly observe all such obligations.
Databases
For the avoidance of doubt, Post Office shall have the right to use the Services, the
Infrastructure to capture, develop and use databases containing information in relation
to its customers. Any assistance provided by Fujitsu Services pursuant to this Clause
over and above the performance of its other obligations hereunder shall be treated as
Development Services and shall be subject to agreement of a Work Order under
Schedules D2 and B1.1.
Intellectual Property Rights Indemnities
Fujitsu Services Indemnity
Subject always to (i) Post Office's proper observance of its obligations as an
Indemnified Party under this Clause 34 and (ii) Clauses 34.14 to 34.17 (inclusive)
Fujitsu Services shall indemnify Post Office against all claims, demands or actions by a
third party (other than any member of the Royal Mail Group) and all costs, expenses
(including but not limited to legal costs and disbursements reasonably incurred on a
solicitor and client basis), losses and damages arising from or incurred by reason of
any infringement or alleged infringement (including but not limited to the defence of
CLAUSES Version 13.0 51
POL00324964
POL00324964
CONFIDENTIAL
34.1A
34.5
such alleged infringement) in the United Kingdom of any Intellectual Property Right by
the proper use or possession in accordance with this Agreement (i) by or on behalf of
Post Office or a member of the Royal Mail Group, or (ii) in connection with the
Services, of:
For the avoidance of doubt, Clause 34.1 shall not apply to the Microsoft Azure Services
to the extent such services are provided by Microsoft to Post Office under the
Customer Agreement.
34.4.1 the Infrastructure, the Horizon Applications, and the Business Capabilities and
Support Facilities;
34.4.2 the documents, software, materials, items or other things whatsoever in which
Post Office Foreground IPRs or Licensed IPRs subsist;
34.4.3. the Listed Documentation and Horizon Design Documentation; and
34.4.4 the documents, software, materials, items or other things whatsoever supplied
by or on behalf of Fujitsu Services for use by Post Office in receiving the
Services,
provided that Fujitsu Services shall not be obliged to indemnify Post Office against any
claim, demand, action, cost, expense, loss or damage to the extent that the indemnity
in Clause 34.3 applies to that claim, demand, action, cost, expense, loss or damage.
Indemnities relating to confidential information
The indemnities set out at Clauses 34.1, 34.3.1 and 34.3.2 shall, subject to all
limitations and conditions set out therein, extend to any unauthorised use of the
confidential information of a third party (other than confidential information of any
member of either the Royal Mail Group or the Fujitsu Services Group and excluding
any Confidential Information of either Party) ("Third Party Confidential Information")
and:
34.2.1 references in Clauses 34.1, 34.3.2 and 34.9 to 34.15 (inclusive) to
“infringement” and “Intellectual Property Rights” shall be read as if they were
references to “unauthorised use” and “Third Party Confidential Information”
respectively; and
34.2.2 references in Clause 34.3.1 to “infringement” and "copyright, moral rights,
database rights, design rights or trade marks" shall be read as if they were
references to “unauthorised use” and “Third Party Confidential Information”
respectively,
such indemnities to apply only to the extent that the unauthorised use of the Third Party
Confidential Information occurred after the Project HNG-X Commencement Date.
CLAUSES Version 13.0 52
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
Post Office Indemnity
34.6 Subject always to (i) Fujitsu Services’ proper observance of its obligations as an
Indemnified Party under this Clause 34 and (ii) Clauses 34.14 to 34.17 (inclusive) and
without prejudice to any indemnities given by Post Office in favour of Fujitsu Services
as set out in any CCD (but provided that to the extent that Fujitsu Services is entitled to
bring a claim under any such indemnity, Fujitsu Services shall not be entitled to bring a
claim under this Clause 34.3 in respect of the same event), Post Office shall indemnify
Fujitsu Services against all claims, demands or actions by a third party (other than any
member of the Fujitsu Services Group) and all costs, expenses (including but not
limited to legal costs and disbursements reasonably incurred on a solicitor and client
basis), losses and damages arising from or incurred by reason of:
34.6.1 any infringement or alleged infringement (including but not limited to the
defence of such alleged infringement) in the United Kingdom of copyright,
moral rights, database rights, design rights or trade marks resulting from:
(a) _ the use or possession in accordance with this Agreement by or on behalf
of Fujitsu Services or a member of the Fujitsu Services Group of a HNG-
X Requirement for the HNG-X User Interface or Postal Services
Business Capability specified by Post Office as part of the Requirements
Baseline (as this may be amended from time to time in accordance with
the provisions of Schedule B6.1) (together, "Ul Development
Requirements"); or
(b) the development by or on behalf of Fujitsu Services, or the possession or
use by or on behalf of Fujitsu Services, in each case in accordance with
this Agreement, of the HNG-X User Interface or Postal Services
Business Capability, but only to the extent that the infringement or
alleged infringement relates to a part of the HNG-X User Interface or
Postal Services Business Capability that could not reasonably have been
developed in accordance with the Ul Development Requirements without
giving rise to that infringement or alleged infringement; or
34.6.2 any infringement or alleged infringement (including but not limited to the
defence of such alleged infringement) in the United Kingdom of any Intellectual
Property Right resulting from the use or possession in accordance with this
Agreement by or on behalf of Fujitsu Services or a member of the Fujitsu
Services Group of:
(a) Post Office Developed Documentation (but only to the extent that the
infringement is due to the material referred to in the second limb of the
definition of that term);
(b) any documents, software, materials or items that Post Office has
procured or licensed from third parties which the Parties have agreed in
writing will be supplied by or on behalf of Post Office to Fujitsu Services
for the purpose of providing the Services, HNG-X Development and/or
Associated Change Development (including, without limitation, use as
part of the HNG-X User Interface or Postal Services Business Capability)
CLAUSES Version 13.0 53
CONFIDENTIAL
34.7
34.8
34.6.3
or any other more limited purpose agreed in writing by the Parties
provided that (a) such use or possession by Fujitsu Services is for the
purpose of providing the Services, HNG-X Development and/or
Associated Change Development (or such other more limited purpose as
may be agreed in writing by the Parties); and (b) the Post Office's only
liability under this Clause 34.3.2(b) shall be to pass on to Fujitsu
Services the benefit of any indemnity (the terms of which Post Office
shall, unless unable to do so due to obligations of confidentiality owed to
the relevant third party owner or licensor, notify to Fujitsu Services upon
Fujitsu Services’ request) in respect of the infringement or alleged
infringement it receives from the relevant third party owner or licensor;
and
(c) to the extent that Post Office has not procured or licensed it or them from
any third parties, any software and related documentation, graphic
designs, trade marks or Reference Data (and such other individual
material as the Parties may agree in writing should be covered by this
indemnity) supplied by or on behalf of the Post Office to Fujitsu Services
for the purpose of providing the Services, HNG-X Development and/or
Associated Change Development (including, without limitation, use as
part of the HNG-X User Interface or Postal Services Business Capability)
or any other more limited purpose agreed in writing by the Parties
provided that such use or possession by Fujitsu Services is for the
purpose of providing the Services, HNG-X Development and/or
Associated Change Development (or such other more limited purpose
as may be agreed in writing by the Parties),
excluding in each case the UI Development Requirements; or
any infringement or alleged infringement (including but not limited to the
defence of such alleged infringement) in the United Kingdom of any Intellectual
Property Rights resulting from the development by or on behalf of Fujitsu
Services, or the possession or use by or on behalf of Fujitsu Services, in each
case in accordance with this Agreement, of the HNG-X Service Infrastructure or
the Business Capabilities and Support Facilities, but only to the extent that the
infringement or alleged infringement results from any instruction given by Post
Office to Fujitsu Services in accordance with the provisions of Clause 34.5.2
(b)(a) and Fujitsu Services had first notified Post Office of the risk of that
infringement in accordance with the provisions of Clause 34.5.
Fujitsu Services shall use its reasonable endeavours to, and observe good industry
practice in its efforts (including its monitoring and searching practices) to, be aware of
any third party Intellectual Property Rights covering the areas of technology and
business methods and processes to be developed by or on behalf of Fujitsu Services
as part of the HNG-X Infrastructure and the Business Capabilities and Support Facilities
(including, without limitation, the HNG-X User Interface or Postal Services Business
Capability).
Without prejudice to Fujitsu Services' right to an indemnity under Clause 34.3.1 and/or
34.3.2,
in the event that Fujitsu Services considers, at any time prior to Trigger Point
CLAUSES Version 13.0 54
POL00324964
POL00324964
CONFIDENTIAL
T5 (Data Centre ready for HNG-X) (or within 30 days of the start of HNG-X Project
Workstream X4 (HNG-X Application Roll Out) for any HNG-X Requirement provided to
Fujitsu Services after Trigger Point T5 (Data Centre ready for HNG-X)), that a HNG-X
Requirement that forms part of (or is intended to form part of) the Requirements
Baseline (a “Queried Requirement”) would, if implemented, result in a reasonable risk
of infringement or alleged infringement of Intellectual Property Rights owned by a third
party, then:
34.8.1
34.8.2
34.8.3
34.8.4
34.8.5
it shall promptly on discovery notify Post Office in writing of its concern, such
notice to be accompanied by:
(a) a proposal for an alternative requirement that, if implemented, would
fulfil the relevant Development Obligation; and
(b) such relevant materials and information that it is reasonable for Fujitsu
Services to provide in order for Post Office to understand and assess
such risk and the alternative requirement proposed by Fujitsu Services
under paragraph 34.5.1(a);
within 14 days of its receipt of such notice (or such other time as the Parties
may agree), Post Office shall respond in writing to Fujitsu Services stating
whether or not it:
(a) agrees with Fujitsu Services’ concerns; and/or
(b) either (a) instructs Fujitsu Services to continue with the development
cycle in respect of that Queried Requirement in any event, in which case
Post Office shall indemnify Fujitsu Services under Clause 34.3.3, or (b)
instructs Fujitsu Services to implement the alternative requirement
proposed under Clause 34.5.1(a) in which case such alternative
requirement shall form part of the Requirements Baseline;
in the event that Post Office instructs Fujitsu Services to implement the
alternative requirement in accordance with Clause 34.5.2(b)(b), Fujitsu
Services shall not be able to invoke the process set out in this Clause 34.5 in
respect of that alternative requirement at any time after Post Office so instructs
Fujitsu Services;
at all times during the process set out in this Clause 34.5, Fujitsu Services shall
provide Post Office with such assistance as Post Office may reasonably require
in order to understand and assess the risk notified to it and the alternative
requirement proposed by Fujitsu Services, provided that the Parties hereby
acknowledge that each Party shall be responsible for forming its own
assessment of such risk and alternative requirement;
either Party may request, at any time prior to an instruction being given under
Clause 34.5.2(b), that the Parties meet to discuss a risk notified, or an
alternative requirement proposed, to Post Office by Fujitsu Services in
accordance with this Clause and to agree in good faith a course of action which
is mutually beneficial to the Parties. If the Parties are unable to agree on the
CLAUSES Version 13.0 55
POL00324964
POL00324964
CONFIDENTIAL
34.9
34.10
relevant risk and either Post Office does not give Fujitsu Services an instruction
under Clause 34.5.2(b) and/or the Parties are unable to agree the suitability of
the alternative requirement proposed, then the matter shall be escalated in
accordance with the DRP set out in Annex 2 of Schedule A2 (Governance), up
to and including the stage set out at paragraph 3 of such Annex (Executive
Review), provided that references in that Annex to “five Working Days” shall be
read as “two Working Days” for the purposes of this Clause;
34.8.6 if, following the earlier of (i) the escalation of the matter and completion of the
process set out in Clause 34.5.5; or (ii) the date falling ten Working Days after
the date upon which the matter was first escalated in accordance with Clause
34.5.5, the Parties are not able to agree on the risk or the suitability of the
alternative requirement proposed and Post Office fails to instruct Fujitsu
Services to continue with the development cycle in respect of that Queried
Requirement, then Fujitsu Services shall:
(a) be entitled to reject that Queried Requirement (such rejected Queried
Requirement being a "Rejected Requirement"), provided that in the
event that Fujitsu Services disagrees with any advice and guidance of a
Facilitator obtained as part of the escalation process, it shall provide Post
Office with a reasonably detailed statement of its reasons for doing so;
and
(b) achieve the relevant Development Obligation for such Rejected
Requirement; and
34.8.7 in the event that Fujitsu Services rejects a Queried Requirement pursuant to
this Clause 34.5 and Fujitsu Services would, if it had complied with Clause
34.4, have known about the risk relating to that Rejected Requirement earlier
than the date on which it actually became aware of that risk and notified the
Post Office pursuant to Clause 34.5.1, then Fujitsu Services shall refund to
Post Office any Charges paid or payable by Post Office in respect of
development work undertaken by or on behalf of Fujitsu Services in relation to
that Rejected Requirement in that intervening period (but excluding any
Charges in respect of development work which Fujitsu Services is able to
demonstrate to the reasonable satisfaction of Post Office is of continued use
and benefit to Post Office).
The indemnities set out at Clause 34.3.1 shall not apply to any Ul Development
Requirement to the extent that (a) Fujitsu Services or a member of the Fujitsu Services
Group was engaged by Post Office for the purposes of the development of that UI
Development Requirement and contributed to that Ul Development Requirement and
(b) such contribution resulted in the infringement or alleged infringement referred to in
Clause 34.3.1.
In the event that, pursuant to Clause 34.5, Fujitsu Services rejects a Queried
Requirement in respect of which (a) Fujitsu Services or a member of the Fujitsu
Services Group was engaged by Post Office for the purposes of the development of
such Queried Requirement and (b) contributed towards such Queried Requirement,
then (without prejudice to any other rights or remedies available to Post Office) Fujitsu
CLAUSES Version 13.0 56
POL00324964
POL00324964
CONFIDENTIAL
34.11
34.12
34.13
34.14
34.15
Services shall refund to Post Office the Charges paid or payable by Post Office in
respect of that contribution.
Common Indemnity Provisions
Each Party shall promptly notify the other if any claim or demand is made or action
brought against it to which this Clause 34 applies.
The Party giving an indemnity under this Clause 34 (the “Indemnifying Party”) shall, at
its Own expense, conduct any litigation arising therefrom and all negotiations in
connection therewith and the Party receiving the indemnity (the “Indemnified Party”)
hereby agrees to grant to the Indemnifying Party exclusive control of any such litigation
and such negotiations in relation to the indemnified infringement or alleged
infringement. The Indemnifying Party shall consult with and pay due regard to the
interests (including, where the Post Office is the Indemnified Party, the commercial
interests of the Royal Mail Group and the public interest and where Fujitsu Services is
the Indemnified Party the commercial interests of the Fujitsu Services Group) and
views of the Indemnified Party in the conduct of any defence to any claim or demand
hereunder, and shall, where it is reasonable to do so taking into account also the
interests of the Indemnifying Party, comply with such interests and views.
The Indemnified Party shall, at the request of the Indemnifying Party, afford to the
Indemnifying Party all reasonable assistance for the purpose of contesting any claim or
demand made or action brought against the Indemnified Party to which the indemnity
may apply or any claim or demand made or action brought against the Indemnifying
Party to which the indemnity may apply. The Indemnifying Party shall reimburse the
Indemnified Party for all reasonable costs and expenses (including but not limited to
legal costs and disbursements on a solicitor and client basis) incurred in so doing.
The Indemnified Party shall not make any admissions which may be prejudicial to the
defence or settlement of any claim, demand or action for infringement or alleged
infringement brought against the Indemnified Party to which the indemnity may apply or
any claim or demand made or action brought against the Indemnifying Party to which
the indemnity may apply.
If a claim or demand is made or action brought to which the indemnity may apply or in
the reasonable opinion of the Indemnifying Party is likely to be made or brought, the
Indemnifying Party may at its own expense either:
34.15.1 modify any or all of the affected documents, software, materials, items or other
things whatsoever without reducing the performance and functionality of the
same, or substitute alternative items, products or services of equivalent
performance and functionality for any or all of the documents, software,
materials, items or other things whatsoever, so as to avoid the infringement or
the alleged infringement but without disrupting the performance of the
Services, provided that the terms herein shall apply mutatis mutandis to such
modified or substituted items or services and such modified or substituted
items shall be acceptable to the Indemnified Party (whether by passing any
form of acceptance testing or otherwise), such acceptance not to be
CLAUSES Version 13.0 57
POL00324964
POL00324964
CONFIDENTIAL
34.16
34.17
unreasonably withheld or delayed, and shall reimburse the Indemnified Party all
reasonable costs directly incurred by it; or
34.15.2 procure a licence to use the affected documents, software, materials, items or
other things whatsoever on terms which afford to the Indemnified Party no
more extensive rights than those originally applicable hereunder and which are
acceptable to the Indemnified Party and shall reimburse the Indemnified Party
all reasonable costs directly incurred by it.
Notwithstanding anything to the contrary in this Clause 34:
34.16.1 to the extent that any actual or alleged infringement, to which this Clause 34
applies, relates to the development by Fujitsu Services under this Agreement of
the HNG-X Service Infrastructure or the Business Capabilities and Support
Facilities and does not result from (i) a breach by Fujitsu Services of the Clean
Room Rules or paragraph 4.2 of Annex 2 to Schedule B6.2 (ii) a failure by
Fujitsu Services to comply with Clause 15.1.5, or (iii) a breach by Fujitsu
Services of Clause 34.4; and
34.16.2 provided that the HNG-X Development Completion has not occurred at the
time of the claim, demand or action in respect of such infringement,
the costs of undertaking any modification or substitution or procuring a licence that may
be made or obtained pursuant to Clause 34.12 shall be treated as a normal cost of
development and Post Office shall pay Fujitsu Services:
(a) for such modification work on a time cost basis, subject to and in
accordance with the provisions of Schedule D8; and
(b) in respect of any such substitution or licence, an amount equivalent to
Fujitsu Services' cost of the product used as a substitute and/or of the
necessary licence, multiplied by 95 and divided by 100.
The indemnities set out in this Clause 34 (other than where Clause 34.3.1(b) applies)
shall not apply insofar as any such claim or demand or action is in respect of:
34.17.1 any use by or on behalf of the Indemnified Party of the affected documents,
software, materials, items or other things whatsoever in combination with any
item not supplied or approved (such approval not to be unreasonably withheld
or delayed) by the Indemnifying Party where such combined use directly gives
tise to the claim, demand or action; or
34.17.2 any modification carried out by or on behalf of the Indemnified Party to any
item supplied by the Indemnifying Party under this Agreement if such
modification is not authorised by the Indemnifying Party in writing; or
34.17.3any use by the Indemnified Party of the affected documents, software,
materials, items or other things whatsoever in a manner not reasonably to be
inferred from their specification (if any) or the requirements of the Indemnified
CLAUSES Version 13.0 58
POL00324964
POL00324964
CONFIDENTIAL
34.18
34.19
34.20
35.
35.4
35.5
35.6
Party (including, without limitation, where Post Office is the Indemnified Party,
the Requirements Baseline).
If the Indemnifying Party has availed itself of its rights to modify the affected
documents, software, materials, items or other things whatsoever or to supply
substitute products or services pursuant to Clause 34.12.1 or to procure a licence under
Clause 34.12.2 and such exercise of the said rights has avoided any claim, demand or
action for infringement or alleged infringement, or if the Indemnified Party has
unreasonably withheld its acceptance of any items modified or substituted by the
Indemnifying Party in accordance with Clause 34.12, then the Indemnifying Party shall
have no further liability thereafter under this Clause 34 in respect of the said claim,
demand or action.
