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CODIFIED AGREEMENT
POST OFFICE COUNTERS LTD
-and -
ICL PATHWAY LIMITED
INFORMATION TECHNOLOGY SERVICES AGREEMENT FOR BRINGING TECHNOLOGY TO
POST OFFICES
CODIFIED AGREEMENT
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Version Reason for Change Frozen/issue date
Reference
1.0 Original baseline 28 July 1999
11a Applying CCN313a to introduce Clause 512
1.1b Formatting changes only to aid version control (new header
and footer)
1.2a Applying CCN245c to introduce Clause 102.5.4; CCN525 to
Clauses 503, 504.3, 509.1; CC533 to postcode before recitals;
CCNS560 to Clause 606.2.1.1
1.2b Revising amendment to Clause 606.2.1.1
1.2¢ Revising clauses to change the function of A17 to record the
baselining process (redlined against version 1.2b only)
1.24 Drafting revisions at clauses 102.5.1, 810.10 and 810.12
1.2 Baseline copy of 1.2d 8 February 2000
1.3a Incorporating CCN582 to 603.3.1
1.3 Baseline copy of 1.3a (finalising schedule version table and 14 April 2000
correcting clause 810.10.2)
14a Applying CCN 619 with addition to Clause 202, modify Clause
206 and modify Clause 903.1.1
1.4 Baseline copy of 1.4a 25 July 2000
2.0a Applying CCN687 to 509.1
2.0b Addition of missing references to CCNs 699 & 720
2.0 Baseline copy of 2.0b 12 January 2001
3.0a Applying CCN768 to Clause 603.1
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3.0b Updating Index of Schedules, correction in 603.3.1 and adding
CCNs 714, 734, 747, 751, 752, 755, 754c, 762, 767 and 776 to
810.10.5
3.0c Amending the error in the Index to show Schedule A06 at v2.0
instead of v3.0
3.0 Baseline copy of 3.0c 19 September 2001
4.0 To introduce Network Banking Service 25 June 2002
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TABLE OF CONTENTS
Clauses Page Numbers
LIST OF SCHEDULES 9
RECITALS 13
PART 1: INTRODUCTION 14
CLAUSE 101. CONTRACT STRUCTURE 14
CLAUSE 102. INTERPRETATION 14
CLAUSE 103. SEVERABILITY 16
CLAUSE 104. LAW AND JURISDICTION 16
CLAUSE 105. ENTIRE AGREEMENT 17
CLAUSE 106. GENERAL PRINCIPLES. 17
PART 2: PERFORMANCE OF POCL SERVICES AND SUPPLY OF PRODUCTS. 19
CLAUSE 201. PERFORMANCE OF CORE SYSTEM SERVICES 19
CLAUSE 202. PERFORMANCE OF OPTIONAL POCL SERVICES 21
CLAUSE 203. PERFORMANCE OF POCL CLIENT SERVICES 21
CLAUSE 204. PERFORMANCE OF ADDITIONAL POCL SERVICES 21
CLAUSE 205. SUPPLY OF CORE SYSTEM PRODUCTS, 21
CLAUSE 206. SUPPLY OF OPTIONAL PRODUCTS 22
CLAUSE 207. SUPPLY OF ADDITIONAL PRODUCTS 22
CLAUSE 208. SUPPLY OF POCL CONSUMABLES 22
CLAUSE 209. CONTRACTOR CONSUMABLES 22
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CLAUSE 210. FURTHER RELEASES
CLAUSE 211. FURTHER USE OF THE CORE SYSTEM
CLAUSE 212. PERFORMANCE OF NETWORK BANKING SERVICE
PART 3: CONSIDERATION
CLAUSE 301. CHARGES
CLAUSE 302. PACKAGING
CLAUSE 303. PAYMENT
CLAUSE 304. VALUE ADDED TAX
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PART 4: DEVELOPMENT, IMPLEMENTATION AND PERFORMANCE OF OPERATIONAL
SERVICES
CLAUSE 401. TRANSFER OF ASSETS AND AGREEMENTS
CLAUSE 402. OPERATIONAL TRIAL
CLAUSE 403. DEVELOPMENT SERVICES
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CLAUSE 404. IMPLEMENTATION OF POCL SERVICE INFRASTRUCTURE AND OPERATIONAL
SERVICES 29
CLAUSE 405. PERFORMANCE OF OPERATIONAL SERVICES
CLAUSE 406. INSPECTION OF POCL PREMISES
CLAUSE 407. MARKING OF PRODUCTS,
CLAUSE 408. DELIVERY OF PRODUCTS AND POCL CONSUMABLES
CLAUSE 409. PRODUCTS AND SERVICES
CLAUSE 410. CONTINGENCY SERVICES
CLAUSE 411. ACCEPTANCE OF CORE SYSTEM
CLAUSE 412. INVENTORY
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CLAUSE 413. NETWORK BANKING SERVICE 32
CLAUSE 414. SADD 35
CLAUSE 415. PIN PAD IMPLEMENTATION SERVICE 35
PART 5: OWNERSHIP, LICENCES AND RISK 33
CLAUSE 501. OWNERSHIP OF HARDWARE 33
CLAUSE 502. OWNERSHIP OF SOFTWARE 33
CLAUSE 503. OWNERSHIP OF DOCUMENTATION 33
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CLAUSE 504. OWNERSHIP OF POCL DATA AND INTELLECTUAL PROPERTY RIGHTS IN THE
POCL SERVICE ARCHITECTURE 34
CLAUSE 505. OWNERSHIP OF POCL CONSUMABLES 34
CLAUSE 506. LICENCES TO USE INTELLECTUAL PROPERTY RIGHTS 35
CLAUSE 507. RISK IN PRODUCTS 37
CLAUSE 508. DAMAGE TO PLANT, TACKLE AND TOOLS 37
CLAUSE 509. LICENCES FOR THE CONTRACTOR TO USE INTELLECTUAL PROPERTY
RIGHTS 37
CLAUSE 510. DATABASES 38
CLAUSE 511. RIPOSTE 32 SOFTWARE 38
CLAUSE 512. TRANSFER OF HAPS DISASTER RECOVERY HARDWARE 38
CLAUSE 513. WEBRIPOSTE SOFTWARE 39
PART 6: CONTRACT AND SERVICE MANAGEMENT 39
CLAUSE 601. MONITORING 39
CLAUSE 602. MANAGEMENT INTERFACES AND MANAGEMENT SERVICES 39
CLAUSE 603. COMMUNICATIONS, 39
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CLAUSE 604. TRANSFER AND SUB-CONTRACTING
CLAUSE 605. POCL RESPONSIBILITIES
CLAUSE 606. TIME
CLAUSE 607. CONFIDENTIALITY
CLAUSE 608. HEALTH AND SAFETY HAZARDS
CLAUSE 609. PROTECTION OF PERSONAL DATA
CLAUSE 610. PUBLICITY
CLAUSE 611. CONTRACTOR'S PERSONNEL
CLAUSE 612. WAIVER
CLAUSE 613. ACCESS TO POCL PREMISES
CLAUSE 614. SECURITY REQUIREMENTS.
CLAUSE 615. CONTRACTOR'S KEY PERSONNEL
PART 7: WARRANTIES AND STANDARDS
CLAUSE 701. AUTHORITY AND APPROVAL
CLAUSE 702. PERFORMANCE OF POCL SERVICES
CLAUSE 703. PERFORMANCE OF PRODUCTS
CLAUSE 704. INTELLECTUAL PROPERTY RIGHTS
CLAUSE 705. TECHNICAL STANDARDS
CLAUSE 706. STATEMENTS AND REPRESENTATIONS
CLAUSE 707. DISCLAIMER OF IMPLIED TERMS
PART 8: REMEDIES
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CLAUSE 801.
CLAUSE 802.
CLAUSE 803.
CLAUSE 804.
CLAUSE 805.
CLAUSE 806.
CLAUSE 807.
CLAUSE 808.
CLAUSE 809.
CLAUSE 810.
AUDIT
SERVICE CREDITS AND DELAY
ADDITIONAL RESOURCES
RECOVERY OF SUMS DUE
INTELLECTUAL PROPERTY RIGHTS INDEMNITY
REMEDIES CUMULATIVE
DISPUTE RESOLUTION PROCEDURE
. INJURY TO PERSONS; LOSS OF PROPERTY
LIABILITY
LIMITATION OF LIABILITY
PART 9: TERM AND TERMINATION
CLAUSE 901
CLAUSE 902.
CLAUSE 903.
CLAUSE 904.
CLAUSE 905.
TERM
TERMINATION OF CODIFIED AGREEMENT
RIGHTS ON EXPIRY OR TERMINATION OF CODIFIED AGREEMENT
TRANSFER SERVICES
TERMINATION OF NBS
PART 10: MISCELLANEOUS
CLAUSE 1001. CORRUPT GIFTS AND PAYMENTS OF COMMISSION
CLAUSE 1002. DISCRIMINATION
CLAUSE 1003. EXPORT OF PRODUCTS
CLAUSE 1004. GUARANTEE
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CLAUSE 1005. INSURANCE
List of Schedules
Schedules
No. Title
1 POCL Service Environment
Al. Interpretations
A2. Policies and Standards
AS. Audit
Ad. Contract Management
AS. Change Control
AG. Approach to Remedies
AT. Contract Termination
A8. Sub-contractors
AQ. Asset Transfer
A10. Ordering, Invoicing and Payment
Alt. Acceptance Procedures
A12. Charging Structure
A13. Guarantee
A14. Contractor's Key Personnel
A15. Requirements
A16. Solutions
A17. CCNs
B1. Software
B2. Hardware
B3. Documentation
B4. POCL Consumables
BS. POCL Acceptance Criteria
B6. [Not Used]
B7. [Not Used]
Bs. Validation Procedures
Bg. Timetable
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B10. Remedy Aggregation
B11 Escher Sub-licensing
C1. Optional POCL Services
Automated Payments Service
E1 Service Definition
E2 Acceptance Criteria
E3 POCL Responsibilities
E4 Implementation
ES Service Management
E6 Service Transfer
E7 [Not Used]
Es Service Levels and Remedies
E9 Contingency Services
EPOSS
FA Service Definition
F2 Acceptance Criteria
F3 POCL Responsibilities
F4 Implementation
FS Service Management
Fé Service Transfer
F7 [Not Used]
F8 Service Levels and Remedies
FQ Contingency Services
POCL Infrastructure Services
G1 POCL Infrastructure Services
G2 [Not Used]
G3 [Not Used]
G4 Acceptance Criteria
GS POCL Responsibilities
G6 Implementation
G7 Service Management
G8 Service Transfer
G9 [Not Used]
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G10
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G12
OBCS
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K1
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Order Book Control Service
Acceptance Criteria
POCL Responsibilities
Implementation
Service Management
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[Not used]
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Contingency Services
Logistics Feeder Service
Not used
POCL Responsibilities
Implementation
Service Management
Service Transfer
[Not used]
Service Levels and Remedies
Contingency Services
Operational Trial
1
L2
L3
L4
L5
Operational Trial Objectives
Operational Trial Plans
Operational Trial Acceptances
Operational Trial Responsibilities
Operational Trial Remedies
Network Banking Service
N1
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N3
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Network Banking Service Definition
NBS Acceptance
POCL NBS Responsibilities and NBS
Obligations
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N4
NS
N6
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NO
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NBS Implementation
NBS Service Management
NBS Termination
[Not Used]
NBS Service Levels and Remedies
NBS Contingency Services
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CODIFIED AGREEMENT
THIS CODIFIED AGREEMENT is made the 28th day of July, 1999
BETWEEN:
(1) Post Office Counters Ltd whose registered office is situated at Gavrelle House, 2-14 Bunhill
Row, London EC1Y 8HQ; and
(2) ICL Pathway Limited whose registered office is at 26 Finsbury Square, London EC2A 1SL
("the Contractor").
RECITALS
WHEREAS:
(a) On 15th May, 1996, the Secretary of State for Social Security acting through and on behalf
of the Department of Social Security and on behalf of the Department of Health and Social
Services for Northern Ireland (“DSS”) and POCL (collectively “the Authorities”) entered into
certain agreements (the “Related Agreements”) for the design, development, integration and
establishment by the Contractor of a computerised service infrastructure and for certain
services to be provided thereon;
(b) Such agreements comprised:
(i) an agreement between DSS and the Contractor for, inter alia, the provision by the
Contractor of services relating to a benefit payment card (the “DSS Agreement’);
(ii) an agreement between POCL and the Contractor for, inter alia, the provision by
the Contractor of the POCL Service Infrastructure and for certain services to be
provided thereon (the “POCL Agreement”); and
(iii) an agreement among DSS, POCL and the Contractor for the supply of a service
infrastructure and the provision of certain services which were of common interest
to both DSS and POCL (the “Authorities Agreement”);
(c) Each of the Related Agreements has been amended from time to time in accordance with
the change control procedures contained therein;
(d) On 24th May, 1999, DSS and the Contractor entered into an agreement under which, inter
alia, the DSS Agreement was terminated on that date;
(e) On 24th May, 1999 POCL and the Contractor entered into an agreement (the “Letter
Agreement”) under which they agreed that certain changes should be made to the POCL
Agreement and the Authorities Agreement with effect from that date.
(f) Under the Letter Agreement POCL and the Contractor agreed, inter alia, to replace the
POCL Agreement and the Authorities Agreement (each as amended under change control
procedures) with a single agreement (the “Codified Agreement”) codifying the changes to
those agreements agreed in the Letter Agreement;
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(g) This Codified Agreement is the Codified Agreement referred to in the Letter Agreement.
(h) Commencing early 2001 POCL defined its requirements for a Network Banking Service
which will utilise the network of Post Office outlets for the delivery of a teller banking
service. The Contractor produced a systems requirement specification setting out its
proposals in response to those requirements, and on the parties signed CCN 850
which introduces the Network Banking Service and the PIN Pad Implementation Service
which the Contractor will provide as POCL Services under the terms of this Codified
Agreement.
NOW THEREFORE IT IS HEREBY AGREED as follows:
PART 1 : INTRODUCTION
Clause 101. Contract Structure
101.1 The Codified Agreement
Without prejudice to Clause 810.10 of this Codified Agreement, each of the POCL
Agreement and the Authorities Agreement is hereby terminated and replaced by the
provisions of this Codified Agreement with immediate effect.
101.2 I Amendments to Clauses, Schedules and Annexes of this Codified Agreement
Unless expressly provided otherwise in the provisions of this Codified Agreement, the
provisions of this Codified Agreement shall only be amended in accordance with the Change
Control Procedure.
101.3 Failure by POCL to perform its Obligations
The Contractor shall not be liable to POCL for any failure to perform or delay in performing
its obligations hereunder where the Contractor proves that such failure or delay has been
directly caused by the failure of POCL to perform any of its obligations under this Codified
Agreement. This Clause shall not apply to Clause 809, which shall be governed by the
specific rule stated in Clause 809.2 and shall not apply to the NBS, which shall be governed
by the provisions of Schedule N03.
Clause 102. Interpretation
102.1 As used in this Codified Agreement:
102.1.1 the terms and expressions set out in Schedule A1 shall have the meanings
ascribed therein;
102.1.2 the masculine includes the feminine and the neuter; and
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102.2
102.3
102.4
102.5.1
102.1.3 the singular includes the plural and vice versa.
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.
Headings are included in this Codified Agreement for ease of reference only and shall not
affect the interpretation or construction of this Codified Agreement.
References in this Codified Agreement to Clauses, Parts and Schedules are, unless
otherwise provided, references to the clauses, parts and schedules of this Codified
Agreement. References to CCDs and CRDs are to the documents agreed as such from
time to time.
Subject to Clause 102.5.2, in the event and to the extent only of any conflict or
inconsistency between provisions of this Codified Agreement, the following order of
precedence shall apply:-
(a) the Clauses and Schedule A1;
(b) Schedules A2 to A14;
(c) the Service Definition Schedules and Schedules G6 and G12;
(d) Schedule A15;
(e) Schedule A16;
(f) all other Schedules except Schedule A17;
(g) CCDs and Schedule A17; and
(h) — CRDs.
102.5.2 In the event of any conflict or inconsistency in relation to Service Levels, the provisions of the
102.5.3
Clauses
Service Level Schedules shall prevail over those of the Service Definition Schedules and
Schedules A15, A16 and G6 (but not the Clauses or Schedules A1 to A14) to the extent of
such conflict or inconsistency.
For the avoidance of doubt, POCL acknowledges that a particular solution in Schedule A16
shall not be treated as being in conflict or inconsistent with any requirement in Schedule
A15, or the Service Definition Schedules or Schedule G6, merely because the solution
states that the requirement will be met in a particular form, manner, quantity, time or place.
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102.5.4 “Working Documents” do not affect or introduce any contractual obligations between any of
the parties.
102.6 The Recitals are not legally binding, but are intended as a guide to the interpretation and
construction of this Codified Agreement.
