EXHIBIT 10.1
Final execution
Dated August 12, 2005
PA SHARED SERVICES LIMITED
and
ELCOM SYSTEMS LIMITED
SUB-FRAMEWORK AGREEMENT
FOR THE PROVISION OF SOFTWARE AND SERVICES
CONTENTS
CLAUSE HEADING PAGE
--------------- ------------------------------------------ ----
1 Definitions and Interpretation 2
1A Prime Agreement and Collaboration 3
2 Zanzibar System and Acceptance Testing 4
3 Sub-Provider Obligations 11
4 Method of Performance 22
5 Payment 27
6 Consideration 28
7 Records and Rights of Inspection 28
8 Contract Management 29
9 Warranties and Indemnities 33
10 Liability 37
11 Title and Risk in Hardware 39
12 Ownership and Licensing of Deliverables 40
13 Data Protection and Freedom of Information 44
14 Term and Termination 46
15 Termination Assistance 50
16 Confidentiality 57
17 Non-Solicitation 59
18 Assignment and Sub-contracting 59
19 Insurance 60
20 Force Majeure 62
21 General 62
Schedule 1 Definitions
Schedule 2 Specification of Services
Schedules 3-10 Not used
Schedule 11 Change Control Procedure
Schedules 12-28 Not used
Schedule 29 Special Escrow Arrangements
Schedule 30 Existing Sales Contracts
Schedule 31 Form of Sub-Provider Service Provision Order
Schedule 32 Direct Competitors
Schedule 33 Form of Sub-Provider Additional Service Order
Final execution
DATED this 12th day of August 2005
BETWEEN:
(1) PA SHARED SERVICES LIMITED, registered in England and Wales under Company
Number 05234104 whose registered office is at 000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxx XX0X 0XX ( "PASSL");
(2) ELCOM SYSTEMS LIMITED, registered in England under Company Number 02838561
whose registered office is at 0-0 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx XX00
0XX ("SUB- PROVIDER")
RECITALS
WHEREAS:
(A) XXXxxxxxx.xxxxxxxxx, an executive agency of the Office of Government
Commerce ("OGC"), placed an advertisement in the Official Journal of the
European Union ("OJEU NOTICE") in 2004 seeking expressions of interest
from potential suppliers for the provision of purchase to pay and
management information services under a framework agreement, to
XXXxxxxxx.xxxxxxxxx and other civil government departments and bodies;
(B) PA Consulting Services Limited ("PACSL"), with the support of various
consortium members, including the Sub-Provider, responded to the OJEU
Notice and was invited to negotiate. PASSL was subsequently selected by
XXXxxxxxx.xxxxxxxxx to be the provider of the Zanzibar System and
associated Prime Services;
(C) PASSL is now or will be required (pursuant to the Prime Agreement) to:
(i) develop the Zanzibar System through which PASSL can provide a
procurement service to Buying Organisations and enable the
collection of Management Information;
(ii) enter into Service Provision Agreements with certain Buying
Organisations for the provision of a procurement service utilising
the Zanzibar System (with Subscribing Buying Organisations having
the option of using the Zanzibar System via their own Enterprise
Resource Planning Systems or via the Internet); and
(iii) enter into Supplier Agreements with Suppliers setting out the terms
and conditions on which such providers are to offer their products
and services to the Subscribing Buying Organisations on the Zanzibar
System;
(D) PASSL requires the support of the Sub-Provider in developing the Zanzibar
System and/or delivering the Prime Services and/or otherwise performing
its obligations under the Prime Agreement, the Service Provision
Agreements and the Supplier Agreements. PACSL requires the support of the
Sub-Provider in performing its obligations under the Guarantee. PASSL has
therefore agreed to engage the Sub-Provider to deliver the Sub-Provider
Systems and provide the Sub-Provider Services and to facilitate the
development of the Zanzibar System and the provision of the Prime Services
as a whole;
(E) The parties wish to enter into this Agreement to regulate the terms and
conditions (other than those relating to revenue sharing and remuneration)
on which the Sub-Provider is to provide the Sub-Provider Systems and the
Sub-Provider Services to PASSL;
(F) The parties plan to enter into the Revenue Sharing Agreement to regulate
the terms and conditions on which PASSL will share revenue with or
otherwise remunerate the Sub-Provider in consideration of the
Sub-Provider's performance of its obligations under this Agreement;
IT IS AGREED as follows.
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1 DEFINITIONS AND INTERPRETATION
1.1 Unless defined in a Clause, and save where the context otherwise provides
or requires, defined terms in this Agreement shall have the meanings set
out in the Schedule of Defined Terms at Schedule 1.
1.2 The headings in this Agreement are intended to be for guidance only and
shall not affect or limit the intent, scope or interpretation of this
Agreement.
1.3 The following rules of interpretation apply in this Agreement unless the
context requires otherwise:
1.3.1 the Interpretation Xxx 0000 shall apply to this Agreement in the
same way as it applies to an enactment;
1.3.2 the singular includes the plural and vice versa;
1.3.3 if a word or phrase is defined, its other grammatical forms have a
corresponding meaning;
1.3.4 the words "INCLUDE", "INCLUDES" and "INCLUDING" and any succeeding
words shall be construed without limitation to the generality of any
preceding words or concepts;
1.3.5 references to a statutory provision include (subject to Clause 4.5)
that provision as from time to time modified or re-enacted whether
before or after the date of this Agreement and (so far as liability
thereunder may exist or can arise) shall include also any past
statutory provision (as from time to time modified or re-enacted)
which such provision has directly or indirectly replaced;
1.3.6 references to this Agreement include its Schedules and this
Agreement as from time to time amended and references to Recitals,
Clauses, Schedules and Appendices are to recitals and clauses of,
and schedules and appendices to, this Agreement;
1.3.7 any reference to records or other information means records or other
information in any form in which those records or that information
is stored, whether in paper form, electronic form or in any other
medium; and
1.3.8 a reference to an agreement or document (including a reference to
this Agreement) is to the agreement or document as amended, varied,
supplemented, novated or replaced, except to the extent prohibited
by this Agreement or that other agreement or document.
1.3.9 where PASSL is acting on a requirement or determination of
XXXxxxxxx.xxxxxxxxx or a Subscribing Buying Organisation pursuant to
the terms of the Prime Agreement or a Service Provision Agreement,
then PASSL shall be deemed to be acting "reasonably" for the
purposes of this Agreement;
1.3.10 where PASSL withholds or delays its consent under this Agreement as
a result of XXXxxxxxx.xxxxxxxxx or a Subscribing Buying Organisation
withholding or delaying a related consent pursuant to the terms of
the Prime Agreement or a Service Provision Agreement, then PASSL
shall not be deemed to be acting "unreasonably" for the purposes of
this Agreement.
1.4 This Agreement consists of the documents stated in this Clause 1.4. If
there is any conflict, apparent conflict or ambiguity in or between any of
these documents, the documents will be applied in the following order in
decreasing order of precedence:
1.4.1 the Clauses of this Agreement and Schedule 1 (Definitions and
Interpretations); and
1.4.2 the remaining Schedules to this Agreement.
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1.5 In the event of any conflict between this Agreement and the Revenue
Sharing Agreement the provisions of this Agreement shall prevail.
1A PRIME AGREEMENT AND COLLABORATION
1A.1 The Sub-Provider acknowledges and agrees that:
(a) the Sub-Provider Services form part of the Prime Services; and
(b) the Sub-Provider Systems form part of the Zanzibar System which
PASSL is obliged to deliver pursuant to the terms of the Prime
Agreement and the Service Provision Agreements.
1A.2 The appointment of the Sub-Provider under this Agreement and each of the
Other Material Sub-Providers under their respective agreements with PASSL
shall be to act as members of a team and to provide the Sub-Provider
Services or their respective services taking into account the Project
Objectives.
1A.3 The Sub-Provider shall perform its obligations under this Agreement and
provide reasonable information and reasonable assistance so as to
facilitate:
(a) compliance by PASSL with its obligations and exercise by PASSL of
its rights under the Prime Agreement, the Service Provision
Agreements and the Supplier Agreements;
(b) compliance by the Other Material Sub-Providers with their
obligations under their respective agreements with PASSL.
1A.4 The Sub-Provider shall work under this Agreement and together with the
Other Material Sub-Providers in the spirit of trust, fairness and mutual
co-operation for the benefit of the Project and within the scope of its
agreed roles, expertise and responsibilities as set out in this Agreement.
1A.5 In all matters relating to the Prime Services or the Sub-Provider
Services, including any required notice, submission, decision, consent,
agreement or other communication or activity, the Sub-Provider shall act
reasonably and without delay.
1A.6 For the purpose of this Clause 1A, the Project Objectives (which, the
parties acknowledge and agree, are for the benefit of the Project as a
whole and the mutual benefit of PASSL, the Sub-Provider and each Other
Material Sub-Provider) are as follows:
(a) the provision of all Prime Services and performance of all
obligations in accordance with the terms of the Prime Agreement, the
Service Provision Agreements and the Supplier Agreements;
(b) without prejudice to sub-Clause 1A.6(a), the delivery and acceptance
of the Zanzibar System in accordance with the Prime Agreement;
(c) maximising the numbers of Subscribing Buying Organisations from time
to time;
(d) maximising the numbers of suppliers, having an existing relationship
with Buying Organisations which may become Subscribing Buying
Organisations, adopted on to the Zanzibar System as Suppliers from
time to time;
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(e) maximising the amount of Zanzibar Revenue received by PASSL and
distributed in accordance with the Revenue Sharing Agreement and
ensuring that the Prime Services (including the Sub-Provider
Services included within such Prime Services) are performed in the
most efficient fashion;
(f) achieving high levels of customer satisfaction amongst
XXXxxxxxx.xxxxxxxxx, Subscribing Buying Organisations and Suppliers
and minimising the payment of Performance Incentives;
(g) seeking to ensure that the Prime Services are delivered successfully
such that XXXxxxxxx.xxxxxxxxx opts to extend the Prime Agreement
pursuant to its terms;
(h) establishing the Zanzibar System as an industry benchmark for public
sector procurement environments.
2 ZANZIBAR SYSTEM AND ACCEPTANCE TESTING
2.1 ZANZIBAR SYSTEM
2.1.1 Subject to Clause 2.1.2, the Sub-Provider shall perform all its
obligations pursuant to this Agreement from the Commencement Date.
2.1.2 Notwithstanding Clause 2.1.1, the Sub-Provider shall not be obliged
to:
(i) deliver the Sub-Provider Systems which apply to Stage 2 unless
and until such time as the Stage 2 Development Criteria have
been achieved; or
(ii) deliver the Sub-Provider Systems which apply to Stage 3 unless
and until such time as the Stage 3 Development Criteria have
been achieved;
provided that the Sub-Provider shall, as soon as reasonably
practicable following the Commencement Date, make all such
reasonable preparations for the delivery of the Sub-Provider Systems
which relate to Stage 2 and Stage 3 and perform such obligations
relating to the Sub-Provider Services as are necessary to ensure
that PASSL is able to meet its obligations in respect of Stage 2
and/or Stage 3 under the Prime Agreement promptly (and in any event
in accordance with any timetable set out in the Prime Agreement)
following the achievement of the Xxxxx 0 Xxxxxxxxxxx Xxxxxxxx or the
Stage 3 Development Criteria (as applicable). The Sub-Provider shall
additionally perform such other obligations in respect of Stage 2 or
Stage 3 prior to the achievement of the Xxxxx 0 Xxxxxxxxxxx Xxxxxxxx
or the Stage 3 Development Criteria (as applicable) as are agreed
between the parties (such agreement not to be unreasonably withheld
or delayed).
2.2 DELIVERY
2.2.1 Subject to Clause 2.1.2, the Sub-Provider shall deliver the relevant
Sub-Provider Systems within such timescales as may reasonably be
required by PASSL in order to enable PASSL to (if applicable) test
such Sub-Provider Systems in accordance with Clause 2.2A; deliver
each Stage to XXXxxxxxx.xxxxxxxxx; permit each Stage to be tested by
XXXxxxxxx.xxxxxxxxx in accordance with the Prime Agreement; and
ensure that such Stage is accepted by XXXxxxxxx.xxxxxxxxx prior to
the expiry of the Long Stop Date applicable to that Stage.
2.2.2 The Sub-Provider shall deliver all Sub-Provider Systems to PASSL
together with all documentation reasonably required by PASSL in
order to enable PASSL to operate and/or test such Sub-Provider
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System in accordance with Clause 2.2A.1 including a detailed
explanation of the work which has been undertaken on such
Sub-Provider System, the purpose of such work and how it was
completed. The Sub-Provider shall in no event deliver any
Sub-Provider System to XXXxxxxxx.xxxxxxxxx without PASSL's prior
agreement in writing.
2.2.3 The Sub-Provider shall develop and provide to PASSL such
documentation as PASSL may reasonably require in relation to any
service oriented element of the Sub-Provider Services in order to
enable PASSL to properly review such Sub-Provider Service in
accordance with Clause 2.2A.3. Such documentation shall be provided
within such timescales as may reasonably be required by PASSL in
order to enable PASSL to review and inspect such Sub-Provider
Service prior to the commencement of any obligation to deliver such
Sub-Provider Service to XXXxxxxxx.xxxxxxxxx, Subscribing Buying
Organisations or Suppliers as part of the Prime Services.
2.2.4 The arrangements set out in Clauses 2.2 and 2.2A shall apply to the
extent practicable to any changes to Sub-Provider Systems or
Sub-Provider Services and to any additional Sub-Provider Systems or
Sub-Provider Services (whether agreed through the Change Control
Procedure or otherwise).
2.2.5 For the avoidance of doubt, "delivery" of a Sub-Provider System may
include, for the purposes of this Clause 2.2, the granting of
access to such Sub-Provider System by means other than physical
delivery and as contemplated by this Agreement.
2.2A TESTING BY PASSL
2.2A.1 PASSL shall be entitled to test or to instruct the Sub-Provider to
test the Sub-Provider Systems (or any constituent part of them) at
any time or times prior to the delivery or re-delivery of the Stage
to which such Sub-Provider Systems relate to XXXxxxxxx.xxxxxxxxx,
in order to establish whether such Sub-Provider Systems will be
capable of (i) providing the features and functions set out in and
of performing in accordance with this Agreement; and (ii) enabling
the relevant Stage to provide the features and functions set out
in, and to be accepted by XXXxxxxxx.xxxxxxxxx and perform, in
accordance with the Prime Agreement. For the purpose of such
testing, the Sub-Provider shall permit PASSL to have access to any
test system to be provided to PASSL and XXXxxxxxx.xxxxxxxxx for the
purpose of XXXxxxxxx.xxxxxxxxx conducting the Acceptance Tests and
shall provide necessary technical support in respect of such test
system. The Sub-Provider shall not, for the avoidance of doubt, be
obliged to provide additional test systems to PASSL for the purpose
of testing in accordance with this Clause 2.2A.1 or to provide
on-site or dedicated resource to assist PASSL with the conduct of
such testing. The Sub-Provider shall respond to reasonable
enquiries from PASSL arising during the course of any testing
contemplated by this Clause 2.2A.1.
2.2A.2 PASSL shall be entitled to attend any tests carried out by the
Sub-Provider in accordance with Clause 2.2A.1 (and shall meet its
own travel and subsistence expenses in so doing). Any advice or
recommendations offered or made by PASSL shall not relieve the
Sub-Provider of its obligations and duties to PASSL under this
Agreement. However, where necessary, in the reasonable opinion of
PASSL, to allow acceptance of the Stage to which such Sub-Provider
System relates in accordance with the Prime Agreement, such advice
or recommendations shall be promptly implemented by the
Sub-Provider unless the Sub-Provider notifies PASSL in writing that
it does not agree with such advice or recommendations (such
agreement not to be unreasonably withheld or delayed) and includes
with such notification the Sub-Provider's detailed alternative
proposals
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for addressing the matters giving rise to such advice or
recommendations. If the parties, acting reasonably, are unable to
agree on such proposals, then the issue shall be referred to the
Dispute Resolution Procedure provided that the Sub-Provider shall
be under an overriding obligation to ensure that such matters are
addressed in such time as will allow delivery and acceptance by
XXXxxxxxx.xxxxxxxxx of the Stage to which the relevant Sub-Provider
System relates in accordance with the Prime Agreement.
2.2A.3 PASSL shall be entitled to review or inspect the preparations for
and/or performance of any Sub-Provider Services due to be provided
following the Service Commencement Date in order to establish
whether such Sub-Provider Services are capable of being performed
in accordance with this Agreement and will enable the Prime
Services to be performed in accordance with the Prime Agreement.
Any advice or recommendations offered or made by PASSL shall not
relieve the Supplier of its obligations and duties to PASSL under
this Agreement. However, where necessary, in the reasonable opinion
of PASSL, to allow performance of the Prime Services to which such
Sub-Provider Services relate in accordance with the Prime
Agreement, such advice or recommendations shall be promptly
implemented by the Sub-Provider unless the Sub-Provider notifies
PASSL in writing that it does not agree with such advice or
recommendations (such agreement not to be unreasonably withheld or
delayed) and includes with such notice the Sub-Provider's detailed
alternative proposals for addressing the matters giving rise to
such advice or recommendations. If the parties, acting reasonably,
are unable to agree on such proposals, then the issue shall be
referred to the Dispute Resolution Procedure provided that the
Sub-Provider shall be under an overriding obligation to ensure that
such matters are addressed in such time as will allow performance
of the Prime Services to which such Sub-Provider Services relate in
accordance with the Prime Agreement from the date on which such
Prime Services are due to be provided under the Prime Agreement.
2.2A.4 For the avoidance of doubt, acceptance of Sub-Provider Systems
shall only occur in accordance with Clause 2.5 below and no testing
(whether successful or otherwise), failure to conduct testing,
notice or other act or omission of PASSL pursuant to this Clause
2.2A shall constitute acceptance or deemed acceptance of any
Sub-Provider System or Sub-Provider Service.
2.3 TESTING BY XXXXXXXXX.XXXXXXXXX
On delivery of each Stage, PASSL shall use reasonable endeavours in
seeking to ensure that XXXxxxxxx.xxxxxxxxx performs the Acceptance Tests
applicable to that Stage to determine whether that Stage (as delivered)
complies with the Specification applicable to that Stage in all material
respects and otherwise meets the Acceptance Criteria applicable to that
Stage. In conducting such tests the Sub-Provider shall provide PASSL and
XXXxxxxxx.xxxxxxxxx with such assistance as PASSL and/or
XXXxxxxxx.xxxxxxxxx may reasonably require for the purposes of that
testing.
2.4 DEFECTS IN A STAGE
If, following the testing conducted under Clause 2.3, the relevant Stage
does not comply with the Specification applicable to that Stage in all
material respects and otherwise meet the Acceptance Criteria, PASSL shall
notify the Sub-Provider in writing of the relevant defects, insofar as the
relevant defects relate to Sub-Provider Systems, (giving all such relevant
details as are provided to PASSL by XXXxxxxxx.xxxxxxxxx or are otherwise
available to PASSL) and, on receipt of that notification, the Sub-Provider
shall have a reasonable opportunity (not to subsist past the date
reasonably required by PASSL so as to enable PASSL to ensure that the
relevant Stage is accepted by XXXxxxxxx.xxxxxxxxx prior to the Long
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Stop Date for the relevant Stage) to cure the relevant defects and shall
then resubmit the relevant Sub-Provider Systems so that PASSL may
re-submit the relevant Stage for further testing by XXXxxxxxx.xxxxxxxxx
(following which this Clause 2.4 and Clause 2.3 shall apply as though
references to a "Stage" were references to that Stage as resubmitted).
Insofar as defects identified in accordance with this Clause 2.4 do not
relate to Sub-Provider Systems, the Sub-Provider shall co-operate with and
facilitate PASSL's (or its sub-contractors') resolution of such defects
within PASSL's applicable timetable.
2.5 ACCEPTANCE OF STAGES AND SUB-PROVIDER SYSTEMS
2.5.1 If, following the evaluation conducted under Clause 2.3 or Clause
2.4, the relevant Stage (as delivered or resubmitted) complies with
the Specification applicable to that Stage in all material respects
(pursuant to Clause 2.4 above) and otherwise meets the Acceptance
Criteria applicable to that Stage, then XXXxxxxxx.xxxxxxxxx is
obliged to notify PASSL in writing of its acceptance of the relevant
Stage pursuant to the terms of the Prime Agreement and PASSL shall
promptly following receipt of such notification notify the
Sub-Provider in writing of its acceptance of the relevant
Sub-Provider Systems forming part of such Stage.
2.5.2 Notwithstanding Clause 2.5.1, in the event that:
(a) XXXxxxxxx.xxxxxxxxx does not notify the Sub-Provider of
acceptance of the relevant Stage under the terms of the Prime
Agreement or of any outstanding defects in that Stage within
the timescales specified in the Prime Agreement; or
(b) XXXxxxxxx.xxxxxxxxx or any Subscribing Buying Organisation
uses the relevant Stage (or any part of it) in a Live
Environment other than to the extent that the use of a Live
Environment is agreed in writing by PASSL to form part of the
agreed acceptance testing procedure;
that Stage shall be deemed to be accepted under the terms of the
Prime Agreement and the Sub-Provider Systems forming part of that
Stage shall be deemed accepted under this Agreement.