If a modification or substitution in accordance with Clause 34.12.1 is not possible so as
to avoid the infringement and the Indemnifying Party has been unable to procure a
licence in accordance with Clause 34.12.2, then Clause 34.1 or Clause 34.3 (as the
case may be) shall apply.
This Clause states the entire liability of:
34.20.1 Fujitsu Services with regard to the infringement of any Intellectual Property
Right by the use or possession of the things listed in Clause 34.1 by or on
behalf of Post Office or in connection with the Services;
34.20.2 Post Office with regard to the infringement of any Intellectual Property Right by
the use or possession of the things listed in Clause 34.3 by or on behalf of
Fujitsu Services; and
34.17.3 each Party with regard to the unauthorised use of any Third Party Confidential
Information by or on behalf of the other Party after the Project HNG-X
Commencement Date.
Use Of Services and Infrastructure
Fujitsu Services shall not restrict Post Office from using the Services and the
Infrastructure for its existing and future clients, Agents, customers, products and
services.
Except as contemplated by this Agreement and subject to Clause 35.3, the
Infrastructure (other than any public service telecommunications networks) may not be
used other than by Post Office without the prior written consent of Post Office.
Post Office acknowledges and agrees that the HNG-X Services will be performed by
Fujitsu Services using certain facilities and/or elements of the Infrastructure, as
described in the Solution Architecture and/or the Solution Baseline and listed from time
to time in the Asset Register, that will be shared with customers of Fujitsu Services
other than the Post Office.
CLAUSES Version 13.0 59
POL00324964
POL00324964
CONFIDENTIAL
36.
36.4
36.5
36.6
36.7
36.8
36.8.1
36.8.2
36.8.3
36.8.4
PART F: LIABILITY
Damage to Physical Property
Except where any of paragraphs 5.2, 6.3.2 and 6.3.3 of Schedule B1.3 apply, each
Party will be responsible for loss or damage caused by its own negligence or wilful acts
or omissions to the physical property of the other.
Hardware
Subject to Clauses 36.3 and 36.5:
36.5.1 risk in the Infrastructure shall vest in Fujitsu Services, save to extent that any
elements of the Infrastructure are transferred to Post Office or the Next
Supplier pursuant to Clause 48.1 in which case risk in such elements shall pass
to Post Office or the Next Supplier when title passes; and
36.5.2 where damage occurs to hardware used by Fujitsu Services to provide the
Services, Fujitsu Services shall repair or replace the affected items with all
possible speed and (subject to any rights arising under Clause 36.1) at its own
cost, save to the extent that any hardware is transferred to Post Office pursuant
to Clause 48.1 in which case risk and the responsibility to repair and replace in
such elements shall pass to Post Office when title passes as provided for in
Clause 26.2.
Clause removed by CCN1616b
Branch Hardware
Unless the Parties agree otherwise, risk in Branch Hardware shall vest with the Party
that procures that hardware until such time as that hardware has been installed at the
Branch and accepted by Fujitsu Services as part of the Infrastructure at which time
such risk shall transfer to Fujitsu Services. For the avoidance of doubt, after the
transfer of Branch Hardware to the Post Office on 1* April 2015, Fujitsu Services shall
have no risk in respect of that Branch Hardware save that Fujitsu Services will exercise
reasonable controls over any Branch Hardware that is being utilised or stored by Fujitsu
Services in provision of the Services.
Clause removed by CCN1610
Not Used
Not Used
Not Used
Not Used
CLAUSES Version 13.0 60
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
36.8.5 Not Used
37.
37.4
37.5
37.6
38.
38.4
38.5
39.
39.4
39.5
Damage to Plant, Tackle and Tools
All plant, tackle and tools at the Post Office Premises provided by or on behalf of
Fujitsu Services shall be at the risk of and in the sole charge of Fujitsu Services.
Fujitsu Services shall be required to remove all such plant, tackle and tools which it
brings to the Post Office Premises.
Fujitsu Services shall ensure that all such plant, tackle and tools shall meet minimum
safety standards required by law.
Access to Post Office Premises
Any land or Post Office Premises (including temporary buildings) made available to
Fujitsu Services by Post Office in connection with this Agreement shall be made
available to Fujitsu Services on such terms and conditions as may be agreed between
Fujitsu Services and Post Office. Fujitsu Services shall have the use of such land or
Post Office Premises as licensee and shall vacate the same upon the termination or
expiry of this Agreement or at such earlier date as Post Office may reasonably
determine.
Post Office shall be responsible for maintaining the security of such land or Post Office
Premises in accordance with its standard security requirements. Fujitsu Services shall
comply with all reasonable security requirements of Post Office while on the Post
Office Premises, and shall procure that all of its employees, agents and subcontractors
shall likewise comply with such requirements. Post Office shall provide to Fujitsu
Services upon request copies of its written security procedures and shall afford to
Fujitsu Services upon request an opportunity to inspect its physical security
arrangements.
Post Office Responsibi
ies
Subject to paragraph 2.3 of Schedule A5, Post Office undertakes (at its own cost and
expense save where otherwise provided in or pursuant to this Agreement) to perform
the Post Office Responsibilities. Post Office shall use all reasonable endeavours to
perform such Post Office Responsibilities in a timely fashion or, where specified, in
accordance with the HNG-X Programme Plan or any other agreed timetable specified
in this Agreement.
Without limitation to Clause 39.1, Post Office shall use all reasonable endeavours to
ensure that its Agents co-operate with Fujitsu Services to the extent reasonably
necessary to permit Fujitsu Services to perform the Services. In the event that any
Agent fails to provide such co-operation, and Post Office is unable to secure such co-
operation within six months after receiving written notice thereof from Fujitsu Services,
Fujitsu Services shall be relieved of liability for any failure or delay to perform the
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 Fujitsu
CLAUSES Version 13.0 61
POL00324964
POL00324964
CONFIDENTIAL
Services can show were directly incurred by it as a result of the Agent's failure to
provide such co-operation.
39.6 Without prejudice to the provisions of paragraph 13 of Schedule B6.2 or Schedule A5,
Fujitsu Services shall not be liable to Post Office for any failure to perform or delay in
performing its obligations under this Agreement where Fujitsu Services proves that
such failure or delay has been directly caused by the failure of Post Office to perform
any of the Post Office Responsibilities.
This Clause 39.3 shall not apply in the circumstances to which Clause 43.6 applies,
which shall be governed by the specific rule stated in Clause 43.6.
39.7 In addition to the provisions of 39.3, in the event that the Post Office fails to perform or
delays performing its obligations regarding the processing of reference data for the
introduction of new, or updates to existing, APOP applications as described in the CCD
entitled “Fujitsu Services / Postt Office Ltd Interface Agreement for Operational
Business Change — Reference Data " (CS/PRD/058) then in so far as such non-
performance results in costs being incurred by Fujitsu Services in rectification activities
then such costs shall be reimbursable by the Post Office to Fujitsu Services.
39.8 Post Office Obligations inserted by CCN 1400 shall be applicable to provisions relating
to the Towers Model only including but not limited to Clauses 39A, 39B and 39C and
Schedule F. Provisions relating to Post Office Responsibilities shall continue to apply
in the same manner as they applied prior to CCN 1400 and shall be unaffected by Post
Office Obligations.
39A Effect on Service Levels of Post Office Cause or Tower Contractor Cause
39A.1 This Clause 39A is without prejudice to the obligations of Fujitsu Services to provide
the Services in accordance with the Agreement.
39A.2 If Fujitsu Services has failed to provide the Services in accordance with the Service
Levels as a direct result of a Post Office Cause, or a Tower Contractor Cause, Fujitsu
Services shall continue to provide the Services to the extent it is able in accordance
with the Service Levels but may apply for relief as set out in Clause 39A.3.
39A.3. To the extent that Fujitsu Services reasonably believes that Fujitsu Services would
have provided the Services in accordance with the Service Levels but has failed to do
so as a direct result of a Post Office Cause, or a Tower Contractor Cause, Fujitsu
Services may make a written submission to Post Office within 3 months of the
commencement of the Post Office Cause or the Tower Contractor Cause. Fujitsu
Services shall not be entitled to any relief, to the extent that Fujitsu Services cannot
demonstrate to Post Office’s reasonable satisfaction that:
39A.3.1 Fujitsu Services’ failure to provide the Services in accordance with the
Service Levels is a direct result of a Post Office Cause, or a Tower
Contractor Cause (identifying the specific Post Office Obligation or Tower
Contractor Responsibility that has not been met);
CLAUSES Version 13.0 62
CONFIDENTIAL
39A.4
39A.5
39A.6
39A.7
39B.
39B.1
39A.3.2 Fujitsu Services made all reasonable efforts to mitigate the consequences of
the relevant Post Office Cause or Tower Contractor Cause, and to continue to
provide the Services in accordance with the Service Levels; and
39A.3.3 Fujitsu Services’ failure to provide the Services in accordance with the
Service Levels arose from a cause beyond Fujitsu Services’ reasonable
control.
Post Office will consider any submission under Clause 39A.3 and advise Fujitsu
Services of its proposal in respect of a submission promptly and in any event within 15
Working Days of receipt. If Fujitsu Services does not accept Post Office’s submission,
the Parties shall meet within 5 Working Days of Fujitsu Services’ receipt of Post
Office’s proposal and shall use reasonable endeavours to agree the rights and reliefs
applicable to Fujitsu Services in line with Clause 39A.5. Either Party may invite other
interested Tower Contractors to the meeting and in that event shall inform the other
Party.
Where the Parties agree that Fujitsu Services would have provided the Services in
accordance with the Service Levels but has failed to do so as a direct result of a Post
Office Cause or a Tower Contractor Cause and has demonstrated compliance with
Clauses 39A.3.1 to 39A.3.3 inclusive then:
39A.5.1 the period in which the relevant Service was affected by the Post Office
Cause or Tower Contractor Cause will not be included in measuring the
performance of any affected Service;
39A.5.2 Fujitsu Services will not be treated as being in breach of this Agreement to
the extent that non-performance or breach is due to the Post Office Cause or
Tower Contractor Cause; and
39A.5.3 Fujitsu Services will be entitled to the Charges for the relevant Services
affected by Post Office Cause or Tower Contractor Cause as if it had not
occurred provided that Fujitsu Services mitigates those Charges to the extent
that it is able and passes on any reduction in the Charges to Post Office.
In order to claim the rights and reliefs in Clause 39A.5, Fujitsu Services’ submission
pursuant to Clause 39A.3 will be provided within 15 Working Days after it has notified
Post Office of a claim that Clause 39A.2 applies and that Fujitsu Services is applying
for the rights and relief set out in Clause 39A.5.
In the event of a dispute, either Party may refer the matter for resolution in accordance
with schedule A2 and, failing resolution through governance within 15 Working Days,
such Party may refer the dispute for resolution in accordance with the Dispute
Resolution Procedure. Pending the resolution of the Dispute both Parties will continue
to resolve the causes of, and mitigate the effects of such failure.
Costs incurred due to Post Office Cause or Tower Contractor Cause
In this Clause 39B, claims for reimbursement of additional costs and expenses may be
claimed insofar as the Parties have not agreed to recompense Fujitsu Services
CLAUSES Version 13.0 63
POL00324964
POL00324964
CONFIDENTIAL
39B.2
39B.3
39B.4
39B.5
39B.6
elsewhere in this Agreement. Where the Parties have agreed to recompense Fujitsu
Services elsewhere in this Agreement, Fujitsu Services may not make any claim under
this Clause 39B.
If Fujitsu Services reasonably believes that it has incurred additional costs and
expenses as a direct result of steps taken by Fujitsu Services in carrying out any
additional work or services to remedy or mitigate an issue caused by a Post Office
Cause or Tower Contractor Cause, then Fujitsu Services shall claim for reimbursement
of those additional costs and in accordance with the claim process set out in Clause
39B.3.
To the extent that Fujitsu Services reasonably believes that Clause 39B.2 applies,
Fujitsu Services may make a written submission to Post Office within 3 months of the
commencement of the Post Office Cause or Tower Contractor Cause seeking
reimbursement of additional costs and expenses necessarily and reasonably incurred
as a direct result of steps taken by Fujitsu Services in carrying out any additional work
or services to remedy or mitigate an issue caused by a Post Office Cause or Tower
Contractor Cause. Fujitsu Services shall not be entitled to any additional costs and
expenses, unless Fujitsu Services can demonstrate to Post Office’s reasonable
satisfaction that:
39B.3.1 Fujitsu Services could not have avoided the effect on the provision of the
Services and/or on its ability to perform its obligations under the Agreement
by using all reasonable endeavours to eliminate or mitigate the consequences
of the delay in accordance with Good Industry Practice and having regard to
the scope of the Services for which Fujitsu Services is responsible; and
39B.3.2 costs incurred were reasonable, demonstrable, necessarily and reasonably
incurred and that Fujitsu Services used all reasonable endeavours to
minimise such costs,
and Fujitsu Services will provide any additional information that Post Office may
reasonably require in order to assess the validity of Fujitsu Services’ claim.
Post Office will consider any submission under Clause 39B.3 and advise Fujitsu
Services of its proposal in respect of a submission promptly and in any event within 15
Working Days of receipt. If Fujitsu Services does not accept Post Office's submission,
the Parties shall meet within 5 Working Days of Fujitsu Services’ receipt of Post
Office’s proposal and shall use reasonable endeavours to agree the amount of
compensation applicable to Fujitsu Services. Either Party may invite other interested
Tower Contractors to the meeting and in that event shall inform the other Party.
The agreed costs will be shown as an additional amount on the next Operational
Charges invoice due to be issued under this Agreement. If no Operational Charges
invoice is due to be issued then Fujitsu Services will issue an invoice.
In the event of a dispute, either Party may refer the matter for resolution in accordance
with schedule A2 and, failing resolution through governance within 15 Working Days,
such Party may refer the dispute for resolution in accordance with the Dispute
CLAUSES Version 13.0 64
POL00324964
POL00324964
CONFIDENTIAL
39B.7
39C
390.1
39C.2
39C.3
390.4
39C.5
Resolution Procedure. Pending the resolution of the Dispute both Parties will continue
to resolve the causes of, and mitigate the effects of such failure.
Fujitsu Services acknowledges that in respect of a Post Office Cause or a Tower
Contractor Cause, a materiality threshold applies in respect of costs claimed for
reimbursement pursuant to Clause 39B.3 and that Fujitsu Services will not be entitled
to claim for reimbursement of costs pursuant to that Clause unless and until additional
costs and expenses incurred by Fujitsu Services in consequence of the circumstances
listed in Clause 39B.2 in respect of each individual Post Office Cause or of each
individual Tower Contractor Cause exceed £5,000.
Effects of a Fujitsu Dependency Failure
For the avoidance of doubt, prior to the earlier of notification to Fujitsu Services of the
appointment of the Post Office Service Integrator by Post Office or the termination of
any Terminable Service and the contracting of a replacement for said service by Post
Office with a Tower Contractor under its Towers Model, there shall be no Fujitsu
Dependencies.
Upon agreement of any Fujitsu Dependencies, Fujitsu Services undertakes to notify
Post Office as soon as reasonably practicable after becoming aware that it has not, will
not, or is unlikely to fulfil any Fujitsu Services Dependency or will be delayed from
doing so (a “Fujitsu Dependency Failure”). In the event that Post Office has not
been notified by Fujitsu Services in accordance with this Clause 39C.2 but Post Office
is aware or becomes aware of a Fujitsu Dependency Failure, then Post Office shall
notify Fujitsu Services of such Fujitsu Dependency Failure.
Notwithstanding actions to be taken under any Incident management process to resolve
a Fujitsu Dependency Failure, within 5 Working Days after providing notice or receiving
notice under Clause 39C.2, Fujitsu Services shall submit a report relating to the Fujitsu
Dependency Failure (the “Fujitsu Dependency Failure Report”) to Post Office
setting out full details of the reasons for, the issues arising out of and the steps which
Fujitsu Services is taking to minimise the impact of the Fujitsu Dependency Failure on
Post Office and/or the Tower Contractors to the extent to which the potential impact of
a particular Fujitsu Dependency Failure was agreed as part of the agreement of the
particular Fujitsu Dependency. In addition, it shall notify Post Office of the actions it
intends to take to prevent the recurrence of the Fujitsu Dependency Failure in the
future.
Fujitsu Services shall take reasonable steps to perform its obligations under the
Agreement and use its reasonable endeavours to take precautions which it ought
reasonably to have taken in accordance with Good Professional Practice in order to
avoid or mitigate the potential impacts of the Fujitsu Dependency Failure on Post
Office, and/or the relevant Tower Contractors.
Fujitsu Services shall co-operate and work with Post Office, the Tower Contractors
and/or any third parties (as reasonably directed by Post Office) to mitigate the Fujitsu
Dependency Failure.
CLAUSES Version 13.0 65
POL00324964
POL00324964
CONFIDENTIAL
39C.6 In the event of a Post Office Cause or Tower Contractor Cause, Fujitsu Services shall
39C.7
390.8
co-operate, support, collaborate and work with Post Office, other Tower Contractors
and/or any third parties (as reasonably directed by Post Office) so that Post Office
and/or relevant Tower Contractors are able to mitigate the effect of the Post Office
Cause or Tower Contractor Cause.
Once a Fujitsu Dependency Failure has been resolved and in any event no later than
30 days (or such period as may be agreed by the Parties) after the occurrence of the
Fujitsu Dependency Failure, the Subject Leads for the Relationship best qualified to
deal with the Fujitsu Dependency Failure, taking into account its nature and the
responsibilities of each Subject Lead, shall convene an occasional meeting of the
relevant Relationship in accordance with paragraph 3.3 of Schedule A2 to agree
responsibility for the Fujitsu Dependency Failure (including where appropriate the
preparation of a root cause analysis).
Post Office may make a written request to Fujitsu Services seeking reimbursement of
demonstrable additional costs and expenses necessarily and reasonably incurred as a
direct result of steps taken by Post Office and/or a Tower Contractor in carrying out any
additional work or services to remedy or mitigate an issue caused by a Fujitsu
Dependency Failure (the “Compensation Amount”). Post Office shall make any
claim for a Compensation Amount within 3 months of commencement of the Fujitsu
Dependency Failure. Post Office shall not be entitled to any Compensation Amount for
itself or any Tower Contractor unless Post Office can demonstrate to Fujitsu Services’
reasonable satisfaction that:
39C.8.1 Post Office and/or the Tower Contractor could not have avoided the effect on
the provision or receipt of the relevant services and/or on its ability to perform
its obligations under its agreement(s) by using all reasonable endeavours to
eliminate or mitigate the consequences of the delay in accordance with Good
Industry Practice; and
39C.8.2 costs incurred were reasonable, demonstrable, necessarily and reasonably
incurred and that Post Office and/or the Tower Contractor used all reasonable
endeavours to minimise such costs,
and Post Office will provide any additional information that Fujitsu Services may
reasonably require in order to assess the validity of Post Office’s request.