102.7 Where this Codified Agreement imposes upon either party an obligation which was also
imposed on that party under the Authorities Agreement or POCL Agreement then to the
extent that such obligation has been performed under the Authorities Agreement or POCL
Agreement it shall be deemed to have been performed under the corresponding provision of
this Codified Agreement (but continuing obligations shall continue under this Codified
Agreement).
102.8 Where any provision of this Codified Agreement requires or permits a matter to be agreed
between the parties or approved by either of the parties and such provision was also
contained in the Authorities Agreement or POCL Agreement, any agreement reached or
approval given under the Authorities Agreement or POCL Agreement shall be deemed to
have been reached or given under the corresponding provision of this Codified Agreement.
102.9 References in CCDs, CRDs and Schedules agreed prior to the date of this Codified
Agreement to NR2 or NR2+ shall be construed so as to refer to such of CSR or CSR+ as
shall be appropriate having regard to the functionality of the item or service to which such
reference relates, as determined by the SADD and any relevant Release Contents
Description. Likewise, references in such CCDs, CRDs and Schedules to other items,
services or matters affected by subsequent agreements between the parties (including this
Codified Agreement) shall be construed to reflect most appropriately the effect of such
subsequent agreements.
102.10 Itis expressly agreed that Clause 201.6 and (notwithstanding that they refer to CCDs) the
definitions of “Core System” and “CSR+” shall take precedence over all other provisions of
this Codified Agreement (including the Schedules) which define the Core System, CSR+ the
Core System Services or the POCL Services other than the Network Banking Service and
the PIN Pad Implementation Service.
Clause 103. Severability
If any of the provisions of this Codified Agreement is judged to be invalid, illegal or unenforceable, the
continuation in full force and effect of the remainder of them will not be prejudiced but such provision
shall be deemed modified to the extent necessary in the court's opinion to render such term or
provision enforceable, and the rights and obligations of the parties shall be construed and enforced
accordingly, preserving to the fullest permissible extent the intent and agreements of the parties
herein set forth.
Clause 104. Law and Jurisdiction
104.1 This Codified Agreement shall be governed by and shall be interpreted in accordance with
English Law and, subject to Clause 807, the parties submit to the exclusive jurisdiction of
the English Courts.
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104.2
Except as specified in Clause 101, this Codified Agreement is binding on POCL and its
successors and permitted assignees and on the Contractor and the Contractor's successors
and permitted assignees.
Clause 105. Entire Agreement
105.1
105.2
105.3
This Codified Agreement constitutes the entire understanding between the parties relating to
the subject matter of this Codified Agreement. Each of the parties acknowledges that in
entering into this Codified Agreement it has not relied on any representation, warranty,
promise or assurance, whether or not in writing, and whether or not negligent, given or made
by any other party as an inducement to enter into this Codified Agreement. Accordingly no
party shall have any right of action (except in the case of fraud) against any other party
arising out of any such representation, warranty, promise or assurance.
This Codified Agreement supersedes the Letter Agreement, the schedules to the Letter
Agreement, the Heads of Agreement referred to in the Letter Agreement, the POCL
Agreement and the Authorities Agreement, each of which shall be of no further effect (but
without prejudice to rights and liabilities of the Parties accruing under the Letter Agreement,
the schedules thereto or the Heads of Agreement between 24 May, 1999 and the date of
this Codified Agreement).
The parties acknowledge that the consent agreement (the “Consent Agreement”) dated 16th
September, 1997 among DSS, POCL, ICL plc, the Contractor and ICL Pathway Asset
Company Limited shall not be terminated by the execution of this Codified Agreement and
that references in the Consent Agreement to the “POCL Agreement”, the “Authorities
Agreement’ or the “Related Agreements” or any provisions thereof shall be references to
this Codified Agreement or (as the case may be) the equivalent provisions of this Codified
Agreement.
Clause 106. General Principles
106.1
106.2
106.3
106.4
106.5
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POCL shall control the rights for using and marketing the POCL Services provided in post
offices. The Contractor shall have no control over the use or marketing of the POCL
Services.
The Contractor shall offer all reasonable assistance to POCL in preventing fraudulent use of
the POCL Services and POCL Service Infrastructure by POCL’s employees and Agents.
The POCL Services and the POCL Service Infrastructure shall be provided in accordance
with and comply with all relevant applicable industry standards, as these are listed in
Schedule A2.
The Contractor shall, if so requested by POCL, work with POCL to identify and develop new
business opportunities for POCL and the Contractor.
For the avoidance of doubt, the Contractor shall ensure migration of appropriate automated
systems without any reduction in existing service or security levels to POCL’s clients and
customers.
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106.6
106.7
106.8
106.9
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Except as otherwise agreed from time to time between POCL and the Contractor, POCL will
retain control itself of its critical business processes and relationships, such as:
106.6.1 customer interface, including quality of service (such as queuing time and other
customer charter measures) to its customers, network format, location of offices
and service standards;
106.6.2 contractual relationships with Agents;
106.6.3 contractual relationships with its clients;
106.6.4 policy control of its network;
106.6.5 its reconciliation, settlement and key infrastructure support processes;
106.6.6 its relationship with its suppliers; and
106.6.7 its product and service design.
The Contractor shall not restrict POCL from using the POCL Services and the POCL
Service Infrastructure for its existing and future clients, Agents, customers, products and
services.
The Contractor's and its subcontractors’ contacts with Agents shall be arranged via POCL.
The POCL Service Infrastructure (other than any Public Service Telecommunications
Networks) may not be used other than by POCL without the prior written consent of POCL to
provide any services to:
(a) POCL’s current clients in respect of current products and services;
(b) POCL’s current clients in respect of new products and services;
(c) new clients in respect of current products and services;
(d) new clients in respect of new products and services; or
(e) POCL’s current market domains (including:
personal cash and banking services - cash withdrawals and deposits, cashing
cheques, benefit payments and postal orders;
* communications - letter and parcel services including stationery and greetings
products, other telecommunications retail products and services;
* corporate cash services - cash management services for business customers,
including business deposits, cash handling and processing;
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e entertainment and leisure services - lotteries, fishing licences, membership
applications, TV licences and cable TV bill payment, tickets for events;
* personal savings and budgeting - savings and investment accounts, household
bill payment and pre-payment, credit services, personal pensions, household
insurance;
« travel services - foreign exchange, international money transfer and
documentation including passports, travel tickets and motor vehicle licences,
car insurance and membership of motoring organisations, travel insurance;
e insurance - other general risk insurance and life assurance products;
e information services - about the products and services offered by POCL and its
clients;
e benefit payment services).
106.10 The Contractor shall deliver and continue to provide a secure system in respect of all
transactions which as far as this Codified Agreement requires eliminates the potential for
any fraud or unauthorised disclosure of data and provides detection procedures and
significant barriers to attacks from internal conspiracy and collusion to defraud POCL.
106.11 The POCL Services (other than the NBS and the PIN Pad Implementation Service) and the
POCL Service Infrastructure shall be capable of introduction in all post offices. The NBS
shall be capable of introduction at all automated Counter Positions, mobile configurations
(as described in row 8 of Annex 5 to Schedule A12), Admin Positions and trolley based
solutions in Outlets in each case wherever there is a network connection, subject to the
overall limits applicable to each as set out in Schedule A12. The PIN Pad Implementation
Service shall be capable of implementation at all automated Counter Positions, mobile
configurations (as described in row 8 of Annex 5 to Schedule A12), Admin Positions and
trolley based solutions in Outlets, subject to the overall limits applicable to each as set out in
Schedule A12.
106.12 For the avoidance of doubt, and without limitation to the generality of Clause 902.2, any
failure by the Contractor to comply with any of the provisions of Clauses 106.7, 106.8 or
106.9 shall be treated as a Default for the purposes of Clause 902.2.
PART 2: PERFORMANCE OF POCL SERVICES AND SUPPLY OF PRODUCTS
Clause 201. Performance of Core System Services
201.1 [Not used]
201.2 Subject to Clause 201.6 the Contractor shall be responsible for meeting the requirements
specified in Schedule A15 in accordance with the Solutions specified in Schedule A16 by
performing the Core System Services referred to in Clause 201.3. However, for the
avoidance of doubt, and subject to Clauses 102.5 and 201.6, the parties acknowledge that
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201.3
201.4
201.5
201.6
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POCL's acceptance of the Contractor's solutions in Schedule A16 and their agreement to
the service descriptions contained in the relevant Schedules of this Codified Agreement,
shall not relieve the Contractor of its obligation to meet such of those requirements specified
in Schedule A15 as relate to the Core System, CSR+ and, subject to Clause 301.10, other
Releases as referred to in Clause 210.
Subject to Clause 201.6 the Contractor shall perform the following Core System Services in
accordance with all applicable provisions hereof:
201.3.1 the Development Services pursuant to Clause 403;
201.3.2 the Implementation Services pursuant to Clause 404;
201.3.3 the Operational Services pursuant to Clause 405;
201.3.4 the Management Services pursuant to Clause 602; and
201.3.5 the Transfer Services pursuant to Clause 904.
The Contractor shall, at no cost to POCL:-
201.4.1 strip out from, or suppress in, the Core System Release the functionality of; and
201.4.2 strip out from CSR+
all software relating exclusively to the aborted benefit encashment service or to PAS or
CMS (as defined under the DSS Agreement).
To support the performance of the POCL Services, the Contractor shall supply to POCL one
hard copy and one electronic copy of each version of the Service Architecture Design
Document in accordance with all applicable provisions hereof. For the avoidance of doubt,
the Contractor acknowledges that agreement by POCL to the SADD shall not relieve the
Contractor of its obligation to continue to perform the POCL Services in accordance with all
applicable provisions of this Codified Agreement
Notwithstanding any other provision of this Codified Agreement to the contrary, the
Contractor's obligations in relation to those elements of the Core System Services which are
dependent on software releases are limited to the provision of:-
(a) following the Core System Release, such of those elements as are dependent on
the Core System Release;
(b) following CSR+, such of those elements as are dependent on CSR+; and
(c) in further Releases pursuant to Clause 210, such additional Core System Services
as may be agreed in accordance with the Change Control Procedure and the
provisions of Clause 301.10
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and references to the Core System Services and any category of them shall be
construed accordingly.
Clause 202. Performance of Optional POCL Services
POCL shall have the option, exercisable on prior written notice to the Contractor, of obtaining any of
the Optional POCL Services described in Schedule C1.
Such Optional POCL Services shall be performed in accordance with all applicable provisions hereof.
Notwithstanding any other provision in this Codified Agreement, or in any CCD or CRD, to the
contrary, the Contractor shall not be obliged to carry out Services as Operational Business Change, or
otherwise supply equipment, in excess of the limits relating to Counter positions, Horizon
configurations, single position gateway configurations and multi-position gateway configurations set
out in rows numbered 3 to 6 in Annex 5 to Schedule A12 to this Codified Agreement.
Clause 203. Performance of POCL Client Services
The Contractor shall provide POCL with such services as may be agreed by the Contractor and POCL
in relation to Royal Mail, DVLA, DNS, Girobank plc and the Co-operative Bank plc (and other POCL
clients as may be agreed). Such services shall be performed in accordance with all applicable
provisions of this Codified Agreement.
Clause 204. Performance of Additional POCL Services
The Contractor undertakes to perform at any time during the term of this Codified Agreement such
Additional POCL Services as may be agreed by it and POCL in accordance with the provisions of
Clause 101.2 for the purposes contemplated by this Codified Agreement and within the scope of the
Advertisement. Such Additional POCL Services shall be performed in accordance with all applicable
provisions of this Codified Agreement.
Clause 205. Supply of Core System Products
205.1 To support the performance of the POCL Services, the Contractor shall supply the following
Core System Products in accordance with all applicable provisions hereof:
205.1.1 all of the Products comprising the POCL Service Infrastructure;
205.1.2 the Documentation.
205.2 +The Contractor warrants that the Documentation comprises:
(a) a complete set of operating manuals; and
(b) a complete set of manuals for the POCL Service Architecture.
205.3 In addition to one hard copy of the Documentation provided by the Contractor, the
Contractor shall provide POCL with an electronic copy at no additional charge.
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Clause 206. Supply of Optional Products
POCL shall have the option, exercisable on prior written notice to the Contractor, of obtaining, as
Optional Products, all or any items specified in paragraph 12 of Schedule A12 to this Codified
Agreement which are of the same type as the equivalent elements of the POCL Service Infrastructure
provided by the Contractor for use on the POCL Premises.
The Optional Products shall be supplied in accordance with all applicable provisions hereof.
Clause 207. Supply of Additional Products
The Contractor undertakes to supply at any time during the term of this Codified Agreement such
Additional Products as may be agreed by it and POCL in accordance with the provisions of Clause
101.2 for the purposes contemplated by this Codified Agreement and within the scope of the
Advertisement. Such Additional Products shall be supplied in accordance with all applicable
provisions hereof.
Clause 208. Supply of POCL Consumables
POCL shall have the option of obtaining all or any of the POCL Consumables in such quantities as
may be reasonably required by POCL by giving the Contractor not less than thirty (30) days prior
written notice thereof. The POCL Consumables shall be supplied in accordance with all applicable
provisions hereof.
Clause 209. Contractor Consumables
The Contractor shall provide all Contractor Consumables which are required for the performance of
the POCL Services.
Clause 210 Further Releases
210.1 Subject to the Change Control Procedure, further Releases of Software to provide additional
functionality relevant to the Core System shall be provided by the Contractor by way of
upgrades to CSR or CSR+.
210.2 The Contractor may also issue further Releases of Software from time to time as necessary
to remedy defects in the provision of the POCL Services or for the purpose of maintenance
of the POCL Service Infrastructure.
Clause 211 Further Use of the Core System
In parallel with the performance of the Contractor's obligations under this Codified Agreement, POCL
confirms its desire to use the Core System for the provision of services (via smart cards) for Modern
Government. POCL will therefore work with the Contractor to revive and continue the discussions on
the Public Private Partnership considered by the parties prior to the date of this Codified Agreement.
It is hoped that the parties can together develop a business strategy in these areas which they can
deliver through appropriate arrangements under a Public Private Partnership in order to leverage the
use of the Core System and develop to the full POCL’s potential for the delivery of electronic
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business services.
Clause 212 Performance of Network Banking Service
The Contractor shall perform the Network Banking Service pursuant to Clause 413 and in accordance
with all applicable provisions hereof.
Clause 213 Performance of PIN Pad Implementation Service
The Contractor shall perform the PIN Pad Implementation Service pursuant to Clause 415 and in
accordance with all applicable provisions hereof.
PART 3 : CONSIDERATION
Clause 301. Charges
301.1 Core System Charges
The Charges for the provision of the POCL Service Infrastructure and the Core System
Services shall be calculated in accordance with Part A of Schedule A12 to this Codified
Agreement.
301.2 Charges for Optional POCL Services
The Charges for any Optional POCL Services shall be calculated in accordance with
paragraph 8 of Schedule A12 to this Codified Agreement.
301.3 Charges for POCL Client Services
The Charges for any POCL Client Services shall be calculated in accordance with
paragraph 9 of Schedule A12 to this Codified Agreement.
301.4 Charges for Additional POCL Services
The Charges for Additional POCL Services shall be as set out in paragraph 10 of Schedule
A112 to this Codified Agreement.
301.5 Core System Products
The costs of supply of the Core System Products are included within the charges referred to
in Clause 301.1 above.
301.6 Optional Products
The Charges for the supply of any Optional Products shall be calculated in accordance with
paragraph 12 of Schedule A12 to this Codified Agreement.
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301.7
301.8
301.9
301.10
301.11
301.12
Additional Products
The Charges for the supply of any Additional Products shall be calculated in accordance
with the Contractor's then current list prices but shall in no event exceed the prices then
generally offered in the United Kingdom for such products on similar terms.
POCL Consumables
The Charges for the supply of any POCL Consumables shall be as specified in Schedule
B4.
Contractor Consumables
All Contractor Consumables shall be supplied at the expense of the Contractor.
Further Releases
301.10.1 Further releases of Software which fall within Clause 210.1 shall be provided
either:-
301.10.1.1 on the basis of appropriate time and material charges (as set out in
paragraph 14 of Schedule A12) which shall be invoiced monthly in
arrears; or
301.10.1.2 for a fixed price to be agreed (on payment terms to be agreed) which
shall not be audited
as elected by POCL.
301.10.2 Further releases of Software which fall within Clause 210.2 shall be provided at no
cost to POCL.
Charges for Network Banking Service
The Charges for the provision of the Network Banking Service shall be calculated in
accordance with part C of Schedule A12 to this Codified Agreement.
Charges for PIN Pad Implementation Service
The Charges for the provision of the PIN Pad Implementation Service shall be calculated in
accordance with part D of Schedule A12 to this Codified Agreement.