2.6 REJECTION OF A STAGE
2.6.1 If, as at the Long Stop Date for Stage 1, Stage 1 does not comply
with the Specification applicable to Stage 1 in all material
respects or does not otherwise meet the Acceptance Criteria
applicable to Stage 1, then PASSL shall have the right (without
limiting any other rights or remedies it may have under this
Agreement or otherwise) to either:
(i) reject the Sub-Provider Systems forming part of Stage 1 and
terminate this Agreement; or
(ii) grant the Sub-Provider further time to rectify any
Sub-Provider Systems forming part of Stage 1 by a date
specified by PASSL so as to enable PASSL to meet the revised
Long Stop Date for Stage 1 under the Prime Agreement and this
Clause 2.6.1 shall apply accordingly to the revised Long Stop
Date.
2.6.2 If, as at the Long Stop Date for Stage 2, Stage 2 does not comply
with the Specification applicable to Stage 2 in all material
respects or does not otherwise meet the Acceptance Criteria
applicable to Stage 2 then PASSL shall have the right (without
limiting any other rights or remedies it may have under this
Agreement or otherwise) to either:
(i) reject the Sub-Provider Systems forming part of Stage 2 and
terminate this Agreement with respect to the Sub-Provider
Systems forming part of Stage 2 and Stage 3 only; or
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(ii) grant the Sub-Provider further time to rectify any
Sub-Provider Systems forming part of Stage 2 by a date
specified by PASSL so as to enable PASSL to meet the revised
Long Stop Date for Stage 2 under the Prime Agreement and this
Clause 2.6.2 shall apply accordingly to the revised Long Stop
Date;
In the event that PASSL terminates this Agreement with respect to
Stage 2 and Stage 3 only under sub-clause (ii) above, the
Sub-Provider and PASSL shall be released from their obligations
under this Agreement to the extent that they relate to Stage 2 and
Stage 3. Any dispute over the extent to which an obligation relates
to Xxxxx 0 xxx/xx Xxxxx 0 xxxxx xx referred to the Dispute
Resolution Procedure.
2.6.3 If, as at the Long Stop Date for Stage 3, Stage 3 does not comply
with the Specification applicable to Stage 3 in all material
respects or does not otherwise meet the Acceptance Criteria
applicable to Stage 3 then PASSL shall have the right (without
limiting any other rights or remedies it may have under this
Agreement or otherwise) to either:
(i) reject the Sub-Provider Systems forming part of Stage 3 and
terminate this Agreement or
(ii) reject the Sub-Provider Systems forming part of Stage 3 and
terminate this Agreement with respect to Stage 3 only; or
(iii) grant the Sub-Provider further time to rectify any
Sub-Provider Systems forming part of Stage 3 by a date
specified by PASSL so as to enable PASSL to meet the revised
Long Stop Date for Stage 3 under the Prime Agreement and this
Clause 2.6.3 shall apply accordingly to the revised Long Stop
Date.
In the event that PASSL terminates this Agreement with respect to
Stage 3 only under sub-clause (ii) above, the Sub-Provider and PASSL
shall be released from their obligations under this Agreement to the
extent that they relate to Stage 3. Any dispute over the extent to
which an obligation relates to Stage 3 shall be referred to the
Dispute Resolution Procedure.
2.7 NATURE OF APPOINTMENT
2.7.1 The Sub-Provider is not appointed as the exclusive supplier of the
Sub-Provider Services and (subject to Clause 2.7.5) nothing in this
Agreement intends to, or does, prevent or restrain PASSL or PACSL,
(and the Sub-Provider acknowledges that nothing in the Prime
Agreement prevents XXXxxxxxx.xxxxxxxxx or any Buying Organisation)
from acquiring any system or services from a third party or from
performing any services itself internally.
2.7.2 The Sub-Provider shall (and shall procure that its Affiliates shall)
for the duration of this Agreement and without prejudice to Clause
12.6 but subject to Clause 2.7.2A:
(i) (to the same extent as it sells and promotes its products and
services in its normal course of business) promote, recommend
and enable PASSL to provide the Zanzibar System as the
Sub-Provider and its Affiliates primary service offering for
Buying Organisations (and to the extent that the Sub-Provider
and/or its Affiliates market the Zanzibar System (if at all)
they shall also comply with this obligation) in preference to
any system, product or service of the Sub-Provider, its
Affiliates or any third party which competes with the whole or
a substantial part of the Zanzibar System;
(ii) use all reasonable endeavours to ensure that Buying
Organisations to which it or its Affiliates are marketing
their services subscribe to the Zanzibar System (through the
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execution of a Service Provision Agreement with PASSL) in
preference to any system, product or service of the
Sub-Provider, its Affiliates or any third party which competes
with the whole or a substantial part of the Zanzibar System;
and
(iii) not compete with or contract with a third party for the
purpose of or with the intention of enabling that third party
to compete with the Zanzibar System as a whole or a
substantial part of it (where, in the case of competition with
a substantial part, such competition would or may materially
affect Zanzibar Revenue and/or the potential for Zanzibar
Revenue);
2.7.2A Nothing in Clause 2.7.2 shall:
(i) prevent the Sub-Provider or its Affiliates from continuing to
provide contracted systems, products or services pursuant to
the Existing Sales Contracts;
(ii) prevent the Sub-Provider or its Affiliates from providing any
system product or service which competes with a substantial
part of the Zanzibar System to a Buying Organisation where the
Sub-Provider and/or its Affiliates have complied with the
obligations in Clause 2.7.2(i) and (ii) and that Buying
Organisation has nevertheless confirmed in writing that it
does not wish to subscribe to the Zanzibar System.
(iii) prevent the Sub-Provider or its Affiliates from contracting
with a third party for the purpose or with the intention of
enabling that third party to provide any system product or
service which competes with a substantial part of the Zanzibar
System to a Buying Organisation where the Sub-Provider and/or
its Affiliates have complied with the obligations in Clause
2.7.2(i) and (ii) and that Buying Organisation has
nevertheless confirmed in writing that it does not wish to
subscribe to the Zanzibar System;
(iv) require the Sub-Provider to breach the terms of the ePS
Contract or to offer or continue to offer its systems,
products and services to Buying Organisations in Scotland to
the extent that it is obliged to do so pursuant to the terms
of the ePS Contract;
(v) prevent the Sub-Provider and/or its Affiliates from
re-tendering for the ePS Contract either independently or in
collaboration with third parties (which may include Capgemini
UK Limited) where the scope of the Buying Organisation market
covered by such re-tendered ePS Contract is no greater than
the existing ePS Contract and, in the event that such ePS
Contract is awarded or re-awarded to the Sub-Provider or its
Affiliate or to a third party with which the Sub-Provider or
its Affiliate has collaborated in response to such
re-tendering (with the Sub-Provider or its Affiliate being
contracted to provide sub-contracted services to such third
party), then nothing in Clause 2.7.2 shall prevent the
Sub-Provider or its relevant Affiliate from subsequently
providing contracted systems, products or services to Buying
Organisations in Scotland to the extent that it is obliged to
do so pursuant to the terms of that contract.
2.7.3 The Sub-Provider shall (and shall procure that its Affiliates shall)
not for the duration of this Agreement:
(i) provide or market to Buying Organisations services relating to
or reasonably preparatory to the Zanzibar System or the
assessment of, access to, use or exploitation of the Zanzibar
System (other than the Sub-Provider Services and the Prime
Services of which the Sub-Provider Services form part);
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(ii) provide or market to other third parties services relating to
or reasonably preparatory to the Zanzibar System or the
assessment of, access to, use or exploitation of the Zanzibar
System (other than the Sub-Provider Services and the Prime
Services of which the Sub-Provider Services form part);
without the prior written consent of PASSL (not to be unreasonably
withheld or delayed).
2.7.4 For the avoidance of doubt, nothing in this Agreement shall prevent
either party (or its Affiliates) from determining the terms and
conditions governing the provision of services to Suppliers which do
not relate to and are not reasonably preparatory to the Zanzibar
System or the assessment of, access to, use or exploitation of the
Zanzibar System without the prior written consent of the other
party. Subject to Clause 2.7.2 but notwithstanding any other
provision of this Agreement, each party (and its Affiliates) shall
be free to determine the terms and conditions on which it and its
Affiliates contract with Buying Organisations for the provision of
services which do not relate to and are not reasonably preparatory
to the Zanzibar System or the assessment of, access to, use or
exploitation of the Zanzibar System without the prior written
consent of the other party.
2.7.5 PASSL shall use reasonable endeavours to ensure that
XXXxxxxxx.xxxxxxxxx shall:
(i) market the Zanzibar System as part of the eProcurement
Solutions Toolkit; and
(ii) not (and that XXXxxxxxx.xxxxxxxxx shall procure that OGC does
not) market as part of the eProcurement Solutions Toolkit any
other software or system which is the same or substantially
similar to or replicates or competes with a substantial part
of the Zanzibar System provided that this restriction shall
not apply to the extent that:
(a) such marketing is in relation to software or systems
which compete with a part of the Zanzibar System (but
are not the same or substantially similar to and do not
compete with the Zanzibar System as a whole) and which
XXXxxxxxx.xxxxxxxxx is marketing at the date of the
Prime Agreement; or
(b) such marketing is in relation to software or systems
which replicate or compete with:
(A) Stage 2 and/or Stage 3 where XXXxxxxxx.xxxxxxxxx
has validly terminated the Prime Agreement with
respect to Stage 2 and Stage 3 only; or
(B) Stage 3 where XXXxxxxxx.xxxxxxxxx has validly
terminated the Prime Agreement with respect to
Stage 3 only; or
(C) the Services subject to Step-in where
XXXxxxxxx.xxxxxxxxx has validly terminated the
Prime Agreement with respect to the Services
subject to Step-in.
3 SUB-PROVIDER OBLIGATIONS
3.1 SUBSCRIBER AND SUPPLIER AGREEMENTS
3.1.1 The Sub-Provider shall:
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Final execution
(i) execute a Sub-Provider Service Provision Order in respect of
each Service Provision Agreement to be entered into by PASSL;
(ii) execute a Sub-Provider Additional Service Order in respect of
each Additional Service Order to be entered into by PASSL in
relation to Additional Services which relate to Sub-Provider
Services;
(iii) be automatically bound to provide such Sub-Provider Services,
perform such obligations and grant such licences as are
required in relation to each Supplier Agreement entered into
by PASSL from the date on which such Supplier Agreement
becomes effective and so as to enable PASSL to meet its
obligations under and in respect of such Supplier Agreement.
3.1.2 By executing a Sub-Provider Service Provision Order or Sub-Provider
Additional Service Order, the Sub-Provider agrees:
(i) to provide all such Sub-Provider Services and perform all such
obligations as are required to enable PASSL to:
(a) deliver those elements of the Prime Services, which
relate to the Sub-Provider Services and which are to be
provided by PASSL pursuant to the relevant Service
Provision Agreement and/or any Additional Service Order,
to the standard and Service Levels required by and
otherwise in accordance with the relevant Service
Provision Agreement and/or Additional Service Order; and
(b) otherwise enable PASSL to meet its obligations under
such Service Provision Agreement and/or Additional
Service Order where (without prejudice to Clause 1A)
such obligations relate to the Sub-Provider, the
Sub-Provider Services, the Sub-Provider Systems or any
obligations of the Sub-Provider contemplated by this
Agreement;
(ii) to grant such licences to PASSL in respect of the Sub-Provider
Systems or any other Sub-Provider material or documentation as
enable PASSL to grant the licences set out in the relevant
Service Provision Agreement and/or Additional Service Order;
(iii) to indemnify PASSL and its Affiliates and give warranties to
PASSL on the same terms as those on which PASSL indemnifies
and gives warranties to the relevant Subscribing Buying
Organisation pursuant to the relevant Service Provision
Agreement and/or Additional Service Order;
(iv) without limitation to Clause 3.1.2(i) or (iii) to comply with
PASSL's obligations in Clause 23 of the relevant Service
Provision Agreement as if it was PASSL and to indemnify PASSL
and its Affiliates, the relevant Subscribing Buying
Organisation and its contractors and sub-contractors and (in
respect of Clause 23.1.5 of the Service Provision Agreement)
the Transferee on the same terms as those on which PASSL
indemnifies the relevant Subscribing Buying Organisation and
its contractors and sub-contractors and (in respect of Clause
23.1.5 of the Service Provision Agreement) the Transferee in
Clause 23 of the relevant Service Provision Agreement;
(v) to be liable to PASSL to the same extent as PASSL is liable to
the relevant Subscribing Buying Organisation pursuant to the
terms of the relevant Service Provision Agreement and as set
out in Clause 10.2.2;
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Final execution
(vi) not through any act or omission to put PASSL in breach of the
terms of the relevant Service Provision Agreement or
Additional Service Order and to be bound by such restrictions
as are included in the Service Provision Agreement or
Additional Service Order as if the Sub-Provider was PASSL.
3.1.3 The agreement between the parties created by the execution by the
Sub-Provider, pursuant to Clause 3.1.1, of a Sub-Provider Service
Provision Order (which, for the purposes of this Agreement, shall be
referred to as a "SERVICE PROVISION SUB-AGREEMENT") shall consist
of:
(i) that Sub-Provider Service Provision Order;
(ii) the relevant Term Sheet (insofar as it relates to the
Sub-Provider Services); and
(iii) the Standard SPA Terms and Conditions (as amended strictly
insofar as is necessary to reflect variations to such Standard
SPA Terms and Conditions which have been expressly agreed
between PASSL and the relevant Buying Organisation) insofar as
is necessary and construed so as to give effect to Clause
3.1.2 above;
(iv) any Sub-Provider Additional Service Orders executed from time
to time.
3.1.4 For the avoidance of doubt, the Sub-Provider shall only be entitled
to refuse to execute a Sub-Provider Service Provision Order or a
Sub-Provider Additional Service Order under Clause 3.1.1 above
where:
(i) PASSL has, in the proposed Service Provision Agreement or
through the relevant Additional Service Order, agreed
variations to the standard Service Provision Agreement (as set
out in Schedule 19 to the Prime Agreement) with the relevant
Buying Organisation; and
(ii) such variation will have a material adverse impact on the
Sub-Provider when reflected in the Service Provision
Sub-Agreement pursuant to Clause 3.1.3; and
(iii) the Sub-Provider has not given its prior consent to such
variation (such consent not to be unreasonably withheld or
delayed).
The Sub-Provider acknowledges and agrees that the standard Service
Provision Agreement (as set out in the Prime Agreement) has been
agreed between the parties and that the Sub-Provider shall (unless
PASSL agrees otherwise) only be entitled to renegotiate the terms on
which any Service Provision Sub-Agreement or Sub-Provider Additional
Service Order will be concluded with PASSL pursuant to this Clause 3
to the extent that the corresponding Service Provision Agreement
includes or Additional Service Order gives effect to a variation
entitling the Sub-Provider to refuse to execute the Sub-Provider
Service Provision Order or Sub-Provider Additional Service Order (as
applicable) pursuant to this Clause 3.1.4.
3.1.5 In the event that the Sub-Provider is entitled to refuse to execute
a Sub-Provider Service Provision Order or Sub-Provider Additional
Service Order in respect of any proposed Service Provision Agreement
or Additional Service Order (as applicable) and does so refuse, the
parties shall negotiate in good faith and use all reasonable
endeavours to address the cause of such valid refusal such that the
Sub-Provider is no longer entitled to refuse to execute such
Sub-Provider Service Provision Order or Additional Service Order (as
applicable).
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Final execution
3.1.6 PASSL shall use reasonable endeavours to ensure that (insofar as is
reasonably necessary in order to ensure that a Service Provision
Agreement does not have a material adverse impact on the
Sub-Provider and unless the Sub-Provider agrees otherwise in writing
(such agreement not to be unreasonably withheld or delayed))
relevant Buying Organisations enter into Service Provision
Agreements in their own right (and not acting as an agent for any
other body) solely for their own internal implementation and use of
the Zanzibar System for internal business purposes in relation to
their core operational functions (and such implementation or use
does not, directly or indirectly, including by reason of the
operation of shared systems or processes, cause another Buying
Organisation to have the benefit of the Zanzibar System).
3.1.7 Prior to the entering into of a Service Provision Agreement with a
Buying Organisation, PASSL shall consult and agree with the
Sub-Provider, to the extent reasonably requested by the
Sub-Provider, on the relevant Service Provision Charges (as defined
in the Service Provision Agreement) to be paid by the relevant
Buying Organisation to the extent that such Service Provision
Charges relate to the Sub-Provider Services and are not in
accordance with Schedule 4 to the Prime Agreement.
3.1.8 PASSL shall not vary or make any changes to the Service Provision
Agreements or Supplier Agreements (each as set out in the Prime
Agreement), insofar as such changes would have a material adverse
impact on the Sub-Provider, without the prior written consent of the
Sub-Provider (such consent not to be unreasonably withheld or
delayed)).
3.1.9 The Sub-Provider shall (where applicable) provide reasonable
assistance to PASSL in collecting the Zanzibar Revenue payable under
the Service Provision Agreements or (if applicable) the Supplier
Agreements.
3.2 OPERATION AND MAINTENANCE OF ZANZIBAR SYSTEM
3.2.1 The Sub-Provider shall perform the Sub-Provider Services:
(i) to meet or exceed any Service Levels applicable to the
relevant Stage from the relevant Stage Commencement Date;
(ii) in accordance with the Standards of Service applicable to that
Stage from the applicable Stage Commencement Date and
(iii) in accordance with Good Industry Practice from the
Commencement Date.
3.3 FAILURE TO PERFORM
3.3.1 If, following Acceptance of Stage 1 or any subsequent Stage under
the Prime Agreement, the Sub-Provider fails to provide any
Sub-Provider Service applicable to that Stage subject to Clause
3.3.2 (Excusing Cause) and Clause 20 (Force Majeure) then, without
prejudice to PASSL's other remedies under this Agreement, the
Sub-Provider shall:
(i) investigate the underlying causes of the failure to provide
the Sub-Provider Service or meet the Service Levels, and (i)
preserve any data indicating the cause of the service problem,
(ii) notify PASSL as soon as reasonably practicable of the
failure and any steps taken to resolve the failure and (iii)
on written notice from PASSL at the Sub-Provider's own
expense, either remedy its breach or default or (where
appropriate) re-perform such non-conforming Sub-Provider
Service within the time specified in the notice (and PASSL
shall use all reasonable endeavours to ensure that such time
is reasonable having regard to the
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Final execution
Sub-Provider Service which is to be remedied and the extent of
remedy necessary provided that such time must allow PASSL a
reasonable time to incorporate such remedy into any wider
remedy to be provided to XXXxxxxxx.xxxxxxxxx and to meet any
timescale for remedy applicable to PASSL pursuant to the Prime
Agreement) or, (in the event that the Sub-Provider is unable
to remedy such breach or default or (where appropriate)
re-perform such non-conforming Sub-Provider Service within
such time) and PASSL, acting reasonably, so agrees, comply
with its obligation in Clause 3.4.1;
(ii) take whatever action as is reasonably necessary to minimise
the impact of the failure to provide the Sub-Provider Service
or meet the Service Level and reduce the probability of it
recurring; and
(iii) advise PASSL, as and to the extent reasonably requested by
PASSL, of the status of remedial efforts being undertaken with
respect to the underlying cause of the failure to provide the
Sub-Provider Service or meet the Service Levels.
3.3.2 To the extent that any failure to provide a Sub-Provider Service
under this Agreement or any other default or delay by the
Sub-Provider in performing any obligation under this Agreement
arises as a direct result of an Excusing Cause, then provided that
the Sub-Provider (i) notifies PASSL promptly on becoming aware of
such Excusing Cause and (ii) uses reasonable endeavours to mitigate
against the effect of such Excusing Cause, then:
(i) the Sub-Provider shall have no liability in respect of such
failure, default or delay;
(ii) the timescale for performance of any affected obligation by
the Sub-Provider shall be automatically extended by a
reasonable period to take account of such Excusing Cause
(which period shall be no less than a period equivalent to any
delay constituting such Excusing Cause);
(iii) the Sub-Provider shall not be required to take any action
which will incur material additional cost in respect of such
failure unless and until such action is agreed through the
Change Control Procedure; and
(iv) the remedies set out in Clauses 3.4.5 and 3.5 or any other
remedy in respect of Sub-Provider failure, default or delay
shall not be available to PASSL in respect of such failure,
default or delay.