39C.9 Fujitsu Services will consider any request under Clause 39C.8 and advise Post Office of
its proposal in respect of the Compensation Amount promptly and in any event within
15 Working Days of receipt. If Post Office does not accept Fujitsu Services’ proposal,
the Parties shall meet within 5 Working Days of Post Office’s receipt of Fujitsu
Services’ proposal and shall use reasonable endeavours to agree the Compensation
Amount applicable. Either Party may invite other interested Tower Contractors to the
meeting and in that event shall inform the other Party.
39C.10 The agreed Compensation Amount will be shown as a credit on the next Operational
Charges invoice due to be issued under this Agreement. If no Operational Charges
invoice is due to be issued then Post Office will issue a credit note.
CLAUSES Version 13.0 66
POL00324964
POL00324964
CONFIDENTIAL
39C.11 In the event of a dispute under this Clause 39C, either Party may refer the matter for
resolution in accordance with Schedule A2 and, failing resolution through governance
within 15 Working Days, such Party may refer the dispute for resolution in accordance
with the Dispute Resolution Procedure. Pending the resolution of the Dispute both
Parties will continue to resolve the causes of, and mitigate the effects of such failure.
39C.12 Post Office acknowledges that in respect of a Fujitsu Dependency Failure, a materiality
40.
40.4
40.5
40.6
40.7
40.8
threshold applies in respect of costs claimed for reimbursement pursuant to Clause
39C.8 and that Post Office and/or any other Tower Contractor will not be entitled to
claim for reimbursement of costs pursuant to that Clause unless and until additional
costs and expenses incurred by Post Office and/or any other Tower Contractor in
consequence of the circumstances listed in Clause 39C.8 in respect of each individual
Fujitsu Dependency Failure exceed £5,000.
Fujitsu Services' Personnel
Post Office reserves the right under this Agreement to refuse to admit to any premises
occupied by or on behalf of any member of the Royal Mail Group (which expression
shall in this Clause 40 include all persons employed or engaged by the Royal Mail
Group and all persons other than Fujitsu Services and its sub-contractors providing
services to the Royal Mail Group), or to any Branch any person employed or engaged
by Fujitsu Services, or by a sub-contractor, whose admission would be, in the
reasonable opinion of Post Office, undesirable.
If and when directed by Post Office, Fujitsu Services shall provide a list of the names
and addresses of all persons who it is expected may require admission in connection
with the performance of this Agreement to any premises occupied by or on behalf any
member of the Royal Mail Group or to any Branch, specifying the capacities in which
they are concerned with this Agreement and giving such other particulars as Post
Office may reasonably require. Fujitsu Services shall comply with any reasonable
directions issued by the designated representative of Post Office as to which persons
may be admitted to such premises and at what times.
If and when directed by Post Office, Fujitsu Services shall secure that any person
employed or engaged by Fujitsu Services or by a sub-contractor, who is specified in the
direction or is one of a class of persons who may be so specified, shall sign a statement
that he understands that the Official Secrets Acts 1911 to 1989 apply to him both
during the term of and after the expiry or termination of this Agreement.
Fujitsu Services' representatives, engaged within the boundaries of a Royal Mail Group
establishment or Branch, shall comply with such rules, regulations and requirements
(including those relating to security arrangements) as may be in force from time to time
for the conduct of personnel when at that establishment or Branch and when outside
that establishment or Branch.
The decision of Post Office as to whether any person is to be refused admission to any
premises occupied by or on behalf of the Royal Mail Group or to a Branch shall be final
and conclusive.
CLAUSES Version 13.0 67
POL00324964
POL00324964
CONFIDENTIAL
41.
42.
42.4
Fujitsu Services’ Key Personnel
The Parties acknowledge that the Key Personnel are essential to the fulfilment of
Fujitsu Services’ obligations hereunder.
Notwithstanding anything to the contrary in Clause 61, Post Office shall keep the CCD
entitled “Fujitsu Services Key Personnel” (HR/CON/001) (including any proposed or
agreed amendments to it) and the information contained in it (“Personnel Information”)
confidential. Except as provided for in this Clause 41.2, Post Office shall not copy,
reproduce or disclose Personnel Information to any third party.
41.5.1 Post Office may reproduce, copy and disclose Personnel Information:
(a) to Post Office's Subject Leads for (i) the Systems Integration Partnership
and Executive Relationship and (ii) the Commercial Relationship;
(b) to its professional advisers provided such reproduction, copying and
disclosure is necessary for the purposes of this Agreement; or
(c) as required by law,
provided that Post Office shall procure that the persons referred to in
paragraphs (a) and (b) above shall not themselves disclose Personnel
Information (except amongst themselves) without the express written consent
of Fujitsu Services.
41.5.2 Post Office may discuss Personnel Information with and disclose Personnel
Information to FS Listed Personnel.
Fujitsu Services undertakes to use all reasonable endeavours to ensure that the Key
Personnel are not removed or replaced for the duration of the activities relevant to
them (described as “Tasks” in the CCD entitled “Fujitsu Services Key Personnel”
(HR/CON/001)). However, in the event that any of the Key Personnel become
unavailable for any reason (including without limitation death, injury, sickness,
promotion or resignation), Fujitsu Services shall have the right upon giving 30 days’
notice in writing (or such shorter period of notice as may be reasonably practicable) to
Post Office to replace such an individual with another individual whose abilities and
qualifications are appropriate for the services to be performed by such individual.
The Parties acknowledge and agree that in order for Fujitsu Services to successfully
complete its obligations under this Agreement, additional key personnel may be
identified after the date of this Agreement. The Parties shall identify and agree any
such additional key personnel (together with any activities which are relevant to them).
Injury to Persons; Loss of Property
Subject always to Post Office's proper observance of its obligations under this
Clause 42 and except where paragraphs 5.2 or 6.3.3 of Schedule B1.3 apply, Fujitsu
Services shall fully indemnify Post Office in respect of any personal injury or loss of or
damage to Property incurred by Post Office, its contractors or their respective
CLAUSES Version 13.0 68
POL00324964
POL00324964
CONFIDENTIAL
42.5
42.6
43.
43.4
43.5
employees and authorised agents to the extent that such personal injury or loss of
Property is caused by any Default of Fujitsu Services, its employees or agents in
connection with the performance or purported performance of this Agreement.
In the event of any claim or demand being made or action brought to which
Clause 42.1 applies, Fujitsu Services shall be promptly notified thereof and Fujitsu
Services shall at its own expense conduct all negotiations for settlement of the same
and any legal proceedings that may arise therefrom. Fujitsu Services shall consult with
and pay due regard to the interests and views of Post Office (including the commercial
interests of the Royal Mail Group and the public interest) in the conduct of any defence
to any claim or demand hereunder, and shall, where it is reasonable to do so, comply
with such interests and views. Post Office, its employees and agents, shall at the
request of Fujitsu Services afford all reasonable assistance for the purpose of
contesting any such claim or demand or action and shall be repaid any reasonable
expense incurred in so doing and shall not make any admissions which may be
prejudicial to the defence of such claim or demand or action.
Notwithstanding Clause 42.2, Post Office shall have the option to take over the conduct
over any claim, demand or action to which this Clause applies. Should Post Office
exercise the aforementioned option it shall indemnify Fujitsu Services against any loss,
damage, cost or expense which it incurs in respect of that claim, demand or action over
and above the monetary amount (which Fujitsu Services shall have notified to Post
Office prior to Post Office exercising its option) at which Fujitsu Services was prepared
to settle said claim, demand or action.
Liability
Subject to the remaining sub-clauses of this Clause 43, Fujitsu Services shall be liable
for all losses and shall indemnify Post Office against all costs, expenses, losses and
damages incurred, including any legal costs (together referred to in this Clause 43 only
as “Losses”), as a result of:
43.4.1 any unauthorised third party access to the Infrastructure;
43.4.2 any unauthorised third party access to the Post Office Service Environment
which is gained through the Infrastructure;
43.4.3 any "hacking" into the systems used by Fujitsu Services to provide the Services
(whether or not constituting an offence under the Computer Misuse Act 1990);
or
43.4.4 any other form of fraud.
In the event of termination of Project HNG-X:
43.2.1 for convenience pursuant to Clause 47.11.2, the provisions of Clause 43.1 shall
continue to apply. In such circumstances, prior to the later of the date of such
termination of Project HNG-X or 1 April 2010, Fujitsu Services shall implement
the upgrade of the Horizon Service Infrastructure in accordance with the
provisions of the CCD entitled "Horizon Security in the Absence of HNG-X"
CLAUSES Version 13.0 69
POL00324964
POL00324964
CONFIDENTIAL
43.6
43.7
43.8
43.9
43.10
43.11
(ARC/SEC/ARC/0002) and Post Office shall pay for such upgrade in
accordance with paragraphs 10.4 to 10.8 (inclusive) of Schedule D1 (the details
of which in respect of such upgrade shall be incorporated in a Work Order); and
43.2.2 for Default pursuant to Clause 47.11.1, the provisions of Clause 43.1 shall
continue to apply. In such circumstances, prior to the later of the date of such
termination of Project HNG-X or 1 April 2010, Fujitsu Services shall implement
the upgrade of the Horizon Service Infrastructure in accordance with the
provisions of the CCD entitled "Horizon Security in the Absence of HNG-X"
(ARC/SEC/ARC/0002) at its own cost.
In the event of Partial Termination for any reason of the Data Centre Operations
Service and the Central Network Service (as a single Terminable Service) or the
Systems Management Service, Third Line Software Support Service or Application
Support Service (Fourth Line), with effect from the date of termination of the first such
Service to be Partially Terminated, the provisions of Clause 43.1 shall not apply unless
Post Office proves that any of the matters referred to in sub-clauses 43.1.1 to 43.1.4
(inclusive) have been caused by Fujitsu Services' Default in respect of any of its
obligations or responsibilities under this Agreement.
In the event of Partial Termination for any reason of any of the Terminable Services
referred to in Clause 43.3 Fujitsu Services shall promptly provide to Post Office all
correspondence, audit trails, documentation and other information (in whatever media)
as Post Office may reasonably require in order to establish the cause of any of the
matters referred to in sub-clauses 43.1.1 to 43.1.4 (inclusive).
In the event of Partial Termination for any reason of any Terminable Service the
provisions of Clause 43.1 shall continue to apply subject to Clause 43.3 and any
exceptions or qualifications agreed by the Parties pursuant to paragraph 2.2.6 of
Schedule E.
If and to the extent that Fujitsu Services proves that any of the matters referred to in
Clause 43.1 have been caused by Post Office's non-performance of any of its
obligations or responsibilities under this Agreement upon the performance of which
Fujitsu Services’ obligations depend, the provisions of Clause 43.1 shall not apply.
In the event that:
43.10.1Post Office agrees pursuant to paragraph 2.2.4 of Schedule E to perform any
security related obligations or responsibilities; or
43.10.2the Post Office responsibility set out in paragraph 2.4.3 of Schedule E applies,
in connection with any Partial Termination, Post Office shall promptly provide to Fujitsu
Services all correspondence, audit trails, documentation and other information (in
whatever media) as Fujitsu Services may reasonably require in order to establish the
cause of any of the matters referred to in Clause 43.1.
Where an act of fraud relates to the Superstock Solution, Clause 43.1.4 shall not apply
unless the fraud in question was perpetrated by a:
CLAUSES Version 13.0 70
POL00324964
POL00324964
CONFIDENTIAL
43.12
43.13
43.3.1 person who was at the time in question an employee, agent or sub-contractor
of Fujitsu Services (or an employee or agent of its sub-contractors);
43.3.2 third party whose fraudulent actions resulted from or were made possible by
Fujitsu Services’ failure to comply with its obligations under this Agreement.
In the case of the Banking Functions or in relation to the operation of the Banking
Functions, Clause 43.1.4 shall not apply unless the fraud in question was perpetrated
by a person who was at the time in question:
43.12.1an employee, agent or sub-contractor of Fujitsu Services (such agents or
subcontractors being together referred to as "Current Banking Participants");
43.12.2a former employee, agent or sub-contractor of Fujitsu Services, who was an
employee, agent or sub-contractor (as the case may be) of Fujitsu Services at
any time on or after 14 April 2001 (such agents or subcontractors being
together referred to as "Former Banking Participants") and who satisfies the
Information Condition;
43.12.3an employee, agent or sub-contractor of the Current Banking Participants who
satisfies the Information Condition;
43.12.4a former employee, agent or sub-contractor of a Current Banking Participant
who was an employee, agent or sub contractor (as the case may be) of that
Current Banking Participant at any time on or after 14 April 2001 and who
satisfies the Information Condition; or
43.12.5a former employee, agent or sub-contractor of a Former Banking Participant
who was an employee, agent or sub-contractor (as the case may be) of such
Former Banking Participant while that Former Banking Participant was a
Current Banking Participant and who satisfies the Information Condition.
Fujitsu Services shall not be liable for or indemnify Post Office in respect of any
Losses:
43.13.1where the Losses incurred by Post Office relate solely to the Banking Function
or the operation of Banking Function;
43.13.2where such Losses were incurred as a result of any unauthorised access or
hacking referred to therein into an element or elements (used solely for the
operation of the Banking Functions) of either the Post Office Service
Architecture or the NB System (excluding elements of the Post Office Service
Architecture or the NB System located at Branches);
43.13.3where the unauthorised access, hacking or fraud was perpetrated through or by
any employee, agent, contractor or sub-contractor of, any Bank or through or by
any element of the Infrastructure at any Bank premises other than by the
persons referred to in Clause 43.9;
CLAUSES Version 13.0 71
POL00324964
POL00324964
CONFIDENTIAL
43.14
43.13.4where such Losses were incurred as a result of any unauthorised access or
hacking or fraud arising as a result of Post Office’s design, development and/or
introduction of new Transaction types using the AP-ADC Facility, or the APOP
Facility, or any fraud perpetrated by Post Office contractors, subcontractors,
employees or agents in connection with such design, development, introduction
or use unless the root cause of such unauthorised access, hacking or fraud was:
(a) defects in Fujitsu Services' design or implementation of the AP-ADC
Facility or the APOP Facility;
(b) a failure by Fujitsu Services to maintain the AP-ADC Facility or the
APOP Facility or to process such new Transactions, in accordance with
its obligations set out in this Agreement; or
(c) a defect in such design, development, introduction or use resulting from
an error in the CCD entitled “AP-ADC Reference Manual”
(DES/GEN/MAN/0002) or the CCD entitled “ APOP Authorisation
Service Reference Manual” (AP/MAN/004); the presence of which is
solely or mainly attributable to a breach by Fujitsu Services of its
obligations set out in Clauses 15.1.4 and 15.1.5 when it assisted Post
Office to produce that CCD under Work Order;
43.13.5 where the unauthorised access, hacking or fraud was perpetrated through or by
use of the communications links between the Data Centres and CAPO or LINK
(as described in Schedule B3.3 or B4.3, as applicable) other than by persons
referred to in Clause 43.9, unless the root cause of such unauthorised access,
hacking or fraud was a failure by Fujitsu Services to comply with its obligations
set out in paragraphs 1.3.4(f)(i)(1) and 1.3.4(f)(i(2) of Schedule B3.3 or
paragraphs 3.4.1 and 3.4.2 of Schedule B4.3, as applicable;
43.13.6where the Losses incurred by the Post Office relate solely to the Superstock
Solution or the operation of the Superstock Solution;
43.13.7 where such Losses were incurred as a result of any unauthorised access or
hacking, as referred to in Clause 43.1, into, through or by use of an element or
elements of the Superstock Infrastructure used to provide the Superstock
Services; or
43.13.8where such Losses were occurred as a result of any unauthorised, hacking or
fraud perpetrated through or by use of communications links into the POL MI
System which are not the responsibility of Fujitsu Services.
43.13.9where such Losses were incurred as a result of a breach by Post Office of the
Customer Agreement other than where such breach is caused by the acts or
omissions of Fujitsu Services.”
Post Office shall not have any right of action against Fujitsu Services in respect of any
costs, expenses, losses or damages arising as a result of the loss, theft or compromise
of a password/passphrase shared between the Merchant Acquirer and the Data Centres
or the subsequent use of such password/passphrase (as the case may be) except to the
CLAUSES Version 13.0 72
POL00324964
POL00324964
CONFIDENTIAL
43.15
43.16
43.17
extent that such loss, theft or compromise or such costs, expenses, losses, or damages
arise as a result of the fraud or Default of Fujitsu Services or of its employees, agents
or subcontractors.
In this Clause 43, the "Information Condition" means that the person concerned either:
43.15.1is or has been entitled to have access in the course of fulfilling their duties or
obligations as employee, agent or sub-contractor (as the case may be) to
information concerning the design or performance of security measures used by
or in the NB System; or
43.15.2 is not or was not entitled to have access to information concerning the design or
performance of security measures used by or in the NB System, but:
(a) used such information obtained as a result of their relationship with
Fujitsu Services in perpetrating the fraud in question; and
(b) Fujitsu Services fails to show that it had taken all reasonable steps and
precautions to prevent that information being obtained.
In the case of Debit Card, Fujitsu Services shall not be liable for and Post Office shall
not have any right of action against Fujitsu Services in respect of any costs, expenses,
losses or damages arising as a result of:
43.16.1 fraud in connection with or unauthorised disclosure of;
43.16.2loss or corruption of; or
43.16.3hacking in connection with,
DC Data, irrespective of whether such DC Data are inside or outside the Infrastructure
unless and to the extent that such arises from a Default of Fujitsu Services.
In the case of Banking Functions, Debit Card and ETU, Fujitsu Services shall not be
liable for any costs, expenses, losses or damages suffered or incurred by Post Office in
relation to:
43.17.1Banking Transactions falsely or incorrectly authorised unless and to the extent
caused by a failure of the NB System or of the Banking Functions which is (in
either case) a Default;
43.17.2DC Transactions or ETU Transactions falsely or incorrectly authorised unless
and to the extent caused by a failure of Debit Card or ETU respectively which
is a Default; and
43.17.3fraudulent use of token supported by the Banking Functions, Debit Card or ETU
by any person, unless and to the extent that such use is carried out by or
involves collusion with Fujitsu Services' employees, or otherwise arises from a
Default or fraud of Fujitsu Services.
CLAUSES Version 13.0 73
POL00324964
POL00324964
CONFIDENTIAL
43.18
43.19
43.20
43.21
If Post Office:
43.18.1accepted a Design Proposal (as that term was defined and used in this
Agreement in its form prior to CCN1200); or
43.18.2accepts in a specification or other document agreed by the Parties pursuant to
the Work Ordering Procedure or Change Control Procedure,
which included or includes a third party interface or third party application which was
either not selected by Fujitsu Services or was selected by Fujitsu Services subject to
clearly disclosed limitations notified to Post Office, Fujitsu Services shall not, under
Clause 43.1, be liable for or indemnify Post Office against any Losses incurred by Post
Office resulting from unauthorised access to the Infrastructure, "hacking" and other
fraudulent and criminal activities provided Fujitsu Services has operated such
interfaces or applications in accordance with the technical and operational
specifications agreed between Post Office and Fujitsu Services in respect of such
interfaces or applications and has exercised reasonable care and skill in implementing
such interfaces and carrying out the integration of such applications.