Clause 302. Packaging
No additional charge shall be made for packaging used by the Contractor. All such packaging shall
be removed by the Contractor at no additional cost when no longer required.
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Clause 303. Payment
303.1 In consideration of the supply of the Products and the performance of the POCL Services in
accordance with the provisions of this Codified Agreement POCL shall pay the Charges.
303.2 Payment of Charges in relation to the POCL Services performed hereunder shall be made
in accordance with the invoicing and payment procedure specified in Schedule A10.
303.3 In the event that the Contractor, in accordance with the terms of this Codified Agreement,
enters into a supply contract or a sub-contract in connection with this Codified Agreement,
the Contractor shall ensure that a term is included in the supply contract or sub-contract
which requires the Contractor to pay all sums due thereunder to the relevant supplier or
sub-contractor within a specified period, not to exceed thirty (30) days, from the date of
receipt of a valid invoice as defined by the terms of the supply contract or sub-contract (as
appropriate).
Clause 304. Value Added Tax
It is hereby agreed that the Charges are exclusive of Value Added Tax, which POCL shall pay to the
Contractor at the rate and in the manner prescribed by law from time to time, subject to the
production by the Contractor of a valid tax invoice giving the requisite details of the taxable supply.
PART 4 :DEVELOPMENT, IMPLEMENTATION AND PERFORMANCE OF OPERATIONAL
SERVICES
Clause 401. Transfer of Assets and Agreements
401.1 Sale and Purchase
401.1.1 POCL, free of encumbrances, liens, charges, mortgages, pledges or other third
party rights, shall sell and transfer and the Contractor shall purchase and accept
the POCL Transferred Assets (if any) listed in Schedule A9.
401.1.2 Subject to Clause 401.1.3, the POCL Transferred Assets are sold and transferred
by POCL to the Contractor "as is" and POCL provides no warranty as to the state,
quality or fitness for purpose of the POCL Transferred Assets and all such
statutorily implied warranties are hereby excluded. POCL warrants it has good title
to the POCL Transferred Assets.
401.1.3 To the extent to which POCL is legally able to do so, POCL hereby assigns all
POCL’s rights against manufacturers, suppliers and third parties in respect of the
POCL Transferred Assets to the Contractor. POCL shall at the Contractor's
request and expense give to the Contractor reasonable assistance to enable the
Contractor to enforce such rights.
401.1.4 Title to and risk in the POCL Transferred Assets shall pass to the Contractor on
the Transfer Date.
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401.2
401.3
401.4
Clauses
Sale Consideration
401.2.1
401.2.2
As consideration for the agreement by POCL to sell the POCL Transferred Assets,
the Contractor hereby agrees to pay to POCL the sum of £1 (if and when
requested).
It is hereby agreed that the sum to be paid pursuant to this Clause 401.2.1 is
exclusive of Value Added Tax, which the Contractor shall pay to POCL at the rate
and in the manner prescribed by law from time to time, in addition to the sum
payable in Clause 401.2.1, subject to the production by POCL of a valid tax
invoice giving the requisite details of the taxable supply.
ISDN Lines
401.3.1
401.3.2
401.3.3
With effect from the Transfer Date POCL shall assign to the Contractor the benefit
of all agreements entered into between POCL and British Telecom Plc to the
extent relating to the provision of ISDN lines in Outlets in connection with services
to be migrated to the POCL Services (the “Relevant ISDN Agreements”) and the
Contractor agrees to assume and duly perform all of POCL’s obligations in relation
to the Relevant ISDN Agreements. The parties shall, unless otherwise agreed,
enter into a deed of novation with British Telecom PLC to effect such assignment
and assumption on the Transfer Date or as soon as reasonably practicable
thereafter.
POCL undertakes to pay, discharge and satisfy all liabilities and obligations arising
in the period up to the Transfer Date when the same fall due to be paid, satisfied
or discharged in respect of the Relevant ISDN Agreements and to indemnify the
Contractor from and against such liabilities and against any and all losses, costs,
liabilities and expenses arising out of or in connection therewith. The Contractor
undertakes to reimburse POCL upon the Transfer Date in respect of all
pre-payments made by POCL which relate to any period following the Transfer
Date. The Contractor and POCL shall prior to the Transfer Date prepare and
agree a written statement itemising such pre-payments.
The Contractor undertakes to pay, discharge and satisfy all liabilities and
obligations arising after the Transfer Date when the same fall due to be paid,
satisfied or discharged in respect of the Relevant ISDN Agreements and to
indemnify POCL from and against such liabilities and against any and all losses,
costs, liabilities and expenses arising out of or in connection therewith.
Completion
401.4.1
401.4.2
Completion of the sale and purchase and/or transfer shall take place on the
Transfer Date at the offices of POCL.
Upon completion POCL shall deliver to the Contractor:
401.4.2.1 quiet possession of all the relevant POCL Transferred Assets;
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401.4.3
401.4.2.2executed documentation sufficient for the purpose of transferring title to
the relevant POCL Transferred Assets;
401.4.2.3copies of documentation relating to the Relevant ISDN Agreements
including relevant technical information and terms and
conditions of such Relevant ISDN Agreements.
Upon completion of the Transfer the Contractor shall pay to POCL in a manner to
be agreed between the parties the sum specified in Clause 401.2.1.
Transfer of Undertakings (Protection of Employment) Regulations 1981
401.5.1
401.5.2
In the event that, by virtue of the application for whatever reason of the Transfer of
Undertakings (Protection of Employment) Regulations 1981 (as amended or
replaced from time to time) to the assumption of responsibility by the Contractor
for the provision of all or any part of the POCL Services hereunder, there is
transferred to the Contractor any contract of employment of any employee of
POCL, and provided that the Contractor:
(i) shall not have offered employment to such employee or otherwise have
encouraged him to seek or to claim employment with the Contractor; and
(ii) shall have notified POCL in writing of the Contractor's intention to
terminate the employment of such employee at least fourteen (14) days
before terminating such employment; and
(iii) shall immediately after such notification to POCL have given POCL
reasonable opportunity to offer such employee reemployment with POCL;
and
(iv) shall have terminated the employment of such employee as soon after the
date on which the Contractor first became aware of the transfer to it of his
employment as permitted under the relevant contract of employment,
POCL, subject always to the Contractor’s proper observance of its obligations
under this Clause, shall fully indemnify the Contractor from and against any and all
liabilities and obligations which the Contractor may incur in connection therewith
(including any liabilities and obligations, accruing prior to such transfer of
employment, in relation to personal injury, sexual discrimination and any liabilities
and obligations arising after such transfer of employment on the subsequent
termination of employment by the Contractor of any such employees so
transferred to it).
In the event of any claim or demand being made or action brought to which Clause
401.5.1 applies, POCL shall be promptly notified thereof and POCL shall at its own
expense conduct all negotiations for settlement of the same and any legal
proceedings that may arise therefrom. The Contractor, its sub-contractors, agents
and employees shall at the request of POCL afford all reasonable assistance for
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the purpose of contesting any such claim or demand or action and shall be repaid
any reasonable expense incurred in so doing and shall not make any admissions
which may be prejudicial to the defence of any such claim or demand or action.
Clause 402. Operational Trial
402.1 This Clause 402 and Schedules L1 to L5 shall not apply in respect of the Network Banking
Service or the PIN Pad Implementation Service. The Contractor shall, during the
Operational Trial Period, make available the Operational Trial System for the Operational
Trial as set out in Schedules L1 to L5 to be performed in accordance with the timetable set
out in Schedule L2
402.2 The objectives of the Operational Trial shall be as specified in Schedule L1.
402.3 Operational Trial and the Operational Trial System shall be used to test the Core System for
the purposes of Schedule A11.
402.4 [Not used]
402.5 [Not used]
402.6 [Not used]
402.7 POCL will perform its Operational Trial Responsibilities as set out in Schedule L4.
402.8 For the avoidance of doubt, the Contractor acknowledges that successful completion of
acceptance testing of any part of the Operational Trial System shall not relieve it of its
obligation to continue to perform the POCL Services hereunder in accordance with all
applicable provisions hereof.
402.9 Notwithstanding the foregoing provisions of this Clause, POCL shall have no right of
termination of this Codified Agreement in relation to failure of the Operational Trial System
successfully to complete the Operational Trial except in accordance with Schedules A11
and L5.
Clause 403. Development Services
The Contractor shall perform the following Development Services:
403.1 development of the Automated Payment Service as described in Schedule E1;
403.2 development of EPOSS as described in Schedule F1;
403.3 development of the POCL Infrastructure Services as described in Schedule G1;
403.4 development of the OBCS as described in Schedule H1;
403.5 development of the Logistics Feeder Service as described in Schedule K1;
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403.6 development of Optional POCL Services as described in Schedule C1 ;
403.7 development of the Service Architecture Design Document; and
403.8 development of the Contingency Services as described in Schedules E9, F9, G11, H9 and
kg.
Clause 404. Implementation of POCL Service Infrastructure and Operational Services
404.1 The Contractor shall implement the POCL Service Infrastructure in accordance with the
provisions and timetable in Schedule G6. Elements of the POCL Service Infrastructure
shall be subject to Acceptance.
404.2 POCL may on prior written notice defer implementation of any part of the Operational
Services and of any of the POCL Service Infrastructure until successful completion of the
Operational Trial under the foregoing provisions of this Clause.
404.3. The Contractor shall implement the Automated Payment Service in accordance with the
timetable in, and the provisions of, Schedule E4. Elements of the Automated Payment
Service shall be subject to Acceptance.
404.4 The Contractor shall implement EPOSS in accordance with the timetable in, and the
provisions of, Schedule F4. Elements of EPOSS shall be subject to Acceptance.
404.5 The Contractor shall implement the POCL Infrastructure Services in accordance with the
timetable in, and the provisions of, Schedule G6. Elements of the POCL Infrastructure
Services shall be subject to Acceptance.
404.6 The Contractor shall implement OBCS in accordance with the timetable in, and provisions
of, Schedule H4. Elements of OBCS shall be subject to Acceptance.
404.7 The Contractor shall implement the Logistics Feeder Service in accordance with the
timetable in, and provisions of, Schedule K4.
Clause 405. Performance of Operational Services
Subject to the Release Authorisation Board authorising commencement of National Rollout of the
Core System and subject to Clause 201.6, the Contractor shall, from the date of CSR Acceptance,
perform the following Operational Services:
405.1 the Automated Payment Service, in accordance with the provisions of Schedule E1;
405.2 EPOSS, in accordance with the provisions of Schedule F1;
405.3 the POCL Infrastructure Services, in accordance with the provisions of Schedule G1;
405.4 the OBCS in accordance with the provisions of Schedule H1;
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405.5 the Logistics Feeder Service in accordance with the provisions of Schedule K1;
405.6 the POCL Contingency Services in accordance with the provisions of Schedules E9, F9,
G11, H9 and K9;
405.7 any Optional POCL Services ordered pursuant to Clause 202 in accordance with the
provisions of Schedule C1.
Clause 406. Inspection of POCL Premises
406.1 The Contractor confirms that other than in respect of the introduction of the Network
Banking Service and the PIN Pad Implementation Service it has been offered the
opportunity to inspect the POCL Premises in order to satisfy itself that the POCL Premises
are suitable for the installation and operation of the Products in the POCL Service
Infrastructure and the supply of the POCL Services. However, the Contractor does not
warrant that the use of such Products when installed will comply with applicable Health and
Safety legislation or that the POCL Premises will comply with such legislation, only that
installation work carried out by the Contractor and the Products as installed in their
immediately surrounding environment will so comply. The Contractor shall not be liable for
any delay or Default directly caused by any delay or failure in obtaining any third party
consents or licences which are necessary to permit such installation.
406.2 In relation to any work at the POCL Premises which is required as referred to in paragraph
3.2 of Annex 4 to Schedule A12, the Contractor shall inspect the POCL Premises, specify
the necessary work and, subject to POCL’s prior written approval of the work to be done and
the costs thereof, carry out such work. The costs of such work shall be chargeable to POCL
in accordance with paragraphs 6 and 13 of, and Annex 4 to Schedule A12. POCL reserves
the right to arrange for such work to be done by parties other than the Contractor in
accordance with procedures and specifications reasonably agreed by the parties. The
Contractor will not be liable for any delay or Default directly caused by such changes being
made by a party other than the Contractor.
406.3. POCL shall only be liable to pay for the Contractor's costs for those changes to the POCL
Premises which are strictly necessary to install the Products to enable the Contractor to
perform the POCL Services, and these costs shall only be chargeable pursuant to the
charging structure in Annex 4 to Schedule A12. The Contractor will minimise such
installation and operations costs.
Clause 407. Marking of Products
The Contractor shall ensure that each Product in the POCL Service Infrastructure is clearly marked
with a functional title or code so that it can be readily identified in the relevant Documentation and
related to its proper place in the POCL Service Infrastructure.
Clause 408. Delivery of Products and POCL Consumables
The Contractor shall deliver any Products and POCL Consumables to an authorised representative of
POCL at times and locations to be mutually agreed between the Contractor and POCL (such
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agreement not to be unreasonably withheld or delayed). Any Software supplied as a Product will be
delivered in object code.
Clause 409. Products and Services
The Contractor shall not introduce any product or service into the POCL Service Infrastructure or
POCL Services, nor make any change to any Products or POCL Services, without POCL's prior
written consent in accordance with Schedule AS.
Clause 410. Contingency Services
410.1 The Contractor shall perform the Contingency Services in accordance with the provisions of
Schedules E9, F9, G11, H9, K9 and N9.
410.2 The Contractor shall not be obliged to provide an alternative means of proceeding with
Banking Transactions at any Counter Position which is operating in offline mode due to a
temporary inability of that Counter Position to communicate with a Data Centre.
Clause 411. Acceptance of Core System
411.1 This Clause 411, Schedule A11, Schedule BOS and the definitions in Schedule AO1 which
relate to “Acceptance” (as opposed to “NBS Acceptance”) shall not apply in respect of the
Network Banking Service, PIN Pads or the PIN Pad Implementation Service. Provisions
relating to CSR Acceptance are set out in Schedule A11.
411.2 The Contractor agrees that if, following CSR Acceptance, any fault arises in connection with
the Core System which:
(a) was not identified as an Acceptance Incident; but which
(b) might reasonably have been expected to have been identified as an Acceptance
Incident had the Acceptance Criteria, Acceptance Specifications and Acceptance
Tests agreed in relation to the Core System prior to execution of this Codified
Agreement been appropriately revised and applied (i) to reflect in all material
respects the removal from the Services of BES, PAS and CMS (in each case as
defined under the Related Agreements immediately prior to 24 May, 1999) and (ii)
to ensure that the Core System were not affected by such removal
then the Contractor shall remedy such fault in accordance with Clause 411.3 below at the
expense of the Contractor.
411.3 In the case of category (a) faults (as defined in Schedule A11) such remedy shall be
effected forthwith on discovery of the fault and in the case of category (b) faults (as so
defined) it shall be effected promptly following discovery of the fault.
411.4. The occurrence of a fault to which Clause 411.2 applies shall not invalidate CSR
Acceptance or entitle POCL to claim that CSR Acceptance has not, or should not have,
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taken place, or that any sum due to the Contractor upon CSR Acceptance should be
withheld or repaid.
411.5 CSR+ shall be subject to Release authorisation by the Release Authorisation Board but not
subject to Acceptance.
Clause 412. Inventory
412.1 The CCD entitled “CSR Asset Register” contains an inventory of the hardware and software
to be used to provide the host and network facilities of the POCL Service Infrastructure and
located in the Contractor's datacentres as at Acceptance of the Core System.
412.2 The Contractor shall, within 2 weeks after NBS Acceptance and again within 2 weeks after
commencement of phase 2 (as described and set out in the CCD entitled “Horizon New
Service Business Volumes” (PA/PER/031)), if POCL exercises its option set out in that CCD
to commence that phase, update the CSR Asset Register to include the hardware and
software to be used to provide the host and network facilities of the NBS elements of the
POCL Service Infrastructure.
412.3. The Contractor undertakes to maintain throughout the term of this Codified Agreement
hardware and software in relation to the POCL Service Infrastructure providing, as a whole,
equivalent capability to those listed in the CSR Asset Register (as updated in accordance
with Clause 412.2).
412.4 The Contractor may replace, upgrade, remove or decommission hardware and software
from time to time comprised in the POCL Service Infrastructure provided that it continues at
all times to comply with its undertaking contained in Clause 412.3.
Clause 413. Network Banking Service
413.1 The Contractor shall:
413.1.1 develop the Network Banking Service as described in Schedule N1;
413.1.2 use reasonable endeavours to develop and implement the Network Banking
Service in accordance with the NB Project Plan;
413.1.3 subject to authorisation by the Release Authorisation Board and from the date
approved by the RAB perform the Network Banking Service in accordance with the
provisions of Schedule N1 (For the avoidance of doubt the Network Banking Service is a
POCL Service but is not a Core System Service, a POCL Client Service or an Additional
POCL Service);
413.1.4 provide the management services set out in Schedule N5; and
413.1.5 perform the Network Banking Transfer Services when required by this Codified
Agreement.