3.4 REMEDIES FOR BREACHES OF SERVICE OBLIGATION
3.4.1 If the Sub-Provider fails within the time specified in any notice
given under Clause 3.3.1(i) to remedy the relevant breach or default
or (where appropriate) to re-perform the relevant non-conforming
Sub-Provider Service directly resulting from its breach or default
within the time specified in the notice and PASSL, acting
reasonably, so agrees, then the Sub-Provider shall, within the time
specified in that notice, provide a Sub-Provider Rectification
Proposal including all such information as is required by PASSL to
enable PASSL to produce a Rectification Proposal and provide such
Rectification Proposal to XXXxxxxxx.xxxxxxxxx.
3.4.2 Under the Prime Agreement, XXXxxxxxx.xxxxxxxxx is obliged to notify
PASSL as to whether it accepts any Rectification Proposal within 5
Business Days of the receipt of such Rectification Proposal and,
promptly following receipt of such notification, PASSL shall notify
the Sub-Provider as to whether it accepts any Sub-Provider
Rectification Proposal which constitutes or forms part of
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Final execution
such Rectification Proposal. PASSL shall notify the Sub-Provider as
to whether it accepts any other Sub-Provider Rectification Proposal
within 5 Business Days of the receipt of such Sub-Provider
Rectification Proposal. If XXXxxxxxx.xxxxxxxxx does not accept any
Rectification Proposal including a Sub-Provider Rectification
Proposal, then the parties shall, acting reasonably and in good
faith, agree an amended Sub-Provider Rectification Proposal
acceptable to PASSL and XXXxxxxxx.xxxxxxxxx. If PASSL does not
accept any other Sub-Provider Rectification Proposal, then the
parties shall, acting reasonably in good faith, agree an amended
Sub-Provider Rectification Proposal acceptable to both parties (such
acceptance not to be unreasonably withheld or delayed).
3.4.3 If the parties fail to agree a Sub-Provider Rectification Proposal
pursuant to Clause 3.4.2 within 5 Business Days (or such lesser
period as PASSL reasonably requires in order to meet any timetable
for agreement of a Rectification Proposal under the Prime Agreement)
then the parties shall refer the matter for determination in
accordance with the Dispute Resolution Procedure.
3.4.4 Following agreement or determination of the Sub-Provider
Rectification Proposal under Clause 3.4.2 or Clause 3.4.3 (as
applicable), the Sub-Provider shall implement the Sub-Provider
Rectification Proposal to the standard and within the time period
set out in that Sub-Provider Rectification Proposal.
3.4.5 If:
(i) the Sub-Provider fails within the time specified in the notice
given under Clause 3.3.1(i) either to comply with the
requirement under Clause 3.3.1(i) or to provide a Sub-Provider
Rectification Proposal under Clause 3.4.1; or
(ii) the Sub-Provider fails to implement any Sub-Provider
Rectification Proposal agreed or determined under Clause 3.4.2
or Clause 3.4.3 (as applicable) in accordance with the terms
of such Sub-Provider Rectification Proposal;
then without prejudice to PASSL's other remedies under this
Agreement, (i) PASSL and/or XXXxxxxxx.xxxxxxxxx may remedy any
breach or default or (where appropriate) re-perform any
non-conforming Sub-Provider Service itself or have them remedied or
(where appropriate) re-performed by a third party on its behalf, and
in either case the Sub-Provider must pay the reasonable costs
(including payments to third parties) so incurred by PASSL or
XXXxxxxxx.xxxxxxxxx; or (ii) PASSL may treat such failure as a
material breach and terminate this Agreement in accordance with
Clause 14.3 and claim any remedy available to it in connection with
this Agreement or at law including, where available, the right to
recover damages (subject, for the avoidance of doubt, to Clause 10).
3.4.6 If the parties acting reasonably fail to agree a Sub-Provider
Rectification Proposal in accordance with Clause 3.4.2 within 3
Business Days or if XXXxxxxxx.xxxxxxxxx does not agree to a
Rectification Proposal of which the Sub-Provider Rectification
Proposal forms part in each case in circumstances where the breach
or default has not been rectified and has caused a Critical Service
Level Default Event then, without prejudice to PASSL's other
remedies under this Agreement, PASSL or XXXxxxxxx.xxxxxxxxx may
remedy any breach or default or (where appropriate) re-perform any
non-conforming Sub-Provider Service itself or have them remedied or
(where appropriate) re-performed by a third party on its behalf, and
in either case the Sub-Provider must pay the reasonable costs
(including payments to third parties) so incurred by PASSL or
XXXxxxxxx.xxxxxxxxx unless agreed or determined otherwise pursuant
to Clause 3.4.3.
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Final execution
3.5 PERFORMANCE INCENTIVES
3.5.1 If the Sub-Provider fails to perform the Sub-Provider Services in
accordance with the Service Levels under this Agreement and/or the
Service Provision Sub-Agreements then PASSL shall be entitled to
recover from the Sub-Provider, in respect of each affected Service
Provision Sub-Agreement, a Performance Incentive in respect of the
period during which the Sub-Provider failed to perform the relevant
Sub-Provider Service in accordance with the Service Levels under
that Service Provision Sub-Agreement and solely in the event that
Performance Incentives are payable under the terms of the relevant
Service Provision Sub-Agreements or the Revenue Sharing Agreement.
Without prejudice to the provisions regarding Performance Incentives
included within the Revenue Sharing Agreement, all such Performance
Incentives shall be deducted from the Sub-Provider's Revenue Share
in accordance with the provisions of the Revenue Sharing Agreement
or recovered as a debt from the Sub-Provider.
3.5.2 The parties acknowledge that the Performance Incentives payable by
the Sub-Provider pursuant to the Service Provision Sub-Agreements do
not exceed a genuine pre-estimate of the loss which PASSL expects to
suffer as a result of the Sub-Provider failing to perform the
relevant Sub-Provider Services in accordance with the Service
Levels..
3.5.3 Performance Incentives may be recovered by PASSL in accordance with
the Revenue Sharing Agreement.
3.5.4 Performance Incentives shall be the sole and exclusive remedy of
PASSL and shall be in full and final settlement in respect of the
relevant failure in providing the Sub-Provider Services in
accordance with that Service Level in each case unless and until
that failure amounts to a Critical Service Level Default Event under
the terms of this Agreement or the relevant Service Provision
Sub-Agreement (provided that for the avoidance of doubt nothing in
this Clause 3.5 shall restrict PASSL's remedies in respect of any
other breach of this Agreement by the Sub-Provider).
3.6 OPERATIONAL STAFF
3.6.1 The Sub-Provider shall keep employed, or contracted, for the
duration of the term of this Agreement staff who:
(i) are competent to undertake the Sub-Provider Services;
(ii) shall be reasonably available to perform the Sub-Provider
Services as required under this Agreement; and
(iii) possess the appropriate skills and experience for the tasks
assigned to them.
3.6.2 The Sub-Provider shall and shall procure that employees, agents and
sub-contractors of the Sub-Provider and its Affiliates shall use
commercially available measures in accordance with Good Industry
Practice to prevent the introduction of a Virus into the Zanzibar
System, PASSL Systems, XXXxxxxxx.xxxxxxxxx System or Buying
Organisation Systems when providing the Sub-Provider Services or
maintaining the Zanzibar System.
3.7 EURO CHANGES
3.7.1 The Sub-Provider shall ensure that the Sub-Provider Services and the
Sub-Provider Systems incorporated within the Zanzibar System:
16
Final execution
(i) (subject to Clause 4.5) comply with all legal requirements
applicable to the euro, including, but without limitation, the
rules on conversion and rounding set out in the EC Regulations
numbers 1103/97 and 974/98;
(ii) are capable of displaying and printing, and will incorporate
in all relevant screen layouts and all codes adopted in
relation to the euro; and
(iii) are capable of performing all relevant functions set out in
the applicable Specification both for sterling and for the
euro.
3.8 RACIAL AND OTHER DISCRIMINATION
3.8.1 The Sub-Provider shall not unlawfully discriminate against
individuals within the meaning and scope of the provisions of the
Race Relations Act 1976 (as amended from time to time) or any other
applicable legislation relating to discrimination in employment.
3.8.2 The Sub-Provider shall take all reasonable steps to ensure the
observance of the provisions of Clause 3.8.1 by all servants,
employees, agents and consultants of the Sub-Provider and all the
Sub-Provider's sub-contractors.
3.9 CORRUPT GIFTS AND PAYMENTS OF COMMISSION
3.9.1 The Sub-Provider shall neither:
(i) offer or give or agree to give any person in Her Majesty's
Service 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 Agreement, the Prime Agreement, a Service
Provision Agreement or a Service Provision Sub-Agreement or
any other agreement for Her Majesty's Service or for showing
or forbearing to show favour or disfavour to any person in
relation to this Agreement, the Prime Agreement or any other
contract for Her Majesty's Service; nor
(ii) enter into this Agreement or a Service Provision Sub-Agreement
or allow PASSL to enter into the Prime Agreement or a Service
Provision Agreement if, in connection with it, commission has
been paid or agreed to be paid to any employee of
XXXxxxxxx.xxxxxxxxx by the Sub-Provider or on the
Sub-Provider's behalf or to the Sub-Provider's knowledge,
unless before the date of the Prime Agreement particulars of
any such commission and of the terms and conditions of any
agreement for the payment thereof have been disclosed in
writing to PASSL for disclosure to XXXxxxxxx.xxxxxxxxx.
3.9.2 In the event of any breach of this Clause 3.9 by the Sub-Provider or
by anyone employed by the Sub-Provider or acting on the
Sub-Provider's behalf (whether with or without the knowledge of the
Sub-Provider) or the commission of any offence by the Sub-Provider
or by anyone employed by the Sub-Provider or acting on behalf of the
Sub-Provider under the Prevention of Corruption Acts 1889 to 1916 in
relation to this or any other contract with Her Majesty's Service,
PASSL shall be entitled:
(i) to treat the breach as a material breach and terminate this
Agreement in accordance with Clause 14.3.1 (Termination for
Material Breach); and/or
(ii) to recover from the Sub-Provider the amount or value of any
such gift, consideration or commission; and/or
17
Final execution
(iii) subject to the restrictions in this Agreement, to recover from
the Sub-Provider any other loss sustained in consequence of
any breach of this condition, whether or not this Agreement
has been terminated.
3.9.3 Any dispute, difference or question arising in respect of the
interpretation of this Clause 3.9, the right of PASSL to terminate
this Agreement or the amount or value of any such gift,
consideration or commission shall be decided by PASSL to reflect
any corresponding decision by XXXxxxxxx.xxxxxxxxx, whose decision
shall be final and conclusive.
3.10 CONTINGENCY PLANS
3.10.1 As from the Service Commencement Date, the Sub-Provider shall
ensure that the Contingency Plans comply at all times with the
provisions of Schedule 6. The Sub-Provider shall provide a copy of
such Contingency Plans to PASSL on or prior to the date of this
Agreement (unless PASSL agrees otherwise in writing). PASSL
acknowledges and agrees that the Contingency Plans themselves are
established documents in use with customers of the Sub-Provider
and/or its sub-contractors other than Subscribing Buying
Organisations and that, consequently, the Sub-Provider shall be
entitled to update such Contingency Plans in its sole discretion
provided that they are maintained in accordance with Schedule 6 and
subject to Clause 3.10.2.
3.10.2 The Sub-Provider shall maintain the Contingency Plans on an ongoing
basis to ensure that at all times they reflect Good Industry
Practice in the light of the requirements of the Zanzibar System
and that they are amended as appropriate to reflect the nature of
the Sub-Provider Services from time to time. The Sub-Provider shall
consult with PASSL in the ongoing development of the Contingency
Plans and shall take into account the reasonable requests of PASSL
in making amendments to such plans. The Sub-Provider shall promptly
provide notice to PASSL of any amendments to the Contingency Plans
made during the term of this Agreement, giving all such details as
are reasonably requested by PASSL. Any changes which are agreed to
be made to the Contingency Plans or to Schedule 6, as a result of
requests by XXXxxxxxx.xxxxxxxxx, shall be made pursuant to the
Change Control Procedure.
3.10.3 The Sub-Provider shall test the Contingency Plans to ensure their
effectiveness on an annual basis (free of charge) or when PASSL
acting reasonably requests such a test on the basis that there has
been a material change to the operational circumstances or business
requirements of either party and such request is agreed via the
Change Control Procedure. The Sub-Provider shall promptly provide
notice to PASSL of the results of any such testing, giving all such
details as are reasonably requested and shall promptly rectify any
failures and re-test the Contingency Plans in the event that the
testing provided for in this Clause 3.10.3 does not demonstrate the
effectiveness of the Contingency Plans and shall repeat such
rectification and re-testing until such time as the effectiveness
of the Contingency Plans is ensured.
3.10.4 The Sub-Provider shall have no liability to PASSL,
XXXxxxxxx.xxxxxxxxx or any Subscribing Buying Organisation for any
failure to meet the Service Levels which occurs in respect of any
Sub-Provider Service in the period between the occurrence of an
event giving rise to the requirement to implement the Contingency
Plans and the time at which the Sub-Provider has completed the
implementation of the Contingency Plans in respect of such event
provided that the Sub-Provider shall not have the benefit of this
Clause to the extent that it does not implement the Contingency
Plans in accordance with, and within the timescales required by,
this Agreement.
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Final execution
3.10.5 Unless PASSL agrees otherwise, the Sub-Provider shall ensure that
no third party receives preferential treatment ahead of PASSL and
XXXxxxxxx.xxxxxxxxx as a result of the Contingency Plans.
3.10.6 The Sub-Provider shall enter into a contract for the provision of
disaster recovery services in relation to the Zanzibar System with
a service provider reasonably acceptable to PASSL within 30 days of
the date of this Agreement (or by such other date as the parties
may agree in writing) and shall maintain such disaster recovery
contract (or such other disaster recovery arrangements as the
parties agree in writing) for the duration of this Agreement. The
Sub-Provider shall procure that the disaster recovery arrangements
set out in such disaster recovery contract shall at all times be
sufficient to enable PASSL to meet its obligations as set out in
Schedule 6 to the Prime Agreement including by ensuring that the
appropriate representatives of PASSL and XXXxxxxxx.xxxxxxxxx are
assigned as "agents" of the Sub-Provider on the relevant disaster
recovery provider's authorised contact list so that PASSL is able
to invoke the relevant disaster recovery arrangements in the event
of the occurrence of a disaster (following, to the extent
practicable, consultation with the Sub-Provider) and so that PASSL
and XXXxxxxxx.xxxxxxxxx are able to monitor the testing of such
disaster recovery arrangements from the relevant disaster recovery
site. The Sub-Provider shall provide a copy of such disaster
recovery contract to demonstrate its compliance with the provisions
of this Clause 3.10.6. PASSL confirms that, at the date of this
Agreement and for the purposes of this Clause 3.10.6, Hewlett
Packard Company is a disaster recovery service provider reasonably
acceptable to PASSL.
3.10.7 In the event the Sub-Provider fails to take out or maintain such
disaster recovery arrangements as are required pursuant to Clause
3.10.6, PASSL may itself provide or arrange such disaster recovery
arrangements and may charge the cost of disaster recovery
arrangements to the Sub-Provider either by way of deduction from
the Sub-Provider's Revenue Share or by recovering the same as a
debt due to PASSL from the Sub-Provider.
3.10.8 Without limitation to Clause 3.10.1, the Sub-Provider shall, in the
event of an emergency resulting in PASSL being unable to offer the
helpdesk services forming part of the Prime Services from either
its main or its back-up site for the provision of such Prime
Services, make any helpdesk which it operates available for
reasonable use by PASSL as part of the Prime Services on a
short-term emergency basis provided that nothing in this Clause
3.10.2 shall require the Sub-Provider to allocate additional
resources in providing such support.
3.11 FINANCIAL REPORTING
3.11.1 As from the Commencement Date the Sub-Provider shall provide such
financial reporting as will enable PASSL to meet its obligations in
Schedule 17 to the Prime Agreement insofar as they relate to the
Sub-Provider or Sub-Provider Services or information and shall
otherwise comply at all times with the provisions of Schedule 17 to
the Prime Agreement (Financial Reporting) insofar as they relate to
the Sub-Provider or Sub-Provider Services or information.
3.11.2 Breach of this Clause 3.11 shall be a material breach by the
Sub-Provider for the purposes of Clause 14.3 (provided that it is
acknowledged that such material breach shall be capable of remedy
by the Sub-Provider).
3.12 STEP-IN
3.12.1 Notwithstanding any other provision of this Agreement:
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Final execution
(i) if XXXxxxxxx.xxxxxxxxx is entitled to terminate the Prime
Agreement, in whole or in part, for breach on the part of
PASSL in connection with the Services subject to Step-in; or
(ii) if PASSL is providing the Services subject to Step-in in such
a manner that a material element of such services is subject
to a continuing material degradation and PASSL (not having the
benefit of any release from liability under the terms of the
Prime Agreement) has failed to rectify the breach within
twenty (20) Business Days of receipt of notice to do so by
XXXxxxxxx.xxxxxxxxx;
then provided that (a) XXXxxxxxx.xxxxxxxxx has complied with the
provisions of Clause 3.12 of the Prime Agreement; (b) that it and
the Subscribing Buying Organisations have made all payments that
are due under the Prime Agreement and the Service Provision
Agreements and are not subject to a genuine, bona fide dispute; (c)
that Acceptance of the Stage to which the Services subject to
Step-in relate has occurred; and (d) that PASSL does not have the
benefit of any agreed Start-up Period; the Sub-Provider
acknowledges and agrees that XXXxxxxxx.xxxxxxxxx shall be entitled
to exercise the right of step-in to the Services subject to Step-in
including any Sub-Provider Services forming part of such Services
subject to Step-in.
3.12.2 XXXxxxxxx.xxxxxxxxx is obliged to notify PASSL of its intention to
exercise rights of step-in under the Prime Agreement, which notice
is to specify in reasonable detail:
(i) the basis on which XXXxxxxxx.xxxxxxxxx is entitled to
exercise its rights of step-in;
(ii) the affected Services subject to Step-in; and
(iii) how it proposes to remedy the affected Services subject to
Step-in.
3.12.3 PASSL shall promptly provide a copy or summary of the notice
referred to in clause 3.12.2 to the Sub-Provider to the extent that
XXXxxxxxx.xxxxxxxxx proposed exercise of step-in rights relates to
Sub-Provider Services. As soon as practicable following any request
from PASSL and prior to any meeting between PASSL and
XXXxxxxxx.xxxxxxxxx regarding the exercise of step-in rights, the
Sub-Provider shall provide all such information (regarding
Sub-Provider Services forming part of the Services subject to
Step-in and/or any breach or Sub-Provider Service provided by the
Sub-Provider which has given rise to the right of step-in for
XXXxxxxxx.xxxxxxxxx) as may be requested by PASSL to enable PASSL's
Contract Manager to discuss the potential exercise of
XXXxxxxxx.xxxxxxxxx' rights with XXXxxxxxx.xxxxxxxxx.
3.12.4 After five Business Days from the date XXXxxxxxx.xxxxxxxxx notifies
PASSL under the Prime Agreement, if XXXxxxxxx.xxxxxxxxx is not
satisfied with the outcome of the discussions (if any) contemplated
by Clause 3.12.3 then the Sub-Provider acknowledges and agrees that
XXXxxxxxx.xxxxxxxxx may exercise its rights of step-in to the
Services subject to Step-in under the Prime Agreement including any
Sub-Provider Services forming part of such Services subject to
Step-in. In exercising such rights of step-in, the Sub-Provider
acknowledges and agrees that XXXxxxxxx.xxxxxxxxx may itself
provide, or may engage a third party to provide, the affected
Services subject to Step-in or any part thereof including any
Sub-Provider Services forming part of such Services subject to
Step-in. Subject to Clause 3.3.2 and Clause 3.12.8, the exercise of
XXXxxxxxx.xxxxxxxxx' rights of step-in shall not prejudice any
other rights of PASSL or the Sub-Provider under this Agreement.
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Final execution
3.12.5 The Sub-Provider shall co-operate fully with, and provide all
reasonable assistance to XXXxxxxxx.xxxxxxxxx and any third party
engaged by XXXxxxxxx.xxxxxxxxx to enable the provision of the
affected Services subject to Step-in. The Sub-Provider's assistance
shall include:
(i) allowing XXXxxxxxx.xxxxxxxxx or the third party reasonable
control over the management of relevant employees of the
Sub-Provider and its sub-contractors exclusively in respect
of the performance of the affected Services subject to
Step-in;
(ii) allowing XXXxxxxxx.xxxxxxxxx or the third party reasonable
access to the Sub-Provider's premises and equipment as needed
to provide the Services subject to Step-in, including
granting XXXxxxxxx.xxxxxxxxx or a third party any reasonably
necessary licences to enable it to use and maintain that
element of any Sub-Provider Systems which is the subject of
the Services subject to Step-in;
(iii) allowing XXXxxxxxx.xxxxxxxxx or the third party reasonable
access to such management records and systems which relate to
the affected Services subject to Step-in as is reasonably
necessary to enable the performance of the same; and
(iv) if requested by PASSL or XXXxxxxxx.xxxxxxxxx, providing to
XXXxxxxxx.xxxxxxxxx for provision to the third party, notice
confirming that XXXxxxxxx.xxxxxxxxx is exercising its rights
in compliance with the terms of the Prime Agreement.