For the purposes, but without prejudice to the generality, of Clause 43.15:
43.19.1Configured POL MI shall be deemed to be a third party application; and
43.19.2the interfaces between the Infrastructure and CAPO and LINK used to connect
the Data Centres to CAPO and LINK shall be deemed to be third party
interfaces
43.19.3Clause removed by CCN1613a
not selected by Fujitsu Services and included in a Design Proposal accepted by Post
Office.
In relation to data processing (involving either automated or manual processing or both)
under this Agreement, Fujitsu Services shall not be in breach and shall not be liable to
Post Office for any failure to perform its obligations, or delay in performing such
obligations, to the extent it can demonstrate to Post Office's satisfaction (Post Office
acting reasonably) that such failure or delay occurred as a result of a Design Limit
being exceeded.
Fujitsu Services shall not be liable for any failure to perform or delay in performing its
obligations and Post Office shall have no right of action against Fujitsu Services in
respect of any costs, expenses, losses or damages arising as a result of:
43.21.1 any fault or problem with, or the unavailability of, the communications links
between the Data Centres and CAPO or LINK (as described in Schedule B3.3
or B4.3, as applicable), subject to Fujitsu Services complying with its
obligations set out in paragraphs 1.3.4(f)(i)(1) and 1.3.4(f)(i)(2) of Schedule
B3.3 or paragraphs 3.4.1 and 3.4.2 of Schedule B4.3, as applicable; or
CLAUSES Version 13.0 74
POL00324964
POL00324964
CONFIDENTIAL
43.22
43.23
43.24
43.21.2any unauthorised access, hacking or fraud of the kind described in
Clause 43.10.5;
43.21.3 any fault or problem with Configured POL FS, or the SAP Loading Applications
arising prior to the POLSAP R1 Go Live Date related to their configuration by
Post Office or a third party on behalf of Post Office (other than Fujitsu Services
or its subcontractors);
43.21.40r subsequent to the POLSAP R1 Go Live Date, any fault or problem with the
POLSAP Software related to its configuration by Post Office or a third party on
behalf of Post Office (other than Fujitsu Services or its subcontractors).
43.18.5 the unavailability of Configured POL FS, or the SAP Loading Applications, or
from the POLSAP R1 Go Live Date, POLSAP Software due to any
maintenance or support work being required in respect of Configured POL FS,
or the SAP Loading Applications, or from the POLSAP R1 Go Live Date,
POLSAP Software that Fujitsu Services is not obliged to perform;
43.18.6any failure by any Branch to complete any Branch Trading Statement prior to
the expiry of the 42 day period during which Fujitsu Services retains data for
the period covered by that Branch Trading Statement; or
43.18.7any failure by any Branch to accept or implement any Transaction Correction
Record,
save to the extent that a failure by Fujitsu Services to perform any of its obligations
(such failure not itself arising as a result of the matters referred to in Clauses 43.18.1 to
43.18.6 inclusive) directly caused such costs, expenses, losses or damages.
Fujitsu Services shall provide to Post Office copies of or access to all relevant records
produced by Fujitsu Services in the course of performing the HNG-X Services (such
records to include, where produced by Fujitsu Services, operational change proposals,
help desk records, release notes, change logs, firewall logs, event records, error logs
and audit records) that Post Office reasonably requires in order to establish the cause
of any failure to perform or delay in performing Fujitsu Services’ obligations, where
Fujitsu Services asserts that Clauses 43.18.1 or 43.18.2 are applicable in respect of
such failure or delay. All information obtained by Post Office pursuant to this
Clause 43.19 shall be treated as Confidential Information.
Not Used
In the case of the Superstock Solution Fujitsu Services shall not be liable for any failure
to perform or delay in performing its obligations and Post Office shall have no right of
action against Fujitsu Services in respect of any costs, expenses, losses or damages
arising as a result of:
43.24.1 Not Used
43.24.2 any unauthorised access, hacking or fraud of the kind described in
Clause 43.10.7.
CLAUSES Version 13.0 75
POL00324964
POL00324964
CONFIDENTIAL
43.25
43.26
44.
44.4
44.5
Fujitsu Services shall not be liable for any failure to perform or delay in performing its
obligations and Post Office shall have no right of action against Fujitsu Services in
respect of any costs, expenses, losses or damages arising as a result of:
43.22.1 any fault or problem with, or the unavailability of, any communications links
into the POL MI System which are not the responsibility of Fujitsu Services; or
43.22.2 any unauthorised access, hacking or fraud of the kind described in Clause
43.10.8;
43.22.3 any fault or problem with Configured POL MI related to its configuration by
Post Office or a third party on behalf of Post Office; or
43.22.2 the unavailability of Configured POL MI due to any maintenance or support
work being required in respect of Configured POL MI that Fujitsu Services is not
obliged to perform,
Save to the extent that a failure by Fujitsu Services to perform any of its obligations
(such failure not itself arising as a result of the matters referred to in Clauses 43.22.1 to
43.22.4 inclusive) directly causes such costs, expenses, losses or damages.
Fujitsu Services shall provide to Post Office copies of or access to all relevant records
produced by Fujitsu Services in the course of performing the Operational Services
(such records to include, where produced by Fujitsu Services, operational change
proposals, help desk records, release notes, change logs, firewall logs, event records,
error logs and audit records) that Post Office reasonably requires in order to establish
the cause of any failure to perform or delay in performing Fujitsu Services’ obligations,
where Fujitsu Services asserts that Clauses 43.22.1 0r43.22.2 are applicable in respect
of such failure or delay. All information obtained by Post Office pursuant to this Clause
43.23 shall be treated as Confidential Information.
Limitation of Liability
Neither Party hereto excludes or limits its liability to the other Party:
44.4.1 for death or personal injury; or
44.4.2 any breach of any obligations implied by Section 12 of the Sale of Goods Act
1979 or Section 2 of the Supply of Goods and Services Act 1982; or
44.4.3 for its fraudulent misrepresentation; or
44.4.4 for its fraud or for fraud for which it is responsible, save (in the case of Fujitsu
Services) where the liability in question would not have arisen but for the
provisions of Clauses 16 or 43.
Subject always to Clause 44.1, 44.3, 44.4, 44.4A and 44.4B, the liability of each Party
for Defaults shall be subject to the financial limits set out in this Clause 44.2.
CLAUSES Version 13.0 76
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
44.5.1 The aggregate liability in relation to all Defaults arising during the period 15
May 2002 to 31 March 2003 (inclusive) or in any Financial Year thereafter
which results in direct loss of or damage to the Property of the other Party shall
in no event exceed:
(a) £1,500,000 per Financial Year in the case of a liability of Post Office;
and
(b) £10,000,000 per Financial Year in the case of Fujitsu Services.
44.5.2 Subject to Clause 44.2.2A, the aggregate liability of Post Office for all Defaults
and any liability arising from a Post Office Cause:
(a) (other than a Default governed by Clause 44.2.1) arising during the
period 15 May 2002 to 31 March 2003 (inclusive) or in any Financial
Year thereafter shall in no event exceed £5,870,689 per Financial
Year; and
(b) (including a Default governed by Clause 44.2.1) arising at any time
after the end of the last Financial Year shall in no event exceed
£10,436,783.
44.2.2A With respect to any liability of Post Office for any liability arising from a Tower
Contractor Cause, Post Office's liability in any Financial Year shall in no event
exceed the higher of:
(a) the aggregate liability set out in Clause 44.2.2; or
(b) the amount Post Office is able to recover under its contract with the
relevant Tower Contractor for the default that gave rise to the Tower
Contractor Cause.
44.5.3 The aggregate liability under this Agreement of Fujitsu Services for all Defaults
and any Compensation Amount payable as a result of a Fujitsu Dependency
Failure:
(a) (other than a Default governed by Clauses 44.2.1, 44.2.4 or 44.2.5)
arising during:
(1) the period from 1 January 2003 to 31 March
2003 (inclusive) shall not exceed £1,729,000;
(2) the Financial Year ending on 31 March 2004
shall not exceed £7,139,000; and
(3) Financial Year NN shall not exceed
£15,000,000; and
CLAUSES Version 13.0 77
POL00324964
POL00324964
CONFIDENTIAL
(c) (including a Default governed by Clause 44.2.1 but other than a Default
governed by Clauses 44.2.4 or 44.2.5) arising at any time after the end
of the last Financial Year shall not exceed £15,000,000.
For the purposes of sub-clause 44.2.3(a)(3), "Financial Year NN" means, in
relation to a Default by Fujitsu Services liability for which arose after 31 March
2004, the Financial Year in which that liability arose.
44.5.4 Subject to Clause 44.2.5 the aggregate liability of Fujitsu Services for all
Defaults (other than a Default governed by Clause 44.2.1) relating to a
particular Work Order shall not exceed 100% of the Charges payable pursuant
to that Work Order.
44.5.5 Where Fujitsu Services is engaged under a series of related Work Orders
covering two or more of the following Development Lifecycle Stages:
(b) Solution Specification Stage;
(c) Solution Build and Test Stage; and
(d) Implementation Stage,
the aggregate liability of Fujitsu Services for all Defaults (other than a Default
governed by Clause 44.2.1) relating to such Work Orders shall not exceed
100% of the aggregate Charge for all such Work Orders and this limit shall
apply in lieu of the limit in Clause 44.2.4.
44.5.6 The aggregate liability of Fujitsu Services for all Defaults (other than a Default
governed by Clause 44.2.1) relating to NBS prior to NBS Acceptance shall not
exceed 100% of the Network Banking Implementation Charges.
44.5.7 Subject to Clause 44.1, 44.2.4 and 44.2.5 but notwithstanding any other
provision in this Clause 44 (save for Clause 44.2.8 as noted), the aggregate
liability of Fujitsu Services for all Defaults (other than a Default governed by
Clause 44.2.8) relating to the Superstock Solution in any Financial Year shall in
no event exceed 10% of the estimated Superstock Charges for the Financial
Year commencing 1st April 2010 or £25,000 whichever is the greater. Any
such liability shall count as part of Fujitsu Services’ aggregate liability under
Clause 44.2.3.
44.5.8 Subject to Clause 44.1, 44.2.4 and 44.2.5 but notwithstanding any other
provision in this Clause 44, the aggregate liability of Fujitsu Services for all
Defaults relating to the Superstock Solution which result in direct loss or
damage to the Property of the Post Office shall in no event exceed £1 million.
Any such liability shall count as part of Fujitsu Services' aggregate liability
under Clause 44.2.1
44.6 Subject to Clause 44.1 and to the extent permitted at law, the aggregate liability of
Fujitsu Services under Clauses 16 and 43 of this Agreement for the fraud or other
CLAUSES Version 13.0 78
CONFIDENTIAL
44.7
44.40
44.4B
44.8
44.9
criminal activities of its employees or subcontractors shall be limited to £21,896,142
per Fraud Event.
Subject to Clauses 44.4A, 44.4B and 44.5, the financial limits specified in
Clause 44.2.2 and 44.2.3 shall apply to, and limit the Parties' respective liability for, the
aggregate of all claims for monetary relief arising in the period in question which either
Party may have against the other either under this Agreement, in tort (including
negligence), breach of statutory duty or otherwise in relation to the subject matter of
this Agreement, including, without limitation, all claims arising for Defaults, all claims
for liquidated damages and Post Office Additional Cost pursuant to Clause 18,
Schedule B4.4, Schedule C1 and/or the provisions of the Service Descriptions, all
claims to be indemnified pursuant to Clauses 34, 42 or 43 and all other claims or costs
which are compensatable in money or money's worth as though all such claims for
monetary relief represented liability for Defaults occurring in the period in question.
For the purposes of Clauses 44.2 and 44.4,
a liability or claim for monetary relief arises when the act, omission, event or
circumstance giving rise to that liability or claim occurs; and
Notwithstanding that Clause 44.2 is stated to be subject to Clause 44.4, Clause 44.4
shall not limit:
44.4B.1 liability of the type referred to in Clauses 44.1;
44.4B.2 liability for Defaults governed by 44.2.1, 44.2.4 or 44.2.5; or
44.4B.3 liability governed by Clause 44.3.
The financial limits on the liability of Post Office under Clause 44.2 shall be exclusive
of and additional to any liability of Post Office to pay any Charges, other amounts, the
Transfer Payment, the Termination Charge, any Partial Termination Charge or the
HNG-X Termination Charge which may become properly due and payable to Fujitsu
Services in accordance with the provisions hereof or any sum by way of interest
thereon that a court may award.
Subject always to Clause 44.1, in no event shall either Party be liable to the other Party
for indirect or consequential loss or damage. However:
(a) Fujitsu Services acknowledges and agrees that it shall not be entitled to
claim that a loss incurred by a Tower Contractor is an indirect loss
solely because it was not incurred by the Post Office. As such, any
loss incurred by a Tower Contractor that would have been a direct loss
if it had been incurred by the Post Office shall, for the purposes of
determining a Compensation Amount, be deemed to be a direct loss;
and
(b) Post Office acknowledges and agrees that all claims that Fujitsu
Services may make for relief under Clause 39A.3 or Clause 39A.5.3
and for compensation under Clause 39B.3 including for any payments
CLAUSES Version 13.0 79
POL00324964
POL00324964
CONFIDENTIAL
44.10
44.11
44.12
44.13
44.14
44.15
45.
under Clause 39B.5 shall be made to Post Office and not any of the
Tower Contractors and that all payments of such relief or compensation
shall be by Post Office and not any Tower Contractor.
The provisions of Clause 44.6 shall not be taken as limiting the right of Post Office to
claim from Fujitsu Services for:
44.10.1 additional operational and administrative costs and expenses; and/or
44.10.2expenditure or charges rendered unnecessary as a result of any Default by
Fujitsu Services; and/or
44.10.3any compensation arising out of a Fujitsu Dependency Failure due to Post
Office, Post Office Service Integrator or a Tower Contractor.
The Parties expressly agree that should any limitation or provision contained in this
Clause be held to be invalid under any applicable statute or rule of law it shall to that
extent be deemed omitted but if any Party thereby becomes liable for loss or damage
which would otherwise have been excluded such liability shall be subject to the other
limitations and provisions set out herein.
For the avoidance of doubt, it is acknowledged that nothing in this Agreement shall be
deemed or construed to relieve either Party of its common law duty to the other Party
against which a claim may be made to mitigate any loss which is the subject of such
claim.
Subject to Clause 44.1, the aggregate liability of Fujitsu Services under the SAP RTU
(including, without limitation, under any indemnity therein) arising in any Financial Year
shall not exceed £1,956,896. Fujitsu Services' liabilities (if any) under the SAP RTU, as
limited by this Clause 44.10, shall count as part of Fujitsu Services’ aggregate liability
under Clause 44.2.3.
The liability of Fujitsu Services in connection with the SAP RTU is as set out in
Clause 44.10 and paragraph 22 of the SAP RTU. In the event and only to the extent of
any conflict between: (i) Clauses 44.10 and paragraph 22 of the SAP RTU; and (ii) any
other Clause, then Clause 44.10 and paragraph 22 of the SAP RTU shall prevail.
Each of the sums referred to in Clauses 44.2.2, 44.2.3(a)(3), 44.3 and 44.10 shall be
increased at the end of the Financial Year ending on or around 31 March, 2007 and at
the end of each subsequent Financial Year by an amount equal to the difference
(expressed as a percentage) between the level of the Retail Price Index most recently
published in respect of December of the Financial Year in question and the level of the
Retail Price Index in December of the preceding Financial Year.
Insurance
Fujitsu Services shall to the extent reasonably possible insure or make provision for
self-insurance against all losses and damages which are the result of its fault or
CLAUSES Version 13.0 80
POL00324964
POL00324964
CONFIDENTIAL
negligence in performing the Services, including workman's compensation, public
liability, product liability, property damage and professional indemnity. Fujitsu Services
will, if requested in writing by Post Office, produce to Post Office a certificate of
insurance showing the applicable coverage currently in force, and will also give Post
Office prior written notice of (where possible), or written notice no later than 30 days
after, alteration or cancellation of such insurance.
PART G: TERMINATION AND EXIT
46. Term
46.4The term of this Agreement shall, unless terminated earlier in accordance with the
provisions of Clause 47 or extended in accordance with the provisions of Clause 46.2, be
for a period commencing on the 28 July 1999 and ending on 31 March 2023.
46.2 If Post Office wishes to extend the term of this Agreement, it shall notify Fujitsu Services
in writing at least 18 months before the expiry of this Agreement, and the Parties shall
meet within 20 Working Days of receipt of such notice and shall use their reasonable
endeavours to agree an extension to the term of this Agreement.
46.3 Each Expiring Service shall, unless terminated earlier in accordance with the provisions of
Clause 47 or extended in accordance with the provisions of paragraph 10 of Schedule E
(where applicable or otherwise extended through the Change Control Procedure), be
provided for the period up to the relevant date specified in Table A of Schedule B3.1 on
which date such Expiring Service shall expire. For the avoidance of doubt, no Partial
Termination Charge or Termination Charge shall be payable by Post Office in relation to
an Expiring Service on the expiry of such Expiring Service on 31% March 2017 or the
Salesforce Service and Credence/MDM Service which shall both expire on 31st March
2016. Liquidated damages shall continue to apply during any extension in accordance with
Clause 18 save in the case of a mini extension of the Engineering Service where the
Actual Engineering Visits in any one month exceeds the related Excepted Engineering
Volume by 10%. In such instances, the calculation for liquidated damages in respect of
the Counter Availability SLT shall be based on the average downtime for each of the
hardware components over the previous three months (not including the month in
question), instead of the actual downtime in the month for each of those components.
This shall be calculated using the reported downtime for each problem type prefaced “HD”
in the Local Failure section of the SLT report produced in accordance with Annex A to the
CCD Branch Network Service Description (SVM/SDM/SD/0011). For the avoidance of
doubt, all other provisions of the Agreement shall continue to apply during any extension
period.
46.4 Notwithstanding Clause 46.3, some of the Expiring Services have been extended and as
such the Expiring Services as at signature of CCN1600 shall be:
46.4.1 the Operational Business Change (Branch Change) Service, Branch Network
Service and CMT Service, due to expire on 31% March 2017; and.
46.4.2 the POLSAP Hosting Service, POLSAP Applications Support Service and
support for the Credence/MDM Service and the Salesforce Support Service,
due to expire on 31% March 2016.
CLAUSES Version 13.0 81
POL00324964
POL00324964
CONFIDENTIAL
47.
47.4
The Expiring Services shall, unless terminated earlier in accordance with the provisions
of Clause 47, or extended in accordance with either the provisions of paragraph 10 of
Schedule E or using the Change Control Procedure, be provided for the period up to
the dates specified in Clause 46.4.1 and 46.4.2 above. For the avoidance of doubt, no
Partial Termination Charge or Termination Charge shall be payable in relation to these
Expiring Services if they expire on the dates set out above.
Both Parties acknowledge that Post Office may request further extensions to the
Expiring Services. Both Parties agree to act reasonably in the event of any such
request and any associated negotiation of terms. In particular, Fujitsu Services agrees
to mitigate its costs of supply and stranded costs with respect to any further extension
of the Expiring Services to the extent that it is reasonably possible to do so having
regard to, amongst other things, the timing of any request relative to the expiry date of
the Expiring Services.