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413.2. Elements of the Network Banking Service shall be subject to Acceptance in accordance with
the provisions of Schedule N2;
413.3 Notwithstanding any other provision of this Codified Agreement to the contrary, the
Contractor's obligations regarding the application of electronic signatures to be applied to
data transmitted and received across the link between the Data Centres and the NBE to
ensure the authenticity and integrity of that data shall be limited to the use of MACs in
accordance with paragraph 10.6.4(b) of Schedule NO1.
Clause 414 SADD
The Contractor shall use reasonable endeavours to update the SADD to reflect the introduction of the
NBS by the date 3 months after NBS Acceptance and shall in any event do so by the date 6 months
after NBS Acceptance.
Clause 415 PIN Pad Implementation Service
The Contractor shall perform the PIN Pad Implementation Service in accordance with Schedule G12
(For the avoidance of doubt the PIN Pad Implementation Service is a POCL Service but is not a Core
System Service, a POCL Client Service or an Additional POCL Service).
PART 5 : OWNERSHIP, LICENCES AND RISK
Clause 501. Ownership of Hardware
501.1 Ownership of the Hardware (subject to any provisions to the contrary in Schedule G12 in
respect of PIN Pads) shall either vest in POCL upon acceptance thereof or shall remain in
the Contractor (or its licensors), as specified in Schedule B2. However, POCL shall not
acquire title to any Intellectual Property Rights in the Hardware.
501.2 Ownership of PIN Pads and Paypoles shall be as specified in Schedule G12.
Clause 502. Ownership of Software
Ownership of the media on which such Software is supplied by the Contractor shall either vest in
POCL upon acceptance thereof or shall remain in the Contractor (or its licensors), as specified in
Schedule B1. However, POCL shall not acquire title to any Intellectual Property Rights in the
Software, other than Specially Written Software, the Intellectual Property Rights in which are
specified in Schedule B1 as vesting in POCL, the ownership to which shall vest in POCL upon
acceptance thereof.
Clause 503. Ownership of Documentation
Ownership of the media on which such Documentation is supplied by the Contractor shall vest in
POCL. However, POCL shall not acquire title to the Intellectual Property Rights in the Documentation
created by the Contractor. POCL shall retain title to the Intellectual Property Rights of any POCL-
owned material incorporated into Documentation.
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Clause 504. Ownership of POCL Data and Intellectual Property Rights in the POCL
Service Architecture
504.1
504.2
504.3
504.4
504.5
504.6
504.7
The Contractor acknowledges that the POCL Data is the property of POCL and POCL
hereby reserves all Intellectual Property Rights which may subsist in the POCL Data. The
Contractor shall not delete or remove any copyright notices contained within or relating to
the POCL Data.
The Contractor shall preserve the integrity of the POCL Data once the Contractor has
received such POCL Data, shall prevent any corruption or loss of the POCL Data and shall
comply with the validation procedures set out in Schedule B8 as such procedures may be
updated and amended from time to time. The Contractor shall not be liable for any loss or
corruption of POCL Data nor for any failure to perform the POCL Services if it can prove
that such loss or corruption or failure to perform the POCL Services was caused by POCL
Data which was lost or corrupted before the Contractor received it, and the Contractor has
complied with the validation rules in relation to such POCL Data.
In the event that the POCL Data is altered, corrupted or lost in the course of performing the
POCL Services POCL shall have the option, in addition to any other remedies that may be
available to it either under this Codified Agreement or otherwise, to elect either of the
following remedies:
504.3.1 POCL may require the Contractor at its own expense to restore or procure the
restoration of the POCL Data; or
504.3.2 POCL may itself restore or procure restoration of the POCL Data, and shall be
repaid by the Contractor any reasonable expenses so incurred.
For the purposes of Clauses 504.2 and 504.3, the term “POCL Data” shall include the data
of POCL’s clients.
Ownership of any Intellectual Property Rights in that part of the design of the POCL Service
Architecture (as set out in the Service Architecture Design Document) which is developed
during the performance of the POCL Services shall vest in the Contractor. Any use by the
Contractor of the overall design of the POCL Service Architecture within the United
Kingdom for purposes other than in connection with this Codified Agreement shall be
subject to the prior written agreement of POCL on reasonable commercial terms (such
agreement not to be unreasonably withheld or delayed).
POCL Data constitutes Confidential Information, and may not be reproduced without the
prior written consent of POCL except as necessary to perform the POCL Services.
The Contractor shall not do anything to prejudice the security of the POCL Services.
Clause 505. Ownership of POCL Consumables
Ownership of any POCL Consumables supplied hereunder shall vest in POCL upon delivery thereof
in accordance with Clause 408.
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Clause 506. Licences to use Intellectual Property Rights
506.1 In consideration of the payment of the relevant Charges the Contractor hereby grants, or
shall procure that the owner of the Intellectual Property Rights in the Specially Written
Software and the Documentation (other than the Specially Written Software, and
Documentation in which ownership of the Intellectual Property Rights vests in POCL
pursuant to Clause 502) grants POCL a perpetual, royalty-free, irrevocable (subject to
Clause 506.12) and non-exclusive licence to Use the relevant Specially Written Software
and to use, copy and modify solely in connection with the Services the Documentation listed
in Schedule B3.
506.2 The licence set out in Clause 506.1 in respect of Documentation is granted without prejudice
to Clause 607 and the Non Disclosure Agreement between Consignia Plc, POCL, the
Contractor and IBM United Kingdom Limited dated 31 July 2001.
506.3 In consideration of the payment of the relevant Charges the Contractor hereby grants to
POCL a royalty-free, non-exclusive licence to Use the Contractor's Software. Such licence
to Use the Contractor's Software shall, subject to Clause 506.12, be perpetual and
irrevocable. POCL’s licence to Use such Contractor's Software shall be subject to any
additional terms and conditions specified in Schedule B1 which do not detract from the
rights granted to POCL hereunder.
506.4 In respect of Third Party Software supplied hereunder, the Contractor shall in consideration
of the payment of the relevant Charges:
506.4.1 use all reasonable efforts to procure the right to grant to POCL a perpetual, royalty-
free, irrevocable (subject to Clause 506.12) and non-exclusive sub-licence to Use
such Third Party Software, subject to Clause 506.6 and Clause 506.7, and, by the
entering into of this Codified Agreement, shall grant such sub-licences; or
506.4.2 if the Contractor is unable to procure the right to grant the sub-licence referred to
in Clause 506.4.1 the Contractor shall procure, prior to the commencement of the
Operational Trial Period (or in respect of Optional Products or Additional Products,
prior to the provision thereof ), that the third party grants to POCL a royalty-free
and non-exclusive licence to Use the Third Party Software subject to Clause 506.6
and Clause 506.7, and shall use all reasonable endeavours to ensure that such
licence is perpetual and (subject to Clause 506.12) irrevocable;
POCL’s licence or sub-licence to Use such Third Party Software shall be subject to any
additional terms and conditions imposed by the licensor, provided that any terms of any sub-
licence granted under sub-Clause 506.4.1 or any licence granted under sub-Clause 506.4.2
shall not detract from the rights granted to POCL hereunder.
506.5 In consideration of the payment of the relevant Charges the Contractor hereby grants to
POCL or shall procure prior to the commencement of any use by POCL that the relevant
Third Party grants to POCL a royalty-free non-exclusive licence to use the Internal Code in
connection with the Hardware of which it forms an integral part. Such licence to use the
Internal Code shall, subject to Clause 506.12, be perpetual and irrevocable. On the sale or
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506.6
506.7
506.8
506.9
506.10
506.11
506.12
Clauses
transfer of an item of Hardware of which Internal Code is an integral part, licence to use
such Internal Code in combination with the said item of Hardware shall pass to the
purchaser or other transferee of the said item of Hardware. POCL shall take all reasonable
steps to ensure that the purchaser or transferee of the said item of Hardware agrees to
comply with the licence to use the Internal Code that was previously enjoyed by POCL.
POCL shall be entitled to engage a third party to Use the Specially Written Software and to
Use the Contractor's Software, (and the Contractor shall use all reasonable endeavours to
enable POCL to engage a third party to use Internal Software and Third Party Software)
subject to and in accordance with this Codified Agreement on behalf of POCL provided that
such third party shall have entered into a confidentiality undertaking in accordance with
Clause 607.3.2.
POCL shall be entitled to copy the appropriate Contractor's Software, Internal Code and
Third Party Software in order to create as many archival or back-up copies of the same as
are necessary. When copying Software POCL shall include the original machine readable
copyright notice, and a label affixed to the media identifying the Software and stating: "This
medium contains an authorised copy of copyrighted software which is the property of [the
Contractor or the Third Party Software Owner]."
The Contractor shall place the Source Code of the Deposited Software in escrow with the
NCC on the basis of the appropriate standard agreement or on such other terms as POCL,
the Contractor, the Third Party Software Owner (if applicable) and the NCC shall agree.
Such escrow agreement shall be entered into within thirty (30) days of 15 May, 1996.
The Contractor hereby grants to POCL a perpetual, royalty-free, irrevocable (subject to
Clause 506.12) and non-exclusive licence to Use, reproduce, modify, adapt and enhance
(and to authorise a third party to Use, reproduce, modify, adapt and enhance) the Source
Code version of the Deposited Software. However, the foregoing licence shall only become
effective if POCL becomes entitled to obtain access to the Source Code version of the
Deposited Software pursuant to the source code escrow agreement referred to in
Clause 506.8 and the licence shall be subject to any restrictions contained herein in respect
of the object code version of the Deposited Software.
Subject to any necessary consents (which the Contractor shall use all reasonable
endeavours to obtain) any licence or sub-licence granted by the Contractor to POCL
hereunder shall be transferable in accordance with the provisions of Clause 604.4.
Subject to any necessary consents (which the Contractor shall use all reasonable
endeavours to obtain) any rights to Use granted hereunder to POCL are hereby granted to
and are fully exercisable by members of the Post Office Group and End Users.
The Contractor may at any time by notice in writing terminate any licence granted under
Clause 506.1, Clause 506.3, Clause 506.4, Clause 506.5, Clause 506.9 or Clause 903.1.2 if
POCL is in Default of its obligations under the relevant Clause in relation to such licence
and POCL shall fail to remedy such Default within thirty (30) days of written notice to POCL
specifying the Default and requiring its remedy, provided that if the Default in question is
caused by an Agent, such licence shall only be terminated in relation to Use by such Agent.
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Upon termination of the relevant licence to POCL, POCL shall cease to use the Software
which is the subject matter of such licence and shall either return or destroy all copies of
such Software, as directed by the Contractor.
506.13 In consideration for the entering into of CCN850 the Contractor shall grant to POCL, with
effect from the date of approval of that CCN a right to use WebRiposte, Framework and
Asset Manager on the terms set out in Schedule B11.
Clause 507. Risk in Products
507.1 Other than as set out in Schedule G12 in respect of PIN Pads, risk in the Products shall
remain with the Contractor unless title in any Products passes to POCL, in which case risk in
such Products shall pass to POCL at the same time as title passes.
507.2 Notwithstanding the provisions of Clause 507.1, each party shall be liable for any loss of or
damage to any Products or part thereof (other than Pin Pads, the provisions in respect of
which are set out in Schedule G12) supplied under this Codified Agreement if such loss or
damage is occasioned by the negligence or wilful acts or omissions of that party.
507.3 The Contractor shall with all possible speed make good any loss or damage affecting the
Core System Products and shall notwithstanding such loss or damage proceed with and
complete the installation of the POCL Service Infrastructure (where appropriate) and the
performance of the POCL Services in accordance with this Codified Agreement. Subject to
Clause 507.2 and in the case of PIN pads, the applicable provisions of Schedule G12, the
Contractor shall pay the costs of making good such loss or damage.
507.4 _ Risk in PIN Pads and Paypoles, liability for loss of or damage thereto and responsibility for
the costs making good such loss and damage shall be as set out in Schedule G12.
Clause 508. Damage to Plant, Tackle and Tools
508.1 All plant, tackle and tools at the POCL Premises provided by or on behalf of the Contractor
shall stand at the risk and be in the sole charge of the Contractor.
508.2 The Contractor shall be required to remove all such plant, tackle and tools which it brings to
the POCL Premises.
508.3 The Contractor shall ensure that all such plant, tackle and tools shall meet minimum safety
standards required by law.
Clause 509. Licences for the Contractor to use Intellectual Property Rights
509.1 POCL hereby grants to the Contractor a non-exclusive licence to use any software,
documentation, logos, designs or other material (referred to in this clause as “material”)
which are reasonably required by the Contractor for the purpose of performing the POCL
Services and in which the Intellectual Property Rights vest in POCL for the term of this
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Codified Agreement solely for the purposes of performing the POCL Services and for no
other purposes. POCL hereby grants to the Contractor a non-exclusive sub-licence to use
any software listed in table 2 of Schedule B01 for the term of this Codified Agreement solely
for the purposes of performing the POCL Services and for no other purposes. The
Contractor shall be entitled to copy such material for operational purposes in accordance
with the foregoing licence and sub-licence and in order to make back up copies of such
material. Upon termination of this Codified Agreement or upon the Contractor ceasing to
use such material, the Contractor shall either return or destroy all copies of such material as
directed by POCL. As part of the foregoing licence and sub licence, the Contractor shall be
entitled to copy such material provided any POCL copyright markings and security markings
are preserved and adhered to, and subject to the third sentence of Clause 610.3, the
Contractor shall be entitled to incorporate parts of such material into a document subject to
the source of the material being acknowledged in the receiving document.
509.2 Neither the Contractor nor any sub-contractor, nor any other person, shall have a lien on
any Products owned by or leased to POCL for any sum due to the Contractor, sub-
contractor or other person, and the Contractor shall take all reasonable steps to ensure that
the title of POCL and the exclusion of any such lien are brought to the notice of all sub-
contractors and other persons dealing with such Products.
Clause 510. Databases
POCL shall have the right to use the POCL Services and the POCL Service Infrastructure to capture,
develop and use databases containing information in relation to its customers. Any assistance
provided by the Contractor pursuant to this Clause over and above the performance of its other
obligations hereunder shall be treated as an Additional POCL Service.
Clause 511. Riposte 32 Software
511.1 The Contractor shall ensure that, within seven (7) days after 24th May, 1996, a copy of the
source code of the Riposte 32 Software is provided to the Contractor's European
Development and Service Centre.
511.2 The Contractor shall within seven (7) days after such copy of the source code is provided to
the Contractor's European Development and Support Centre provide to POCL a certificate
signed by the Contractor's Managing Director that this has occurred, and provide to POCL a
copy of the relevant contractual documentation confirming the Contractor's right of access
to such source code and that the Contractor has all other rights to such source code
necessary for the performance of its obligations under this Codified Agreement. For the
avoidance of doubt, such supporting documentation shall not include details of the prices
paid by the Contractor to its sub-contractors or licensors.
Clause 512 Transfer of HAPS Disaster Recovery Hardware
512.1 The title in the hardware installed on POCL premises in Leicester in accordance with the
document HAPS Disaster Recovery, shall be transferred to POCL when the HAPS system is
no longer required (as determined by POCL). This hardware will be transferred to POCL for
£1 (one pound).
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Clause 513 WebRiposte Software
513.1 The Contractor shall ensure that, within seven (7) days after the date of approval of
CCN850, a copy of the WebRiposte source code is deposited with the Contractor.
513.2 The Contractor shall within seven (7) days after such copy of the source code is deposited
with it provide to POCL a certificate signed by the Contractor's Managing Director
confirming that this has occurred and confirming the Contractor's right of access to such
source code and that the Contractor has all other rights to such source code necessary for
the performance of its obligations under this Codified Agreement.
PART 6 : CONTRACT AND SERVICE MANAGEMENT
Clause 601. Monitoring
POCL shall be entitled to monitor the performance by the Contractor of its obligations under this
Codified Agreement in accordance with the procedures set out in Schedule A4.
Clause 602. Management Interfaces and Management Services
602.1 The parties shall establish the management interfaces set out in Schedule A4. All contract
management of this Codified Agreement shall be performed in accordance with the
provisions of Schedule A4.
602.2 In relation to the Automated Payments Service, EPOSS, the POCL Infrastructure Services,
the OBCS, and the LFS, the POCL Services shall be managed in accordance with the
provisions of Schedules E5, F5 G7, H5 and K5 respectively. The Contractor shall provide
the Management Services specified in Schedules E5, F5, G7, H5 and K5. The Contingency
Services shall be managed in accordance with the provisions of Schedules E9, F9, G11,
H9 and K9. The Transfer Services shall be managed in accordance with the provisions of
Schedule A7.