3.12.6 If XXXxxxxxx.xxxxxxxxx exercises its rights under Clause 3.12 of
the Prime Agreement, PASSL shall use reasonable endeavours to
ensure that:
(i) XXXxxxxxx.xxxxxxxxx shall procure that any third party
appointed by it may not have any access to any premises,
information, persons or materials pursuant to Clause 3.12.5
(iii) unless it has first entered into an appropriate and
reasonable confidentiality undertaking and undertakes to
abide by such security and health and safety requirements as
the Sub-Provider may reasonably require;
(ii) XXXxxxxxx.xxxxxxxxx shall permit the Sub-Provider to resume
performance of any Sub-Provider Services forming part of the
Services subject to Step-in once XXXxxxxxx.xxxxxxxxx is
satisfied on reasonable grounds that PASSL will be able to
resume performance of the Services subject to Step-in in
accordance with the Prime Agreement after which
XXXxxxxxx.xxxxxxxxx shall cease to exercise any rights
pursuant to the corresponding Clause in the Prime Agreement
and, where possible, shall itself and shall procure that,
where reasonably practicable, the third party returns to
PASSL any documentation or information obtained pursuant to
this Clause 3.12 (and PASSL shall promptly return to the
Sub-Provider any such documentation or information so
returned by XXXxxxxxx.xxxxxxxxx which is so obtained from the
Sub-Provider); and
(iii) no information relating to the Sub-Provider or its business
disclosed to or obtained by XXXxxxxxx.xxxxxxxxx as a result
of the exercise of such rights shall be used by
XXXxxxxxx.xxxxxxxxx for any other purpose than the provision
of the Services subject to Step-in under this Agreement on an
interim basis.
3.12.7 Without prejudice to any remedial action plan agreed between PASSL
and XXXxxxxxx.xxxxxxxxx (which plan shall be subject to the consent
of the Sub-Provider (such consent not to be unreasonably withheld
or delayed) to the extent it relates to any Sub-Provider Service),
in the event that any Sub-Provider Service forming part of a
Service subject to Step-in is the subject of the
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Final execution
exercise of step-in rights as contemplated by to this Clause 3.12
for a period of 60 days then, unless the parties agree otherwise
in writing, either party shall be entitled to terminate this
Agreement with respect to that Sub-Provider Service.
3.12.8 Without prejudice to Clause 3.3.2, the Sub-Provider shall have no
liability in respect of any failure to meet the Service Levels for
a part of the Sub-Provider Services which occurs during any period
in which XXXxxxxxx.xxxxxxxxx is exercising step-in rights as
contemplated by this Clause 3.12 in respect of that part of the
Sub-Provider Services.
3.12.9 Nothing in this Clause 3.12 shall require the Sub-Provider to
disclose to XXXxxxxxx.xxxxxxxxx, or to any third party acting on
XXXxxxxxx.xxxxxxxxx behalf, any information relating to other
customers of the Sub-Provider.
3.12.10 In the event that XXXxxxxxx.xxxxxxxxx has the right to step-in to
the Services subject to Step-in pursuant to the Prime Agreement,
then the Sub-Provider acknowledges and agrees that PASSL and any
third party engaged by PASSL may step-in to any Sub-Provider
Services forming part of the Services subject to Step-in and all
rights of XXXxxxxxx.xxxxxxxxx contemplated by this Clause 3.12
shall apply for the benefit of PASSL and/or such third party
engaged by PASSL provided that PASSL shall comply with the
obligations set out in Clause 3.12.6 in respect of such step-in as
if it were XXXxxxxxx.xxxxxxxxx and the Sub-Provider shall have the
benefit of provisions corresponding to Clauses 3.12.2, 3.12.3,
3.12.7 and 3.12.8 in the Prime Agreement construed so as to
reflect the fact that it is PASSL stepping-in to the provision of
the relevant Sub-Provider Service and any remedial plan shall be
as agreed between PASSL and the Sub-Provider.
3.13 GUARANTEE
3.13.1 The Sub-Provider acknowledges that PACSL is obliged to enter into
the Guarantee with XXXxxxxxx.xxxxxxxxx on the Commencement Date.
For the avoidance of doubt, all the provisions of this Agreement
shall apply for the benefit of PACSL to the extent that the
Guarantee is or may be called on by XXXxxxxxx.xxxxxxxxx.
3.13.2 The Sub-Provider shall procure that the Sub-Provider Guarantor
enters into the Sub-Provider Guarantee with PASSL on the
Commencement Date. For the avoidance of doubt, breach of this
Clause 3.13.2 by the Sub-Provider shall be a material breach of
this Agreement.
4 METHOD OF PERFORMANCE
4.1 RESOURCES
During the term of this Agreement, the Sub-Provider shall:
4.1.1 maintain the organisational and technical ability and capacity to
provide the Sub-Provider Services in accordance with this
Agreement; and
4.1.2 (without prejudice to Clause 4.4A.1) promptly notify PASSL in
writing of:
(i) the nature and extent of any services provided or to be
provided under either new contracts made with third parties or
existing contracts of the Sub-Provider which in either case
but without limitation, may be for the use of systems,
hardware, software, communications links or other
infrastructure shared with the Sub-Provider Systems or the
Zanzibar System and which, in either case, would or may affect
the performance of any Sub-Provider Systems and/or the
Sub-Provider's ability to perform the Sub-Provider Services in
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Final execution
accordance with this Agreement (including the Sub-Provider's
ability to meet the Service Levels);
(ii) any other matter which would or may affect the performance of
any Sub-Provider Systems and/or the Sub-Provider's ability to
perform the Sub-Provider Services in accordance with this
Agreement and/or PASSL's ability to perform the Prime Services
under the Prime Agreement and otherwise comply with the terms
of the Prime Agreement;
and shall use all reasonable endeavours to address reasonable
concerns of PASSL arising as a result of the matters referred to in
such notice. For the avoidance of doubt, PASSL acknowledges and
agrees that, in meeting its obligations under this Clause 4.1.2, the
Sub-Provider shall not be obliged to disclose commercially sensitive
or confidential information regarding the identity of its customers
or its pricing of services provided to such customers.
4.1.3 (subject to the provisions of this Agreement and the Service
Provision Sub-Agreements) have complete responsibility for the
sourcing and provision of:
(i) the hardware and software and any other equipment;
(ii) the personnel; and
(iii) the Third Party Contracts,
which are required for the provision of the Sub-Provider Services
and, subject to the provisions of this Agreement including Clause
1.1A), the Sub-Provider shall have complete operational,
maintenance, management, legal, financial and administrative
responsibility for such hardware, software, equipment, personnel and
contracts which are provided or operated by or on behalf of the
Sub-Provider for the provision of the Sub-Provider Services.
4.2 SECURITY
The Sub-Provider undertakes, on its own behalf and on behalf of its
employees, agents and sub-contractors, to comply with the security
requirements and data security safeguards contained in Schedule 2 to this
Agreement and Schedule 24 to the Prime Agreement.
4.3 OPERATIONS MANUAL
4.3.1 CONTENT OF MANUAL
The Operations Manual will at all times during the term of this
Agreement be in accordance with the principles set out in Schedule 9
to the Prime Agreement in relation to the procedures the
Sub-Provider will use to perform its obligations under this
Agreement. The Sub-Provider shall conduct the Sub-Provider Services
in accordance with the procedures and processes set out in Schedule
9 to the Prime Agreement to the extent relevant to the Sub-Provider
Services or the performance of the Sub-Provider's other obligations
under this Agreement.
4.4 TECHNOLOGY REFRESHMENT
4.4.1 Without limiting any of its other obligations under this Agreement,
the Sub-Provider shall, to the extent reasonable to do so in
accordance with Good Industry Practice and its obligations to comply
with the other provisions of this Agreement (and subject, in
particular, to any requirements as to compatibility set out in
Schedule 2), keep the resources (including the hardware, software
and personnel) used in providing the Sub-Provider Systems forming
part of the Zanzibar System and
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Final execution
Sub-Provider Services to PASSL, XXXxxxxxx.xxxxxxxxx, Subscribing
Buying Organisations and the Suppliers (the "TECHNICAL RESOURCES")
at a technological level that meets or exceeds that made generally
available to the Sub-Provider and its sub-contractors' customers.
4.4.2 The Sub-Provider shall notify PASSL of any technological
advancement of which it becomes aware that could reasonably be
expected to have a favourable impact on the Sub-Provider Services
or the Prime Services and the parties shall discuss and agree
whether to implement that technological advancement as part of the
Sub-Provider's obligations under Clause 4.4.1 or through the Change
Control Procedure.
4.4.3 Without limiting Clause 4.4.1, the Sub-Provider shall:
(i) ensure that its staff remain knowledgeable of developments
and advancements in information technology and methods of
delivering services of the type of those provided under this
Agreement;
(ii) ensure that the hardware used or incorporated from time to
time within the Sub-Provider Systems forming part of the
Zanzibar System for the purposes of or in connection with the
performance of the Sub-Provider Services and/or the Prime
Services is at any given time capable of executing (at a
reasonable standard of usability) the versions of the
Sub-Provider Software and Third Party Software (and any other
software forming part of the Zanzibar System) which are used
or installed upon it and satisfies any minimum system
requirements for such software.
4.4.4 For the avoidance of doubt, the Sub-Provider shall be responsible
for meeting the costs of compliance with this Clause 4.4 unless
PASSL has agreed otherwise in writing.
4.4A SUBSTITUTION OF SUB-PROVIDER SYSTEM OR ZANZIBAR SYSTEM COMPONENT
4.4A.1 The Sub-Provider shall not make any material changes to the
systems, hardware, software, communications links or other
components underlying the Sub-Provider Systems without the prior
written consent of PASSL (not to be unreasonably withheld or
delayed).
4.4A.2 Nothing in this Agreement shall prevent PASSL, without prejudice to
any other right or remedy it may have under this Agreement or
otherwise, from replacing any component of the Zanzibar System
(including any hardware, software or communications links and any
such components of the Sub-Provider Systems) with a different
component or modifying any such component provided that, where such
component relates to the Sub-Provider Systems, such replacement is
necessary, in the reasonable opinion of PASSL, as a result of:
(i) a Stage failing to meet Acceptance under the terms of the
Prime Agreement;
(ii) a breach of the Prime Agreement or any Service Provision
Agreement;
(iii) a Critical Service Level Default Event; or
(iv) a material adverse impact on Zanzibar Revenue;;
or where such replacement is agreed between the parties (such
agreement not to be unreasonably withheld or delayed). Where
practicable, having regard to any applicable remedial periods under
the Prime Agreement (including, in relation to Acceptance, the Long
Stop Date), PASSL shall give the Sub-Provider a reasonable
opportunity to remedy any default giving rise to such right to
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Final execution
substitute a component prior to exercising such right to
substitute a component. Without prejudice to its obligations in
Clause 1.1A or 4.4A.5, the Sub-Provider shall co-operate in and
facilitate the replacement of any components pursuant to this
Clause 4.4A.2.
4.4A.3 For the avoidance of doubt, the replacement of a component in
accordance with Clause 4.4A.2 will result in a pro rata reduction
in the Sub-Provider's Revenue Share so as to reflect such
component replacement (and no further recovery of the
Sub-Provider's costs associated with such replaced component).
4.4.A.4 In the event that any component of the Zanzibar System is
replaced in accordance with Clause 4.4A.2 or is finally rejected
by XXXxxxxxx.xxxxxxxxx under the terms of the Prime Agreement
having failed to achieve Acceptance, then, without prejudice to
the provisions of the Revenue Share Agreement, the Sub-Provider
shall promptly refund any payments of Revenue Share which relate
to such component to the extent necessary to enable PASSL to
refund such payments to the relevant Subscribing Buying
Organisations in accordance with the Service Provision Agreement.
If such substitution or rejection occurs after Acceptance of Stage
1 under the Prime Agreement, then any such refund shall be reduced
on a pro rata basis in order to reflect the time that the relevant
Subscribing Buying Organisation has had the benefit of the
Zanzibar System including such substituted or rejected component
as compared to the initial five-year term of the relevant Service
Provision Agreement.
4.4A.5 Pursuant to Schedule 2 and the Draft Exit Plan, the Sub-Provider
may be required by PASSL to provide exit assistance in relation to
a component replaced in accordance with this Clause 4.4.A. Such
assistance shall not relieve the Sub-Provider of its obligations
in respect of exit following any additional component replacement
in accordance with this Agreement or any termination of this
Agreement or the Prime Agreement.
4.5 COMPLIANCE WITH REGULATIONS AND CHANGE IN LAW
4.5.1 The Sub-Provider shall (subject to Clauses 4.5.2 to 4.5.7) ensure
that the provision of the Sub-Provider Services and the
Sub-Provider Systems shall comply, with all applicable laws and
regulations in force from time to time in relation to the
provision of the Sub-Provider Services.
4.5.2
(i) Each party shall as soon as reasonably practicable give
notice to the other on becoming aware of (a) a forthcoming
Change in Law or (b) of the occurrence of the Change in Law,
which is likely to impact the Zanzibar System the
Sub-Provider Systems or the Sub-Provider Services; and
(ii) the parties shall meet within 2 Business Days of the notice
referred to in Clause 4.5.2(i) to consult and seek to agree
the effect of the Change in Law on the Sub-Provider Systems
and the Sub-Provider Services so as to enable PASSL to agree
such effect with XXXxxxxxx.xxxxxxxxx. If XXXxxxxxx.xxxxxxxxx
and PASSL are not able to agree on the occurrence or the
effect of the Change in Law, then the Sub-Provider shall
participate in and provide all assistance reasonably
required in connection with any reference to the Prime
Agreement Dispute Resolution Procedure. If PASSL and the
Sub-Provider are not able to agree on the occurrence or
effect of a Change in Law then the matter shall be referred
to the Dispute Resolution Procedure.
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Final execution
4.5.3 The Sub-Provider shall (without prejudice to Clause 4.5.5) ensure
that the Sub-Provider Services and the Sub-Provider Systems comply
with the Law following a General Change in Law (apart from a
Specific Change in Law) and shall use reasonable endeavours to
ensure that the Sub-Provider Services and the Sub-Provider Systems
comply with the Law following any Specific Change in Law.
4.5.4 Subject to Clause 4.5.5, any amendment to the Sub-Provider Services
or the Sub-Provider Systems required as a result of a Specific
Change of Law shall be subject to the Change Control Procedure.
4.5.5 The Sub-Provider shall not reject a request for a Change which is
required in order to conform to a Specific Change in Law which would
(if the proposed change were not implemented) put PASSL,
XXXxxxxxx.xxxxxxxxx or any Subscribing Buying Organisation in breach
of Law during the term of the Prime Agreement provided such Change
is technically feasible and subject to agreement on any adjustment
of the Charges under Clause 4.5.6.
4.5.6 If, as a result of a Specific Change in Law or a General Change in
Law the costs of which are not to be met by the Sub-Provider
pursuant to Clause 4.5.7, the Sub-Provider's costs in complying with
its obligations under this Agreement or any Service Provision
Agreement are increased, the Sub-Provider's charges shall be
adjusted to take account of such increase by agreement between the
parties in accordance with the Change Control Procedure provided
that such increase shall be no greater than a fair and reasonable
amount so as to share the additional costs between:
(i) XXXxxxxxx.xxxxxxxxx and the Subscribing Buying Organisations
and
(ii) such other customers of the Sub-Provider and the
Sub-Provider's sub-contractors who also benefit from the
relevant amendment to the Sub-Provider Services or the
Sub-Provider Systems (or their underlying components).
4.5.7 The Sub-Provider shall bear all costs relating to any amendment to
the Sub-Provider Services or the Sub-Provider Systems resulting from
a General Change in Law unless (subject to Clause 4.5.6):
(i) at the date of this Agreement the Sub-Provider was not aware
that such General Change in Law was forthcoming and a supplier
of services similar to the Sub-Provider Services acting in
accordance with Good Industry Practice would not have been so
aware; and
(ii) the cost of such amendment is greater than twenty five
thousand pounds ((pound)25,000) or would cause the aggregate
costs of all such amendments borne by the Sub-Provider and its
sub-contractors during the term of this Agreement to be
greater than fifty thousand pounds ((pound)50,000).
4.5.8 Each party, without prejudice to its general obligation to comply
with the terms of this Agreement shall:
(i) use reasonable endeavours to mitigate the adverse effects of
any Change in Law and to take all reasonable steps to minimise
any increase in costs arising from such Change in Law; and
(ii) use reasonable endeavours to take advantage of any positive or
beneficial effects of any Change in Law and to take all
reasonable steps to maximise any reduction in costs arising
from such Change in Law.
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Final execution
4.5.9 Upon written request made by any competent regulatory authority to
the Sub-Provider, to PASSL or to XXXxxxxxx.xxxxxxxxx or by
XXXxxxxxx.xxxxxxxxx to PASSL or the Sub- Provider on behalf of a
competent regulatory authority, the Sub-Provider shall:
(i) make available to the requesting entity any and all relevant
information relating to the Sub-Provider's or any of its
sub-contractors' compliance with applicable laws and
regulations in respect of this Agreement or the Zanzibar
System; and
(ii) if requested and where applicable, allow the requesting entity
to visit the Central Site (if applicable) or the premises of
the Sub-Provider (to the extent set out in Clause 7) for the
purposes of observing the Sub-Provider's or any of its
sub-contractors' compliance with those laws and regulations in
performing Sub-Provider Services under this Agreement. For the
avoidance of doubt, the Sub-Provider shall not be required to
meet the travel and subsistence expenses of such requesting
entity in conducting such visit.
4.6 ADVERTISING
4.6.1 The Sub-Provider shall not permit any advertisements (including, for
the avoidance of doubt, pop-up advertisements) to be published on
the Zanzibar System, or displayed to any user of the Zanzibar
System, unless PASSL has given its express written consent.
4.7 USE OF ZANZIBAR SYSTEM
4.7.1 Not used.
4.7.2 The Parties acknowledge and agree that:
(i) the Hardware, communications links and Software forming and/or
underlying the Sub-Provider Systems are not dedicated to the
provision of Services pursuant to this Agreement; and
(ii) nothing in this Agreement shall prevent or restrict the
Sub-Provider from providing services or systems to its
customers in the ordinary course of its business provided
that, in providing such services or systems, the Sub-Provider
shall ensure that it is in compliance with its obligations
under this Agreement in Clause 2.7.2 and 2.7.3 and in respect
of the Zanzibar System, PASSL Systems, PASSL Marks, PASSL
Confidential Information,, XXXxxxxxx.xxxxxxxxx Marks, the
XXXxxxxxx.xxxxxxxxx System, the XXXxxxxxx.xxxxxxxxx Website,
other XXXxxxxxx.xxxxxxxxx Material, Transaction Data,
Management Information and Transferred Deliverables.
4.7.3 The Sub-Provider may use the Zanzibar System for the provision of
demonstrations to Buying Organisations which have expressed interest
in subscribing to the Zanzibar System only with the consent of
PASSL, which consent may be conditional on PASSL attending such
demonstration (but may not otherwise be unreasonably withheld or
delayed).
4.8 SUPPORT AND TRAINING
4.8.1 The Sub-Provider shall comply with its obligations in respect of
support and training as are set out in Schedule 2.
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Final execution
5 PAYMENT
5.1 PAYMENT STRUCTURE
5.1.1 The parties shall comply with their obligations set out in the
Revenue Sharing Agreement.
5.1.2 The Sub-Provider shall maintain its rates and prices in
accordance with Schedule 4 to the Prime Agreement and the
Revenue Sharing Agreement for the duration of this Agreement and
shall otherwise comply with the provisions of Schedule 4 to the
Prime Agreement insofar as they relate to the Sub-Provider
Services as if the Sub-Provider was PASSL and PASSL was
XXXxxxxxx.xxxxxxxxx.
5.1.3 The Sub-Provider shall provide the Sub-Provider Services listed
in Schedule 4 to the Prime Agreement as part of the Prime
Services (such that PASSL is able to perform such Prime Services
on the basis set out in Schedule 4), where required to do so
pursuant to this Agreement, a Service Provision Sub-Agreement or
the Revenue Share Agreement and in consideration of the Revenue
Share.
5.2 SET-OFF
Any monies due from the Sub-Provider in accordance with this Agreement
may be recovered either by way of deduction from the Sub-Provider's
Revenue Share or as a debt due to PASSL from the Sub-Provider
5.3 INTEREST ON OVERDUE AMOUNTS
Without prejudice to the provisions of the Revenue Sharing Agreement, a
party (the "DEBTOR") shall at the request of the other party pay
interest at a rate of 4% per annum above the base rate from time to time
of Barclays Bank on all money due to that other party under this
Agreement and unpaid, calculated on the amount outstanding from the due
date up to (and including) the date of full payment, provided that the
party to whom the money is due has given the Debtor notice in writing of
the late payment and the Debtor has failed to make payment within 15
days of the date of receipt by the Debtor of such notice.