Termination
Termination of whole Agreement
Post Office may at any time by notice in writing terminate this Agreement with effect
from the date of service of such notice or such later date as may be specified therein if:
47.4.1 there is a change of control, as defined by Section 416 of the Income and
Corporation Taxes Act 1988, in Fujitsu Services or the Guarantor; or
47.4.2 Fujitsu Services or the Guarantor, being an individual, or where Fujitsu
Services or the Guarantor is a firm, any partner or partners in that firm who
together are able to exercise direct or indirect control, as defined by Section
416 of the Income and Corporation Taxes Act 1988, shall at any time become
bankrupt or shall have a receiving order or administration order made against
him or shall make any composition or arrangement with or for the benefit of his
creditors, or shall make any conveyance or assignment for the benefit of his
creditors, or shall purport to do so, or appears unable to pay or to have no
reasonable prospect of being able to pay a debt within the meaning of Section
268 of the Insolvency Act 1986 or he shall become apparently insolvent within
the meaning of the Bankruptcy (Scotland) Act 1985 as amended by the
Bankruptcy (Scotland) Act 1993 or any application shall be made under any
bankruptcy or insolvency act for the time being in force for sequestration of his
estate, or a trust deed shall be granted by him for the benefit of his creditors; or
any similar event occurs under the law of any other jurisdiction; or
47.4.3 Fujitsu Services or the Guarantor, being a company, passes a resolution, or the
Court makes an order that Fujitsu Services or the Guarantor be wound up
otherwise than for the purpose of a bona fide reconstruction or amalgamation,
or a receiver, manager or administrator on behalf of a creditor is appointed in
respect of the business or any part thereof (which for the avoidance of doubt
shall not include any subsidiary company of Fujitsu Services or of the
Guarantor) of Fujitsu Services or the Guarantor, or circumstances arise which
entitle the Court or a creditor to appoint a receiver, manager or administrator or
CLAUSES Version 13.0 82
POL00324964
POL00324964
CONFIDENTIAL
475
47.6
47.7
47.8
which entitle the Court otherwise than for the purpose of a bona fide
reconstruction or amalgamation to make a winding-up order, or Fujitsu Services
or the Guarantor is unable to pay its debts within the meaning of Section 123 of
the Insolvency Act 1986 or any similar event occurs under the law of any other
jurisdiction; or
47.4.4 any provision hereof other than Clause 47 expressly entitles Post Office to
terminate this Agreement; or
47.4.5 the circumstances in Clause 60.5 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 30 days of written notice to Fujitsu Services specifying the
obligation in question and requiring it to be performed or within such other
period as may be requested by Fujitsu Services and agreed by Post Office,
such agreement not to be unreasonably withheld or delayed.
Post Office may at any time by notice in writing terminate this Agreement with effect
from the date of service of such notice or such later date as may be specified therein, if
Fujitsu Services is in material or persistent Default of any obligation under this
Agreement (other than a Default that gives the Post Office a right under Clause 47.11
to terminate Project HNG-X only) and:
47.5.1 such Default is capable of remedy and Fujitsu Services shall have failed to
remedy the Default within 30 days of written notice to Fujitsu Services
specifying the Default and requiring its remedy or within such other period as
may be requested by Fujitsu Services and agreed by Post Office, such
agreement not to be unreasonably withheld or delayed; or
47.5.2 such Default is not capable of remedy (and for the purposes of this Clause 47.2,
failure to comply with a timescale shall not of itself be considered a Default not
capable of remedy).
In the event that Project HNG-X is lawfully terminated by Post Office pursuant to
Clause 47.11.1, Post Office may at any time following such termination serve a notice
in writing on Fujitsu Services, following which Post Office shall have the right to
terminate this Agreement on at least six months’ notice, provided that in exercising
such right Post Office will not be able to terminate this Agreement prior to 1 April 2010.
Fujitsu Services may at any time by notice in writing to Post Office terminate this
Agreement with effect from the date of service of such notice or such later date as may
be specified therein, in the event of the material or persistent failure by Post Office to
pay Charges which have not been disputed by Post Office and Post Office shall have
failed to remedy such failure to pay within 30 days of written notice to Post Office
specifying such failure to pay and requiring its remedy or within such other period as
may be requested by Post Office and agreed by Fujitsu Services, such agreement not
to be unreasonably withheld or delayed.
In the event of any termination of this Agreement pursuant to Clause 47.1, Clause 47.2,
Clause 47.4, Clause 47.7 or termination of a Terminable Service pursuant to
Clause 47.10 or expiry of an Expiring Service, Post Office shall return the Infrastructure
CLAUSES Version 13.0 83
POL00324964
POL00324964
CONFIDENTIAL
47.9
47.10
47.11
47.12
47.13
or any part thereof (other than any part (a) in relation to which it has exercised the
option to acquire under Clause 48 and (b) (in the event of Partial Termination of a
Terminable Service or expiry of an Expiring Service) that is required for continuing
Services or for a Next Supplier), in which case Fujitsu Services shall at no additional
cost to Post Office, remove such parts of the Infrastructure as soon as reasonably
practicable and shall make good any damage to the Post Office Premises occasioned
by such removal.
Post Office shall only be permitted to exercise its rights pursuant to Clause 47.1.1 for
three months after each such change of control and shall not be permitted to exercise
such rights where Post Office has agreed in advance in writing to the particular change
of control and such change of control takes place as proposed. Fujitsu Services shall
notify Post Office in advance of any change of control taking place, if legally possible,
or if not so possible as soon as reasonably practicable, and in any event no later than
one month after such change of control taking place.
Post Office may terminate this Agreement for convenience on or after 1 April 2021 by
giving Fujitsu Services not less than twelve months’ notice. For the avoidance of
doubt, such notice may be given before 1 April 2021, but the Agreement may not
terminate under this Clause 47.7 before to 1April 2021. In the event of such notice
being given, Post Office shall on termination hereof pay to Fujitsu Services the
Termination Charge calculated in accordance with Schedule E.
Termination shall not prejudice or affect any right of action or remedy which shall have
accrued or shall thereafter accrue to either Party.
The provisions of Clauses 10.1.2, 25, 27, 30.19, 31 (to the extent applicable in respect
of the Transfer Services), 33.2, 34, 39.3, 43, 44, 47, 48, 50, 53, 56, 57, 59, 61, 62, 65,
67, 68, 69, 70, 71, 72, 75, the provisions of Schedules 1, D1, D5 and E, paragraphs
2.2.3.4 and 2.4 of Schedule B4.1 and paragraph 3.4 of Schedule D3 shall survive the
termination of this Agreement by Post Office or Fujitsu Services or the expiry of this
Agreement.
Partial Termination
Post Office may in the manner and in the circumstances set out in this Clause 47.10
terminate the provision of one or more Terminable Services.
47.13.1 Market Testing
If entitled to terminate a Terminable Service under paragraph 4.3.3(b)(ii) of
Schedule D6, Post Office may, by giving Fujitsu Services not less than six
months' notice in writing, terminate that Terminable Service.
47.13.2 Convenience
(b) I Post Office may terminate the provision of any Terminable Service on or
after the earliest date for termination or occurrence of the event required
for termination of that Service specified in Annex 1 to Schedule E by
giving Fujitsu Services not less than
CLAUSES Version 13.0 84
POL00324964
POL00324964
CONFIDENTIAL
(c)
(e)
(i) 3 months’ notice in writing (or 6 months’ notice in writing in the event
of termination of the Service Desk Service and 1 month's notice in
writing for CMT Services) provided such notice is deemed duly given in
accordance with Clause 57.2 on or prior to 31% March 2017; or
(ii) 6 months’ notice in writing where such notice is deemed duly given in
accordance with Clause 57.2 on or after 1% April 2017, with the exception
of the Operational Business Change (Branch Change) Service, which
shall require 3 months’ notice in writing.
In the event such notice is given a Partial Termination Charge shall be
paid by Post Office to Fujitsu Services upon such Partial Termination.
For the avoidance of doubt, it is noted that during the 6 months’ notice
period for the Service Desk Service, Post Office retains the option to
“ramp down” the services, noting that it must take account of Post
Office's and the Next Supplier's obligations (where relevant) to consult
with any staff potentially subject to transfer under the TUPE
Regulations.
Post Office may terminate the provision of the CMT Service by giving
Fujitsu Services not less than:
(i) one month's notice in writing provided such notice is deemed duly
given in accordance with Clause 57.2 on or prior to 31* March 2017; or
(ii) 6 months’ notice in writing where such notice is deemed duly given
in accordance with Clause 57.2 on or after 1% April 2017.
No termination or compensation charge shall be payable to Fujitsu
Services in the event of such termination and the provisions of
Schedules D6 and E shall not apply in respect of the CMT Service.
Post Office may terminate the provision of the Superstock Service by
giving Fujitsu Services not less than twelve months’ notice in writing. No
termination or compensation charge shall be payable to Fujitsu Services
in the event of such termination and the provisions of Schedules D6 and
E shall not apply in respect of the Superstock Service.
Unless the Parties agree otherwise in the relevant CCN:
(i) Post Office may terminate the provision of any Service
Integration Service or Third Party Management Service
introduced under the Change Control Procedure after the date of
signature of CCN1200 by giving not less than twelve months’
notice in writing; and
(ii) no termination or compensation charge shall be payable to
Fujitsu Services in the event of such termination and the
provisions of Schedules D6 and E shall not apply in respect of
CLAUSES Version 13.0 85
POL00324964
POL00324964
CONFIDENTIAL
POL00324964
POL00324964
any such Service Integration Service or Third Party Management
Service.
Post Office may terminate the provision of the Track and Trace
Despatch Report Cut-off monthly workaround (introduced in CCN1627a
as part of the Third Line Software Support Service) by giving Fujitsu
Services not less than one months’ notice in writing. No termination or
compensation charge shall be payable to Fujitsu Services in the event of
such termination and the provisions of Schedules D6 and E shall not
apply in respect of the Track and Trace Despatch Report Cut-off monthly
workaround.
Termination of Project HNG-X
47.14 Subject to Clause 47.11.3 at any time prior to HNG-X Initial Acceptance, Post Office
may terminate Project HNG-X:
47.14.1 by notice in writing, with effect from seven days after service of such notice or
such later date as may be specified therein, if Fujitsu Services is in material
Default of any obligation under this Agreement in relation to Project HNG-X
(and for the purposes of this Clause 47.11.1 only, “material Default” includes
any persistent Default which by reason of its persistence has become material)
and:
(b)
such Default is capable of remedy and Fujitsu Services shall have failed
to remedy the Default within 30 days of written notice to Fujitsu Services
(i) specifying that it is given pursuant to this Clause 47.11.1(a), (ii) giving
details of the Default and why it is considered to be material and (iii)
requiring its remedy, or within such other period as may be requested by
Fujitsu Services and agreed by Post Office, such agreement not to be
unreasonably withheld or delayed; or
such Default is not capable of remedy (and for the purposes of this
Clause 47.11.1, failure to comply with a timescale shall not of itself be
considered a Default not capable of remedy) and Post Office shall have
given written notice to Fujitsu Services (i) specifying that it is given
pursuant to this Clause 47.11.1(b) and (ii) giving details of the Default
and why it is considered to be material;
47.14.2 by notice in writing, specifying that it is given under this Clause 47.11.2, with
effect from 30 days from the service of such notice. In the event of notice
being given in accordance with this Clause 47.11.2, Post Office shall pay to
Fujitsu Services upon termination of Project HNG-X the HNG-X Termination
Charge.
47.11.3 Post Office shall not be entitled to exercise its right of termination of the HNG-
X Project under Clause 47.11.2 of the Agreement prior to 30th April 2010. If
HNG-X Initial Acceptance has not occurred by 30th April (which allows for a
CLAUSES Version 13.0 86
CONFIDENTIAL
47.15
47.16
47.17
47.18
period of 4 weeks following the planned initial Acceptance Date of 2nd April
2010) then Post Office may exercise its right of termination of the HNG-X
Project under clause 47.11.2 at any time after 30th April 2010.
Notwithstanding the termination of Project HNG-X in accordance with Clause 47.11:
47.15.1 the Services shall continue to be provided using the Infrastructure until such
time that this Agreement expires in accordance with Clause 46 unless the
Agreement is terminated earlier in accordance with the other provisions of this
Clause 47; and
47.15.2the Associated Change Activities shall be implemented in accordance with
Clause 6 and any remaining Associated Change Development and hardware
and software procurement required for such implementation specified in
Schedule BS5 shall be paid for by Post Office in accordance with Schedules D7
and D8 (as applicable).
If Project HNG-X is terminated under:
47.16.1 Clause 47.11.1 or Clause 47.15 (but only as a consequence of the Agreement
terminating pursuant to Clauses 47.1 or 47.2), then Fujitsu Services shall at its
own cost reinstate the Horizon Applications to those Branches in which the
Business Capabilities and Support Facilities have been rolled out; or
47.16.2 Clause 47.11.2 or Clause 47.15 (but only as a consequence of the Agreement
terminating pursuant to Clauses 47.4 or 47.7), then Fujitsu Services shall
reinstate the Horizon Applications to those Branches in which the Business
Capabilities and Support Facilities have been rolled out. Fujitsu Services’
charges for such reinstatement shall be paid by Post Office and shall be an
amount equal to Fujitsu Services’ costs multiplied by 100 and divided by 78,
provided that such costs are subject to verification under the Open Book
procedure.
If at the date upon which Project HNG-X is terminated in accordance with
Clause 47.11, the move of Data Centres to Fujitsu Services’ premises has been
completed, such move will not be reversed following termination in order that the
Services may continue to be provided using the Data Centres located at Fujitsu
Services’ premises. To the extent that prior to termination of Project HNG-X Data
Centre equipment has been put in place and which relate only to the HNG-X Service
Infrastructure, such equipment shall be decommissioned following termination and the
costs of such decommissioning shall be borne by either Party in accordance with
Clause 47.13.
If, for any reason, Post Office or Fujitsu Services gives notice to terminate this
Agreement prior to HNG-X Initial Acceptance, Project HNG-X shall terminate, subject
to Clause 47.16, two weeks after the date of service of such notice, unless the Parties
agree otherwise in accordance with the Change Control Procedure. Any notice
purporting to terminate Project HNG-X given after notice to terminate the Agreement
has been given shall be deemed to be invalid and of no effect. If notices to terminate
CLAUSES Version 13.0 87
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
47.19
48.
48.4
the Agreement and Project HNG-X are given on the same day, the notice to terminate
Project HNG-X shall be deemed to have been given first.
If Project HNG-X is terminated in accordance with Clause 47.15, Fujitsu Services shall,
where the Business Capabilities and Support Facilities have been rolled out in
Branches, continue to provide the HNG-X Services using the Business Capabilities and
Support Facilities in those Branches until the Horizon Applications have been reinstated
in accordance with Clause 47.13.
Rights on termination and expiry of this Agreement, Partial Termination, expiry
of an Expiring Service and termination of Project HNG-X
In the event of termination or expiry of this Agreement, or termination of Project HNG-X
or, any Terminable Service for any reason whatsoever, or the expiry of any Expiring
Service, Post Office shall, without prejudice to Post Office's other rights and remedies
but subject to payment of all sums due and payable to Fujitsu Services up to the date
of termination or (if applicable) expiry, have the option (subject to Clause 48.2.3),
exercisable in the applicable period referred to in the General Exit Plan or HNG-X Exit
Plan (as applicable), to acquire from Fujitsu Services or to require Fujitsu Services to
permit the Next Supplier to acquire from it, in consideration of the Transfer Payment
the Project Assets which shall comprise:
48.4.1 any or all of the hardware that is comprised within the Infrastructure and/or that:
(b) _ is being used; or
(c) had previously been used in Branches and is no longer being used (other
than any such hardware that is no longer being used because it was
replaced by spare, upgraded or alternative equipment),
in each case in connection with the performance of the Services (other than
where such hardware is either (i) not owned by Fujitsu Services or any of its
subsidiary companies or (ii) those shared elements of the Infrastructure
referred to in Clause 35.3); and
48.4.2 the right to require that Fujitsu Services shall assign or novate, or (if
assignment or novation is not possible) arrange for the benefit thereof to be
transferred, in favour of Post Office or to any person as may be designated for
the purpose by Post Office any sub-contracts, equipment rental or lease
agreements and all other agreements (other than employment agreements and
agreements in relation to Third Party Software, Third Party Items or Non-
standard Third Party Materials) entered into by Fujitsu Services which are
necessary to the performance of the Services as Post Office may designate,
provided that, if termination is in respect of Project HNG-X or a Terminable Service
rather than the entire Agreement, the above provisions shall apply only to those Project
Assets (or, in the case of agreements, that part thereof) that are not reasonably
required by Fujitsu Services for the provision of any continuing Services under this
Agreement.
CLAUSES Version 13.0 88
CONFIDENTIAL
48.5
48.6
48.7
Notwithstanding the generality of Clause 48.1 Post Office agrees:
48.5.1 only to exercise its rights under such Clause to the extent that the relevant
Project Assets apply to, and are required for the provision or receipt of the
Services or Terminable Services that are the subject of the termination or
expiry or are otherwise to be provided pursuant to Schedule E (including, for
the avoidance of doubt, the Exit Plan);
48.5.2 the rights provided for in Clauses 48.1 shall not apply to the Superstock
Solution; and
48.5.3 in the case of Partial Termination of the Engineering Service, that it shall
acquire or shall ensure that the Next Supplier acquires from Fujitsu Services all
of the Project Assets referred to in Clause 48.1.1 that relate to the Engineering
Service comprising the Counter Equipment used in Branches up to the network
connection sockets in each Branch, as well as spare Counter Equipment held
by Fujitsu Services intended for such use.
In the event that Post Office exercises any of the options in Clause 48.1 or Clause
48.2.3 applies, Post Office shall pay to Fujitsu Services on completion of such option
or, in the case of Clause 48.2.3, such acquisition, a sum equal to the Transfer
Payment. If Post Office exercises the option in Clause 48.1 in respect of any Partial
Termination or in respect of termination of Project HNG-X or in respect of the expiry of
an Expiring Service or Clause 48.2.3 applies, the Project Assets acquired by it shall
cease to form part of the Infrastructure and this Agreement shall be amended
accordingly as provided in Schedule E.
In the event that this Agreement expires or is terminated, an Expiring Service expires
or a Terminable Service is terminated as provided for herein:
48.7.1 Fujitsu Services shall return to Post Office all Property of the Royal Mail Group
in the possession of Fujitsu Services that is not required for the provision of
any continuing Services under this Agreement.
48.7.2 Fujitsu Services shall, after being given notice of termination, or on the expiry
of the Agreement or expiry of an Expiring Service render all practicable
assistance to Post Office, if requested, to the extent necessary to effect an
orderly assumption by Post Office or a replacement contractor of the services
theretofore performed by Fujitsu Services under this Agreement and Post
Office shall reimburse Fujitsu Services for such assistance at the rates set out
at paragraph 12 of Schedule D1.
48.7.3 Upon termination or expiry, Post Office shall be entitled to offer employment
POL00324964
POL00324964
(or an agreement for services with Post Office) to any employee or sub-
contractor (being an individual) (“Worker”) of Fujitsu Services who has during
the six months prior to such offer been involved for at least 75 percent. of his
contracted working time in performing Fujitsu Services’ obligations under this
Agreement which are the subject of the termination or expiry. Fujitsu Services
agrees that if that Worker accepts such offer Fujitsu Services shall release that
Worker from any breach of contract with it (other than in relation to such
CLAUSES Version 13.0 89
CONFIDENTIAL
48.8
48.9
48.10
48.11
person's obligations of confidentiality and notice of termination) which such
acceptance may otherwise involve.