Clause 603. Communications
603.1 Except as otherwise expressly provided no communication from one party to the other shall
have any validity under this Codified Agreement unless made in writing by or on behalf of
POCL or the Contractor, as the case may be.
603.2 Any notice or other communication whatsoever which any party hereto is required or
authorised by this Codified Agreement to give or make to another shall be given or made
either by post in a prepaid letter, or by facsimile transmission confirmed by post in a prepaid
letter, addressed to such other party in the manner referred to in Clause 603.3 below and if
that letter is not returned as being undelivered that notice or communication shall be
deemed for the purposes of this Codified Agreement to have been given or made after two
days, for a letter, or four hours, for facsimile transmission.
603.3 For the purposes of Clause 603.2 above the address of each party shall be:
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603.3.1 For POCL:
Post Office Counters Ltd.,
Calthorpe House,
15-20 Phoenix Place,
London, WC1X ODG
For the attention of:
IS Service Manager
603.3.2 For the Contractor:
ICL Pathway Limited
Forest Road,
Feltham,
Middlesex TW13 7EJ.
For the attention of:
Managing Director of ICL Pathway Limited.
Telephone I G (e) H
Facsimile I R '
603.4 Any party may change its address for service by notice as provided in this Clause 603.
Clause 604. Transfer and Sub-Contracting
604.1 This Codified Agreement is personal to the Contractor. The Contractor shall not assign,
novate, sub-contract or otherwise dispose of this Codified Agreement or any part thereof
without the previous written consent of POCL.
604.2 I POCL hereby consents to the Contractor having subcontracted its obligations specified in
Schedule A8 to the respective sub-contractors specified therein. Additional or substitute sub-
contractors may be approved from time to time in accordance with Clause 604.1 after the
date hereof, in which case Schedule A8 shall be amended accordingly. Notwithstanding any
sub-contracting permitted in this Codified Agreement, the Contractor shall remain primarily
responsible for the acts and omissions of its sub-contractors committed by them in the
course of performing or purporting to perform any of the POCL Services on the Contractor's
behalf as though such acts or omissions were its own.
604.3 [Not used]
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604.4 POCL shall be entitled to assign, novate or otherwise dispose of its rights and obligations
under this Codified Agreement or any part thereof (including, where appropriate, requiring
the grant by the Contractor or its licensors of a direct licence of any Software other than
Third Party Software , WebRiposte, Framework and Asset Manager, and requiring the
Contractor to use all reasonable endeavours to procure the grant of a direct licence of
WebRiposte, Framework and Asset Manager and any Third Party Software) to any other
body which performs any of the functions that previously had been performed by POCL,
provided that any such assignment, novation or other disposal shall not increase the burden
of the Contractor's obligations pursuant to this Codified Agreement.
604.5 POCL shall be entitled to disclose, to the extent necessary for the purposes of this Codified
Agreement, to any transferee any Confidential Information of the Contractor which relates to
the performance of the POCL Services by the Contractor. In such circumstances POCL
shall authorise the transferee to use such Confidential Information only for purposes relating
to the performance of the POCL Services and for no other purposes and, for the avoidance
of doubt, the transferee shall be bound by the confidentiality undertaking contained herein in
relation to such Confidential Information.
Clause 605. POCL Responsibilities
605.1 Subject to the provisions of Clause 607 POCL undertakes to provide at its own cost and
expense to the Contractor, all information, services, facilities and responses which it is
expressed (which may be by cross reference to other provisions of this Codified Agreement)
in any of Schedules A16, E3, F3, G5, G12, H3, K3, or N3 that POCL will provide. POCL
shall use all reasonable endeavours to perform such POCL Responsibilities in a timely
fashion in accordance with any agreed timetable specified in Schedule B9, Schedule N4, the
NB Project Plan or elsewhere herein.
605.2 Without limitation to Clause 605.1, POCL shall use all reasonable endeavours to ensure that
its Agents co-operate with the Contractor to the extent reasonably necessary to permit the
Contractor to perform the POCL Services. In the event that any Agent fails to provide such
co-operation, and POCL is unable to secure such co-operation within six (6) months after
receiving written notice thereof from the Contractor, the Contractor shall be relieved of
liability for any failure or delay to perform the POCL Services which is directly caused by the
Agent's failure to provide such co-operation and shall be entitled to any reasonable
additional costs and expenses which the Contractor can show were directly incurred by it as
a result of the Agent's failure to provide such co-operation.
Clause 606. Time
606.1 Timetable
606.1.1 The Contractor shall use its reasonable endeavours to perform the POCL Services
in accordance with the timetable specified in Schedule B9 and shall achieve
Acceptance of the Core System not later than the Final Deadline for CSR
Acceptance. In the event of failure to meet any target date in such timetable the
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606.1.2
606.1.3
Contractor shall provide POCL with a method statement showing how it intends to
recover any lost time. For the avoidance of doubt time shall not be of the essence
in relation to any date unless notice is served in accordance with Clause 606.4.
Before POCL exercises its option for any Optional POCL Service, and before
POCL and the Contractor agree on the supply of any Additional POCL Service,
POCL and the Contractor shall agree a timetable for the performance of such
POCL Services and such timetable shall be incorporated into this Codified
Agreement in accordance with the Change Control Procedure.
Clauses 606.1.1 and 606.1.2 shall not apply to the NBS which shall be governed
by the provisions of Schedule N04 and shall not apply to the PIN Pad
Implementation Service which shall be governed by the provisions of Schedule
G12 and Schedule N04.
606.2 Extension of Time
Clauses
606.2.1
606.2.2
Subject to Clause 606.2.2 and 606.3 below, if Acceptance of the Core System or
Rollout of the Core System is changed or delayed from the agreed procedure
and/or timetable:
606.2.1.1to the extent that such change or delay is caused by the Default of POCL
the Contractor will be entitled to a time and cost adjustment to
compensate for such change or delay. Except that any such
delay to Rollout caused by the Default of POCL shall be
disregarded to the extent that the aggregate duration of all such
delays does not exceed 42 days. The Contractor shall notify
POCL in writing within three (3) working days of becoming
aware of such Default; and
606.2.1.2to the extent that compensation is not payable by POCL under paragraph
606.2.1.1 or liquidated damages are not payable by the
Contractor under Schedule L5, such costs will lie where they
fall.
In the event of any such change or delay as is referred to in paragraph 606.2.1
above, for the purpose of determining and resolving to what extent each party is at
fault (if at all) and the time and cost adjustment applicable the following procedure
will apply:-
606.2.2.1within seven days of a request by either of them, the Managing Director
of POCL (or any equivalent executive) and the Commercial
Director of ICL shall meet to resolve these issues. In the event
that these issues are not resolved to the satisfaction of both
parties in so meeting then;
606.2.2.2within seven days of a request by either of them, the Chief Executive of
the Post Office and the Chief Executive Officer of ICL shall
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606.2.3
meet to resolve these issues. In the event that these issues
are not resolved to the satisfaction of both parties in so meeting
then;
606.2.2.3the Chief Executive of the Post Office and the Chief Executive Officer of
ICL shall together decide how any remaining dispute should be
resolved, whether by reference to binding expert determination,
mediation, arbitration, or such other means as agreed upon by
both parties.
If the performance of this Codified Agreement by either party be delayed by
reason of any force majeure event (as defined in Clause 606.3), both parties shall
be entitled to a reasonable extension of time subject to there being no entitlement
to any additional costs or expenses incurred as a result of the delay. The party so
delayed shall notify the other party in writing within one (1) working day of
becoming aware of the force majeure event.
Force Majeure
606.3.1
606.3.2
For the purposes of this Codified Agreement the expression "Force Majeure" shall
mean any cause affecting the performance by a party hereto of its obligations
arising from acts, events, omissions, happenings or non-happenings beyond its
reasonable control including (but without limiting the generality thereof) (i)
Governmental Regulations (subject to Clause 606.5), (ii) fire, (iii) flood, or (iv) any
disaster or an industrial dispute affecting a third party. Any act, event, omission,
happening or non-happening will only be considered Force Majeure if it is not
attributable to the wilful act, neglect or failure to take reasonable precautions of the
affected party, its agents or employees, and only if a substitute third party is not
reasonably available (having regard, without limitation, to the cost and quality of
such substitute) to perform the affected obligation. In no event shall any
fraudulent act or omission by any third party or party in relation to the POCL
Services for which the Contractor is liable under Clause 809.1 constitute a force
majeure event.
Neither party hereto shall in any circumstances be liable to the other party hereto
for any loss of any kind whatsoever including but not limited to any damages or
abatement of Charges whether directly or indirectly caused to or incurred by the
other party by reason of any failure or delay in the performance of its obligations
under this Codified Agreement which is due to Force Majeure. Notwithstanding
the foregoing, each party shall use all reasonable endeavours to continue to
perform, or resume performance of, such obligations under this Codified
Agreement for the duration of such Force Majeure event. In the case of the
Contractor, the parties shall agree an orderly process for such continuation or
resumption of performance (such consent not to be unreasonably withheld or
delayed), and the Contractor shall comply with such process. The Contractor shall
remain liable to perform the POCL Contingency Services, save where such POCL
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606.4
606.5
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606.3.3
606.3.4
606.3.5
606.3.6
Contingency Services are themselves also affected by Force Majeure, in which
case the Contractor shall be required to use all reasonable endeavours to perform
such POCL Contingency Services.
If the Contractor shall become aware of circumstances of Force Majeure which
give rise to or which are likely to give rise to any such failure or delay on its part it
shall forthwith notify POCL within one (1) working day and shall inform POCL of
the period which it is estimated that such failure or delay shall continue. If POCL
shall become aware of circumstances of Force Majeure which give rise to any
such failure or delay on its part, it shall forthwith notify the Contractor within one
(1) working day and shall inform the Contractor of the period which it is estimated
that such failure or delay shall continue.
It is expressly agreed that any failure by the Contractor to perform, or any delay by
the Contractor in performing, its obligations under this Codified Agreement which
results from any failure or delay in the performance of its obligations by any
person, firm or company with which the Contractor shall have entered into any
contract, supply arrangement or sub-contract or otherwise shall be regarded as a
failure or delay due to Force Majeure only in the event that such person firm or
company shall itself be prevented from or delayed in complying with its obligations
under such contract, supply arrangement or sub-contract or otherwise as a result
of circumstances of Force Majeure and there is no substitute person, firm or
company reasonably available (having regard, without limitation, to the cost and
quality of such substitute) to perform the affected obligation.
[Not used]
If any Force Majeure event prevents any party from performing its obligations
hereunder for a period in excess of ninety (90) consecutive days, POCL may after
consulting with the Contractor and taking into account the Contractor's views,
terminate this Codified Agreement in accordance with Clause 902.1.5.
Time of the Essence
Where POCL after undue delay by the Contractor notifies the Contractor that time is of the
essence of this Codified Agreement and any of its obligations stated in such notice shall not
have been performed by the Contractor by any reasonable date stated in the notice, POCL
may terminate this Codified Agreement in accordance with Clause 902.2.3. In relation to
the timescales specified herein, POCL may only give notice making time of the essence in
relation to the Final Deadline for CSR Acceptance.
Political Risk
Notwithstanding the provisions of Clause 606.3, a change of, or new, Governmental
Regulation:
606.5.1
shall not entitle POCL to terminate this Codified Agreement under Clause 606.3.6,
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and any such purported termination shall be treated as a termination for
convenience in accordance with Clause 902.6; and
606.5.2 shall not require the Contractor to perform any additional obligations, or any
reduced or modified obligations resulting in increased cost to the Contractor,
without its agreement in accordance with the Change Control Procedure.
Clause 607. Confidentiality
607.1
607.2
Clauses
Without prejudice to the application of the Official Secrets Acts 1911 to 1989 (where
relevant) to any Confidential Information the Contractor acknowledges that any Confidential
Information (other than its own Confidential Information) obtained from or relating to POCL,
or its servants or agents, is the property of POCL.
Each party agrees to keep confidential, and not to disclose to anyone else, Confidential
Information.
Notwithstanding the above, any party may disclose Confidential Information
607.2.1 if and to the extent required by law;
607.2.2 if and to the extent that the other parties have given prior written consent
to the disclosure;
607.2.3 to its professional advisers;
607.2.4 to the extent requested by H.M. Government;
607.2.5 if and to the extent that the Confidential Information is in the public
domain or falls into the public domain without breach of any applicable
confidentiality obligation (including this clause);
607.2.6 to the Post Office;
607.2.7 to Fujitsu Services Holdings Plc, Fujitsu Services Limited or Fujitsu;
607.2.8 to the Contractor's approved sub contractors as listed
in Schedule A8;
607.2.9 potential arrangers of funding for the investment required in connection
with this Codified Agreement;
607.2.10 if and to the extent reasonably necessary to be disclosed for the purpose of
arranging and maintaining funding generally for ICL plc or the Contractor;
607.2.11 which is in the possession of the receiving party without restriction in relation to
disclosure before the date of receipt from the disclosing party;
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607.3
607.4
607.5
607.6
607.2.12 which is received from a third party who lawfully acquired it and who is under no
obligation restricting its disclosure; or
607.2.13 which is independently developed without access to the Confidential Information.
The Contractor hereby agrees that (other than as required by law):
607.3.1 the Contractor (and any person employed or engaged by the Contractor in
connection with this Codified Agreement in the course of such employment or
engagement) shall only use Confidential Information of POCL for the purposes of
this Codified Agreement;
607.3.2 the Contractor shall take all necessary precautions to ensure that no Confidential
Information of POCL is used other than for the purposes of this Codified
Agreement by the Contractor's employees, servants, agents or sub-contractors
including, without limitation, obtaining from any such agent or sub-contractor a
signed confidentiality undertaking on substantially the same terms as are
contained in this Clause; and
607.3.3 without prejudice to the generality of the foregoing neither the Contractor nor any
person engaged by the Contractor whether as a servant or a consultant or
otherwise shall use the Confidential Information of POCL for the solicitation of
business from POCL or from any third party by the Contractor or by such servant
or consultant or by any third party.
POCL (other than as required by law) shall treat as confidential all Confidential Information,
obtained from the Contractor, including but not limited to the Source Code of the Specially
Written Software (other than Specially Written Software in which ownership of the
Intellectual Property Rights vests in POCL pursuant to Clause 502).
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.
Nothing in this Clause 607 shall prevent the Contractor or POCL from using data-processing
techniques, ideas and know-how gained during the performance of this Codified Agreement
in the furtherance of its normal business, to the extent that this does not relate to a
disclosure of Confidential Information or an infringement by POCL or the Contractor of any
Intellectual Property Right.
Clause 608. Health and Safety Hazards
608.1
608.2
Clauses
The Contractor shall notify POCL of any health and safety hazards in relation to POCL
Premises owned by or leased to POCL which may arise in connection with the performance
of this Codified Agreement
POCL shall notify the Contractor of any known health and safety hazards which may exist or
arise at the POCL Premises owned by or leased to POCL and which may affect the
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608.3
Contractor. The Contractor shall draw these hazards to the attention of its employees and
sub-contractors or any persons engaged by the Contractor in the performance of this
Codified Agreement at such POCL Premises.
The Contractor shall inform all persons engaged in the performance of this Codified
Agreement at the POCL Premises owned by or leased to POCL of all such hazards and
shall instruct such persons in connection with any necessary associated safety measures.
Clause 609. Protection of Personal Data
609.1
609.2
Not used.
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 Codified Agreement, they will duly observe all such obligations.
Clause 610. Publicity
610.1
610.2
610.3
610.4
No public announcement or public circular (including a media release) relating to the subject
matter of this Codified Agreement will be made unless it has first been agreed between the
parties in writing. This restriction shall not apply to any announcement intended solely for
internal distribution by the party in question or any disclosure required by any legal,
accounting or regulatory requirement.
Each party shall take all reasonable steps to ensure the observance of the provisions of
Clause 610.1 by all its servants, employees, agents, consultants and sub-contractors.
The Contractor shall have no right to use the brand or logo of any Post Office Group
member without POCL's prior written consent. The Contractor shall have no right to use the
brand or logo of any part of POCL without POCL's prior written consent. The Contractor
shall do nothing to injure such logos and brands or the reputation of POCL and, if it uses
such brands or logos, it shall take all reasonable steps to enable POCL to protect such logos
and brands and the reputation of POCL but in no event less than the steps it would take in
relation to its own logos, brands and reputation.
POCL shall have no right to use the brands or logo of the Contractor or its sub-contractors
without the Contractor's prior written consent. POCL shall do nothing to injure such logo and
brands or the reputation of the Contractor or its sub-contractors and, if it uses such brands
or logos, it shall take all reasonable steps to enable the Contractor and its sub-contractors to
protect such logo and brands and the reputation of the Contractor and its sub-contractors,
but in no event less than the steps it would take in relation to its own logos, brands and
reputation.