5.4 VAT
All sums payable under this Agreement (if any) shall be exclusive of
VAT, if any. If VAT is chargeable on any supply under this Agreement,
the recipient shall pay any VAT on that supply on receipt of a valid VAT
invoice.
6 CONSIDERATION
The Sub-Provider shall undertake all obligations under this Agreement in
consideration of the execution, by PASSL, of the Revenue Sharing
Agreement.
7 RECORDS AND RIGHTS OF INSPECTION
7.1 RETENTION OF RECORDS
7.1.1 Not used.
7.1.2 The Sub-Provider shall install and maintain suitable procedures
and processes to allow accurate records to be taken of the
Sub-Provider's performance ("SERVICE RECORDS"). The Sub-Provider
shall provide PASSL with such documentation and other
information as it is required to provide pursuant to Clause
8.3.1 and Schedule 2 or as may be reasonably requested by PASSL
from time to
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Final execution
time in order to verify that the Sub-Provider's performance of
the Sub-Provider Services complies with this Agreement including
the Service Levels.
7.2 RIGHTS OF INSPECTION
Upon reasonable advance written notice by PASSL and subject to Clause
7.4, the Sub-Provider shall provide to the internal and external
auditors of PASSL and XXXxxxxxx.xxxxxxxxx (collectively, the
"XXXXXXXXX.XXXXXXXXX AUDITORS"):
7.2.1 not used;
7.2.2 access at a reasonable time during normal business hours to:
(i) the Central Site (if applicable) or the premises of the
Sub-Provider at which the Sub-Provider is performing
Sub-Provider Services; and
(ii) the Service Records and supporting documentation,
relevant to the Sub-Provider Services and maintained by
the Sub-Provider under Clause 7.1.2, which may be
reasonably requested by XXXxxxxxx.xxxxxxxxx' Auditors at
the place where such records are customarily maintained
at the Sub-Provider's principal place of business or
elsewhere as appropriate;
to the extent reasonably required by PASSL or
XXXxxxxxx.xxxxxxxxx for the purpose of (i) validating that the
Sub-Provider Services are provided in accordance with the terms
of this Agreement; and (ii) determining whether the Zanzibar
System and the Prime Services comply with applicable laws and
regulations and the other requirements of PASSL under the Prime
Agreement and the Sub-Provider under this Agreement.
7.3 NOT USED.
7.4 REQUIREMENTS OF PASSL
7.4.1 PASSL shall use reasonable endeavours to procure that
XXXxxxxxx.xxxxxxxxx shall procure that all XXXxxxxxx.xxxxxxxxx
Auditors undertake to keep the confidential information of the
Sub-Provider confidential prior to commencing audit or
inspection pursuant to this Clause 7.
7.4.2 PASSL shall use reasonable endeavours to procure that
XXXxxxxxx.xxxxxxxxx shall provide the Sub-Provider with a
reasonable time period to complete the requests of the auditors
and examiners pursuant to this Clause 7.
7.4.3 PASSL shall provide the Sub-Provider with a copy of the results
from any audit conducted pursuant to this Clause 7 upon the
Sub-Provider's request and where (where applicable)
XXXxxxxxx.xxxxxxxxx has made a copy of such results available to
PASSL under the terms of the Prime Agreement.
7.4.4 PASSL shall use reasonable endeavours to ensure that any
XXXxxxxxx.xxxxxxxxx Auditor causes the minimum amount of
disruption and disturbance to the business of the Sub-Provider
in conducting any audit pursuant to this Agreement.
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Final execution
8 CONTRACT MANAGEMENT
8.1 CONTRACT MANAGERS
8.1.1 GENERAL
The principal point of contact between PASSL and the
Sub-Provider will be the person designated by the Sub-Provider
as the Sub-Provider's Contract Manager and the person designated
by PASSL as PASSL's Contract Manager. The Sub-Provider's
Contract Manager and PASSL's Contract Manager as at the
Commencement Date are identified in Schedule 2.
8.1.2 VARIATION OF CONTRACT MANAGER
Either party may replace its Contract Manager at any time by
written notice to the other party, provided that if either party
needs to replace its Contract Manager at any time, it must,
prior to engaging an individual to serve as its Contract
Manager:
(i) ensure the individual has appropriate ability and
qualifications;
(ii) notify the other party of its intention to appoint that
individual;
(iii) introduce the individual to appropriate representatives
of the other party;
(iv) provide the other party with a curriculum vitae and any
other information about the individual reasonably
requested by the other party; and
(v) in good faith take into consideration the comments of
that other party.
8.1.3 AUTHORITY OF CONTRACT MANAGERS
A party shall make available an authorised delegate where its
Contract Manager is unavailable to perform his or her
obligations under this Agreement. Neither party is bound by any
authorisation, representations, requests or statements unless
they are made in writing and are signed by that party's Contract
Manager.
8.2 KEY PERSONNEL
8.2.1 Schedule 2 contains a list of the Key Personnel whom the
Sub-Provider proposes to use to perform its obligations under
this Agreement. The Sub-Provider must use reasonable endeavours
to retain those people to provide the Sub-Provider Services
during the term of this Agreement (or such lesser period as is
set out in Schedule 2).
8.2.2 The Sub-Provider shall advise PASSL if any of the people
specified in Schedule 2 cease to be available to work in the
provision of the Sub-Provider Services under this Agreement.
With that notification shall be details of the proposed
replacement for the Key Personnel, who shall be a person of
appropriate ability, experience and qualifications and who on
appointment shall be deemed to be a Key Personnel for the
purposes of this Clause 8.2. If at any time PASSL or
XXXxxxxxx.xxxxxxxxx reasonably and in good faith objects to the
appointment of any of the Key Personnel, the Sub-Provider shall
consult with PASSL and (if required by PASSL)
XXXxxxxxx.xxxxxxxxx and in good faith consider the objection.
8.2.3 If:
(i) PASSL determines, acting reasonably, that the
Sub-Provider's employees (including the Key Personnel)
detrimentally affect the Sub-Provider Services or Prime
Services, are not
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conducive to the proper performance of the Sub-Provider
Services or Prime Services or are disruptive to PASSL or
XXXxxxxxx.xxxxxxxxx' business; or
(ii) any employees (including the Key Personnel) of the
Sub-Provider are reasonably suspected by PASSL or
XXXxxxxxx.xxxxxxxxx of any criminal activity, including
but not limited to fraud or theft,
PASSL may request that the Sub-Provider not use such employee in
connection with the provision of the Sub-Provider Services or
the performance of obligations under this Agreement and replace
that person with a qualified individual. Upon such request the
Sub-Provider shall promptly investigate the cause of PASSL or
XXXxxxxxx.xxxxxxxxx' complaint, in good faith, and if found to
be valid, will not use that person in connection with the
provision of the Sub-Provider Services or the performance of its
obligations and shall replace that person within a reasonable
time period of PASSL's request. Nothing in this Clause 8.2
requires the Sub-Provider to terminate the employment of any
employee.
8.3 PERFORMANCE MONITORING AND REPORTING
8.3.1 MONTHLY REPORTS
(i) The Sub-Provider shall no later than five (5) Business
Days after the end of each Month provide PASSL with:
(a) such documentation and other information as
PASSL requires to comply with its reporting
obligations in connection with Schedules 10 and
17 to the Prime Agreement; and
(b) such documentation and other information as may
be agreed between the parties from time to time
to enable PASSL to monitor the Sub-Provider's
performance of the Sub-Provider Services and
issues arising in connection with the provision
of the Sub- Provider Services.
(c) such other information and documentation
relating to the Sub-Provider and/or the
Sub-Provider Services as PASSL may reasonably
require.
8.3.2 MANAGEMENT MEETINGS
(i) The Sub-Provider's Contract Manager or the relevant
delegate shall attend each of the Prime Agreement
Management Meetings or other meetings between
XXXxxxxxx.xxxxxxxxx and PASSL in respect of which their
attendance is required by either PASSL or
XXXxxxxxx.xxxxxxxxx.
(ii) The Sub-Provider's Contract Manager and the PASSL
Contract Manager or their respective delegates shall
attend each of the Sub-Framework Management Meetings and
shall meet as often as may reasonably be requested by
PASSL to review the performance of the parties under
this Agreement or to discuss any issues arising in
connection with this Agreement.
8.3.3 XXXxxxxxx.xxxxxxxxx and PASSL are due, under the terms of the
Prime Agreement to procure that their respective contract
managers and two of their senior representatives meet:
(a) every month during the first six (6) months of
the Prime Agreement; and
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(b) every quarter after the first six (6) months of
the Prime Agreement,
or such other period as agreed between PASSL and
XXXxxxxxx.xxxxxxxxx (the "PRIME AGREEMENT MANAGEMENT MEETING").
8.3.4 PASSL and the Sub-Provider shall each procure that their
respective Contract Managers and Service Managers meet:
(i) every week during the first 3 months of this Agreement;
and
(ii) every Month after the first 3 months of this Agreement;
or on such other periodic basis as agreed between PASSL and the
Sub-Provider (the "SUB-FRAMEWORK MANAGEMENT MEETING").
8.3.5 The Sub-Provider shall give PASSL at least:
(i) seven (7) Business Days' written notice of any matters
which it wants to have discussed at the next Prime
Agreement Management Meeting; and
(ii) at least five (5) Business Days' written notice of any
matters which it wants to have discussed at the next
Sub-Framework Management Meeting.
8.3.6 MINUTES OF MEETINGS
The Sub-Provider shall, unless otherwise agreed between the
parties, prepare minutes of each of the meetings between the
parties' Contract Managers pursuant to Clause 8.3.2(ii) and
supply them to PASSL within five (5) Business Days of the
meeting. Upon PASSL's acceptance of the minutes at the next
meeting they shall constitute a true record of the decisions
taken at a meeting.
8.4 CHANGE MANAGEMENT
8.4.1 Where either party wishes to make a change to any aspect of a
Sub-Provider Service or, without prejudice to the provisions of
Clause 3.1, PASSL requires an additional service (a "CHANGE")
then the provisions of Schedule 11 shall apply in respect of the
Change. All Changes shall be made in accordance with the
provisions of Schedule 11.
8.4.2 For the avoidance of doubt, PASSL shall not agree any change to
the Prime Agreement, pursuant to the Prime Agreement Change
Control Procedure, to the extent that such change would affect
the Sub-Provider's Revenue Share, without first agreeing such
change with the Sub-Provider (such agreement not to be
unreasonably withheld or delayed).
8.5 DISPUTE RESOLUTION
8.5.1 Other than where expressly stated otherwise, all disputes or
failures to agree arising out of or in relation to this
Agreement (each a "DISPUTE") shall be resolved by reference to
or application of the Dispute Resolution Procedure set out in
Schedule 12 to the Prime Agreement construed as if references to
"the Service Provider" were references to the Sub-Provider and
references to XXXxxxxxx.xxxxxxxxx were references to PASSL
provided that the lead executives shall be:
(i) for PASSL, Xxxx Xxxxxxx; and
(ii) for the Sub-Provider, Xxxxxxx Xxxx;
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Final execution
or such other executive of at least equivalent seniority as a
party may notify to the other party in writing from time to
time.
8.5.2 The Sub-Provider shall provide all such support as is reasonably
requested by PASSL in relation to the Sub-Provider, the
Sub-Provider Services or the performance of the Sub-Provider's
obligations under this Agreement in order to enable PASSL to
resolve disputes arising under the Prime Agreement or the
Service Provision Agreements in accordance with the Prime
Agreement Dispute Resolution Procedure and/or the dispute
resolution procedure set out in clause 20 of the Standard SPA
Terms and Conditions. The Sub-Provider shall participate in the
Prime Agreement Dispute Resolution Procedure and/or the dispute
resolution procedure set out in clause 20 of the Standard SPA
Terms and Conditions to the extent requested to do so by PASSL
and/or XXXxxxxxx.xxxxxxxxx and/or a Subscribing Buying
Organisation.
8.5.3 Where, in PASSL's reasonable opinion, a Dispute relates to
Revenue Share or involves one of more of the Other Material
Sub-Providers then PASSL may refer such Dispute to the Dispute
Resolution Procedure included in Schedule 3 to the Revenue
Sharing Agreement in preference to that provided for in Clause
8.5.1 above.
8.6 SATISFACTION REVIEWS AND COMPLAINT HANDLING
The Sub-Provider shall provide such co-operation and assistance as is reasonably
required by PASSL to enable PASSL to comply with its obligations contained in
Schedule 16 to the Prime Agreement and otherwise in respect of the Satisfaction
Review Plans and shall facilitate the implementation through the Prime Agreement
Change Control Procedure of continuous improvement programmes to the Zanzibar
System or services provided pursuant to the Service Provision Agreements which
are apparent from the outcome of the Satisfaction Reviews.
8.7 MARKETING
Not Used.
8.8 MANAGEMENT INFORMATION
8.8.1 The Sub-Provider shall comply with its obligations in respect of
Management Information set out in Schedule 2 during the periods
specified in Schedule 2 or (if no such period is so specified)
from the date of Acceptance of the Stage to which such
obligations relate.
8.8.2 The parties acknowledge and agree that, as between the parties
and XXXxxxxxx.xxxxxxxxx, XXXxxxxxx.xxxxxxxxx shall own all
rights in the Management Information and the Sub-Provider is
granted rights to use the Management Information solely to the
extent that PASSL is able to grant such rights and for the
purposes of enabling PASSL to fulfil its obligations under the
Service Provision Agreements and Supplier Agreements.
8.8.3 The Sub-Provider understands and agrees that XXXxxxxxx.xxxxxxxxx
may organise such Management Information into formats of its
choosing (for example, as sector spend reports) and that
XXXxxxxxx.xxxxxxxxx does and shall have complete ownership of
any such aggregated data product. The Sub-Provider assigns to
PASSL (so that PASSL may assign to XXXxxxxxx.xxxxxxxxx) all of
its right, title and interest in any Management Information and
the aggregated data product both as exist now and as may arise
in the future. The Sub-Provider shall upon demand by PASSL
execute such documents as PASSL or XXXxxxxxx.xxxxxxxxx may
reasonably provide solely to confirm or give effect to the
assignments contained within this Clause 8.8.3, and shall
provide such assistance to PASSL or XXXxxxxxx.xxxxxxxxx (at the
expense of XXXxxxxxx.xxxxxxxxx) as PASSL
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Final execution
may reasonably require in order to defend, assert or protect
XXXxxxxxx.xxxxxxxxx' interests in any of the rights, title and
interest assigned to PASSL pursuant to this Clause 8.8.3 for
assignment to XXXxxxxxx.xxxxxxxxx under the Prime Agreement. For
the avoidance of doubt the Sub-Provider shall not market, sell
or otherwise make available any Management Information or such
aggregated data to any third parties without the prior written
consent of PASSL.
9 WARRANTIES AND INDEMNITIES
9.1 GENERAL WARRANTIES
The Sub-Provider warrants, undertakes and represents to PASSL that:
(i) the Sub-Provider Services will be performed in a timely and
professional manner and in accordance with Good Industry
Practice by personnel who are suitably qualified and experienced
to perform those services;
(ii) it will (subject to Clause 4.5) perform the Sub-Provider
Services in accordance with all applicable laws and regulations;
(iii) it is duly constituted, organised and validly existing under the
laws of the country of its incorporation;
(iv) it has the legal right and full power and authority to execute
and deliver, and to exercise its rights and perform its
obligations under, this Agreement and all the documents which
are to be executed by it as envisaged by this Agreement;
(v) all corporate action required by it to authorise the execution
and delivery of, and to exercise its rights and perform its
obligations under this Agreement and all other documents which
are to be executed by it as envisaged by this Agreement has been
or will be taken; and
(vi) nothing contained in this Agreement will:
(a) result in a breach of any provision of its
constitutional documents; or
(b) result in a breach of any agreement, licence or other
instrument, order, judgment or decree of any Court,
governmental agency or regulatory body to which it is
bound; and
(vii) none of the Sub-Provider Systems, any other materials provided
by or on behalf of the Sub-Provider or its sub-contractors, or
any part of the Sub-Provider Systems (whether that part be the
Hardware, the Software, (subject to Clause 9.3.2) the Third
Party Software, the Sub-Provider Software, or any of them)
infringes nor will the use of the same by PASSL,
XXXxxxxxx.xxxxxxxxx, Suppliers, Subscribing Buying Organisations
or Other Material Sub-Contractors or its or their Affiliates and
agents as contemplated by this Agreement cause any such party to
infringe any third party's Intellectual Property Rights.
9.2 ZANZIBAR SYSTEM WARRANTIES
9.2.1 The Sub-Provider warrants, undertakes and represents to PASSL
that:
(i) the Sub-Provider Systems forming part of each Stage will
and will when combined with the other elements of that
Stage cause that Stage to comply in all material
respects with the Specification applicable to that Stage
for a period of ninety (90) days from Acceptance of that
Stage ("Warranty Period");
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(ii) without limiting any of the foregoing warranties, the
Sub-Provider Systems and every component of them shall
process dates and date-related information correctly and
without limitation shall distinguish properly between
leap years and non-leap years (and the Sub-Provider
Systems will, when combined with the other elements of
the Zanzibar System, not cause PASSL to be in breach of
the equivalent warranty which it gives in respect of the
Zanzibar System in the Prime Agreement);
(iii) the Sub-Provider Systems will comply with all applicable
laws and regulations (including, in particular, the
provisions of the Electronic Commerce (EC Directive)
Regulations 2002) in force at the date of this Agreement
(and the Sub-Provider Systems will, when combined with
the other elements of the Zanzibar System, not cause
PASSL to be in breach of the equivalent warranty which
it gives in respect of the Zanzibar System in the Prime
Agreement); and
(iv) so far as the Sub-Provider is aware no portion of the
Zanzibar System shall, at the date of the applicable
Acceptance contain any "back door", "time bomb", "Trojan
Horse", "worm", "drop dead device", "virus" or other
computer software routine intended or designed to:
(a) permit access or use of the Zanzibar System by a
third person other than as authorised by
XXXxxxxxx.xxxxxxxxx or Buying Organisations or
as envisaged under this Agreement or any Service
Provision Sub-Agreement; or
(b) disable, damage or erase, or disrupt or impair
the normal operation of, the Zanzibar System,
the PASSL Systems, the Buying Organisation
Systems, or any other software or data on
XXXxxxxxx.xxxxxxxxx' System,
(collectively referred to as "VIRUSES") and the Sub-Provider
shall use commercially available measures in accordance with
Good Industry Practice to prevent the introduction of such
Viruses into the Zanzibar System. The Sub-Provider's awareness
shall be measured for the purposes of this Clause 9.2.1(iv) by
reference to the Sub-Provider's actual knowledge at the date of
the applicable Acceptance under the Prime Agreement and to what
the Sub-Provider ought to have known had it used commercially
available measures in accordance with Good Industry Practice to
test for the presence of such Viruses at the time of delivery of
the relevant Stage to XXXxxxxxx.xxxxxxxxx.
9.2.2 Except for the Sub-Provider's warranties expressly set forth in
this Agreement, the Sub-Provider does not make any other express
or implied warranties or representations whether regarding the
performance, functionality or content of the Sub-Provider
Systems, the Sub-Provider Services or otherwise howsoever,
including implied warranties of satisfactory quality, accuracy
and fitness for a particular purpose in relation to the
Sub-Provider Systems, the Sub-Provider Services, its or their
use, or the results of its or their use and the Sub-Provider
disclaims any warranty that the Sub-Provider Systems will be
available uninterrupted or free of minor errors.
9.3 INTELLECTUAL PROPERTY INFRINGEMENTS
9.3.1 The Sub-Provider indemnifies and will keep indemnified PASSL and
its Affiliates from and against any and all Losses, they suffer
or incur arising out of or otherwise in connection with any
action or claim by a third party (being a party other than PASSL
or the Sub-Provider) against PASSL or its Affiliates,
XXXxxxxxx.xxxxxxxxx, a Buying Organisation or a Supplier
alleging that:
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(i) receipt of the Sub- Provider Services in accordance with
this Agreement or the Service Provision Sub-Agreements
or receipt of any Prime Services which correspond to
Sub-Provider Services in accordance with the Prime
Agreement, the Service Provision Agreements or the
Supplier Agreements; or
(ii) the possession or use in accordance with this Agreement,
the Prime Agreement, the Service Provision Agreements or
the Supplier Agreements, of the Sub-Provider Systems,
any other materials provided by or on behalf of the
Sub-Provider or its sub-contractors, or any part of the
Sub-Provider Systems (whether that part be the Hardware,
the Software, (subject to Clause 9.3.2) the Third Party
Software, the Sub-Provider Software, or any of them)
("SUB-PROVIDER MATERIALS");
infringes the rights (including Intellectual Property Rights) of
that or any other person.