All the assets to be acquired pursuant to the exercise by Post Office of its option under
Clause 48 shall be acquired and any software, documents materials or other things
provided by Fujitsu Services pursuant to the licences granted under Clauses 48.8 to
48.13 shall be provided "as is", but (apart from such licences) free from encumbrances
and the Parties agree that all express and implied warranties and conditions relating to
such assets are excluded to the full extent permitted by law.
The Parties have agreed to populate the CCD entitled “Transfer Asset Register”
(COM/MGT/REP/0001) with details of all Software data, tools, utilities, documentation
and other items necessary to perform the Services and run the Applications (and to
indicate those that relate exclusively to a Terminable Service or Expiring Service and
those that are shared between one Terminable Service or Expiring Service and another
Service or Services), and to agree, in accordance with the guidance contained in that
CCD, the most appropriate treatment of such item. Notwithstanding any other
provision of this Agreement, the categorisation and proposed treatment of such items
agreed in that CCD shall take precedence over Clause 48.13 which shall be deemed
superseded by such CCD when agreed by the Parties.
In the event that:
48.10.1 a Terminable Service is terminated pursuant to Clause 47.10.1 or 47.10.2; or
48.10.2 this Agreement expires or is terminated as provided for herein (other than by
Fujitsu Services pursuant to Clause 47.4),or
48.10.3 an Expiring Service expires pursuant to Clause 46.3 and 46.4,
the provisions of Clauses 48.8 to 48.13 (inclusive) shall apply, provided that where
termination is in respect of a Terminable Service or expiry is in respect of an Expiring
Service rather than the entire Agreement, those Clauses shall apply only to that
Service and any software, documents and materials that were used in the provision or
receipt of that Service.
Subject to:
48.11.1the payment of the Termination Charge in the case of termination of the
Agreement by Post Office pursuant to Clause 47.7;
48.11.2the payment of the Partial Termination Charge in the case of Partial
Termination by Post Office pursuant to Clause 47.10.2; and
48.11.3 in all cases, Clause 48.9,
Fujitsu Services shall grant to Post Office a non-exclusive, perpetual, irrevocable
licence to use, modify, adapt, enhance and develop all documents, software or other
materials or things in which Fujitsu Background IPRs vest that:
CLAUSES Version 13.0 90
POL00324964
POL00324964
CONFIDENTIAL
48.12
48.13
48.11.4 exist at the date of termination or expiry;
48.11.5 Post Office has the right to use at the date of termination or expiry in the
receipt of the Relevant Services; and
48.11.6 are reasonably necessary for the purposes ("Background IPR Purposes") of
Post Office making use of the Project Assets transferred to it under Clause
48.1 and the rights granted to it under Clauses 29 and 30 in respect of Post
Office Foreground IPR and Licensed IPR (including, without limitation, any
Fujitsu Background IPRs relating to (i) the configuration of the Project Assets,
Post Office Foreground IPR or Licensed IPR or (ii) the configuration of the
Project Assets, Post Office Foreground IPR or Licensed IPR with any other
assets used by Fujitsu Services at the date of termination or expiry in the
provision of the Relevant Services).
Post Office shall not use, modify, adapt, enhance or develop any document, software
or other material or thing licensed to it under this Clause 48.8 for any purpose other
than the Background IPR Purposes. Post Office shall be entitled to grant sub-licences
of its rights under this Clause to third parties, other than those whose use of Fujitsu
Background IPR is not for the purposes of providing services to Post Office for Post
Office’s business, provided that such third parties shall have entered into an Agreed
Form NDA.
In the event that Fujitsu Services is able to demonstrate to the reasonable satisfaction
of Post Office, that a document, piece of software or other material which would be (but
for this Clause) the subject of the licence granted under Clause 48.8 is made generally
available by a member of the Fujitsu Services Group and licensed by that member on
commercial terms to at least two other third parties, then Fujitsu Services shall grant a
licence or procure that a licence is granted to Post Office of that document, software or
material on terms (including the amount of any royalty or fee) which are no less
favourable to Post Office than the commercial terms in place with any such third
parties. In all other respects the licence granted pursuant to Clause 48.8 shall be
royalty-free.
Subject to:
48.13.1 the payment of the Termination Charge in the case of termination of the
Agreement by Post Office pursuant to Clause 47.7;
48.13.2the payment of the Partial Termination Charge in the case of Partial
Termination by Post Office pursuant to Clause 47.10.2; and
48.13.3 in all cases, Clauses 48.11 and 48.12,
Fujitsu Services shall:
48.13.4to the extent that any software, documents or other materials in which the
Intellectual Property Rights are owned by a third party (other than Third Party
Items and Horizon Third Party Software) are used by the Parties (or which the
Parties have the right to use) at the date of termination or expiry to provide or
CLAUSES Version 13.0 91
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
receive the Relevant Services over the Horizon Service Infrastructure using the
Horizon Applications, use reasonable endeavours to procure that Post Office is
granted the rights to use such software, documents or materials on normal fair
and commercial terms; and
48.13.5in respect of the HNG-X Service Infrastructure and Business Capabilities and
Support Facilities, in the event that Post Office consented to the use of Non-
standard Third Party Material which is used by the Parties (or which the Parties
have the right to use) at the date of termination or expiry to provide or receive
the Relevant Services and the Parties could not obtain the rights referred to in
Clause 30.10 at the time intended by that Clause, use reasonable endeavours
to procure that Post Office is granted the rights to use such Non-standard Third
Party Material.
48.14 In the case of both Clause 48.10.4 and Clause 48.10.5:
48.14.1 the use of reasonable endeavours by Fujitsu Services shall include without
limitation, jointly approaching the relevant third party with Post Office or
providing reasonable assistance to Post Office in its negotiations with such
third party;
48.14.2 Fujitsu Services shall not be obliged to pay any licence fees or incur any other
external costs or expenses in relation to such assistance or negotiations; and
48.14.3 Fujitsu Services shall use reasonable endeavours to obtain rights of use which
are non-exclusive and on such terms which do not detract from Post Office's or
the Next Supplier's ability to provide Replacement Services.
48.15 Where this Agreement terminates prior to the occurrence of Trigger Point T6 (Counter
Application Rollout Complete), the applicable provisions of paragraph 2 of Schedule
B4.1 shall apply in respect of the Escher Upgrade Software.
48.16 Without limiting the generality of Clause 48.8, the licences granted pursuant to that
Clause shall permit use by all members of the Royal Mail Group and End Users and,
subject to Clause 48.6, shall pertain to the versions of all software, tools, utilities,
documentation and other materials that are then in use by Fujitsu Services in the
provision of the Relevant Services and Fujitsu Services shall deliver one copy of each
of such to Post Office promptly following the date of termination (including an up-to-
date copy of archive and back-up versions of any software), provided that where Fujitsu
Services is unable to provide any such version of software, tools or utilities it shall
provide Post Office with the then commercially available version of such software, tools
and utilities.
Interface Costs
48.17 Fujitsu Services shall bear or Post Office shall pay to Fujitsu Services the Interface
Costs arising in connection with any Partial Termination in accordance with the
provisions of Schedule E.
Terr ion Charge Credit
CLAUSES Version 13.0 92
CONFIDENTIAL
48.18
48.19
49.
50.
51
52.
53.
The provisions of CCN 1246 relating to credits due to Post Office upon termination or
expiry of the Agreement shall apply upon termination or expiry of this Agreement.
The provisions of CCN 1268 relating to: unspent sums under, or the failure by the
Parties to enter into, the new business (as stated at paragraph 10.10 of Schedule D1 as
introduced by CCN 1268); and release of Fujitsu Services from further liability in
relation to the credits (as stated at paragraph 6.7 of Schedule D1 as introduced by CCN
POL00324964
POL00324964
1268), in each case as at termination or expiry of the Agreement and/or Project HNG-
X, shall apply upon termination or expiry of this Agreement or (as the case may be)
Project HNG-X.
PART H: GENERAL
Additional Resources
In the event that the Services are not provided in accordance with all applicable
provisions hereof as a result of the Default of Fujitsu Services, Fujitsu Services shall, at
the request of Post Office and without prejudice to Post Office's other rights and
remedies, arrange all such additional resources as are reasonably necessary to correct
the said failure as early as practicable thereafter and at no additional charge to Post
Office.
Recovery of Sums Due
If any sum of money shall be due from Fujitsu Services under this Agreement, the
same may be deducted from any sum then due or which at any time thereafter may
become due to Fujitsu Services under this Agreement. There shall be no other right of
set-off or deduction in respect of sums due to Fujitsu Services under this Agreement.
Authority and Approval
Fujitsu Services warrants and represents that it has full capacity and authority and all
necessary consents (including but not limited to, where its procedures so require, the
consent of its Parent Company) to enter into and to perform this Agreement and that
this Agreement is executed by a duly authorised representative of Fujitsu Services.
Statements and Representations
Fujitsu Services warrants and represents that all statements and representations made
to Post Office in connection with tendering for and entering into this Agreement or CCN
1200 were, to the best of its knowledge, information and belief, true and accurate at the
time of making such statements and representations and that, from the date of
execution hereof, it will advise Post Office of any fact, matter or circumstance of which
it may become aware which would render any such statement or representation to be
false or misleading.
Disclaimer of Implied Terms
Except as expressly stated in this Agreement, all terms, warranties and conditions,
whether express or implied by statute, common law or otherwise (including but not
CLAUSES Version 13.0 93
CONFIDENTIAL
54.
55.
55.4
55.5
55.6
56.
56.4
56.5
limited to satisfactory quality and fitness for purpose) are hereby excluded to the extent
permitted by law.
Waiver
No forbearance or delay by any Party in enforcing its rights will prejudice or restrict the
rights of that Party, subject to the express timescales set out herein, and no waiver of
any such rights or of any breach of any contractual term will be deemed to be a waiver
of any other right or of any later breach.
Relationship of Parties
Post Office shall control the rights for using and marketing the Services provided in
Branches. Fujitsu Services shall have no control over the use or marketing of the
Services.
Except as otherwise agreed from time to time between Post Office and Fujitsu
Services, Post Office will retain control itself of its critical business processes and
relationships, such as:
55.5.1 customer interface, including quality of service (such as queuing time and other
customer charter measures) to its customers, network format, location of offices
and service standards;
55.5.2 contractual relationships with Agents;
55.5.3 contractual relationships with its clients;
55.5.4 policy control of its network;
55.5.5 its reconciliation, settlement and key infrastructure support processes;
55.5.6 its relationship with its suppliers; and
55.5.7 its product and service design.
Fujitsu Services’ and its subcontractors’ contacts with Agents shall be arranged only via
Post Office.
Publicity
No public announcement or public circular (including a media release) relating to the
subject matter of this Agreement will be made unless it has first been agreed between
the Parties in writing. This restriction shall not apply to any announcement intended
solely for internal distribution by the Party in question or any disclosure required by any
legal, accounting or regulatory requirement.
Each Party shall take all reasonable steps to ensure the observance of the provisions of
Clause 56.1 by all its employees, agents, consultants and sub-contractors.
CLAUSES Version 13.0 94
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
56.6
56.7
56.8
57.
57.4
$7.5
Fujitsu Services shall have no right to use the brand or logo of any Royal Mail Group
member without Post Office's prior written consent. Fujitsu Services shall have no right
to use the brand or logo of any part of Post Office without Post Office's prior written
consent.
Fujitsu Services shall do nothing to injure such logos and brands or the reputation of
Post Office and, if it uses such brands or logos, it shall take all reasonable steps to
enable Post Office to protect such logos and brands and the reputation of Post Office
but in no event less than the steps it would take in relation to its own logos, brands and
reputation.
Post Office shall have no right to use the brands or logo of Fujitsu Services or its sub-
contractors without Fujitsu Services' prior written consent. Post Office shall do nothing
to injure such logo and brands or the reputation of Fujitsu Services or its sub-
contractors and, if it uses such brands or logos, it shall take all reasonable steps to
enable Fujitsu Services and its sub-contractors to protect such logo and brands and the
reputation of Fujitsu Services and its sub-contractors, but in no event less than the
steps it would take in relation to its own logos, brands and reputation.
Communications & Notices
Except where expressly stated otherwise, a notice under this Agreement shall only be
effective if it is in writing and sent to a Party at its address or number and for the
attention of the individual set out below:
PARTY AND ADDRESS EMAIL TELEPHONE
TITLE OF INDIVIDUAL NO.
Post Office Limited Finsbury Dials,
1st Floor, 20,
Finsbury Street,
London,
EC2Y 9AQ
For the attention of:
Contract Manager (FS)
Fujitsu Services Limited Lovelace Road,
Bracknell,
Berkshire,
RG12 8SN
For the attention of:
Director of Delivery
Post Office Account
Fujitsu Services Limited
Provided that a Party may change its notice details on giving notice to the other Party
of the change in accordance with this Clause.
Any notice given under this Agreement in accordance with Clause 57.1 shall, in the
absence of earlier receipt, be deemed to have been duly given as follows:
CLAUSES Version 13.0 95
POL00324964
POL00324964
CONFIDENTIAL
58.
58.4
58.5
58.6
58.7
58.8
57.5.1 if delivered personally, on delivery;
57.5.2 if sent by first class post, two clear Working Days after the date of posting;
57.5.3 Notice may also be supportedby email
provided that in each case where delivery by hand or by facsimile occurs after 6.00
p.m. on a Working Day or on a day which is not a Working Day, service shall be
deemed to occur at 9.00 a.m. on the next following Working Day.
Transfer and Sub-Contracting
This Agreement is personal to Fujitsu Services. Fujitsu Services shall not assign,
novate, sub-contract or otherwise dispose of this Agreement or any part thereof without
the previous written consent of Post Office.
Subject to Clause 58.5 Post Office hereby consents to Fujitsu Services having
subcontracted its obligations specified in Schedule C2 to the respective sub-contractors
specified therein. Additional or substitute sub-contractors may be approved from time
to time in accordance with Clause 58.1 after the date hereof, in which case Schedule
C2 shall be amended accordingly. Notwithstanding any sub-contracting permitted in
this Agreement, Fujitsu Services shall remain primarily responsible for the acts and
omissions of its sub-contractors committed by them in the course of performing or
purporting to perform any of Fujitsu Services' obligations on Fujitsu Services' behalf as
though such acts or omissions were its own.
Post Office shall be entitled to assign, novate or otherwise dispose of its rights and
obligations under this Agreement or any part thereof (including, where appropriate,
requiring the grant by Fujitsu Services or its licensors of a direct licence of any
Software other than Third Party Software, and requiring Fujitsu Services to use all
reasonable endeavours to procure the grant of a direct licence or obtain consent to the
transfer of the sub-licence of any Third Party Software) to any other body which
performs any of the functions that previously had been performed by Post Office,
provided that any such assignment, novation or other disposal shall not increase the
burden of Fujitsu Services' obligations pursuant to this Agreement.
Post Office shall be entitled to disclose, to the extent necessary for the purposes of this
Agreement, to any transferee any Confidential Information of Fujitsu Services which
relates to the performance of the Services by Fujitsu Services. In such circumstances
Post Office shall authorise the transferee to use such Confidential Information only for
purposes relating to the performance of the Services and for no other purposes and, for
the avoidance of doubt, the transferee shall be bound by the confidentiality undertaking
contained herein in relation to such Confidential Information.
The consent referred to in Clause 58.2 and any approval which may be granted in
respect of additional or substitute sub-contractors pursuant to Clause 58.2 is provided,
and shall be granted (as the case may be), on the understanding that Fujitsu Services
shall keep Post Office informed of the general nature and scope of the work to be sub-
contracted and the duration of the relevant sub-contracts (such information to be
recorded in Schedule C2) and shall consult with Post Office prior to amending or
CLAUSES Version 13.0 96
CONFIDENTIAL
59.
59.4
59.5
59.6
59.7
60.
60.4
60.5
supplementing such arrangements or commitments and shall take account of all
reasonable requests and comments that Post Office shall make in connection
therewith.
Non-Solicitation
Subject to Clause 48.4.3, neither Party shall during the currency of the Agreement or
for a period of six months thereafter without the written permission of the other (not to
be unreasonably withheld) either on its own account or for any other person, firm or
undertaking either directly or indirectly knowingly solicit or entice away from the other
(the "Previous Employer") any Key Individual who is then or shall have been in the
previous three months either:
59.4.1 an employee of the Previous Employer; or
59.4.2 engaged by the Previous Employer as a contractor performing the services of
such an employee.
In the event that such Key Individual is employed or engaged by the other Party with
the agreement of the other Party (such agreement to include without limitation agreed
transfer of work and associated staff between the Parties during the term of the
Agreement) or after redundancy from the Previous Employer, the Previous Employer
shall not (unless agreed otherwise) be paid any sum by the other Party by way of
compensation.
If either Party is in breach of this condition that Party will pay to the other Party by way
of liquidated damages and not by way of penalty the Solicitation Fee.
Nothing in this Clause 59 is intended to prevent or frustrate the right of any individual to
seek employment as he thinks fit.
Force Majeure
For the purposes of this Agreement the expression "Force Majeure" shall mean any
cause affecting the performance by a Party hereto of its obligations arising from acts,
events, omissions, happenings or non-happenings beyond its reasonable control
including (but without limiting the generality thereof) (i) Governmental Regulations
(subject to Clause 60.7), (ii) fire, (iii) flood, or (iv) any disaster or an industrial dispute
affecting a third party. Any act, event, omission, happening or non-happening will only
be considered Force Majeure if it is not attributable to the wilful act, neglect or failure to
take reasonable precautions of the affected Party, its agents or employees, and only if
a substitute third party is not reasonably available (having regard, without limitation, to
the cost and quality of such substitute) to perform the affected obligation. In no event
shall any fraudulent act or omission by any third party or Party in relation to the
Services for which Fujitsu Services is liable under Clause 43.1 constitute a Force
Majeure event.
Neither Party hereto shall in any circumstances be liable to the other Party hereto for
any loss of any kind whatsoever including but not limited to any damages or abatement
of Charges whether directly or indirectly caused to or incurred by the other Party by
CLAUSES Version 13.0 97
POL00324964
POL00324964
CONFIDENTIAL
60.6
60.7
60.8
60.9
reason of any failure or delay in the performance of its obligations under this
Agreement which is due to Force Majeure. Notwithstanding the foregoing, each Party
shall use all reasonable endeavours to continue to perform, or resume performance of,
such obligations under this Agreement for the duration of such Force Majeure event. In
the case of any such failure or delay on the part of Fujitsu Services, the Parties shall
agree an orderly process for such continuation or resumption of performance (such
consent not to be unreasonably withheld or delayed), and Fujitsu Services shall comply
with such process. Fujitsu Services shall remain liable to perform the Business
Continuity Services, save where such Business Continuity Services are themselves
also affected by Force Majeure, in which case Fujitsu Services shall be required to use
all reasonable endeavours to perform such Business Continuity Services.