Clause 611. Contractor's Personnel
611.1
Clauses
POCL reserves the right under this Codified Agreement to refuse to admit to any premises
occupied by or on behalf of any member of the Post Office Group (which expression shall in
this Clause 611 include all persons employed or engaged by the Post Office Group and all
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persons other than the Contractor and its sub-contractors providing services to the Post
Office Group), or to any post office any person employed or engaged by the Contractor, or
by a sub-contractor, whose admission would be, in the reasonable opinion of POCL
undesirable.
611.2 If and when directed by POCL, the Contractor shall provide a list of the names and
addresses of all persons who it is expected may require admission in connection with the
performance of this Codified Agreement to any premises occupied by or on behalf any
member of the Post Office Group or to any post office, specifying the capacities in which
they are concerned with this Codified Agreement and giving such other particulars as POCL
may reasonably require. The Contractor shall comply with any reasonable directions issued
by the designated representative of POCL as to which persons may be admitted to such
premises and at what times.
611.3 If and when directed by POCL, the Contractor shall secure that any person employed or
engaged by the Contractor or by a sub-contractor, who is specified in the direction or is one
of a class of persons who may be so specified, shall sign a statement that he understands
that the Official Secrets Acts 1911 to 1989 apply to him both during the term of and after the
expiry or termination of this Codified Agreement.
611.4 The Contractor's representatives, engaged within the boundaries of a Post Office Group
establishment or post office, shall comply with such rules, regulations and requirements
(including those relating to security arrangements) as may be in force from time to time for
the conduct of personnel when at that establishment or post office and when outside that
establishment or post office.
611.5 The decision of POCL as to whether any person is to be refused admission to any premises
occupied by or on behalf of the Post Office Group or to a post office shall be final and
conclusive.
Clause 612. Waiver
No forbearance or delay by any party in enforcing its rights will prejudice or restrict the rights of that
party, subject to the express timescales set out herein, and no waiver of any such rights or of any
breach of any contractual term will be deemed to be a waiver of any other right or of any later breach.
Clause 613. Access to POCL Premises
613.1 Any land or POCL Premises (including temporary buildings) made available to the
Contractor by POCL in connection with this Codified Agreement shall be made available to
the Contractor on such terms and conditions as may be agreed between the Contractor and
POCL. The Contractor shall have the use of such land or POCL Premises as licensee and
shall vacate the same upon the termination or expiry of this Codified Agreement or at such
earlier date as POCL may reasonably determine.
613.2 I POCL shall be responsible for maintaining the security of such land or POCL Premises in
accordance with its standard security requirements. The Contractor shall comply with all
reasonable security requirements of POCL while on the POCL Premises, and shall procure
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that all of its employees, agents and subcontractors shall likewise comply with such
requirements. POCL shall provide the Contractor upon request copies of its written security
procedures and shall afford the Contractor upon request with an opportunity to inspect its
physical security arrangements.
Clause 614. Security Requirements
The Contractor shall comply with the security requirements as set out in Schedule A2.
Clause 615. Contractor’s Key Personnel
The parties acknowledge that the Contractor's key personnel specified in Schedule A14 are essential
to the fulfilment of its obligations hereunder. The Contractor undertakes to use all reasonable
endeavours to ensure that such key personnel are not removed or replaced during the term hereof.
However, in the event that any of its key personnel becomes unavailable for any reason (including
without limitation death, injury, sickness, promotion or resignation), the Contractor shall have the right
upon giving thirty (30) days’ notice in writing (or such shorter period of notice as may be reasonably
practicable) to POCL to replace such an individual with another individual whose abilities and
qualifications are appropriate for the services to be performed by such individual.
PART 7 : WARRANTIES AND STANDARDS
Clause 701. Authority and Approval
The Contractor warrants and represents that it has full capacity and authority and all necessary
consents (including but not limited to, where its procedures so require, the consent of its Parent
Company) to enter into and to perform this Codified Agreement and that this Codified Agreement is
executed by a duly authorised representative of the Contractor.
Clause 702. Performance of POCL Services
The Contractor warrants and represents that:
702.1 the POCL Services shall be supplied and rendered by appropriately experienced, qualified
and trained personnel with all due skill, care and diligence;
702.2 the Contractor shall discharge its obligations under this Codified Agreement with all due
skill, care and diligence including but not limited to good industry practice and (without
limiting the generality of this Clause) in accordance with the best of its own established
internal procedures;
702.3 the POCL Services shall be performed in compliance with all applicable laws, enactments,
orders, regulations, and other similar instruments;
702.4 — the POCL Services shall be performed in accordance with all applicable service levels in
this Codified Agreement;
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702.5 the POCL Services shall be fully integrated within the POCL Service Architecture and the
POCL Service Infrastructure;
702.6 the POCL Services shall be performed in accordance with all applicable provisions of the
Service Architecture Design Document;
702.7 the POCL Services shall be compatible with the POCL Service Environment as at the date
hereof, as set out in Schedule 1;
702.8 the POCL Services shall be performed in such a way as to cause a minimum of disruption
to the business of POCL and the End Users.
Clause 703. Performance of Products
The Contractor warrants and represents that:
703.1
703.2
703.3
703.4
703.5
At the Operational Trial Acceptance Date, the Operational Trial System shall meet the
Operational Trial Criteria and the regulations and standards specified in Schedule A2;
During the term of this Codified Agreement all components of the POCL Service
Infrastructure shall operate in accordance with their respective specifications, except that,
for the avoidance of doubt, it is agreed that POCL shall have no remedy for breach of this
warranty in relation to errors or interruptions to POCL Services covered by paragraph 4.1(a)
and 4.3 of Schedule A6;
POCL shall acquire title to the Products in which it is to acquire title under Clauses 501, 502
and 503 free from all encumbrances and POCL shall have the right to quiet possession of
such Products supplied hereunder;
the Core System Products will be compatible with the POCL Service Environment as at the
date hereof, as specified in Schedule 1;
all Optional and Additional Products and POCL Consumables shall be compatible with the
POCL Service Infrastructure and the POCL Service Environment.
Clause 704. Intellectual Property Rights
The Contractor warrants and represents that:
704.1
704.2
704.3
Clauses
POCL's use and operation of the Products and the POCL Service Architecture and the
provision of the POCL Services shall not infringe any Intellectual Property Rights of any
third party;
the Contractor has the full capacity and authority to grant the licences referred to in
Clause 506;
it can comply with Clauses 903.1.3 and 903.1.4.
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Clause 705. Technical Standards
The Contractor warrants and represents that:
705.1 the POCL Services shall comply with, and be provided in accordance with, the policies and
standards specified in Schedule A2 and all components and equipment used in the course
of the provision of the POCL Services shall operate in accordance with their technical
specifications;
705.2 the provision of the POCL Services shall not cause electrical interference beyond the limits
laid down in the relevant standard specified in Schedule A2, provided that for the purpose of
this Clause 705.2 the POCL Services shall be deemed to include the operation of any
testing and monitoring instruments used in connection with the provision of the POCL
Services.
Clause 706. Statements and Representations
The Contractor warrants and represents that all statements and representations made to POCL in
connection with tendering for and entering into the POCL Agreement and the Authorities Agreement
were, to the best of its knowledge, information and belief, true and accurate at the time of making
such statements and representations and that, from the date of execution hereof, it will advise POCL
of any fact, matter or circumstance of which it may become aware which would render any such
statement or representation to be false or misleading.
Clause 707. Disclaimer of Implied Terms.
Except as expressly stated in this Codified Agreement, all terms, warranties and conditions, whether
express or implied by statute, common law or otherwise (including but not limited to satisfactory
quality and fitness for purpose) are hereby excluded to the extent permitted by law.
PART 8 : REMEDIES
Clause 801. Audit
801.1 The Contractor shall keep or cause to be kept the Records.
801.2 The Contractor shall grant or procure the grant to POCL, any statutory or regulatory auditors
of POCL and their respective authorised agents the right of reasonable access to the
Records and shall provide all reasonable assistance at all times for six (6) years after the
creation of the relevant Records for the purposes of carrying out an audit of the Contractor's
compliance with this Codified Agreement including all activities, Charges, performance,
security and integrity in connection therewith. Each party shall bear its own expenses
incurred pursuant to this Clause. On termination, the Contractor shall within a reasonable
time to be agreed by the parties, transfer the Records to POCL or a replacement contractor,
as instructed by POCL. The Contractor shall thereafter be released from any further
liabilities under this Clause in relation to such Records.
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801.3
801.4
801.5
801.6
801.7
Without prejudice to the foregoing, in the event of an investigation into suspected fraudulent
activity or other impropriety by the Contractor or any third party POCL reserves for itself,
any statutory or regulatory auditors of POCL and their respective authorised agents the right
of immediate access to the Records described in Clause 801.1 and Clause 801.2 above and
the Contractor agrees to render all necessary assistance to the conduct of such investigation
at all times during the currency of this Codified Agreement or at any time thereafter.
The Contractor shall provide POCL at no additional cost with copies of the annual and
interim audited accounts of the Contractor and its approved subcontractors within fourteen
(14) days of such accounts having been lodged at Companies House or its local equivalent
to Companies House.
All information obtained by POCL pursuant to this Clause and Schedule A3 shall be treated
as Confidential Information.
The parties shall comply with the provisions of Schedule A3.
In place of the general rule stated in Clause 102.2, in so far as the provisions of paragraph
7.3 of Schedule N01 are in conflict or inconsistent with this Clause 801 or Schedule A3,
paragraph 7.3 of Schedule NO1 shall take precedence. In particular, all access to the audit
trail of Transactions held by the Contractor 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 or as Old Format Queries as defined in paragraph 7.3 of Schedule NO1 and shall be
subject to the limits set out in paragraph 7.3 of Schedule NO1.
Clause 802. Service Credits and Delay
802.1
802.2
802.3
802.4
Clauses
It is acknowledged that liquidated damages shall be payable by the Contractor to POCL
under Schedule LS5 in the circumstances referred to in paragraph 3.3 of Schedule A11.
In the event that the POCL Services fail to meet the Service Levels contained in Schedules
E8, F8, G10, H8, K8 or N8, the Contractor shall, without prejudice to any other rights and
remedies of POCL at the option of POCL either (i) as an adjustment to the Charges, credit
POCL with Service Credits calculated in accordance with Schedules B10, E8, F8, G10, H8,
K8 and N8 as appropriate, or (ii) pay POCL liquidated damages calculated in accordance
with Schedules B10, E8, F8, G10, H8, K8 and N8 as appropriate. Unless POCL exercises
its option to recover liquidated damages as a payment to it, POCL shall be deemed to have
exercised its option to recover Service Credits as credit to it. Any such reductions shall be
applied in accordance with paragraph 6 of Schedule A10.
The Contractor shall credit POCL with the Service Credits or pay POCL the liquidated
damages as referred to in Clauses 802.1 or 802.2 within thirty (30) days of receipt of a valid
claim by POCL.
The parties acknowledge that the liquidated damages and Service Credits specified in the
relevant Schedules referred to in this Clause are a genuine pre-estimate of the loss likely to
be suffered by POCL and that the figures therein are reasonable.
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802.5 The liquidated damages and Service Credits specified in this Clause are without prejudice to
any other rights and remedies of POCL, except where they are specified in Schedule A6 to
be POCL's exclusive remedy in damages, in which case such credit or payment of the
relevant liquidated damages or Service Credits shall be in full and final settlement of the
Contractor's liability in respect of the Default to which they relate. Except in accordance
with Schedule A6, POCL shall have no right of termination in relation to any such Default as
is referred to in clause 802.2 above.
Clause 803. Additional Resources
In the event that the POCL Services are not provided in accordance with all applicable provisions
hereof as a result of the Default of the Contractor, the Contractor shall, at the request of POCL and
without prejudice to POCL's other rights and remedies, arrange all such additional resources as are
reasonably necessary to correct the said failure as early as practicable thereafter and at no additional
charge to POCL.
Clause 804. Recovery of Sums Due
If any sum of money shall be due from the Contractor under this Codified Agreement, the same may
be deducted from any sum then due or which at any time thereafter may become due to the
Contractor under this Codified Agreement. There shall be no other right of set-off or deduction in
respect of sums due to the Contractor under this Codified Agreement.
Clause 805. Intellectual Property Rights Indemnity
805.1 Subject always to POCL's proper observance of its obligations under this Clause, the
Contractor shall indemnify POCL against all claims, demands, actions, costs, expenses
(including but not limited to legal costs and disbursements on a solicitor and client basis),
losses and damages arising from or incurred by reason of any infringement or alleged
infringement (including but not limited to the defence of such alleged infringement) in the
United Kingdom of any Intellectual Property Right by the use or possession of the Products
or POCL Services by or on behalf of POCL or in connection with the POCL Services.
805.2 The Contractor shall promptly notify POCL if any claim or demand is made or action brought
against the Contractor to which this Clause applies.
805.3 POCL shall promptly notify the Contractor if any claim or demand is made or action brought
against POCL to which Clause 805.1 may apply. The Contractor shall at its own expense
conduct any litigation arising therefrom and all negotiations in connection therewith and
POCL hereby agrees to grant to the Contractor exclusive control of any such litigation and
such negotiations. The Contractor shall consult with and pay due regard to the interests
(including the commercial interests of the Post Office Group and the public interest) and
views of POCL in the conduct of any defence to any claim or demand hereunder, and shall,
where it is reasonable to do so, comply with such interests and views.
805.4 POCL shall at the request of the Contractor afford to the Contractor all reasonable
assistance for the purpose of contesting any claim or demand made or action brought
against POCL to which Clause 805.1 may apply or any claim or demand made or action
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805.5
805.6
805.7
805.8
Clauses
brought against the Contractor to which Clause 805.2 may apply. The Contractor shall
reimburse POCL for all costs and expenses (including but not limited to legal costs and
disbursements on a solicitor and client basis) incurred in so doing.
POCL shall not make any admissions which may be prejudicial to the defence or settlement
of any claim, demand or action for infringement or alleged infringement of any Intellectual
Property Right to which Clause 805.1 may apply or any claim or demand made or action
brought against the Contractor to which Clause 805.2 may apply.
If a claim or demand is made or action brought to which Clause 805.1 may apply or in the
reasonable opinion of the Contractor is likely to be made or brought, the Contractor may at
its own expense either:
805.6.1 modify any or all of the Products or the POCL Services without reducing the
performance and functionality of the same, or substitute alternative products or
services of equivalent performance and functionality for any or all of the Products
or the POCL Services, so as to avoid the infringement or the alleged infringement
but without disrupting the performance of the POCL Services, provided that the
terms herein shall apply mutatis mutandis to such modified or substituted items or
services and such modified or substituted items shall be acceptable to POCL
(whether by passing any form of acceptance testing or otherwise), such
acceptance not to be unreasonably withheld or delayed, and shall reimburse POCL
all reasonable costs directly incurred by them; or
805.6.2 procure a licence to use the Products and POCL Services on terms which afford to
POCL no more extensive rights than those originally applicable hereunder and
which are acceptable to POCL and shall reimburse POCL all reasonable costs
directly incurred by it.
The foregoing provisions of this Clause 805 shall not apply insofar as any such claim or
demand or action is in respect of:
805.7.1 any use by or on behalf of POCL of the Products or POCL Services in combination
with any item not supplied or approved (such approval not to be unreasonably
withheld or delayed) by the Contractor where such use of the Products or POCL
Services directly gives rise to the claim, demand or action; or
805.7.2 any modification carried out by or on behalf of POCL to any item supplied by the
Contractor under this Codified Agreement if such modification is not authorised by
the Contractor in writing; or
805.7.3 any use by POCL of the Products or POCL Services in a manner not reasonably to
be inferred from the specification or requirements of POCL.
If the Contractor has availed itself of its rights to modify the Products or the POCL Services
or to supply substitute products or services pursuant to Clause 805.6.1 (or POCL has
unreasonably withheld its acceptance of such substitute products or services) or to procure a
licence under Clause 805.6.2 and such exercise of the said rights has avoided any claim,
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demand or action for infringement or alleged infringement, or if POCL has unreasonably
withheld its acceptance of any items modified or substituted by the Contractor in accordance
with Clause 805.6, then the Contractor shall have no further liability thereafter under this
Clause 805 in respect of the said claim, demand or action.
805.9 If a modification or substitution in accordance with Clause 805.6.1 above is not possible so
as to avoid the infringement and the Contractor has been unable to procure a licence in
accordance with Clause 805.6.2, Clause 805.1 shall apply.
805.10 POCL hereby warrants and represents that any instructions given in relation to the
Contractor's use of any third party item supplied directly or indirectly by POCL shall not
cause the Contractor to infringe any third party's Intellectual Property Rights in such item.
POCL shall, to the extent reasonably possible, assign to the Contractor any indemnity in its
favour in relation to the Intellectual Property Rights in such third party items.
805.11 The foregoing states the entire liability of the Contractor with regard to the infringement of
any Intellectual Property Right by the use or possession of the Products by or on behalf of
POCL or in connection with the receipt of the POCL Services.