9.3.2 The Sub-Provider shall not be required to provide any indemnity
under clause 9.3.1 in respect of any receipt, possession and/or
use of Open Source Software as part of the Sub-Provider Services
or the Sub-Provider Systems to the extent that:
(a) the provision and/or incorporation into the Sub-Provider
Systems of that software or the incorporation or
recommendation to incorporate that software into the
Zanzibar System by the Sub-Provider or its
sub-contractors is reasonable in all the circumstances
and the Sub-Provider or its sub-contractors have taken
all measures that could reasonably be expected of a
prudent supplier of services similar to the Sub-Provider
Services, and in accordance with Good Industry Practice
to establish that the use of that software in the
development, operation or use of the Sub-Provider
Services or Zanzibar System will not infringe the
Intellectual Property Rights of any third party or grant
any third party rights in the Intellectual Property of
the Zanzibar System; or
(b) PASSL has provided notification in writing that
XXXxxxxxx.xxxxxxxxx has consented in writing to the use
of the relevant Open Source Software (such consent not
to be unreasonably withheld or delayed).
9.3.3 Without limiting Clause 9.3.1, where any action or claim by a
third party (being a party other than PASSL or the Sub-Provider)
causes PASSL, XXXxxxxxx.xxxxxxxxx, any Subscribing Buying
Organisation's or any Supplier's quiet enjoyment of the
Sub-Provider Services or the Zanzibar System (where such claim
relates to the Sub-Provider Systems or Sub-Provider Materials)
or any part thereof to be disrupted or impaired, the
Sub-Provider shall at its own expense and option:
(i) procure for the benefit of PASSL, XXXxxxxxx.xxxxxxxxx,
the Subscribing Buying Organisations or the Supplier as
appropriate, the right to continue to use the
Sub-Provider Services and use and exploit the Zanzibar
System in accordance with their respective rights under
this Agreement, the Prime Agreement or the relevant
Service Provision Sub-Agreement, Service Provision
Agreement or Supplier Agreement; or
(ii) modify or replace the Sub-Provider Service or the
Sub-Provider Systems or Sub-Provider Materials forming
part of the Zanzibar System so that no further
infringement will occur, provided that the Zanzibar
System or Sub-Provider Service as so modified or
replaced continues to meet the requirements (including
the warranties) stated in this Agreement.
9.3.4 If PASSL provides the Sub-Provider with any information,
material, software or content (including the XXXxxxxxx.xxxxxxxxx
Marks) for use by the Sub-Provider in connection with the Sub
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-Provider's provision of the Sub-Provider Services but not
including the Zanzibar name ("PASSL MATERIAL") then PASSL shall
ensure (or, notwithstanding the foregoing, where such PASSL
Material originates from a third party including
XXXxxxxxx.xxxxxxxxx, use reasonable endeavours to ensure) that
the provision or use of the PASSL Material for the purposes for
which it was provided in connection with the provision of the
Sub-Provider Service does not infringe the rights (including
Intellectual Property Rights) of any third party. PASSL shall
indemnify the Sub-Provider against all losses the Sub-Provider
suffers or incurs arising out of or otherwise in connection with
any action or claim by a third party (being a party other than
PASSL or the Sub-Provider) alleging that any PASSL Material
infringes the rights (including Intellectual Property Rights) of
that or any other person.
9.3.5 The indemnities in Clauses 9.3.1 and 9.3.4 do not apply to the
extent that the relevant infringement or alleged infringement is
or was caused by:
(i) the indemnified party ("INDEMNIFIED") failing to obtain
a licence or comply with the terms of any relevant
licence or provisions applying to the use of the
relevant rights where the Indemnified has agreed to
obtain or to comply with the terms of such licence or
provisions;
(ii) the Indemnified's unauthorised modification of the
relevant material;
(iii) the Indemnified's failure to use corrections or
enhancements made available by the indemnifying party
("INDEMNIFIER") in accordance with this Agreement;
(iv) the Indemnified's use of the relevant material other
than as contemplated by this Agreement or authorised by
the Indemnifier;
(v) the Indemnified's use of the relevant material in
combination with any product or information not owned,
developed or installed by the Indemnifier (or in the
case where the Sub-Provider is the Indemnifier, its
sub-contractors, PASSL or the Other Material
Sub-Providers); or
(vi) the Indemnifier's use of any information, direction,
specification or material provided by or on behalf of
the Indemnified unless it can be shown that the
Indemnifier was negligent in such use.
10 LIABILITY
10.1 Subject to Clause 10.3 and Clause 10.4, neither party shall be liable to
the other under this Agreement, any Service Provision Sub-Agreement or
the Revenue Sharing Agreement for any:
10.1.1 loss of profits; or
10.1.2 loss of risk premium (including the risk premium referred to in
the Revenue Sharing Agreement);
10.1.3 loss of business; or
10.1.4 loss of contracts; or
10.1.5 loss of goodwill; or
10.1.6 any indirect or consequential loss or damages howsoever arising,
even if the other party has been advised of the possibility of such
damages in advance.
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10.2 Subject to Clause 10.3 and Clause 10.4:
10.2.1 (and subject further to Clause 10.2.2) the Sub-Provider's
aggregate liability under this Agreement and the Revenue Sharing
Agreement whether arising in contract, tort (including
negligence), misrepresentation (other than fraudulent
misrepresentation), breach of statutory duty or otherwise
pursuant to this Agreement, shall be limited to five million
pounds ((pound)5,000,000);
10.2.2 the Sub-Provider's aggregate liability under or in connection
with each Service Provision Sub-Agreement whether arising in
contract, tort (including negligence), misrepresentation (other
than fraudulent misrepresentation), breach of statutory duty or
otherwise pursuant to the relevant Service Provision
Sub-Agreement shall be limited to the greater of:
(i) (pound)50,000;
(ii) 150% of the total Service Provision Charges paid or
payable by the relevant Subscribing Buying Organisation
under the relevant Service Provision Agreement in the
previous one-year period; and
(iii) 150% of the total Service Provision Charges paid or
payable by the relevant Subscribing Buying Organisation
under the relevant Service Provision Agreement in the
current one-year period;
and, for the avoidance of doubt, this Clause 10.2.2 and Clause
10.2.1 shall constitute separate limits on the Sub-Provider's
liability and no liability of the Sub-Provider under this
Agreement (whether up to the limit set out in Clause 10.2.1 or
otherwise) or under any other Service Provision Sub-Agreement
(whether up to the limit set out in this Clause 10.2.2 or
otherwise) shall cause the limit on the Sub-Provider's aggregate
liability under or in connection with a particular Service
Provision Sub-Agreement to be less than that provided for by
this Clause 10.2.2; and
10.2.3 PASSL's aggregate liability under this Agreement, any and all
Service Provision Sub-Agreements and the Revenue Sharing
Agreement whether arising in contract, tort (including
negligence), misrepresentation (other than fraudulent
misrepresentation), breach of statutory duty or otherwise
pursuant to this Agreement or the Revenue Sharing Agreement,
shall be limited to the Subscription Revenue, Risk Premium or
Additional Risk Premium (each as defined in the Revenue Sharing
Agreement) paid to the Sub-Provider as Revenue Share over the 12
months preceding the default giving rise to the liability or one
hundred thousand pounds ((pound)100,000) (whichever is the
greater).
10.3 Nothing in this Agreement, any Service Provision Sub-Agreement or the
Revenue Sharing Agreement shall be deemed to exclude or limit:
10.3.1 either party's liability in respect of death or personal injury
arising as a result of that party's negligence; or
10.3.2 either party's liability in respect of breach of any obligations
implied by Section 12 of the Sale of Goods Xxx 0000 or Section 2
of the Supply of Goods and Services Xxx 0000; or
10.3.3 either party's liability in respect of any liability arising
under the indemnities contained in Clause 15 (HR Indemnity);
10.3.4 the Sub-Provider's liability in respect of any liability arising
under the indemnity in Clause 9.3.1 (Intellectual Property
Infringements) where the relevant infringement giving rise to
the liability:
(i) does not relate to Third Party Software; or
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Final execution
(ii) relates (subject, for the avoidance of doubt, to Clause
9.3.2) to Third Party Software and the relevant provider
of such Third Party Software has accepted unlimited
liability to the Sub-Provider under the terms of its
licence agreement with the Sub-Provider; or
(iii) relates (subject, for the avoidance of doubt, to Clause
9.3.2) to Third Party Software and the Sub-Provider has
failed to use its reasonable endeavours, where a
supplier providing services similar to the Sub-Provider
Services and acting in accordance with Good Industry
Practice would do so, to ensure that the liability of
the relevant Third Party Software provider is unlimited.
10.3.5 either party's liability in respect of fraud, wilful default,
illegal or unlawful acts of that party;
10.3.6 either party's liability to the extent that such limitation is
not permitted by law.
10.4 The limitations in this Clause 10 shall not apply to PASSL's obligation
to make payments in accordance with the Revenue Sharing Agreement.
10.5 For the avoidance of doubt, direct costs and expenses incurred by PASSL
or XXXxxxxxx.xxxxxxxxx (i) in respect of obtaining a replacement service
provider on termination of this Agreement under Clause 14 by PASSL or of
any Service Provision Sub-Agreement or the Prime Agreement as a result
of the default of the Sub-Provider; or (ii) where PASSL or
XXXxxxxxx.xxxxxxxxx is entitled to appoint a third party to perform the
Sub-Provider Services pursuant to Clause 3.4.5 or 3.4.6 shall not be
excluded by operation of Clause 10.1.
10.6 Subject, for the avoidance of doubt, to Clauses 10.1 and 10.2, the
Sub-Provider indemnifies and will keep indemnified PASSL and its
Affiliates from and against:
10.6.1 any and all Losses suffered or incurred by PASSL and/or its
Affiliates in connection with any action or claim by a third
party (being a party other than PASSL and the Sub-Provider)
arising out of the Sub-Provider's act or omission in the
provision of Sub-Provider Services or the performance of its
obligations under or in connection with this Agreement, the
Service Provision Sub-Agreements or any Supplier Agreement;
10.6.2 any and all losses arising out of or otherwise in connection
with the Prime Agreement, the Service Provision Agreements or
the Supplier Agreements (whether arising in contract, tort,
statutory duty or otherwise) and directly attributable to:
(i) damage caused to XXXxxxxxx.xxxxxxxxx', a Subscribing
Buying Organisation's or Supplier's existing finance or
ERP system by the negligent acts or omissions of the
Sub-Provider or its employees, agents or
sub-contractors; or
(ii) the theft of credit card or other payment details from
XXXxxxxxx.xxxxxxxxx, a Subscribing Buying Organisation
or a Supplier by the Sub-Provider or its employees,
agents or sub-contractors.
10.7 Each party shall be under a duty to use reasonable efforts to mitigate
its loss even where it is covered by an indemnity under this Agreement
provided that this shall not require the party suffering the loss to
apply unreasonable additional resource or incur unreasonable additional
expense.
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Final execution
11 TITLE AND RISK IN HARDWARE
11.1 TITLE
As between PASSL and the Sub-Provider, title in all Hardware installed
or provided in the Sub-Provider Systems by the Sub-Provider prior to or
during the term of this Agreement, either in accordance with the Change
Control Procedure, the Sub-Provider Services, general maintenance of the
Sub-Provider Systems (excluding PASSL Systems, XXXxxxxxx.xxxxxxxxx
System and Buying Organisation Systems), or otherwise will remain with
the Sub-Provider.
11.2 RISK
Risk of loss of any part of the Sub-Provider Systems, subject to Clause
15, remains with the Sub-Provider at all times during the term of this
Agreement.
12 OWNERSHIP AND LICENSING OF DELIVERABLES
12.1 OWNERSHIP
12.1.1 Nothing in this Agreement shall affect the ownership by
XXXxxxxxx.xxxxxxxxx, PASSL or the Sub-Provider of each of their
Intellectual Property Rights existing at the Commencement Date.
Without limiting the foregoing, nothing in this Agreement will
affect the Sub-Provider's ownership of the Intellectual Property
Rights in the Sub-Provider Software.
12.1.2 As between the parties and XXXxxxxxx.xxxxxxxxx,
XXXxxxxxx.xxxxxxxxx shall own all the Intellectual Property
Rights in the Transferred Deliverables, Management Information
and Transaction Data and to the extent that the relevant
Intellectual Property Rights would otherwise be owned by the
Sub-Provider, its sub-contractors or its Affiliates, the
Sub-Provider (in consideration of (pound)1) hereby assigns or in
the case of its subcontractors shall procure an assignment all
of its right, title and interest in and to such Intellectual
Property Rights subsisting in the Transferred Deliverables,
Management Information and Transaction Data (in existence now or
as may arise in future) to PASSL (so that PASSL may assign the
same to XXXxxxxxx.xxxxxxxxx), and shall upon demand by PASSL
execute such documents as PASSL or XXXxxxxxx.xxxxxxxxx may
reasonably provide solely to confirm or give effect to such
assignment.
12.1.3 Nothing in this Agreement shall be deemed to confer on the
Sub-Provider or its Affiliates any rights in respect of any
PASSL Systems, XXXxxxxxx.xxxxxxxxx Systems, XXXxxxxxx.xxxxxxxxx
Website, PASSL Marks, XXXxxxxxx.xxxxxxxxx Marks, Buying
Organisation Systems, Management Information, Transaction Data,
domain names or any other materials or works which are the
property of PASSL, the Other Material Sub-Providers,
XXXxxxxxx.xxxxxxxxx or the Subscribing Buying Organisations
other than those limited rights expressly set out in this
Agreement.
12.2 LICENSING
12.2.1 SUB-LICENCE TERMS FOR SUBSCRIBING BUYING ORGANISATIONS AND
SUPPLIERS
The Sub-Provider grants to PASSL such licence as will allow
PASSL to sub-license Subscribing Buying Organisations and
Suppliers (collectively "LICENSED USERS") on the terms set out
respectively in the Service Provision Agreements and the
Supplier Agreements.
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12.2.2 LICENCE TERMS FOR PASSL, XXXXXXXXX.XXXXXXXXX
(i) The Sub-Provider grants to PASSL (with the right to
sub-license XXXxxxxxx.xxxxxxxxx on the same terms) a
royalty-free, non-exclusive non-transferable licence for
the term of this Agreement to use the Sub-Provider
Software and the Sub-Provider Systems in connection with
the provision by PASSL or XXXxxxxxx.xxxxxxxxx of
services to Suppliers and Subscribing Buying
Organisations and/or XXXxxxxxx.xxxxxxxxx and the receipt
of such services by the Suppliers and the Subscribing
Buying Organisations and/or XXXxxxxxx.xxxxxxxxx.
(ii) the Sub-Provider hereby grants to, or shall procure the
grant to, PASSL (with the right to sub-license
XXXxxxxxx.xxxxxxxxx on the same terms), upon the release
of a copy of any Source Code to PASSL or
XXXxxxxxx.xxxxxxxxx in accordance with an Escrow
Agreement and this Agreement, or upon PASSL otherwise
becoming entitled to access and use the Source Code in
accordance with this Agreement, from the date of
termination of this Agreement by PASSL under Clause 14.2
or 14.3 and for the unexpired duration of the term of
the Prime Agreement or any extension to the Prime
Agreement, a non-exclusive, royalty-free,
non-transferable licence (including the right to
sub-license or further sub-license) to:
(a) use and maintain that Source Code and the
Software to which that Source Code relates; and
(b) permit its sub-contractors (subject to the
confidentiality restrictions set out in the
Escrow Agreement) to access, use and maintain
the relevant Source Code and the relevant
Software solely on behalf of PASSL or
XXXxxxxxx.xxxxxxxxx.
(iii) The Source Code licence provided in Clause 12.2.2(ii)
shall be granted for the sole purpose of enabling PASSL
or XXXxxxxxx.xxxxxxxxx to use the relevant Software in
accordance with the licence granted in this Clause 12.2
in order to provide (or have a third party provide) the
Prime Services to XXXxxxxxx.xxxxxxxxx under the Prime
Agreement; Subscribing Buying Organisations under the
Service Provision Agreements and Suppliers under the
Supplier Agreements (including for the avoidance of
doubt Buying Organisations and suppliers which become
Subscribing Buying Organisations and Suppliers following
the date on which the Source Code licence provided in
Clause 12.2.2(ii) becomes effective in accordance with
Clause 12.2.2(ii)) and to grant the rights to enable
XXXxxxxxx.xxxxxxxxx, the Subscribing Buying
Organisations and Suppliers to receive the benefit of
such Prime Services. The Sub-Provider agrees to ensure
that the licences in Clause 12.2.1 and Clause 12.2.2(i)
shall continue for the period of the licence in Clause
12.2.2(ii).
(iv) For the avoidance of doubt, nothing in this Agreement
shall confer on PASSL or XXXxxxxxx.xxxxxxxxx the right
to either exploit any Source Code outside of the
provision of Prime Services to XXXxxxxxx.xxxxxxxxx,
Subscribing Buying Organisations and Suppliers as
contemplated by the Prime Agreement or to transfer the
Source Code to a third party (other than a sub-licence
to XXXxxxxxx.xxxxxxxxx and/or a sub-contractor in
accordance with Clause 12.2.2(ii)).
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12.3 SUB-PROVIDER TRAINING MATERIALS
The Sub-Provider hereby grants to PASSL (with the right to sub-license
XXXxxxxxx.xxxxxxxxx on the same terms) a, non-exclusive, royalty-free,
non-transferable licence to use the Sub-Provider Training Materials and
(unless specifically stated otherwise in this Agreement) any other
Deliverables (other than Transferred Deliverables) and/or other
materials provided to PASSL or XXXxxxxxx.xxxxxxxxx by or on behalf of
the Sub-Provider in connection with this Agreement for the purposes of
PASSL or XXXxxxxxx.xxxxxxxxx' business from time to time in connection
with the provision of Prime Services to XXXxxxxxx.xxxxxxxxx, the
Suppliers and Subscribing Buying Organisations including the right to
maintain, modify and enhance the Sub-Provider Training Materials for
those purposes and to authorise third parties to do so. The duration of
the licence shall be for the term of this Agreement and for the duration
of any licence granted in accordance with Clause 12.2.2(ii).
12.4 LICENCE OF XXXXXXXXX.XXXXXXXXX SYSTEMS AND MANAGEMENT INFORMATION ETC
12.4.1 XXXxxxxxx.xxxxxxxxx has granted to PASSL a royalty-free,
non-exclusive non-transferable licence for the term of this
Agreement:
(i) to access and use the XXXxxxxxx.xxxxxxxxx Systems to the
extent such access is provided by XXXxxxxxx.xxxxxxxxx;
and
(ii) to use, copy, maintain and enhance the Management
Information and the Transaction Data or any other
materials or works which are the property of
XXXxxxxxx.xxxxxxxxx and which are generated by the PASSL
or provided to PASSL by XXXxxxxxx.xxxxxxxxx for the
purpose of providing the Prime Services;
and PASSL will pass through the benefit of such licence strictly
to the extent that it is authorised to do so by
XXXxxxxxx.xxxxxxxxx and strictly insofar as is necessary to
enable the provision by the Sub-Provider of services to PASSL as
contemplated by this Agreement and the Service Provision
Sub-Agreements and the performance by the Sub-Provider of its
obligations under this Agreement or in connection with PASSL's
performance of its obligations under the Service Provision
Agreements and the Supplier Agreements.
12.5 OWNERSHIP AND LICENCE OF XXXXXXXXX.XXXXXXXXX MARKS AND SUB-PROVIDER
MARKS
12.5.1 Title to all Intellectual Property Rights in XXXxxxxxx.xxxxxxxxx
Marks vests in XXXxxxxxx.xxxxxxxxx and its licensors. Title to
all Intellectual Property Rights in PASSL Marks rests in PASSL
and its licensors and the Sub-Provider shall obtain no interest
in XXXxxxxxx.xxxxxxxxx Marks or PASSL Marks other than the
limited licence set out in Clause 12.5.3 in respect of
XXXxxxxxx.xxxxxxxxx Marks.
12.5.2 Title to all Intellectual Property Rights in the Sub-Provider
Marks vests in the Sub-Provider and its licensors, and PASSL
shall obtain no interest in the Sub-Provider Marks.
12.5.3 XXXxxxxxx.xxxxxxxxx has granted to PASSL under the Prime
Agreement a non-exclusive and non-transferable licence for the
term of the Prime Agreement to use and copy (and to grant
sub-licences to its sub-contractors to use and copy)
XXXxxxxxx.xxxxxxxxx Marks solely in connection with the
provision of Prime Services under this Agreement in accordance
with the licensing provisions set out in Schedule 18 to the
Prime Agreement. PASSL shall pass through the benefit of such
licence strictly to the extent that it is authorised to do so by
XXXxxxxxx.xxxxxxxxx and strictly insofar as is necessary to
enable the Sub-Provider to provide the Sub-Provider Services as
contemplated by this
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Agreement. The Sub-Provider shall use XXXxxxxxx.xxxxxxxxx Marks
solely as permitted by Schedule 18 to the Prime Agreement and as
agreed in writing by PASSL (such agreement not to be
unreasonably withheld or delayed).