If Fujitsu Services shall become aware of circumstances of Force Majeure which give
rise to or which are likely to give rise to any such failure or delay on its part it shall
forthwith notify Post Office within one Working Day and shall inform Post Office of the
period which it is estimated that such failure or delay shall continue. If Post Office shall
become aware of circumstances of Force Majeure which give rise to any such failure or
delay on its part, it shall forthwith notify Fujitsu Services within one Working Day and
shall inform Fujitsu Services of the period which it is estimated that such failure or
delay shall continue.
It is expressly agreed that any failure by Fujitsu Services to perform, or any delay by
Fujitsu Services in performing, its obligations under this Agreement which results from
any failure or delay in the performance of its obligations by any person, firm or
company with which Fujitsu Services shall have entered into any contract, supply
arrangement or sub-contract or otherwise shall be regarded as a failure or delay due to
Force Majeure only in the event that such person firm or company shall itself be
prevented from or delayed in complying with its obligations under such contract, supply
arrangement or sub-contract or otherwise as a result of circumstances of Force Majeure
and there is no substitute person, firm or company reasonably available (having regard,
without limitation, to the cost and quality of such substitute) to perform the affected
obligation.
If any Force Majeure event prevents any Party from performing its obligations
hereunder for a period in excess of 90 consecutive days, Post Office may after
consulting with Fujitsu Services and taking into account Fujitsu Services' views,
terminate this Agreement in accordance with Clause 47.1.5.
Extension of Time
If the performance of this Agreement by either Party is delayed by reason of any Force
Majeure event (as defined in Clause 60.1), both Parties shall be entitled to a
reasonable extension of time subject to there being no entitlement to any additional
costs or expenses incurred as a result of the delay. The Party so delayed shall notify
the other Party in writing within one Working Day of becoming aware of the Force
Majeure event.
60.10 Political Risk
CLAUSES Version 13.0 98
POL00324964
POL00324964
CONFIDENTIAL
61.
Notwithstanding the provisions of Clauses 60.1 to 60.5, a change of, or new,
Governmental Regulation:
60.10.1 shall not entitle Post Office to terminate this Agreement under Clause 60.5, and
any such purported termination shall be treated as a termination for
convenience in accordance with Clause 47.7; and
60.10.2 shall not require Fujitsu Services to perform any additional obligations, or any
reduced or modified obligations resulting in increased cost to Fujitsu Services,
without its agreement in accordance with the Change Control Procedure.
Confidentiality
Without prejudice to the application of the Official Secrets Acts 1911 to 1989 (where
relevant) to any Confidential Information Fujitsu Services acknowledges that any
Confidential Information (other than its own Confidential Information) obtained from or
relating to Post Office, or its servants or agents, is the property of Post Office.
Each Party agrees to keep confidential, and not to disclose to anyone else, Confidential
Information
Notwithstanding the above, any Party may disclose Confidential Information:
61.5.1 if and to the extent required by law;
61.5.2 if and to the extent that the other Party has given prior written consent to the
disclosure;
61.5.3 to its professional advisers;
61.5.4 to the extent requested by H.M. Government;
61.5.5 if and to the extent that the Confidential Information is in the public domain or
falls into the public domain without breach of any applicable confidentiality
obligation (including this Clause);
61.5.6 to Royal Mail Group;
61.5.7 to Fujitsu Services Holdings Pic, Fujitsu Services Limited or its Parent
Companies;
61.5.8 to Fujitsu Services' approved sub contractors as listed in Schedule C2;
61.5.9 if and to the extent reasonably necessary to be disclosed for the purpose of
arranging and maintaining funding generally for Fujitsu Services Holdings Pic
or Fujitsu Services;
61.5.10which is in the possession of the receiving Party without restriction in relation to
disclosure before the date of receipt from the disclosing Party;
CLAUSES Version 13.0 99
POL00324964
POL00324964
CONFIDENTIAL
61.5.11 which is received from a third party who lawfully acquired it and who is under no
obligation restricting its disclosure;
61.5.12which is independently developed without access to the Confidential
Information;
61.5.13as may be required or permitted by paragraph 2.9 of Schedule A4;
61.5.14if and to the extent permitted under paragraphs 5.5 or 6.5 of Schedule D6 (as
applicable), to any bona fide potential sub-contractor or replacement provider
(as applicable) for the purposes of Competitive Tendering;
61.5.15to a person listed in a CCD if and to the extent that person is an approval
authority for or otherwise permitted access under the relevant CCD to the
relevant Confidential Information; or
61.5.16subject to, and in accordance with, paragraph 10 of Schedule B1.2, to any
member of the SIP.
From the date of signature of CCN 1400, notwithstanding any other provision of this
Agreement, Post Office shall be entitled to use Confidential Information and disclose
Confidential Information to:
(i) bona fide potential Next Suppliers to the extent that such disclosure is
reasonably required to comply with the Public Contracts Regulations 2006 (in
particular without limitation Regulation 4(3) of the Public Contracts Regulations
2006) to enable any bona fide potential Next Suppliers to prepare a reasonably
detailed tender proposal to Post Office and carry out due diligence; and/or
(ii) Next Suppliers to the extent such disclosure is reasonably required to effect
transition and implementation,
Post Office shall ensure that prior to any Confidential Information being disclosed to
any such bona fide potential Next Suppliers and/or Next Suppliers, such potential bona
fide potential Next Suppliers and/or Next Suppliers shall enter into an Agreed Form
NDA and shall immediately inform Fujitsu Services if it has reason to believe that the
bona fide potential Next Suppliers and/or Next Suppliers is in breach of the
undertakings contained in that confidentiality agreement.The Parties hereby agree that
(other than as required by law):
61.7.1 each Party (and any person employed or engaged by it in connection with this
Agreement in the course of such employment or engagement) shall only use
Confidential Information of the other Party for the purposes of this Agreement;
61.7.2 each Party receiving Confidential Information from the other Party shall take all
necessary precautions to ensure that no Confidential Information of the other
Party is used other than for the purposes of this Agreement by the receiving
Party's employees, servants, agents or sub-contractors including, without
limitation, obtaining from any such agent or sub-contractor a signed
CLAUSES Version 13.0 100
POL00324964
POL00324964
CONFIDENTIAL
confidentiality undertaking on substantially the same terms as are contained in
this Clause; and
61.7.3 without prejudice to the generality of the foregoing:
(b) neither Fujitsu Services nor any person engaged by Fujitsu Services
(whether as an employee, consultant or otherwise) shall use the
Confidential Information of Post Office for the solicitation of business
from any third party or away from Post Office; and
(c) Post Office may discharge the obligation imposed on it by Clause 61.4.2
to obtain signed confidentiality undertakings, in so far as such Clause
relates to individuals who are provided to the Post Office to perform the
tasks of Post Office employees under a framework resource agreement (
“Framework Agreement”) with a third party (such individuals being
referred to in this Clause as “Contractors”) by including within such
Framework Agreement:
(i)
(ii)
an obligation of confidentiality in respect of Fujitsu Services’
Confidential Information which shall be binding on such third party
and each Contractor and continue in effect until at least three
years after the Framework Agreement is terminated or expires;
and
a provision requiring all of Fujitsu Services’ Confidential
Information held by each Contractor in tangible form to be
returned to the Post Office, and all such information held in
electronic form to be irretrievably deleted or destroyed, on
termination or expiry of that Contractor's assignment.
61.8 In the event that Confidential Information is disclosed by any Party to its professional
advisers, that Party shall procure that its professional advisers comply with the
restrictions contained in this Clause, mutatis mutandis.
61.9 Nothing in this Clause 61 shall restrict the Post Office from using, or disclosing to a
third party for use on its behalf, documents or materials (including, without limitation,
project plans and documentation, architecture and design documents, requirements
statements, specifications and other preparatory materials) in which it owns, or has the
right to grant a licence to a third party of, any Intellectual Property Rights pursuant to
this Agreement, provided that:
61.9.1 it shall not disclose to a third party any parts of such documents that contain the
prices, pricing methodologies or trade secrets of Fujitsu Services; and
61.9.2 it shall
not disclose any Listed Documentation, Fujitsu Developed
Documentation, Fujitsu Background IPR or Third Party Items (excluding any
Third Party Items, the Intellectual Property Rights in which are required to be
assigned to Post Office pursuant to Clause 29) to any third party unless it has
entered into a confidentiality agreement with that third party which:
CLAUSES Version 13.0
101
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
61.10
62.
63.
63.4
63.5
64.
65.
(b) is enforceable against that third party by Fujitsu Services;
(c) provides Fujitsu Services with no less favourable protections than this
Clause 61; and
(d) restricts the use and (if applicable) modification of that Listed
Documentation, Fujitsu Developed Documentation, Fujitsu Background
IPR or Third Party Item by that third party to that contemplated by
Clause 30.
This Clause 61.6 shall not apply in respect of Horizon Design Documentation, the
permitted use and disclosure of which shall be governed by Clause 30.15.
Nothing in this Clause 61 shall prevent Fujitsu Services or Post Office from using data-
processing techniques, ideas and know-how gained during the performance of this
Agreement in the furtherance of its normal business, to the extent that this does not
relate to a disclosure of Confidential Information or an infringement by Post Office or
Fujitsu Services of any Intellectual Property Right.
Remedies Cumulative
Except as otherwise expressly provided in this Agreement, all remedies available to
Fujitsu Services or to Post Office for breach of this Agreement are cumulative and may
be exercised concurrently or separately and the exercise of any one remedy shall not
be deemed an election of such remedy to the exclusion of other remedies.
Discrimination
Fujitsu Services shall not unlawfully discriminate within the meaning and scope of any
law, enactment, order, regulation or other similar instrument relating to discrimination
(whether in relation to race, gender, religion or otherwise) in employment.
Fujitsu Services shall take all reasonable steps to ensure the observance of the
provisions of Clause 63.1 by all employees, agents and consultants of Fujitsu Services
and all sub-contractors.
Export
For the purpose of this Agreement only, Post Office confirms that no hardware,
software or documentation provided to Post Office pursuant to this Agreement nor their
direct product(s) will be exported by Post Office unless in accordance with any
appropriate UK Government export licensing controls.
VAT
All sums payable under this Agreement are stated exclusive of VAT. Where VAT is
properly chargeable by either Party in respect of any taxable supply, the other Party
shall pay to the first-mentioned Party an amount equal to the amount of any VAT
chargeable in respect of the supply in question (subject to the production by the first-
mentioned Party of a valid tax invoice giving the requisite details of the taxable supply).
CLAUSES Version 13.0 102
CONFIDENTIAL
66.
66.4
66.5
67.
67.4
67.5
67.6
67.7
67.8
Guarantee
Fujitsu Services undertakes that its obligations hereunder are and will continue to be
effectively guaranteed by the Fujitsu Guarantees until 31st March 2015. For the period
from 1st April 2015 to 31st March 2023, Fujitsu Services undertakes that its obligations
hereunder will continue to be effectively guaranteed by Fujitsu Services Holdings plc
under the Fujitsu Services Holdings plc guarantee dated 31 December 2002 (as
amended). The guarantee given by Fujitsu Limited shall lapse on 31st March 2015.
The guarantee given by Fujitsu Services Holdings plc shall lapse on 31st March 2023.
Breach of Clause 66.1 shall constitute a Default not capable of remedy.
Interpretation
As used in this Agreement:
67.4.1 the terms and expressions set out in Schedule 1 shall have the meanings
ascribed therein;
67.4.2 the masculine includes the feminine and the neuter;
67.4.3 the singular includes the plural and vice versa; and
67.4.4 unless stated otherwise or the context requires otherwise, any reference within
any Schedule, CCD or CRD to an Annex, Attachment, Section or Paragraph is
to the relevant annex, attachment, section or paragraph of that Schedule, CCD
or CRD.
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. The preceding
sentence shall be without prejudice to any rights under Clause 60.7 and any rights
Fujitsu Services may have under Schedule A4_ to charge Post Office for the cost of
compliance with any such subsequent statute, enactment, order, regulation or
instrument or subsequent re-enactment thereof.
Headings are included in this Agreement for ease of reference only and shall not affect
the interpretation or construction of this Agreement.
References in this Agreement to Clauses, Annexes and Schedules are, unless
otherwise provided, references to the clauses of, and annexes and schedules to, this
Agreement (and the Schedules and Annexes form part of this Agreement). References
to CCDs and CRDs are to the documents agreed as such from time to time.
Subject to Clauses 67.6 and 67.7, in the event and to the extent only of any conflict or
inconsistency between provisions of this Agreement, the following order of precedence
shall apply:
67.8.1 in the period between the Amendment Date and HNG-X Final Acceptance:
CLAUSES Version 13.0 103
POL00324964
POL00324964
CONFIDENTIAL
(b)
(c)
(d)
(e)
(f)
(9)
(h)
the Clauses and Schedule 1;
all other Schedules other than Schedules B3.2 and B3.3;
the Requirements Baseline (as may be amended pursuant to Schedule
B6.1) and the HNG-X Assumptions;
the Solution Baseline Documentation Set (other than Schedules B3.2,
B3.3 and B3.4);
Schedules B3.2 and B3.3;
CCDs not included in paragraphs (a) to (e) (inclusive) above; and
Work Orders and CRDs; and
67.8.2 in the period between HNG-X Final Acceptance and the date that revised
versions of Schedules B3.2, B3.3 and B3.4 and all other documents in the
Solution Baseline Documentation Set are agreed under the Change Control
Procedure pursuant to Clause 5.4:
(b)
(c)
(f)
(9)
(h)
the Clauses and Schedule 1;
all other Schedules other than Schedules B3.2, B3.3, B6.1, B6.2 and
B6.3;
the Solution Baseline Documentation Set (other than Schedules B3.2,
B3.3 and B3.4);
the Requirements Baseline (as may be amended pursuant to Schedule
B6.1) and the HNG-X Assumptions;
Schedules B3.2, B3.3, B6.1, B6.2 and B6.3;
CCDs not included in paragraphs (a) to (e) (inclusive) above; and
Work Orders and CRDs; and
67.8.3 thereafter (or in the event that Project HNG-X is terminated for any reason
pursuant to Clause 47.11):
(b)
(c)
(d)
(e)
the Clauses and Schedule 1;
all other Schedules (other than Schedules B6.1, B6.2 and B6.3) and the
Solution Architecture;
CCDs (other than the Solution Architecture);
Work Orders and CRDs; and
CLAUSES Version 13.0 104
POL00324964
POL00324964
CONFIDENTIAL
67.9
67.10
67.11
67.12
68.
69.
70.
(f) Schedules B6.1, B6.2 and B6.3.
Notwithstanding any reference in this Agreement to either Party complying with
Working Documents, Working Documents shall not affect or introduce any contractual
obligations between the Parties.
To the extent that:
67.7.1 a Work Order purports:
(b) to describe the terms on which a particular Work Package will be
performed it shall govern the terms on which the particular Work
Package will be performed and shall take precedence over any provision
of this Agreement in conflict with those terms; or
(c) purports to make other amendments to the terms of this Agreement it
shall have the precedence priority stated in Clause 67.5, or
67.7.2 aCCN purports to describe terms on which changes to this Agreement
specified in that CCN will be made, or terms ancillary to those changes, it shall
govern the terms on which those changes will be made and shall take
precedence over any provision of this Agreement in conflict with those terms.
The Recitals are not legally binding, but are intended as a guide to the history,
interpretation and construction of this Agreement.
References in CCDs and CRDs to items, services or matters affected by subsequent
agreements between the Parties shall be construed to reflect most appropriately the
effect of such subsequent agreements.
Amendments to Clauses, Schedules and Annexes of this Agreement and CCDs
Unless expressly provided otherwise in the provisions of this Agreement, the provisions
of this Agreement shall only be amended in accordance with the Change Control
Procedure.
Severability
If any of the provisions of this Agreement is judged to be invalid, illegal or
unenforceable, the continuation in full force and effect of the remainder of them will not
be prejudiced but such provision shall be deemed modified to the extent necessary in
the court's opinion to render such term or provision enforceable, and the rights and
obligations of the Parties shall be construed and enforced accordingly, preserving to
the fullest permissible extent the intent and agreements of the Parties herein set forth.
Dispute Resolution Procedure
Any dispute arising out of or in connection with this Agreement shall be resolved in
accordance with the procedure set out in Annex 2 to Schedule A2.
CLAUSES Version 13.0 105
POL00324964
POL00324964
CONFIDENTIAL
71.
72.
72.4
72.5
73.
74.
Law and Jurisdiction
Without prejudice to Clause 70, this Agreement shall be governed by and shall be
interpreted in accordance with English Law and the Parties submit to the exclusive
jurisdiction of the English Courts.
This Agreement is binding on Post Office and its successors and permitted assignees
and on Fujitsu Services and its successors and permitted assignees.
Entire Agreement
This Agreement constitutes the entire agreement and understanding between the
Parties relating to the subject matter of this Agreement.
Each of the Parties acknowledges and agrees that:
72.5.1 in entering into this Agreement and CCN1200 it has not relied on and shall
have no remedy (except in the case of fraud) in respect of any statement,
representation, warranty, promise or assurance, whether or not in writing, and
whether or not negligent, given or made by any person (whether party to this
Agreement or not) other than as expressly set out in this Agreement or in
CCN1200; and
72.5.2 the only remedy available to it for breach of any of the provisions of this
Agreement or CCN1200 shall be for breach of contract under the terms of this
Agreement and CCN1200.
Revising the Agreement to reflect matters agreed in CCNs
The Parties agree that:
73.4.1 the CCNs listed in section 3.1/Part A of the CCN List are no longer relevant to
this Agreement and have no effect;
73.4.2 to the extent that amendments were required to the provisions of the Clauses
and Schedules of this Agreement in order to reflect the matters agreed in the
CCNSs listed in section 3.2/Part B of the CCN List those amendments have
been made. Such CCNs have accordingly been superseded by this Agreement
to that extent but this shall be without prejudice to the application of such CCNs
to matters other than the Clauses and Schedules of this Agreement (including,
without limitation, their application to, or the introduction of, CCDs or CRDs
and/or to any charges or credits specified in such CCNs which are due or which
shall become due to be paid or allowed); and
73.4.3 the provisions of the CCNs listed in section 3.3/Part C of CCN List (including
any provisions set out in any attachments to those CCNs) have not been
reflected by amendment to this Agreement and accordingly shall remain in
effect insofar as applicable.
NBS CCNs
CLAUSES Version 13.0 106
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
75.
75.4
75.5
75.6
Without prejudice to the application or otherwise of any other provisions, the provisions
relating to the Network Banking CCNs in paragraph 4 of schedule 24 to this Agreement
in its form under CCN1100 shall remain in effect notwithstanding the omission of such
provisions from this Agreement in its form under CCN1200.
TUPE
In the event that it is anticipated that the Transfer Regulations will apply on the
commencement of the POLSAP Services so that employees of Post Office, its agents
or contractors shall transfer to Fujitsu Services or its sub-contractors, either directly
from Post Office or from one of its agents or contractors, clauses 75.2 - 75.5 will apply.