Clause 806. Remedies Cumulative
Except as otherwise expressly provided in this Codified Agreement, all remedies available to the
Contractor or to POCL for breach of this Codified Agreement are cumulative and may be exercised
concurrently or separately and the exercise of any one remedy shall not be deemed an election of
such remedy to the exclusion of other remedies.
Clause 807. Dispute Resolution Procedure
Except to the extent that paragraph 6 of Schedule A11 requires otherwise, in the event of any
disagreement concerning the terms of, or arising under, this Codified Agreement, the parties shall
negotiate in good faith to reach an amicable resolution of the matter in question, but in default of
resolution within a reasonable period either party may apply to the Courts of England & Wales for the
matter to be resolved in accordance with English law.
Clause 808. Injury to Persons; Loss of Property
808.1 Subject always to POCL’s proper observance of its obligations under this Clause, the
Contractor shall fully indemnify POCL in respect of any personal injury or loss of or damage
to Property incurred by POCL or its respective employees and authorised agents to the
extent that such personal injury or loss of Property is caused by any Default of the
Contractor, its employees or agents in connection with the performance or purported
performance of this Codified Agreement.
808.2 In the event of any claim or demand being made or action brought to which Clause 808.1
applies, the Contractor shall be promptly notified thereof and the Contractor shall at its own
expense conduct all negotiations for settlement of the same and any legal proceedings that
may arise therefrom. The Contractor shall consult with and pay due regard to the interests
(including the commercial interests of the Post Office Group and the public interest) and
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views of POCL in the conduct of any defence to any claim or demand hereunder, and shall,
where it is reasonable to do so, comply with such interests and views. POCL, its
employees and agents, shall at the request of the Contractor afford all reasonable
assistance for the purpose of contesting any such claim or demand or action and shall be
repaid any reasonable expense incurred in so doing and shall not make any admissions
which may be prejudicial to the defence of such claim or demand or action.
Clause 809. Liability
809.1.1 Subject to Clauses 809.2 and 809.3, the Contractor shall be liable for all losses and shall
indemnify POCL against all costs, expenses, losses and damages incurred (including any
legal costs) as a result of:
(a) any unauthorised third party access to the POCL Service Architecture;
(b) any “hacking” into the systems used by the Contractor to provide the POCL
Services (whether or not constituting an offence under the Computer Misuse Act
1990);
(c) in relation to any of the Existing Services, any other form of fraud;
(d) in relation to the NBS, any other form of fraud perpetrated by:
(i) employees, agents or sub-contractors of the Contractor (such agents or
subcontractors being together referred to as, “Current NBS Participants”);
(ii) former employees, agents or sub-contractors of the Contractor, who have
been employees, agents or sub-contractors (as the case may be) at any
time on or after 14th April, 2001 (such agents or subcontractors being
together referred to as, “Former NBS Participants”) and who satisfy the
Information Condition;
(iii) employees, agents or sub-contractors of the Contractor's Current NBS
Participants who satisfy the Information Condition;
(iv) former employees, agents or sub-contractors of such of the Contractor's
Current NBS Participants who have been employees, agents or sub-
contractors (as the case may be) at any time on or after 14th April, 2001 and
who satisfy the Information Condition; or
(v) former employees, agents or sub-contractors of such of the Contractor's
Former NBS Participants who were employees, agents or sub-contractors
(as the case may be) of such Former NBS Participants while those Former
NBS Participants were Current NBS Participants and who satisfy the
Information Condition.
809.1.2 In this Clause 809, the “Information Condition” means that the person concerned either:
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(a)
(b)
is 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
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:
(i) used such information obtained as a result of their relationship with the
Contractor in perpetrating the fraud in question; and
(ii) the Contractor fails to show that it had taken all reasonable steps and
precautions to prevent that information being obtained.
Clause 809.1.1 shall not apply:
(a)
(c)
If and to the extent that the Contractor proves that any of the matters referred to
therein have been caused by POCL’s non-performance of any of its obligations or
responsibilities under this Codified Agreement upon the performance of which the
Contractor's obligations depend. The foregoing is in place of the general rule stated
in Clause 101.3.
To any unauthorised access or hacking referred to therein into an element or
elements (used solely for the NBS) of either the POCL Service Architecture or the NB
System (excluding elements of the POCL Service Architecture or the NB System
located at Outlets).
If the matters referred to therein have been perpetrated through or by the use of the
NBE or elements of the POCL Service Infrastructure at NBE premises other than by:
(i) employees, agents or sub-contractors of the Contractor (such agents or
subcontractors being together referred to as, “Current NBS Participants”);
(ii) former employees, agents or sub-contractors of the Contractor, who have
been employees, agents or sub-contractors (as the case may be) at any
time on or after 14th April, 2001 (such agents or subcontractors being
together referred to as, “Former NBS Participants”) and who satisfy the
Information Condition;
(iii) I employees, agents or sub-contractors of the Contractor's Current NBS.
Participants who satisfy the Information Condition;
(iv) former employees, agents or sub-contractors of such of the Contractor's
Current NBS Participants who have been employees, agents or sub-
contractors (as the case may be) at any time on or after 14th April, 2001 and
who satisfy the Information Condition; or
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809.3
809.4
809.5
(v) former employees, agents or sub-contractors of such of the Contractor's
Former NBS Participants who were employees, agents or sub-contractors
(as the case may be) of such Former NBS Participants while those Former
NBS Participants were Current NBS Participants and who satisfy the
Information Condition.
The Contractor shall not, under Clause 809.1.1, be liable for or indemnify POCL in respect
of any costs, expenses, losses or damages incurred by POCL (including any legal costs)
referred to therein which relate solely to the NBS.
Notwithstanding anything else to the contrary in this Codified Agreement (including, without
limitation, Clause 809.1.1):
(a) I POCL shall not have any right of action against the Contractor in respect of any costs,
expenses, losses or damages arising as a result of the loss, theft or compromise of a
MAC Key or the subsequent use of such MAC Key except to the extent that such loss,
theft or compromise or such costs, expenses, losses, or damages arise as a result of
the fraud or Default of the Contractor or of its employees, agents or subcontractors.
(b) I The Contractor shall not be liable for any costs, expenses, losses or damages
suffered or incurred by POCL in relation to:
(i) Banking Transactions falsely or incorrectly authorised unless and to the extent
caused by a failure of the NB System or of the NBS which is (in either case) a
Default.
(ii) I Fraudulent use of an NB Token by any person, unless and to the extent that
such use is carried out by or involves collusion with the Contractor's
employees, or otherwise arises from a Default or fraud of the Contractor.
In any case where POCL incurs any costs, expenses, losses or damages as referred to in
Clause 809.1.1, Clause 809.1.1 shall be presumed to apply unless the Contractor proves
that Clause 809.2 applies.
Clause 810. Limitation of Liability
810.1
810.2
Clauses
Neither party hereto excludes or limits its liability to any other party for death or personal
injury or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979
or Section 2 of the Supply of Goods and Services Act 1982.
Subject always to Clause 810.1, the liability of each party for Defaults shall be subject to the
financial limits set out in this Clause 810.2.
810.2.1 The aggregate liability for all Defaults resulting in direct loss of or damage to the
Property of any other party under this Codified Agreement shall in no event
exceed:
810.2.1.1 nine million pounds (£9,000,000), in the case of POCL; and
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810.4
810.5
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810.2.1.2 ten million pounds (£10,000,000) per Year in relation to such
Defaults arising during that Year, in the case of the Contractor.
810.2.2 The aggregate liability per Year under this Codified Agreement of POCL for all
Defaults (other than a Default governed by Clause 810.2.1) arising during that
Year shall in no event exceed four million five hundred thousand pounds
(£4,500,000).
810.2.3 The aggregate liability under this Codified Agreement of the Contractor for all
Defaults (other than a Default governed by Clause 810.2.1) shall in no event
exceed two hundred million pounds (£200,000,000) and shall not exceed eighty
million pounds (£80,000,000) in any one calendar year.
810.2.4 Subject to Clause 810.2.5, the financial limits specified in Clause 810.2 shall
(notwithstanding the reference to Defaults) apply to the aggregate of all claims for
monetary relief which either party may have against the other either under this
Codified Agreement or otherwise in relation to the subject matter of this Codified
Agreement, including as well as claims arising from defaults all claims for
liquidated damages and Service Credits pursuant Clause 802, all claims to be
indemnified pursuant to Clauses 805, 808 or 809 and all other claims or costs
which are compensatable in money or money’s worth.
810.2.5 The financial limits applicable to POCL under Clause 810.2 shall be exclusive of
and additional to any liability of POCL to pay any Charges (including any
adjustment pursuant to Clause 606.2.1.1), the Transfer Payment or any
Termination Charges which may become properly due and payable to the
Contractor in accordance with the provisions hereof or any sum by way of interest
thereon that a court may award.
Subject always to Clause 810.1, in no event shall any party be liable to any other party for
indirect or consequential loss or damage. For the avoidance of doubt, this Clause shall not
be deemed or construed to affect the Contractor's liability under Clause 809.
The provisions of Clause 810.3 shall not be taken as limiting the right of POCL to claim from
the Contractor for:
810.4.1 additional operational and administrative costs and expenses; and/or
810.4.2 expenditure or charges rendered unnecessary as a result of any Default by the
Contractor.
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.
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810.6 — For the avoidance of doubt, it is acknowledged that nothing in this Codified Agreement shall
be deemed or construed to relieve either party of its common law duty to the other party
against which a claim may be made to mitigate any loss which is the subject of such claim.
In applying the Contractor's common law and contractual obligations to mitigate (whether for
the purpose of calculating the Termination Payment or otherwise) no regard shall be paid to
the manner in which the Roll Out Payment is stated to be apportioned in the definition of the
term “Roll Out Payment”.
810.7. POCL and the Contractor shall use all reasonable endeavours to resolve by 20" December
1999 all agreements to agree which are outstanding at 28" July 1999.
810.8 The Contractor shall not be liable for any failure or delay in performing any of its obligations
under this Codified Agreement where such failure or delay is the direct consequence of a
failure by POCL and the Contractor to resolve any outstanding agreements to agree for so
long as such failure to resolve continues.
810.9 For the avoidance of doubt, the parties agree that POCL shall not be liable to indemnify or
otherwise compensate the Contractor for any additional costs, expenses, losses or damages
incurred directly or indirectly as a result of the failure by the Contractor and POCL to
resolve any outstanding agreements to agree.
810.10 The parties agree that:-
810.10.1 to the extent that amendments were required to the provisions of the Clauses and
Schedules of this Codified Agreement in order to reflect the matters
agreed in the CCNs listed in Schedule A17 those amendments have
been made. Subject to sub Clauses 810.10.2, 810.10.3 and 810.10.5
below, the said CCNs have accordingly been superseded by this Codified
Agreement to that extent but this shall be without prejudice to the
application of the said CCNs to matters other than the Clauses and
Schedules of this Codified Agreement (including their application to, or
the introduction of, CCDs and CRDs and/or to any charges or credits
specified in the said CCN which shall be due or which shall become due
to be paid or allowed);
810.10.2 the following provisions of the Second Supplemental Agreement between the
parties dated 24 September 1999 (CCN560) have been reflected by
amendment to this Codified Agreement:
810.10.2.1 Clause 5 and Schedule 3 thereof;
810.10.2.2 Clause 10 thereof;
810.10.2.3 the amendments contained in Schedule 5 thereof as
incorporated by Clause 11 thereof;
810.10.3 save to the extent referred to in Clause 810.10.2 above as having been reflected
in this Codified Agreement the provisions of the Second Supplemental
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810.10.5
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Agreement (CCN560) and of the Side Agreement dated 24 September
1999 (CCN561) have not been reflected by amendment to this Codified
Agreement and accordingly shall remain in effect insofar as applicable;
those CCNs and Change Requests formally submitted on or prior to 1
July, 1999 and not listed in Schedule A17 are not relevant to this
Codified Agreement and shall forthwith cease to have effect;
the provisions of CCN649a, CCN650a, CCN662, CCN664a, CCN699,
CCN720, CCN714, CCN734, CCN747, CCN751, CCN752, CCN755,
CCN754c, CCN762, CCN767 CCN776 , 754c¢ and 829 (including any
provisions set out in any attachments to those CCNs) have not been
reflected by amendment to the Codified Agreement and accordingly shall
remain in effect insofar as applicable save that the provisions in CCNs
754c and 829 relating to the payment of Charges by POCL have been
incorporated into Schedule A12 of this Codified Agreement and such
provisions contained in CCNS 754c and 829 are superseded with the
effect that no payments of Charges shall be due under CCNs 754c and
829 to the Contractor from POCL;
the following provisions shall apply in respect of the Network Banking
CCNs:
810.10.6.1 all performance by each party of its obligations pursuant to
the Network Banking CCNs since 16 July 2001 shall be
deemed to be performance of the corresponding obligations
undertaken by each party under this Codified Agreement as
amended by CCN850;
810.10.6.2 all such performance of the Network Banking CCNs shall be
subject to all applicable provisions of this Codified
Agreement as amended or introduced by CCN850, each
such amended or new provision coming into force and being
effective from the relevant date specified in CCN850;
810.10.6.3 POCL's obligations to pay the Contractor's Charges for work
carried out under the Network Banking CCNs shall be as set
out in parts C and D of Schedule A12 (as amended);
810.10.6.4 any liability of either party connected with its performance of
obligations under the Network Banking CCNs shall arise
under this Codified Agreement as amended by CCN850 and
shall be subject to any applicable limits or exclusions of
liability contained in this Codified Agreement and not those
contained in the Network Banking CCNs;
810.10.6.5 subject to sub-Clause 810.10.6.4, sub-Clauses 810.10.6.1
and 810.10.6.2 shall be without prejudice to any accrued
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rights or outstanding liabilities of either party in respect of
breaches of any of the Network Banking CCNs by the other
party;
810.10.6.6 for the purpose of statutory limitation, any cause of action of
either party arising from a breach of the Network Banking
CCNSs shall be deemed to arise when that breach of the
Network Banking CCN took place and not on the date of
approval of CCN850;
810.10.6.7 any right, approval or consent granted by either party to the
other under or in connection with work carried out under the
Network Banking CCNs shall be deemed to have been
granted (to the same extent that it was given under the
relevant Network Banking CCN) under this Codified
Agreement as amended by CCN850;
810.10.6.8 the Network Banking CCNs are terminated by CCN850 and
are superseded by the provisions of this Codified Agreement
as amended by CCN850.
810.11 The parties shall identify and prioritise any outstanding CCN’s and/or approve new CCNs, all
as required to cover outstanding agreements to agree and other matters, in each case
relevant to the Core System Release.
810.12 [Not used]
810.13 Notwithstanding any provision in this Codified Agreement, if, in connection with the
performance by POCL of its responsibilities in relation to in-office data migration as referred
to in the Migration Specification, there shall be a breach of the integrity of, or the
introduction of any viruses into, any system or disk through use by POCL of a laptop
computer supplied by the Contractor for use in in-office data migration then the
consequences of such breach or introduction of viruses shall be as follows:-
810.13.1 POCL shall not be liable to the Contractor therefor and such breach or introduction
of viruses shall not be a Default for the purposes of this Codified
Agreement;
810.13.2 the Contractor shall accordingly not be entitled to any time or cost adjustment
pursuant to Clause 606.2.1.1; and
810.13.3 the Contractor shall not be liable for liquidated damages and this Codified
Agreement shall not be liable to termination, in each case as a result of
any delay or reduction in Service Levels, caused by such breach or
introduction of viruses, which could not reasonably be avoided or
mitigated by the Contractor.
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PART 9 : TERM AND TERMINATION
Clause 901. Term
The term of this Codified Agreement shall, unless terminated earlier in accordance with the provisions
of Clause 902, be for a period commencing on the date hereof and ending on 31st March, 2005.