12.5.4 PASSL may from time to time provide notice in writing to the
Sub-Provider requiring the Sub-Provider to cease using the
XXXxxxxxx.xxxxxxxxx Marks where PASSL considers that the
Sub-Provider's use of such XXXxxxxxx.xxxxxxxxx Marks:
(i) is in breach of the terms of this Agreement or would or
may cause PASSL to be in breach of the terms of the
Prime Agreement;
(ii) would or may bring PASSL, XXXxxxxxx.xxxxxxxxx or the
XXXxxxxxx.xxxxxxxxx Marks into disrepute or otherwise
have an adverse effect on the reputation of PASSL,
XXXxxxxxx.xxxxxxxxx or the XXXxxxxxx.xxxxxxxxx Marks;
(iii) would or may have an adverse effect on the relationship
between PASSL and XXXxxxxxx.xxxxxxxxx;
and the Sub-Provider shall immediately comply with such
requirement and shall delete the XXXxxxxxx.xxxxxxxxx Marks from
its existing materials and Sub-Provider Systems where PASSL so
requires.
12.5.5 The Sub-Provider hereby grants to PASSL a non-exclusive and
non-transferable licence for the term of this Agreement to use
and copy (and to grant sub-licences to its sub-contractors to
use and copy) the Sub-Provider Marks in connection with the
provision of Prime Services under the Prime Agreement, Service
Provision Agreements and Supplier Agreements and the marketing
and advertising of the Zanzibar System and/or Prime Services
generally and amongst Buying Organisations and potential
Suppliers.
12.6 ZANZIBAR NAME AND MARKETING OF THE ZANZIBAR SYSTEM
12.6.1 Subject to Clause 12.6.2, the Sub-Provider shall not use the
Zanzibar name, or names confusingly similar to the Zanzibar
name, for purposes other than in connection with providing the
Sub-Provider Services.
12.6.2 The Sub-Provider may use the Zanzibar name as a reference and
for the marketing of the Sub-Provider's track record in the
ordinary course of its business only with the prior written
consent of PASSL (such consent not to be unreasonably withheld
or delayed). PASSL shall use all reasonable endeavours to ensure
that XXXxxxxxx.xxxxxxxxx shall provide its consent to a form of
wording to be used by the Sub-Provider in such marketing of its
track record and that such form of wording may thereafter be
used by the Sub-Provider without the need for an additional
consent to each instance of use.
12.6.3 The parties acknowledge and agree that:
(i) neither PASSL nor XXXxxxxxx.xxxxxxxxx at the date of
this Agreement owns any Intellectual Property Rights in
the Zanzibar name; and
(ii) PASSL shall not be liable for any Losses suffered by the
Sub-Provider in using the Zanzibar name.
12.6.4 The Sub-Provider shall not promote and market the Zanzibar
System (pursuant to Clause 2.7.2) or the Prime Services except
to the extent approved by PASSL in accordance with marketing
plans
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and strategies of PASSL which may be notified to the
Sub-Provider. The Sub-Provider shall provide such input and
assistance into developing and agreeing marketing plans or
strategies relating to the Zanzibar System and the Prime
Services as is reasonably requested by PASSL from time to time.
12.6.5 PASSL may from time to time provide notice in writing to the
Sub-Provider requiring the Sub-Provider to cease using the
Zanzibar name and/or promoting or marketing the Zanzibar System
and/or the Prime Services where PASSL considers that such use
and/or promotion and marketing:
(i) is in breach of the terms of this Agreement or would or
may cause PASSL to be in breach of the terms of the
Prime Agreement;
(ii) would or may bring PASSL, XXXxxxxxx.xxxxxxxxx the
Zanzibar name or the Zanzibar System into disrepute or
otherwise have an adverse effect on the reputation of
PASSL, XXXxxxxxx.xxxxxxxxx, the Zanzibar name or the
Zanzibar System;
(iii) would or may have an adverse effect on the relationship
between PASSL and XXXxxxxxx.xxxxxxxxx or any Subscribing
Buying Organisation;
and the Sub-Provider shall immediately comply with such
requirement and shall amend its use of the Zanzibar name and/or
its promotion or marketing of the Zanzibar System and/or the
Prime Services as PASSL so requires.
12.7 ESCROW
12.7.1 The Sub-Provider shall, where PASSL is required to procure or
use reasonable endeavours to procure that the Sub-Provider does
so pursuant to the Framework Agreement, (within 30 days of the
Commencement Date or by such later date as PASSL my notify the
Sub-Provider enter into and maintain an escrow agreement the
"ESCROW AGREEMENT") with the National Computing Centre ("NCC"),
XXXxxxxxx.xxxxxxxxx and PASSL on the terms set out in Schedule
21 to the Prime Agreement (subject to changes required by
XXXxxxxxx.xxxxxxxxx or the NCC and agreed by the Sub-Provider,
such agreement not to be unreasonably withheld or delayed) for
the term of this Agreement, unless PASSL agrees otherwise. The
Source Code which is the subject of such Escrow Agreement,
shall, as a minimum and without limitation to the terms of the
Escrow Agreement or the other provisions of this Agreement,
include all source code to the Sub-Provider Software. The
Sub-Provider shall comply with such additional escrow
obligations as may be included in this Agreement (including the
enhanced escrow provided for in Schedule 29). Breach of this
Clause 12.7 shall be a material breach by the Sub-Provider for
the purposes of Clause 14.3.
12.7.2 The Sub-Provider shall provide all necessary access, facilities,
resources and assistance (at its own expense) so as to enable
the NCC to carry out Integrity Testing and Full Verification (as
these terms are defined in the Escrow Agreements) of the Source
Code pursuant to the Escrow Agreement on Acceptance of each
Stage to which such Source Code relates or on any major release.
For the avoidance of doubt, the Sub-Provider shall not be
required to meet travel and subsistence expenses of the NCC in
meeting its obligations under this Clause 12.7.2.
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13 DATA PROTECTION AND FREEDOM OF INFORMATION
13.1 OWNERSHIP
As between the parties and XXXxxxxxx.xxxxxxxxx, XXXxxxxxx.xxxxxxxxx
shall own all rights and interest in Personal Data supplied by
XXXxxxxxx.xxxxxxxxx or any Supplier or Subscribing Buying Organisation
and relating to the provision of the Prime Services in whatever form or
format, and the Sub-Provider waives any interest it may otherwise have
in such Personal Data.
13.2 COMPLIANCE WITH DATA PROTECTION LEGISLATION
In performing its obligations under this Agreement, the Sub-Provider
shall comply with the Data Protection Legislation.
13.3 PROCESSING OF PERSONAL DATA
13.3.1 The Sub-Provider shall take appropriate technical and
organisational measures against the unauthorised or unlawful
processing of Personal Data and against actual loss or
destruction of, or damage to, the Personal Data, having regard
to the state of technological development, Good Industry
Practice, and the cost of implementing any measures. The
measures must ensure a level of security appropriate to the harm
that might result from unauthorised or unlawful processing or
accidental loss, destruction or damage and the nature of the
Personal Data. Without limiting the generality of the
obligations in this Clause 13.3.1, the parties acknowledge that
as at the Commencement Date the minimum measures to be taken are
as set out in Schedule 2.
13.3.2 The Sub-Provider shall:
(i) process the Personal Data under this Agreement only in
accordance with the written instructions (as may be
forwarded to the Sub-Provider by PASSL) of either PASSL,
XXXxxxxxx.xxxxxxxxx or the relevant Supplier or
Subscribing Buying Organisation, whichever is the data
controller (which, for the purposes of this Clause 13 is
as defined under Data Protection Legislation) in respect
of such Personal Data, and having regard to the
provisions of the Data Protection Legislation, or as is
required by law or any regulatory body; and
(ii) refrain from disclosing or transferring the Personal
Data except in accordance with the instructions (as may
be forwarded to the Sub-Provider by PASSL) of either
PASSL, XXXxxxxxx.xxxxxxxxx or the relevant Supplier or
Subscribing Buying Organisation, whichever is the data
controller in respect of such Personal Data, and having
regard to the provisions of the Data Protection
Legislation.
Terms and expressions having a meaning assigned to them in the Data
Protection Legislation shall have the same meaning in this Clause 13.3.
13.4 DISCLOSURE
Subject to Clause 13.2, Clause 13.3 and Clause 13.5, the Sub-Provider
may disclose the Personal Data to those of its employees and temporary
contractors and those employees and temporary contractors of any
Affiliate or approved sub-contractor of the Sub-Provider to the extent
reasonably necessary for the performance of the Sub- Provider Services.
The Sub-Provider shall ensure the reliability of any such employees and
temporary contractors who have access to the Personal Data and ensure
that such employees and temporary contractors are aware of the
Sub-Provider's obligations under this agreement and the Data
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Protection Legislation in respect of the processing and disclosure of
the Personal Data and shall ensure that such employees and temporary
contractors are notified that any unauthorised processing or disclosure
of the Personal Data may lead to disciplinary action under their
contract of employment or the termination of their engagement with the
Sub-Provider or the Sub-Provider Affiliate or approved sub-contractor as
appropriate.
13.5 DATA EXPORT/TRANSFER
13.5.1 The Sub-Provider shall not transfer from the UK any Personal
Data to any country outside the EEA (a "TRANSFER") without
PASSL's prior written consent (such consent not to be
unreasonably withheld or delayed provided that PASSL shall be
entitled to withhold such consent in the absence of written
consent to such transfer from XXXxxxxxx.xxxxxxxxx).
13.5.2 If PASSL consents to a Transfer of Personal Data, the
Sub-Provider shall ensure that the party to whom the Personal
Data is transferred shall enter into an agreement with the
Sub-Provider for the Transfer on terms which are no less onerous
than and substantially similar to the provisions of Clauses 13.1
to 13.5 and any other provisions relating to data transfer which
may be included in this Agreement and where appropriate are
substantially similar to the model clauses approved by the
European Commission as providing an adequate level of protection
for the transfer of personal data for the purposes of Article 25
of Directive 95/46/EC.
13.5.3 At the Commencement Date, PASSL has consented to the Transfer of
Personal Data to elcom, inc. in the United States of America on
the terms of the Data Processor Agreement. For the avoidance of
doubt, a breach of such Data Processor Agreement by the
Sub-Provider or elcom, inc. shall constitute a material breach
of this Agreement by the Sub-Provider and PASSL shall be
entitled to exercise any remedy available to it under this
Agreement, the Data Processor Agreement or at law in respect of
such breach or any claim or liability arising as a result of
such breach.
13.6 FREEDOM OF INFORMATION
13.6.1 The Sub-Provider shall facilitate XXXxxxxxx.xxxxxxxxx' and
Subscribing Buying Organisations' performance of their
obligations under the Freedom of Information Xxx 0000 in
relation to information held by or on behalf of the Sub-Provider
or its sub-contractors or on any elements of the Zanzibar System
in the possession or control of the Sub-Provider.
13.6.2 PASSL shall reimburse costs reasonably and necessarily incurred
by the Sub-Provider in performing its obligations under Clause
13.6.1 in the event that:
(i) the Sub-Provider is required to provide information to
XXXxxxxxx.xxxxxxxxx or a Buying Organisation or any
third party on behalf of XXXxxxxxx.xxxxxxxxx or a Buying
Organisation, which information has previously been
provided to XXXxxxxxx.xxxxxxxxx or the relevant Buying
Organisation or is otherwise available to or accessible
by XXXxxxxxx.xxxxxxxxx or the relevant Buying
Organisation through the Zanzibar System or otherwise;
or
(ii) performance of such obligation causes or would cause the
Sub-Provider to incur material expense (whether in
relation to any individual request or cumulatively over
the term of this Agreement);
provided that PASSL has itself been reimbursed by
XXXxxxxxx.xxxxxxxxx or the relevant Buying Organisation in
respect of such costs.
13.7 OFF-SHORING
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13.7.1 Subject to Clause 13.7.2, in respect of the transfer of any
information to a location outside of the United Kingdom, the
Sub-Provider shall use all reasonable endeavours to comply with
any UK Government policy on off-shoring as provided by PASSL to
the Sub-Provider from time to time.
13.7.2 The implementation of any changes to the Sub-Provider Services
resulting from any such policy provided by PASSL shall be
expressly subject to the Change Control Procedure.
14 TERM AND TERMINATION
14.1 TERM
This Agreement shall take effect from the Commencement Date and shall
continue until the Termination Date at which point it shall terminate.
For the purposes of this Agreement, the "TERMINATION DATE" shall be:
14.1.1 the date being a period of sixty (60) months from the
Commencement Date provided that PASSL has not elected to extend
the term of the Agreement pursuant to Clause 14.1.2 or Clause
14.1.3; or
14.1.2 the date being a period of seventy two (72) months from the
Commencement Date provided that:
(i) PASSL gives notice in writing more than ten (10) weeks
before the expiry of the period described in Clause
14.1.1 stating that it wishes to extend the term of this
Agreement for a further period of twelve (12) months;
and
(ii) PASSL does not elect to extend the term of the Agreement
pursuant to Clause 14.1.3; or
14.1.3 in the event that the Agreement is extended pursuant to Clause
14.1.2, the date being a period of eighty four (84) months from
the Commencement Date provided that PASSL gives notice in
writing more than ten (10) weeks before the expiry of the period
described in Clause 14.1.2 stating that it wishes to extend the
term of this Agreement for a further period of twelve (12)
months; or
14.1.4 the date upon which the Agreement terminates following either
party properly exercising its right of termination pursuant to
the terms of this Agreement; or
14.1.5 if later the end of the relevant Exit Phase;
For the avoidance of doubt, in the event that this Agreement is
reinstated under Clause 15.2.1, there may be two "Termination Dates" for
the purposes of this Agreement.
14.2 TERMINATION BY EITHER PARTY
14.2.1 Each party has the option to terminate the Agreement on
immediate notice at any time by written notice to the other if
the other:
(i) becomes unable to pay its debts;
(ii) enters into liquidation (except for the purposes of a
solvent amalgamation or reconstruction);
(iii) makes an arrangement with its creditors;
(iv) becomes subject to an administration order or an
administrator, receiver or administrative receiver is
appointed over all or any of its assets or takes or
suffers to be taken any similar action in consequence of
a debt;
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(v) ceases or threatens to cease trading or is dissolved; or
(vi) any procedure equivalent to any of the above occurs in
any other jurisdiction.
14.3 TERMINATION FOR DEFAULT
14.3.1 PASSL may terminate this Agreement immediately by written notice
to the Sub-Provider if:
(i) the Sub-Provider commits a material breach of this
Agreement, the Revenue Sharing Agreement or a Service
Provision Sub-Agreement or a series of breaches of this
Agreement, the Revenue Sharing Agreement or of the same
or different Service Provision Sub-Agreements which,
taken together, constitute a material breach, and, where
that breach is capable of remedy, fails to remedy that
breach within 30 days after being requested to do so by
or on behalf of PASSL or (where any material breach of
the Sub-Provider would or may cause PASSL to be in
breach of the Prime Agreement or one or more Service
Provision Agreements) such lesser period as may be
specified by XXXxxxxxx.xxxxxxxxx or the relevant
Subscribing Buying Organisation pursuant to the Prime
Agreement or the relevant Service Provision Agreement or
may be required by PASSL;
(ii) (without limiting Clause 14.3.1) in the event of 2 or
more Critical Service Level Default Events arising under
2 or more Service Provision Sub-Agreements in 2
consecutive Months.
For the purposes of Clause 14.3.1, any breach by the
Sub-Provider which would or may result or has resulted in a
breach of the Prime Agreement or any Service Provision Agreement
shall be deemed to be a "material breach" for the purposes of
this Agreement.
14.3.2 PASSL may additionally terminate any Service Provision
Sub-Agreement in the event of two (2) Critical Service Level
Default Events occurring under that Service Provision
Sub-Agreement in any period of six (6) months.
14.3.3 The Sub-Provider may terminate this Agreement immediately by
written notice if PASSL commits a material breach of this
Agreement or the Revenue Sharing Agreement or a series of
breaches of this Agreement or the Revenue Sharing Agreement
which, taken together, constitute a material breach, and, where
that breach is capable of remedy, fails to remedy that breach
within 30 days after being requested to do so by the
Sub-Provider.
14.4 TERMINATION BY PASSL
PASSL may terminate this Agreement immediately by written notice to the
Sub-Provider if:
14.4.1 the Sub-Provider suffers a Change of Control where the person
(or one of the persons acting in concert) acquiring or agreeing
to acquire direct or indirect control is a direct competitor of
PASSL or PACSL as listed in Schedule 32 (which Schedule 32 may
be varied by agreement between the parties from time to time
provided that the Sub-Provider shall not unreasonably withhold
its agreement to adding third parties into such Schedule 32
where they are engaged in the business of providing services of
substantially and materially similar nature and scope to the
Prime Services or any material part of them) ("DIRECT
COMPETITOR"), without the prior written consent of PASSL
provided that the right to terminate in this Clause 14.4.1 in
respect of such Change of Control in favour of a Direct
Competitor shall expire, if PASSL has not provided the
Sub-Provider with notice
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Final execution
that it intends to exercise its rights, two months from the date
on which the Sub-Provider gives PASSL written notification that
such a Change of Control has taken place;
14.4.2 the Prime Agreement is amended such that the element of the
Prime Services which corresponds to the Sub-Provider Services is
no longer required or if the Prime Agreement is suspended,
cancelled or terminated;
14.4.3 XXXxxxxxx.xxxxxxxxx or any Subscribing Buying Organisation
requires the replacement of the Sub-Provider's personnel by
reason of their lack of skills or experience or their failure to
perform or conduct themselves in accordance with the standards
expected in the Prime Agreement or any Service Provision
Agreement;
14.4.4 the Sub-Provider's personnel are denied access to or removed
from XXXxxxxxx.xxxxxxxxx' or any Subscribing Buying
Organisation's premises under the terms of the Prime Agreement
or any Service Provision Agreement.
14.4.5 PASSL is required to do so by XXXxxxxxx.xxxxxxxxx on the basis
that XXXxxxxxx.xxxxxxxxx reasonably considers that:
(i) the Sub-Provider's performance of its obligations is
unsatisfactory; or
(ii) the relationship between PASSL and Sub-Provider is
adversely affecting the relationship between PASSL and
XXXxxxxxx.xxxxxxxxx;
provided that PASSL will consult with the Sub-Provider on
becoming aware of XXXxxxxxx.xxxxxxxxx' intention to require
PASSL to terminate this Agreement and will use reasonable
endeavours either to allow the Sub-Provider to make reasonable
submissions to XXXxxxxxx.xxxxxxxxx or to make such reasonable
submissions on the Sub-Provider's behalf and, where
XXXxxxxxx.xxxxxxxxx is acting unreasonably, to contest any
requirement to terminate this Agreement through the Prime
Agreement Dispute Resolution Procedure and, where appropriate,
to allow the Sub-Provider to participate in such procedure;
14.4.6 in the event of termination of the Data Processor Agreement or
in circumstances in which PASSL is entitled to terminate the
Data Processor Agreement (and in such event, PASSL shall be
entitled to terminate this Agreement as whole or insofar as it
relates to Sub-Provider Services involving a Transfer (as
defined in Clause 13.5) of Personal Data.
14.5 TERMINATION OF PRIME CONTRACT
Notwithstanding the other provisions of this Clause 14, this Agreement
shall automatically terminate on the date of termination or expiry of
the Prime Agreement or the date of termination, expiry or novation to
XXXxxxxxx.xxxxxxxxx (or any third party other than an Affiliate of
PASSL) of the last Service Provision Agreement entered into pursuant to
the Prime Agreement (whichever is the later) unless PASSL agrees
otherwise in writing.
14.6 TERMINATION OF SERVICE PROVISION SUB-AGREEMENTS
14.6.1 Termination of this Agreement shall automatically result in the
termination of any and all Service Provision Sub-Agreements
(unless PASSL agrees otherwise by notice in writing to the
Sub-Provider within 10 Business Days of such termination).
14.6.2 In the event that PASSL has the right to terminate this
Agreement it may, in it sole discretion, elect not to terminate
this Agreement but to terminate one or more Service Provision
Sub-Agreements.
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14.7 SURVIVAL OF RIGHTS ON TERMINATION OR EXPIRY
The termination or expiry of this Agreement or any Service Provision
Sub-Agreement is without prejudice to any obligation by any party to the
other party which has accrued at the time of termination or expiry. The
obligations of each party set out in any clause intended to survive such
termination or expiry, including, in the event of termination of this
Agreement, this Clause 14.7, Clauses 1, 3.1.2, 3.1.3, 5, 9.3, 10, 12,
15.2 to 15.9, 16, 17, 18.1.2, 19 and 21 and Schedules 6 and 29 and, in
the event of termination of a Service Provision Sub-Agreement, the
provisions of such Service Provision Sub-Agreement corresponding to
clauses 1, 5.1 to 5.5, 5.9, 6.3, 6.4, 7, 12, 13.4, 13.5, 13.6, 17, 18,
20, 21, 22, 23 and 24 of the standard Service Provision Agreement set
out in Schedule 19 to the Prime Agreement, shall continue in full force
and effect notwithstanding termination or expiry of this Agreement.