No later than three months prior to the intended transfer, Post Office shall, or shall use
reasonable endeavours to procure that its agents or contractors shall, at the request of
Fujitsu Services provide Fujitsu Services a list providing details of the terms of
employment of all personnel who are then employed wholly or mainly (at least 51 per
cent. of their working time or as otherwise agreed by the parties) in the performance of
the relevant services as reasonably required by Fujitsu Services, save that nothing in
this Clause 75.2 shall have the effect of requiring Post Office to produce information in
breach of the Data Protection Act 1998 or in breach of any express duty of
confidentiality which Post Office or its agents or contractors may owe to their respective
personnel. In such circumstances, Post Office shall use its reasonable endeavours to
obtain appropriate consent for the release of such information.
Post Office shall fully indemnify Fujitsu Services (on its own behalf and on behalf of
any sub-contractor) from and against:
75.6.1 any and all liabilities which Fujitsu Services or any sub-contractor incurs in
connection with or as a result of any claim or demand whatsoever by any
employee or former employee of Post Office or its agents or contractors in
respect of his employment with Post Office or such agent or contractor and/or
its termination save to the extent such claim or demand:
(A) both (i) is made by an employee identified within the relevant
employment details referred to in Clause 75.2 as transferring pursuant to
the Transfer Regulations and (ii) relates to employer's liabilities arising in
relation to that employee's service after the said transfer of employment
which are disclosed in writing to Fujitsu Services and/or any of its sub-
contractors prior to the said transfer or relates to the employee’s
termination after the said transfer; or
(B) is made by an employee who is not identified within the relevant
employment details referred to in clause 75.2 and such termination
occurs after the period set out in clause 75.5; and
75.6.2 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Post
Office or any of its agents or contractors to comply with its or their obligations
under Regulation 13 of the Transfer Regulations save to the extent such failure
CLAUSES Version 13.0 107
CONFIDENTIAL
75.7
75.8
is attributable to the failure of Fujitsu Services to comply with its obligations
under the same Regulation.
In the event that the Transfer Regulations apply on the commencement of the POLSAP
Services, Fujitsu Services shall indemnify Post Office (on its own behalf and on behalf
of its agents and contractors) against:
75.7.1 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Fujitsu
Services or its sub-contractors to comply with its obligations under Regulation
13 of the Transfer Regulations;
75.7.2 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any change in the
terms and conditions of employment of the employees identified within the
relevant employment details referred to in Clause 75.2 made by Fujitsu
Services or its sub-contractors on or after the transfer date or any change in the
terms and conditions of the employment of the employees identified within the
relevant employment details referred to in Clause 75.2 proposed by Fujitsu
Services or its sub-contractors and whether before, on or after the transfer date
but only to the extent in each case such change or proposed change in the
terms and conditions of employment constitutes a repudiatory breach of the
relevant employee's contract of employment or involves a substantial change
in his working conditions to his material detriment; and
75.7.3 any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any act or omission
of Fujitsu Services or its sub-contractors in respect of the employment or
termination of employment of the employees identified within the relevant
employment details referred to in Clause 75.2 on or after the date of transfer of
the relevant employee’s employment.
If the contract of employment of any individual who is not a listed transferring employee
under Clause 75.2 shall have effect on and after the transfer date as if originally made
between Fujitsu Services or any of its sub-contractors and the individual concerned as
a result of the provisions of the Transfer Regulations and/or any judicial decision
interpreting the same:
75.8.1 the Party first informed of it shall notify the other within ten (10) business days
after becoming aware of the same;
75.8.2 if Fujitsu Services, upon becoming aware or being notified of the same, decides
that it does not wish to employ such an individual, Fujitsu Services shall, within
ten (10) business days of such date, notify Post Office of this in writing;
75.8.3 if Fujitsu Services so notifies Post Office under Clause 75.5.2, Post Office shall
be entitled to make an offer of re-employment or re-engagement to any such
individual within ten (10) business days of the date of receipt of such
notification;
CLAUSES Version 13.0 108
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
75.9
75.10
75.8.4 Post Office shall notify Fujitsu Services in writing of any offer of re-employment
or re-engagement which is made and any such offer which is accepted by any
such individual; and
75.8.5 if any such offer of re-employment or re-engagement by Post Office is either
not made to such individual in accordance with Clause 75.5.3 or is not
accepted by such individual within fifteen (15) business days of the date of
notification under Clause 75.5.2, Fujitsu Services may terminate his contract of
employment at any time not later than twenty (20) business days after the date
of notification under Clause 75.5.2.
As soon as possible following any notice of termination being given, or any termination
without notice, of all or part of the relevant services under this Agreement and no later
than six months prior to the expiry of an Expiring Service pursuant to Clause 46.3 and
46.4 or to the expiry of this Agreement at the end of the term set out in Clause 46.1,
Fujitsu Services shall at the request of Post Office provide to Post Office (or to Post
Office and the Next Supplier nominated by Post Office) a list providing details of the
terms of employment of all Fujitsu Personnel who are then employed wholly or mainly
(at least 51 per cent. of their working time or as otherwise agreed by the parties) in the
performance of the relevant services under this Agreement as reasonably required by
Post Office, save that nothing in this Clause 75.6 shall have the effect of requiring
Fujitsu Services to produce information in breach of the Data Protection Act 1998 or in
breach of any express duty of confidentiality which Fujitsu Services or its sub-
contractors may owe to the Fujitsu Personnel. In such circumstances, Fujitsu Services
shall use its reasonable endeavours to obtain appropriate consent for the release of
such information.
Fujitsu Services shall fully indemnify Post Office (on its own behalf and on behalf of
any Next Supplier) from and against:
75.10.1any and all liabilities which Post Office or any Next Supplier incurs in
connection with or as a result of any claim or demand whatsoever by any
employee or former employee of Fujitsu Services or of any of Fujitsu Services’
sub-contractors or agents in respect of his employment with Fujitsu Services or
such sub-contractor or agent and/or its termination save to the extent such
claim or demand:
(A) both (i) is made by an employee identified within the relevant
employment details referred to in Clause 75.6 as transferring pursuant to
the Transfer Regulations and (ii) relates to employer's liabilities arising in
relation to that employee's service after the said transfer of employment
which are disclosed in writing to Post Office and/or the Next Supplier
prior to the said transfer or relates to the employee's termination after the
said transfer; or
(B) is made by an employee who is not identified within the relevant
employment details referred to in Clause 75.6 and such termination
occurs after the period set out in clause 75.9.
CLAUSES Version 13.0 109
POL00324964
POL00324964
CONFIDENTIAL
75.11
75.12
75.10.2any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Fujitsu
Services or any of its sub-contractors or agents to comply with its or their
obligations under Regulation 13 of the Transfer Regulations save to the extent
such failure is attributable to the failure of Post Office or a Next Supplier to
comply with its obligations under the same Regulation.
In the event that the Transfer Regulations apply on any termination (with or without
notice) or expiry of all or part of the relevant services under this Agreement , Post
Office shall indemnify Fujitsu Services (on its own behalf and on behalf of its sub-
contractors and agents) against:
75.11.1any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any failure by Post
Office or any Next Supplier to comply with its obligations under Regulation 13
of the Transfer Regulations;
75.11.2any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any change in the
terms and conditions of employment of the employees identified within the
relevant employment details referred to in Clause 75.6 made by Post Office or
a Next Supplier on or after the transfer date or any change in the terms and
conditions of the employment of the employees identified within the relevant
employment details referred to in Clause 75.6 proposed by the Post Office or a
Next Supplier and whether before, on or after the transfer date but only to the
extent in each case such change or proposed change in the terms and
conditions of employment constitutes a repudiatory breach of the relevant
employee's contract of employment or involves a substantial change in his
working conditions to his material detriment; and
75.11.3any costs, liabilities, awards, decisions, losses and expenses (including
reasonable legal fees) arising out of or in connection with any act or omission
of Post Office or any Next Supplier in respect of the employment or termination
of employment of the employees identified within the relevant employment
details referred to in Clause 75.6 on or after the date of transfer of the relevant
employee's employment. The indemnity referred to in this Clause 75.8.3 shall
not apply in relation to any Worker who makes or brings a claim, demand or
action referred to in this Clause 75.8.3 to the extent that Fujitsu Services has
failed to comply with its obligation under Clause 48.4.3 in respect of such
Worker.
If the contract of employment of any individual who is not a listed transferring employee
under Clause 75.6 shall have effect on and after the transfer date as if originally made
between Post Office or any Next Supplier and the individual concerned as a result of
the provisions of the Transfer Regulations and/or any judicial decision interpreting the
same:
75.12.1 the Party first informed of it shall notify the other within ten (10) business days
after becoming aware of the same;
CLAUSES Version 13.0 110
POL00324964
POL00324964
CONFIDENTIAL
75.13
75.14
75.12.2if Post Office, upon becoming aware or being notified of the same, decides that
it does not wish to employ such an individual, Post Office shall, within ten (10)
business days of such date, notify Fujitsu Services of this in writing;
75.12.3if Post Office so notifies Fujitsu Services under Clause 75.9.2, Fujitsu Services
shall be entitled to make an offer of re-employment or re-engagement to any
such individual within ten (10) business days of the date of such notification;
75.12.4 Fujitsu Services shall notify Post Office in writing of any offer of re-
employment or re-engagement which is made and any such offer which is
accepted by any such individual; and
75.12.5 if any such offer of re-employment or re-engagement by Fujitsu Services is
either not made to such individual in accordance with Clause 75.9.3 or is not
accepted by such individual within fifteen (15) business days of the date of
notification under Clause 75.9.2, Post Office may terminate his contract of
employment at any time not later than twenty (20) business days after the date
of notification under Clause 75.9.2.
Fujitsu Services agrees that it shall promptly provide to Post Office and/or such other
person(s) as Post Office may nominate upon request at any time (though in any event
no more than twice in any 12 month period) an up-to-date list of all Fujitsu Personnel
who are then employed in the performance of the relevant services under this
Agreement at least 33 per cent. of their working time. Where information is provided in
advance of a likely transfer of employment in accordance with Clause 75.6, Fujitsu
Services agrees that it shall promptly provide to Post Office and/or such other
person(s) as Post Office may nominate updated information in the event of a change in
the data set out therein between the date on which the information was provided under
Clause 75.6 and the transfer date.
Fujitsu Services further warrants and undertakes that during the six months prior to the
transfer date or during any period of notice to terminate this Agreement or the provision
of part or all of the relevant services under this Agreement given by either Party or any
period during which Fujitsu Services contemplates or anticipates giving such notice or
terminating part or all of this Agreement or the Service provision (whether lawfully or
otherwise), Fujitsu Services shall not, and shall procure that its employees and workers
and sub-contractors (as applicable) shall not, other than with Post Office's prior written
consent or in the ordinary course of Fujitsu Services’ business:
(A) increase or amend any salary, emolument, fee or contractual benefit or
entitlement provided to or afforded to any Fujitsu Personnel;
(B) vary the terms and conditions of employment of any Fujitsu Personnel;
(C) increase the proportion of working time spent on the relevant services under
this Agreement by any employees or Fujitsu Personnel;
(D) employ any person or assign any other existing employees or workers to the
provision of all or part of the relevant services under this Agreement so that
they become Fujitsu Personnel; or
CLAUSES Version 13.0 114
CONFIDENTIAL
75.15
75.16
75.17
75.15
(E) replace or remove or terminate or give notice to terminate the employment of any
Fujitsu Personnel.
For the avoidance of doubt, Fujitsu Services shall indemnify Post Office (on its own
behalf and on behalf of any Next Supplier) from and against all and any costs,
liabilities, awards, decisions, losses and expenses (including reasonable legal fees)
arising from any employees employed in the normal course of their employment, wholly
or principally outside the UK in the provision of all or part of the relevant services under
this Agreement (the “Overseas Personnel”) transferring or alleging that they have or will
transfer to the employment of (or any liabilities in respect of them will transfer to) Post
Office and/or any Next Supplier on any termination or partial termination, expiry or
partial expiry of the relevant services provided under this Agreement and all and any
related claims including, without limitation, any failure to inform and consult in
connection with such a transfer and/or any termination of employment of such
Overseas Personnel.
In the event of any claim or demand being made or action brought to which Clauses
75.3, 75.4, 75.7, 75.8 apply, the indemnified Party shall promptly notify the
indemnifying Party of such claim, demand or action. The indemnifying Party shall at its
own expense conduct all negotiations for settlement of the same and any legal
proceedings that may arise therefrom. The indemnified Party shall, and shall use
reasonable endeavours to procure that its suppliers, contractors, sub-contractors,
agents and employees (as the case may be) shall, at the request of the indemnifying
Party, afford all reasonable assistance for the purpose of contesting any such claim,
demand or action. The indemnifying Party shall promptly reimburse any reasonable
expense incurred by the indemnified Party in so doing. The indemnified Party shall not
make any admissions which may be prejudicial to the defence of any such claim,
demand or action.
Not Used
This Clause 75.15 shall only apply to those Services (excluding any Expiring
Services) which continue to be provided by Fujitsu Services after 1st April 2017.
Notwithstanding any other provision in this Agreement, in the event that a contract of
employment of any Fujitsu Personnel wholly or mainly assigned (other than on a
temporary basis) at the date of expiry or termination of the relevant service in the
provision of the Services (excluding any Expiring Services) (“In-Scope Employees”)
does not transfer to Post Office or the Next Supplier on the termination or expiry of
any element of the Services (excluding any Expiring Services) as a result of the
provisions of the Transfer Regulations and/or any judicial decision interpreting the
same (a “Non-Transferring In-Scope Employee”) then:
75.15.1 the Party first aware of it shall notify the other within ten (10) business days
after becoming aware of the same;
75.15.2 if Fujitsu Services, upon becoming aware or being notified of the same, decides
that it does not wish to employ such an individual, Fujitsu Services shall, within
ten (10) business days of such date, notify Post Office of this in writing;
CLAUSES Version 13.0 112
POL00324964
POL00324964
POL00324964
POL00324964
CONFIDENTIAL
75.15.3 if Fujitsu Services so notifies Post Office under Clause 75.15.2, Post Office
shall be entitled to, or use reasonable endeavours to procure that a Next
Supplier shall, make an offer of employment or engagement to any such
individual within ten (10) business days of the date of such notification;
75.15.4 Post Office shall notify Fujitsu Services in writing of any offer of employment or
engagement which is made and any such offer which is refused or accepted by
any such individual;
75.15.5if any such offer of employment or engagement by Post Office or a Next
Supplier is either not made to such individual in accordance with Clause
75.15.3 or is not accepted by such individual within fifteen (15) business days
of the date of notification under Clause 75.15.2, Fujitsu Services may give
notice to terminate his contract of employment at any time not later than thirty
(30) business days after the date of notification under Clause 75.15.2; and
75.15.6 provided that Fujitsu Services acts in accordance with this Clause 75.15 or in
such other way as may be agreed between Fujitsu Services and Post Office,
Post Office shall indemnify and keep indemnified Fujitsu Services against all
costs, liabilities, awards, decisions, losses and expenses (including reasonable
legal fees) reasonably incurred arising out of the termination of employment of
such Non-Transferring In-Scope Employees, including payment in lieu of
notice, following the termination or expiry of any element of the Services
(excluding any Expiring Services) provided that Fujitsu Services takes
reasonable steps to mitigate such exposure.
For the avoidance of doubt, any employee who objects to the transfer of their employment in
accordance with regulation 4(7) of the Transfer Regulations shall not be a Non-Transferring In-
Scope Employee.
The total payments made under the indemnity in Clause 75.15.6 shall be capped at £3,000,000
(three million pounds) and shall exclude any costs of employing the Non-Transferring In-Scope
Employees during the period in which Fujitsu Services has the benefit of their services.
76 Fujitsu Global Cloud
76.1 I Where the Fujitsu Global Cloud Service is used in the provision of services then it shall
be subject to:
76.1.1 Schedule 14 (K5 Cloud Services) where the Post Office does not have direct access to
the K5 Cloud Platform; or
76.1.2. The K5 standard terms and conditions where Post Office does not have direct access
to the K5 Cloud Platform
76.1.3. .(in respect of Microsoft software used in the cloud) the “Microsoft Software End User
License Agreement which is available directly from Microsoft.
as updated from time to time in accordance with their terms, which together shall be the “Cloud
Terms’.
CLAUSES Version 13.0 113
POL00324964
POL00324964
CONFIDENTIAL
76.2 Fujitsu Services shall use reasonable endeavours to notify Post Office Ltd in writing
within 30 days of any change to the Cloud Terms
76.3. In the event of any conflict the Cloud Terms shall take priority over the Clauses (and
the relevant Schedules) but only in relation to the Fujitsu Global Cloud Service, and any event
or consequence directly arising from it.
76.4 The Salesforce Support Service Hosting is, until 23.59 on 31% March 2016, a Fujitsu
Global Cloud Service and for the avoidance of doubt the following clauses of the Agreement
shall not apply to the Salesforce Support Service Hosting:
*Clause 23 Gainshare and Schedule D3
*Clause 24 Open Book and Schedule D4
Clause 25 Audit and Schedule D5
Clause 27 to 32 inclusive
*Clause 34 Intellectual Property Rights Indemnities
*Clause 58 Transfer and Subcontracting
*Schedule A2 Governance
«Schedule A3 Change Control
«Schedule D6 Market Testing
77 Belfast Datacentres
It is noted by both Parties that it has not been possible to conclude the extension to the
leases to the Belfast datacentres prior to 16th February 2016. To this end, there
remains a risk that the lease extensions will not be concluded and that Fujitsu Services
will be required to transition the hosted equipment to a replacement datacentre or
alternative service solution agreed by both Parties. In the unlikely event that this risk
crystalises such that Fujitsu Services has to exit a datacentre, Fujitsu Services shall not
be entitled to charge Post Office its own costs of moving and re-installing the
equipment (nor any moving and installing costs relating to Fujitsu Service's Sub-
contractors or suppliers). However, Post Office shall (and shall procure its third party
suppliers, clients and customers shall) facilitate such a transition (at no additional cost
to Fujitsu Services) by:
76.1 arranging and procuring Post Office's third party suppliers, clients and
customers shall install and parallel run network connections needed to the
existing and new datacentres; and
76.2 participating (and procuring participation by its third party suppliers, clients and
customers shall participate) in the planning and implementation for the
connection migrations in line with an agreed project plan,
CLAUSES Version 13.0 114
POL00324964
POL00324964
CONFIDENTIAL
and a let on any relevant Service Levels to enable the movements and/or replacement
of the relevant hardware/infrastructure.
78. The terms of Schedule I shall apply as set out therein. Notwithstanding Clause 67.5, In
the event of any conflict or inconsistency between the terms of the Clauses (including
this Clause 78) and Schedule I, the provisions of Schedule I shall take precedence to
the extent of such conflict or inconsistency.
CLAUSES Version 13.0 115
CONFIDENTIAL
IN WITNESS WHEREOF this Agreement has been executed on behalf of the Parties as
follows:
Signed by
for and on behalf of
POST OFFICE LTD
in the presence of:
Paul Lam-Po-Tang
Visiting Lawyer
Slaughter and May
35 Basinghall Street
London EC2V 5DB
Signed by
for and on behalf of
FUJITSU SERVICES LIMITED
in the presence of:-
Myles Blewett
Masons
30 Aylesbury Street
London EC1R OER
CLAUSES Version 13.0
S.J. Sweetman
(signed on 28th July, 1999)
R. Christou
(signed on 28th July, 1999)
116
POL00324964
POL00324964