Clause 902. Termination of Codified Agreement
902.1 POCL may at any time by notice in writing terminate this Codified Agreement with effect
from the date of service of such notice or such later date as may be specified therein if:
902.1.1 there is a change of control, as defined by Section 416 of the Income and
Corporation Taxes Act 1988, in the Contractor or the Guarantor; or
902.1.2 the Contractor or the Guarantor, being an individual, or where the Contractor or
the Guarantor is a firm, any partner or partners in that firm who together are able
to exercise direct or indirect control, as defined by Section 416 of the Income and
Corporation Taxes Act 1988, shall at any time become bankrupt or shall have a
receiving order or administration order made against him or shall make any
composition or arrangement with or for the benefit of his creditors, or shall make
any conveyance or assignment for the benefit of his creditors, or shall purport to
do so, or appears unable to pay or to have no reasonable prospect of being able to
pay a debt within the meaning of Section 268 of the Insolvency Act 1986 or he
shall become apparently insolvent within the meaning of the Bankruptcy (Scotland)
Act 1985 as amended by the Bankruptcy (Scotland) Act 1993 or any application
shall be made under any bankruptcy or insolvency act for the time being in force
for sequestration of his estate, or a trust deed shall be granted by him for the
benefit of his creditors; or any similar event occurs under the law of any other
jurisdiction; or
902.1.3 the Contractor, being a company, passes a resolution, or the Court makes an order
that the Contractor or the Guarantor be wound up otherwise than for the purpose
of a bona fide reconstruction or amalgamation, or a receiver, manager or
administrator on behalf of a creditor is appointed in respect of the business or any
part thereof (which for the avoidance of doubt shall not include any subsidiary
company of the Contractor or of the Guarantor) of the Contractor or the Guarantor,
or circumstances arise which entitle the Court or a creditor to appoint a receiver,
manager or administrator or which entitle the Court otherwise than for the purpose
of a bona fide reconstruction or amalgamation to make a winding-up order, or the
Contractor or the Guarantor is unable to pay its debts within the meaning of
Section 123 of the Insolvency Act 1986 or any similar event occurs under the law
of any other jurisdiction; or
902.1.4 any provision hereof other than Clause 902 expressly entitles POCL to terminate
this Codified Agreement; or
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902.2
902.3
902.4
902.5
902.6
Clauses
902.1.5 the circumstances in Clause 606.3.6 arise and either the obligation in question is
not capable of being performed again, or, if it is so capable, is not so performed
again within thirty (30) days of written notice to the Contractor specifying the
obligation in question and requiring it to be performed or within such other period
as may be requested by the Contractor and agreed by POCL, such agreement not
to be unreasonably withheld or delayed; or
Subject to Clause 905.3, POCL may at any time by notice in writing terminate this Codified
Agreement with effect from the date of service of such notice or such later date as may be
specified therein, if the Contractor is in Default of any obligation under this Codified
Agreement and:
902.2.1 the Default is capable of remedy and the Contractor shall have failed to remedy
the Default within thirty (30) days of written notice to the Contractor specifying the
Default and requiring its remedy or within such other period as may be requested
by the Contractor and agreed by POCL, such agreement not to be unreasonably
withheld or delayed;
902.2.2 the Default is not capable of remedy (and for the purposes of this Clause, failure to
comply with a timescale shall not of itself be considered a Default not capable of
remedy except pursuant to Clause 606.4); or
902.2.3 notice has been served pursuant to Clause 606.4 making time of the essence and
all or any of the obligations specified in the notice have not been performed by the
time limit stated in the notice.
POCL may terminate this Codified Agreement in the circumstances referred to in paragraph
3 of Schedule A11.
In the event of any termination of this Codified Agreement pursuant to Clause 902.1, Clause
902.2 or 902.3 POCL shall return the POCL Service Infrastructure or any part thereof (other
than any part in relation to which it has exercised the option to acquire under Clause 903), in
which case the Contractor shall at no additional cost to POCL, remove such parts of the
POCL Service Infrastructure and shall make good any damage to the POCL Premises
occasioned by such removal.
POCL shall only be permitted to exercise its rights pursuant to Clause 902.1.1 for three (3)
months after each such change of control and shall not be permitted to exercise such rights
where POCL has agreed in advance in writing to the particular change of control and such
change of control takes place as proposed. The Contractor shall notify POCL in advance of
any change of control taking place, if legally possible, or if not so possible as soon as
reasonably practicable, and in any event no later than one (1) month after such change of
control taking place.
902.6.1 POCL may terminate this Codified Agreement by giving the Contractor not less
than twelve (12) months’ notice.
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902.6.2 [Not used].
902.6.3 In the event of such notice being given, POCL shall on termination hereof pay to
the Contractor the Termination Charge (calculated in accordance with Schedule
A7) and the NBS Termination Charge (calculated in accordance with Schedule
N6).
902.6.4 [Not used].
902.6.5 [Not used].
902.7 Termination shall not prejudice or affect any right of action or remedy which shall have
accrued or shall thereafter accrue to either party.
902.8 The provisions of Clauses 101, 102, 104, 506, 607, 609, 610, 801, 804, 805, 809.4 810,
(other than 810.7 and 810.10) 902, 903 and 904, the provisions of Schedules A1, A3, A7,
N6 and A12 and paragraphs 2.3.4 and 4 of Schedule B11 shall survive the termination of
this Codified Agreement by POCL or the expiry of this Codified Agreement.
Clause 903. Rights on Expiry or Termination of Codified Agreement
903.1 In the event of termination or expiry of this Codified Agreement, POCL shall, without
prejudice to POCL’s other rights and remedies but subject to payment of all sums due and
payable to the Contractor up to the date of termination, have the option, exercisable at any
time within one month after notice of termination, to acquire from the Contractor or to
require the Contractor to permit a replacement contractor to acquire from it, in consideration
of the Transfer Payment and the NBS Transfer Payment, the Project Assets, which shall
comprise:-
903.1.1 any or all of the hardware that is comprised within the POCL Service Infrastructure
and/or that:
(a) _ is being used; or
(b) had previously been used in Outlets 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 connection with the performance of the POCL Services (other than where such
hardware is not owned by the Contractor or any of its subsidiary companies);
903.1.2 a non-exclusive licence to use for the continuation of services equivalent to the
POCL Services any necessary Intellectual Property Rights which are owned by the
Contractor and used in connection with the performance of this Codified
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903.2
Clauses
903.1.3
903.1.4
903.1.5
903.1.6
Agreement. Such licence shall:
903.1.2.1 not be subject to payment other than pursuant to Clause 903.1.6;
903.1.2.2 be perpetual and irrevocable (subject to Clause 506.12); and
903.1.2.3 permit use by members of the Post Office Group and End Users.
the right to require that the Contractor shall assign or novate, or (if assignment or
novation is not possible) arrange for the benefit thereof to be transferred, in favour
of POCL or to any person as may be designated for the purpose by POCL any sub-
contracts, equipment rental or lease agreements and all other (non-employment)
agreements entered into by the Contractor which are necessary to the
performance of the POCL Services as POCL may designate;
a copy of all the Software and all other software, data, tools, utilities,
documentation and any other item necessary to provide the POCL Services. Such
software (other than any in respect of which POCL has exercised its option under
Clause 903.1.2) shall be subject to any applicable licence terms, provided that
such terms shall not detract from POCL’s or a replacement contractor's ability to
provide services equivalent to the POCL Services.
Notwithstanding the generality of Clauses 903.1.1 to Clause 903.1.4 POCL agrees
only to exercise its rights under such Clauses to the extent that the relevant
Project Assets apply to, and are required for the operation of, the Core System
Services or the Network Banking Service.
In the event that POCL exercises any of the options in Clause 903.1, POCL shall
pay to the Contractor on completion of such option a sum equal to the Transfer
Payment and the NBS Transfer Payment.
In the event that this Codified Agreement is terminated as provided for herein:
903.2.1
903.2.2
903.2.3
903.2.4
[Not used]
the Contractor shall return to POCL all Post Office Group Property in its
possession;
the Contractor shall render all practicable assistance to POCL, if requested, to the
extent necessary to effect an orderly assumption by POCL or a replacement
contractor of the services theretofore performed by the Contractor under this
Codified Agreement and POCL shall reimburse the Contractor for such assistance
at the rates then prevailing for customers of the Contractor for the same or similar
services;
POCL shall be entitled on termination to offer any employee or sub-contractor
(being an individual) of the Contractor who has during the six (6) months prior to
such offer been involved for at least seventy five per cent (75%) of his contracted
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working time in performing the Contractor's obligations under this Codified
Agreement employment or an agreement for services with POCL and the
Contractor agrees that if such person accepts such offer the Contractor shall
release such person from any breach of contract with it (other than in relation to
such person’s obligations of confidentiality and notice of termination) which such
acceptance may otherwise involve; and
903.2.5 (a) as soon as possible following any notice of termination being given (in
the case of an early termination of this Codified Agreement) and no later
than three (3) months prior to the expiry of this Codified Agreement (in
the case of the termination of this Codified Agreement through the
effluxion of time) the Contractor shall at the request of POCL provide to
POCL or to a replacement contractor nominated by POCL details of the
terms of employment of all Contractor personnel who are then employed
in the performance of the POCL Services as reasonably required by
POCL in order to permit compliance with the Transfer of Undertakings
(Protection of Employment) Regulations 1981 by POCL or a replacement
contractor;
(b) subject always to POCL’s proper observance of their obligations under
Clause 903.2.5(c), the Contractor shall fully indemnify POCL from and
against any and all liabilities which POCL may incur in connection with or
as a result of any claim or demand whatsoever by any employee or
former employee of the Contractor or of any of the Contractor's sub-
contractors or agents in respect of his employment with the Contractor or
such sub-contractor or agent (or, pursuant to the application of the
Transfer of Undertakings (Protection of Employment ) Regulations 1981,
with POCL or any replacement contractor) and/or its termination save to
the extent such claim or demand both (i) is made by an employee
identified within the relevant employment details referred to in Clause
903.2.5(a) as transferring pursuant to the Regulations and (ii) relates to
employer's obligations accruing after the said transfer of employment
which are clearly identified within the relevant employment details;
(c) in the event of any claim or demand being made or action brought to
which Clause 903.2.5(b) applies, the Contractor shall be promptly
notified thereof and the Contractor shall at its own expense conduct all
negotiations for settlement of the same and any legal proceedings that
may arise therefrom. POCL, its sub-contractors, agents and employees
shall at the request of the Contractor afford all reasonable assistance for
the purpose of contesting any such claim or demand or action and shall
be repaid any reasonable expense incurred in so doing and shall not
make any admissions which may be prejudicial to the defence of any
such claim or demand or action.
903.3 All the assets to be acquired pursuant to the exercise by POCL of its option under Clause
903.1 shall be acquired “as is”, but free from encumbrances and the parties agree that all
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express and implied warranties and conditions relating to such assets are excluded to the
full extent permitted by law.
Clause 904. Transfer Services
904.1 In the event of termination of this Codified Agreement, the Contractor shall perform the
Transfer Services as set out in Schedule A7 and the Network Banking Transfer Services as.
set out in Schedule N6.
Clause 905. Termination of NBS and PIN Pad Implementation Service
905.1 Prior to NBS Acceptance, POCL may at its discretion (without being obliged to give any
reasons) terminate the NB/PIN Pad Services by giving the Contractor not less than two (2)
weeks’ notice.
905.2 Prior to NBS Acceptance, POCL may at any time by notice in writing terminate the NB/PIN
Pad Services with effect from the date of service of such notice or such later date as may
be specified therein, if the Contractor commits an NBS Default and:
905.2.1 the NBS Default is capable of remedy and the Contractor shall have failed to
remedy the NBS Default within thirty (30) days of written notice to the Contractor
specifying the NBS Default and requiring its remedy or within such other period as
may be requested by the Contractor and agreed by POCL, such agreement not to
be unreasonably withheld or delayed; or
905.2.2 the NBS Default is not capable of remedy (and for the purposes of this Clause,
failure to comply with a timescale shall not of itself be considered a NBS Default
not capable of remedy).
905.3 Prior to NBS Acceptance, POCL may not terminate this Codified Agreement for Defaults
which are exclusively NBS Defaults, but this Clause shall not act to restrict or curtail POCL’s
rights under this Codified Agreement in respect of Defaults of the Contractor which are not
exclusively NBS Defaults.
905.4 In the event of notice being given under Clause 905.1, POCL shall on termination of the
NB/PIN Pad Services hereof pay to the Contractor the NBS Termination Charge (calculated
in accordance with Schedule N6).
905.5 From NBS Acceptance, the NB/PIN Pad Services shall become an inseparable part of this
Codified Agreement and shall be terminable with the Existing Services on the terms of this
Codified Agreement.
905.6 In the event of termination of the NB/PIN Pad Services before NBS Acceptance, POCL
shall, without prejudice to POCL’s other rights and remedies but subject to payment of all
sums due and payable to the Contractor up to the date of NB/PIN Pad Services termination,
have the option, exercisable at any time within one month after notice of termination, to
acquire from the Contractor or to require the Contractor to permit a replacement contractor
to acquire from it, in consideration of the NBS Transfer Payment, those NB/PIN Pad Service
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specific Project Assets which can be separated without impact upon performance of the
Existing Services.
905.7 In the event of termination of the NB/PIN Pad Services, the Contractor shall perform the
Network Banking Transfer Services as set out in Schedule N6. In the event that POCL
exercises the option referred to in Clause 905.6, POCL shall pay to the Contractor the NBS
Transfer Payment (calculated in accordance with paragraph 4.3 of Schedule N06).
905.8 All the assets to be acquired pursuant to the exercise by POCL of its option under Clause
905.6 shall be acquired “as is”, but free from encumbrances and the parties agree that all
express and implied warranties and conditions relating to such assets are excluded to the
full extent permitted by law.
PART 10 : MISCELLANEOUS
Clause 1001. Corrupt Gifts and Payments of Commission
1001.1 The Contractor shall neither:
1001.1.1 offer or give or agree to give any person employed by the Post Office Group
(which term shall include all persons employed or engaged by the Post
Office Group and all persons providing services to the Post Office
Group) any gift or consideration of any kind as an inducement or reward
for doing or forbearing to do or for having done or forborne to do any act
in relation to the obtaining or performance of this Codified Agreement or
any other agreement with the Post Office Group or for showing or
forbearing to show favour or disfavour to any person in relation to this
Codified Agreement; nor
1001.1.2 enter into this Codified Agreement if in connection with it commission has been
paid or agreed to be paid to any person employed by the Post Office
Group by the Contractor or on the Contractor's behalf or to the
Contractor's knowledge, unless before this Codified Agreement is made
particulars of any such commission and of the terms and conditions of
any agreement for the payment thereof have been disclosed in writing to
POCL.
1001.2 In the event of any breach of this Clause 1001 by the Contractor or by anyone employed by
the Contractor or acting on the Contractor's behalf (whether with or without the knowledge
of the Contractor) or the commission of any offence by the Contractor or by anyone
employed by the Contractor or acting on behalf of the Contractor under the Prevention of
Corruption Acts, 1889 to 1916 in relation to this or any other contract with the Post Office
Group, POCL may terminate this Codified Agreement by notice in writing to the Contractor
pursuant to Clause 902.1.4. Provided always that such termination shall not prejudice or
affect any right of action or remedy which shall have accrued or shall accrue thereafter to
POCL and provided always that POCL may recover from the Contractor the amount or
value of any such gift, consideration or commission.
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1001.3 The decision of POCL shall be final and conclusive in any dispute, difference or question
arising in respect of:
1001.3.1 the interpretation of this Clause (except so far as the same may relate to
the amount recoverable from the Contractor under Clause 1001.2 in
respect of any loss resulting from such termination of Codified
Agreement);
1001.3.2 the right of POCL under this Clause 1001 to terminate the Codified
Agreement; or
1001.3.3 the amount or value of any such gift, consideration or commission.
Clause 1002. Discrimination
1002.1 The Contractor shall not unlawfully discriminate within the meaning and scope of any law,
enactment, order, regulation or other similar instrument relating to discrimination (whether in
relation to race, gender, religion or otherwise) in employment.
1002.2 The Contractor shall take all reasonable steps to ensure the observance of the provisions of
Clause 1002.1 by all servants, employees, agents and consultants of the Contractor and all
sub-contractors.
Clause 1003. Export of Products
For the purpose of this Codified Agreement only, POCL confirms that neither the Products nor their
direct product(s) will be exported by POCL unless in accordance with any appropriate UK
Government export licensing controls.
Clause 1004. Guarantee
1004.1 The Contractor shall procure that within thirty (30) days after the date of approval of
CCN850;
1004.1.1 Fujitsu Services Holdings plc shall execute and deliver to POCL a letter in the
form set out in Part C of Schedule A13; and
1004.1.2 Fujitsu Limited shall execute and deliver to POCL a letter in the form set out in
Part D of Schedule A13.
1004.2 Breach of Clause 1004.1 shall constitute a Default not capable of remedy.
Clause 1005. Insurance
The Contractor shall to the extent reasonably possible insure or make provision for self-insurance
against all losses and damages which are the result of its fault or negligence in performing the POCL
Services, including workman's compensation, public liability, product liability, property damage and
professional indemnity. The Contractor will, if requested in writing by POCL, produce to POCL a
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certificate of insurance showing the applicable coverage currently in force, and will also give POCL
prior written notice of (where possible), or written notice no later than thirty (30) days after, alteration
or cancellation of such insurance.
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IN WITNESS WHEREOF this Codified Agreement has been executed on behalf of the parties as
follows:-
Signed by
for and on behalf of
POST OFFICE COUNTERS LTD
in the presence of:-
S. J. Sweetman
(signed)
Paul Lam-Po-Tang
Visiting Lawyer
Signed by
for and on behalf of
ICL PATHWAY LIMITED
in the presence of:-
R. Christou
(signed)
Myles Blewett
(©A021720079_2.doc
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