14.8 CONSEQUENCES OF TERMINATION
14.8.1 The Sub-Provider shall at no additional cost to PASSL (but
subject to any consents or licences granted to the Sub-Provider
or PASSL (and the ownership of Intellectual Property Rights) in
relation to such information or data by any third party
(including Suppliers or Buying Organisations)) provide to PASSL
or any Successor Operator all the Transaction Data in an agreed
format and all copies thereof in the possession or control of
the Sub-Provider as soon as reasonably practicable following
(and in any event within 5 Business Days of) the Termination
Date. The Sub-Provider shall cease to use such data and, at the
request of PASSL, shall destroy or return all copies of such
data then in its possession.
14.8.2 Except where this Agreement expressly provides otherwise each
party shall return to the other all property of the other
(including, where the Sub-Provider is the returning party, all
property of XXXxxxxxx.xxxxxxxxx, Subscribing Buying
Organisations and Suppliers obtained by reason of this
Agreement) (including all Management Information) in its
possession or control.
14.8.3 Unless PASSL agrees otherwise, all licences granted to the
Sub-Provider by PASSL, or passed through from
XXXxxxxxx.xxxxxxxxx, any Subscribing Buying Organisations and/or
any Supplier shall automatically terminate on the Termination
Date.
15 TERMINATION ASSISTANCE
15.1 MAINTENANCE OF EXIT PLAN
The Sub-Provider shall maintain the Draft Exit Plan and those elements
of the Prime Agreement Draft Exit Plan which relate to the Sub-Provider
or the Sub-Provider Services at no cost to PASSL such that the
Sub-Provider is in compliance with the exit assistance provisions in
Schedule 2 and, in the event of termination of the Prime Agreement, that
PASSL is able to comply with its obligations set out in Schedule 14 to
the Prime Agreement and (subject to the Sub-Provider complying with the
obligations set out in Schedule 14 to the Prime Agreement insofar as
they relate to the Sub-Provider Services) so as to ensure that the Draft
Exit Plan and such elements of the Prime Agreement Draft Exit Plan are
reasonably capable from time to time of being implemented promptly. The
Draft Exit Plan or elements of it shall be implemented in the
circumstances described in Schedule 2 (and, for the avoidance of doubt,
different elements of the Draft Exit Plan may be implemented at
different times and in different Exit Plans where contemplated by
Schedule 2). The Draft Exit Plan may be revised from time to time in
accordance with Schedule 2. Schedule 2 may be revised from time to time
in accordance with the Change Control Procedure.
15.2 SCOPE OF TERMINATION ASSISTANCE
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Final execution
15.2.1 During any Exit Phase, the Sub-Provider shall perform its
obligations as stated in an Exit Plan together, in the event of
termination of the Prime Agreement, with those elements of the
Prime Agreement Exit Plan which relate to the Sub-Provider
Services. Notwithstanding the prior termination of this
Agreement, PASSL may reinstate this Agreement, solely for the
duration of the Prime Agreement Exit Phase, for the purposes of
the Sub-Provider performing Exit Phase obligations or further
Exit Phase obligations in accordance with this Agreement at any
time within 6 months of such termination of this Agreement or,
if later, from the date of any termination of the Prime
Agreement or Service Provision Agreement which relates directly
or indirectly to the termination of this Agreement.
15.2.2 Without prejudice to the provisions of an Exit Plan, the
Sub-Provider shall during the Exit Phase perform the obligations
stated in Schedule 2 and, in the event of termination of the
Prime Agreement, in Schedule 14 to the Prime Agreement Part B
insofar as they relate to the Sub-Provider Services.
15.2.3 Except as otherwise stated in an Exit Plan and (where
applicable) the Prime Agreement Exit Plan, the obligations
stated in Clauses 15.2.1 and 15.2.2 above shall be in addition
to and not in substitution for the provision of the Sub-Provider
Services and the Sub-Provider shall continue to provide the
Sub-Provider Services on the terms and conditions of this
Agreement subject to the continuation of the Revenue Sharing
Agreement.
15.3 DUE DILIGENCE
15.3.1 In order to facilitate the implementation of an Exit Plan, the
Sub-Provider shall maintain the following information in a form
that can be readily accessed and understood by PASSL,
XXXxxxxxx.xxxxxxxxx or the Successor Operator in a due diligence
process:
(i) details of current personnel used to provide the
Sub-Provider Services who may be Relevant Employees
transferring to PASSL, XXXxxxxxx.xxxxxxxxx or a
Successor Operator on termination or expiry pursuant to
Clause 15.6;
(ii) a copy of those sections of the Operations Manual which
relate solely to Transferable Hardware which is to be
purchased or obtained by PASSL or XXXxxxxxx.xxxxxxxxx
under Clause 15.5.1 or 15.5.2;
The Sub-Provider shall maintain in addition (a) details of such
other personnel used to provide the Sub-Provider Services; and
(b) the Operations Manual in a form that can be readily accessed
and understood by PASSL.
15.3.2 During the Exit Phase, PASSL, XXXxxxxxx.xxxxxxxxx or any
Successor Operator shall have the right to reasonable access to
the information which they are entitled to access as set out in
Clause 15.3.1 at reasonable times and on reasonable notice
subject to the parties' obligations pursuant to Clause 16
(Confidentiality).
15.4 COSTS
15.4.1 The costs incurred in connection with the implementation of an
Exit Plan (or the relevant elements of it) shall be dealt with
in accordance with Clause 15.4.2 except where this Agreement is
terminated by PASSL pursuant to Clause 14.2 or 14.3 or otherwise
due to a breach of this Agreement by the Sub-Provider or (or to
the extent that exit assistance relates to a replaced component)
any component is replaced under Clause 4.4A.1 due to a breach of
this Agreement by
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Final execution
the Sub-Provider, in which case the Sub-Provider shall perform
its obligations under Clauses 15.2.1 and 15.2.2 entirely at its
own cost and expense.
15.4.2 Subject to Clause 15.4.1, to the extent that an Exit Plan can be
implemented using existing resource already engaged in the
provision of the Sub-Provider Services, each party shall bear
its own costs in respect of the costs incurred in connection
with such Exit Plan. Where the Sub-Provider necessarily incurs
additional costs in the provision of assistance and services in
accordance with an agreed Exit Plan this additional work will be
chargeable according to the agreed day rates applicable to this
Agreement.
15.5 TRANSFER OF ASSETS.
PASSL may exercise any of the following options at any time during the
Exit Phase (provided that where the Exit Phase relates to a replaced
component only the rights included in this Clause 15.5 shall only be
applicable to the extent that they relate to such replaced component):
15.5.1 to purchase or to permit XXXxxxxxx.xxxxxxxxx to purchase from
the Sub-Provider at fair market value any Transferable Hardware
which is owned by the Sub-Provider and exclusively used in
connection with performing the Sub-Provider Services or the
Prime Services;
15.5.2 to obtain or permit XXXxxxxxx.xxxxxxxxx to obtain from the
Sub-Provider (where the Sub-Provider is reasonably able to do
so) at PASSL or XXXxxxxxx.xxxxxxxxx' cost an assignment,
novation or sub-lease of all leases relating to Transferable
Hardware which is exclusively used in connection with performing
the Sub-Provider Services or the Prime Services;
15.5.3 to obtain or to permit XXXxxxxxx.xxxxxxxxx to obtain from the
Sub-Provider at an agreed fair market value a perpetual,
irrevocable, non-exclusive licence (with the right to
sub-license and being transferable to XXXxxxxxx.xxxxxxxxx) to
exercise all Intellectual Property Rights in the object code in
the Sub-Provider Software and in the Sub-Provider Training
Materials throughout the United Kingdom in connection with or
for the purposes of its use or exploitation in the provision of
Prime Services to the Suppliers and Subscribing Buying
Organisations (including for the avoidance of doubt Buying
Organisations and suppliers which become Subscribing Buying
Organisations and Suppliers following the commencement of the
Exit Phase or the termination of this Agreement);
15.5.4 to obtain or to permit XXXxxxxxx.xxxxxxxxx to obtain from the
Sub-Provider (where the Sub-Provider is reasonably able to do
so) at PASSL or XXXxxxxxx.xxxxxxxxx' cost an assignment,
novation or sub-licence of all licences relating to any Third
Party Software exclusively used in connection with performing
the Sub-Provider Services in accordance with Schedule 14 to the
Prime Agreement paragraph 1.4.2;
15.5.5 to obtain or to permit XXXxxxxxx.xxxxxxxxx to obtain from the
Sub-Provider (where the Sub-Provider is reasonably able to do
so) at XXXxxxxxx.xxxxxxxxx' cost an assignment or novation of
all sub-contracts or other agreements (other than those covered
under Clauses 15.5.2, 15.5.3 and 15.5.4) which have been entered
into by the Sub-Provider exclusively for the purpose of
providing the Sub-Provider Services.
If the parties are unable to agree on the terms on which any assets,
licences or third party contracts are to be provided to PASSL or
XXXxxxxxx.xxxxxxxxx pursuant to this Clause 15.5 then the determination
of that issue will be resolved by reference to the Dispute Resolution
Procedure.
15.6 TRANSFER PROVISIONS
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Final execution
If a Transfer Event occurs, in respect of this Agreement or its
termination the following provisions shall apply in connection with such
transfer:
15.6.1 the contract of employment of a Relevant Employee (save insofar
as such contract relates to any occupational pension scheme to
the extent that occupational pension schemes are excluded from
the transfer by the Transfer Provisions, as qualified by any
related pensions legislation, or if the Relevant Employee
objects to the transfer pursuant to the Transfer Provisions)
shall be transferred to the Transferee with effect from the
Transfer Date, which shall be the "time of transfer" under the
Transfer Provisions;
15.6.2 If the Sub-Provider or any Affiliate or contractor or
sub-contractor of the Sub-Provider engaged in the Services is
the Transferor:
(i) the Sub-Provider shall, and shall procure that any Relevant
Employer that is a contractor or sub-contractor or Affiliate
of the Sub-Provider in respect of the Sub-Provider Services
shall, perform and discharge all its or their obligations as
an employer in respect of all the Relevant Employees that are
their employees for its or their own account up to and
including the Transfer Date, including, without limitation,
discharging all wages and salaries of the Relevant Employees,
all employer's contributions to any relevant occupational
pension scheme and all other costs and expenses related to
their employment (including, without limitation, any taxation,
employers' national insurance contributions, accrued holiday
pay, accrued bonus, commission or other sums payable in
respect of employment up to and including the Transfer Date)
and all obligations to inform and consult with the Relevant
Employees and/or their appropriate representatives pursuant to
the Transfer Provisions and the Sub-Provider shall indemnify
the Transferee and keep the Transferee indemnified against all
Employment Liabilities arising from any failure to discharge
such obligations, save to the extent that such Employment
Liabilities arise from the Transferee's (which for the
purposes of this sub-clause 15.6.2(i) shall not include the
Sub-Provider or any contractor or sub-contractor or Affiliate
of the Sub-Provider engaged in the Sub-Provider Services)
failure to comply with its obligations under the Transfer
Provisions, or any proposed or actual substantial change to a
Relevant Employee's terms and conditions of employment or
working conditions, proposed or made by the Transferee;
(ii) the Sub-Provider shall indemnify the Successor Operator and/or
PASSL and/or XXXxxxxxx.xxxxxxxxx and keep the Successor
Operator and/or PASSL and/or XXXxxxxxx.xxxxxxxxx indemnified
against all Employment Liabilities which relate to or arise
out of any act or omission of the Sub-Provider or any Relevant
Employer that is a contractor or sub-contractor or Affiliate
of the Sub-Provider engaged in the Sub-Provider Services
occurring prior to or on the Transfer Date which the Successor
Operator and/or PASSL and/or XXXxxxxxx.xxxxxxxxx incurs in
relation to any terms and conditions of employment, contract
of employment or collective agreement of the Relevant
Employees ("TERMS AND CONDITIONS") or the termination of
employment of any Relevant Employee, save to the extent that
such Employment Liabilities arise from the Transferee's (which
the purposes of this sub-clause 15.6.2(ii) shall not include
the Sub-Provider or any contractor or sub-contractor or
Affiliate of the Sub-Provider engaged in the Sub-Provider
Services) failure to comply with its obligations under the
Transfer Provisions or any proposed or actual substantial
change to a Relevant Employee's terms and conditions or
working conditions proposed or made by the Transferee; and;
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Final execution
(iii) PASSL shall indemnify the Sub-Provider and/or any contractor
and/or subcontractor and/or Affiliate of the Sub-Provider and
keep such persons indemnified against all Employment
Liabilities in respect of any claim, action or demand by any
person in respect of any proposed or actual substantial change
to the terms and conditions of employment or working
conditions of any Relevant Employee being made or proposed to
be made to his detriment by PASSL or any contractor or
subcontractor or Affiliate of the Sub-Provider.
15.6.3 If PASSL or XXXxxxxxx.xxxxxxxxx or any Affiliate or contractor
or sub-contractor of PASSL is the Transferor:
(i) PASSL shall, and shall procure that any Relevant
Employer shall, perform and discharge all its or their
obligations as an employer in respect of all the
Relevant Employees that are their employees for its or
their own account up to and including the Transfer Date,
including, without limitation, discharging all wages and
salaries of the Relevant Employees, all employer's
contributions to any relevant occupational pension
scheme and all other costs and expenses related to their
employment (including, without limitation, any taxation,
employers' national insurance contributions, accrued
holiday pay, accrued bonus, commission or other sums
payable in respect of employment up to and including the
Transfer Date) and all obligations to inform and consult
with the Relevant Employees and/or their appropriate
representatives pursuant to the Transfer Provisions and
PASSL shall indemnify the Transferee and keep the
Transferee indemnified against all Employment
Liabilities arising from any failure to discharge such
obligations save to the extent that such Employment
Liabilities arise from the Transferee's (which for the
purposes of this sub-clause 15.6.3(i) shall not include
PASSL or XXXxxxxxx.xxxxxxxxx or any contractor or
sub-contractor or Affiliate of PASSL engaged in the
Prime Services other than the Sub-Provider) failure to
comply with its obligations under the Transfer
Provisions, or any proposed or actual substantial change
to a Relevant Employee's terms and conditions of
employment or working conditions proposed or made by the
Sub-Provider or any contractor or subcontractor or
Affiliate of the Sub-Provider;
(ii) PASSL shall indemnify the Sub-Provider and/or any
Affiliate or contractor or subcontractor of the
Sub-Provider and keep the Sub-Provider and/or any
Affiliate and/or contractor and/or subcontractor of the
Sub-Provider indemnified against all Employment
Liabilities which relate to or arise out of any act or
omission of PASSL or any Relevant Employer occurring
prior to or on the Transfer Date which the Sub- Provider
or any contractor or subcontractor or Affiliate of the
Sub-Provider incurs in relation to any terms and
conditions of employment, contract of employment or
collective agreement of the Relevant Employees ("TERMS
AND CONDITIONS") or the termination of employment of any
Relevant Employee, save to the extent that such
Employment Liabilities arise from the Transferee's
(which the purposes of this sub-clause 15.6.3(ii) shall
not include PASSL or any contractor or sub-contractor of
PASSL engaged in the Prime Services other than the
Sub-Provider) failure to comply with its obligations
under the Transfer Provisions, or any proposed or actual
substantial change to a Relevant Employee's terms and
conditions or working conditions proposed or made by the
Sub-Provider or any contractor or subcontractor or
Affiliate of the Sub-Provider; and
(iii) the Sub-Provider shall indemnify PASSL,
XXXxxxxxx.xxxxxxxxx and any Successor Operator and keep
PASSL, XXXxxxxxx.xxxxxxxxx and any Successor Operator
indemnified
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Final execution
against all Employment Liabilities in respect of any
claim, action or demand by any person in respect of any
proposed or actual substantial change to the terms and
conditions of employment or working conditions of any
Relevant Employee being made or proposed to be made to
his detriment by the Sub-Provider or any contractor or
subcontractor or Affiliate of the Sub-Provider.
15.7 DETAILS OF EMPLOYEES
15.7.1 The Sub-Provider shall, and shall procure that any Relevant
Employer that is a contractor or sub-contractor of the
Sub-Provider in respect of the Sub-Provider Services shall,
provide, to the Successor Operator at PASSL's Contract Manager's
or PASSL's request, the information listed in Clause 15.7.2:
(i) on receipt of a request by PASSL in anticipation of or
following a Transfer Event; or
(ii) on termination or expiry of this Agreement.
15.7.2 Pursuant to Clause 15.7.1 the Sub-Provider shall, subject to any
restrictions imposed by law:
(i) provide to the Successor Operator copies of all
personnel and other records (excluding health records)
relating to the employment of any Relevant Employee who
becomes employed by the Successor Operator pursuant to
the Transfer Provisions or, where such records are held
in any electronic or electromagnetic form (including
databases stored on computer tapes or discs), paper
copies of those records; and
(ii) deliver to the Successor Operator's medical officer or
other medically qualified doctor notified by the
Successor Operator to the Sub-Provider all records,
documents and information connected directly or
indirectly with the health of any Relevant Employee who
becomes employed by the Successor Operator pursuant to
the Transfer Provisions.
15.8 ADDITIONAL EMPLOYMENT PROVISIONS
15.8.1 The Sub-Provider shall, if requested to do so by PASSL in
writing:
(i) within six (6) months before the expiry of the term; or
(ii) within ten (10) Business Days after notice of
termination of this Agreement has been given,
ensure that from the date when such request has been received by
the Sub-Provider up to the date of expiry or termination of this
Agreement:
(a) neither it nor any Relevant Employer that is a
contractor or sub-contractor or Affiliate of the
Sub-Provider in respect of the Sub-Provider
Services shall dismiss, or remove from the
provision of the Sub-Provider Services, any
employee engaged wholly or mainly in provision
of the Sub-Provider Services at that date, other
than in accordance with section 98 of the
Employment Rights Xxx 0000 and Part 1 and Part 3
of Schedule 2 of the Employment Xxx 0000 and/or
more than twenty per cent of the total number of
employees engaged wholly or mainly in provision
of the Sub-Provider Services at that date by
reason of redundancy as defined in Section 195
of TULCRA, without the prior written consent of
PASSL;
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Final execution
(b) neither it nor any Relevant Employer that is a
contractor or sub-contractor or Affiliate of the
Sub-Provider in respect of the Sub-Provider
Services shall employ any additional person to
work wholly or mainly in the provision of the
Sub-Provider Services (except to fill an
existing or subsequent vacancy), without the
prior written consent of PASSL; and
(c) no material variation shall be made to the
contracts of employment of any employee engaged
wholly or mainly in the provision of the
Sub-Provider Services, without the prior written
consent of PASSL, such consent not to be
unreasonably withheld or delayed;
provided always that where PASSL's consent is required under
this Clause 15.8 such consent shall not be unreasonably withheld
or delayed.
15.8.2 In Clause 15.6 the undertakings and indemnities given by the
Sub-Provider to the Successor Operator and/or
XXXxxxxxx.xxxxxxxxx shall be given to PASSL for itself and as
trustee for the Successor Operator and/or XXXxxxxxx.xxxxxxxxx.
15.8.3 Notwithstanding anything else to the contrary in this Agreement,
where the Sub-Provider has given a warranty, undertaking or
indemnity under Clauses 15.6 to 15.8 for the benefit of the
Successor Operator and/or XXXxxxxxx.xxxxxxxxx and/or the
Transferee, any such warranty, undertaking or indemnity can be
enforced by PASSL and/or XXXxxxxxx.xxxxxxxxx and/or the
Successor Operator against the Sub-Provider.
15.8.4 For the purposes of Clause 15.6 PASSL shall be entitled to claim
any Employment Liabilities of the Successor Operator or
XXXxxxxxx.xxxxxxxxx where PASSL has indemnified the Successor
Operator or XXXxxxxxx.xxxxxxxxx in respect of such Employment
Liabilities in substantially the same form and covering
substantially the same scope as the indemnity in Clause 15.6 and
the Successor Operator or OGCbuying..solutions sues PASSL under
such indemnity rather than suing the Sub-Provider pursuant to
Clause 15.6.
15.8.5 The Sub-Provider shall ensure that any sub-contract entered into
by the Sub-Provider to procure provision of all or any of the
Sub-Provider Services to PASSL shall contain equivalent
provisions to Clauses 15.6 to 15.8 inclusive and shall not enter
into any sub-contract which does not contain equivalent
provisions without PASSL's prior written consent.
15.8.6 Notwithstanding anything to the contrary in this Agreement,
Clauses 15.6 to 15.8 shall survive termination of this
Agreement.
15.8.7 In the event that PASSL has the right to terminate this
Agreement under Clause 14.2, Clause 14.3.1, or Clause 14.3.2 of
this Agreement and/or this Agreement terminates under Clause
14.5, the Sub-Provider shall use its reasonable endeavours to
ensure that such Key Personnel as are requested by PASSL are
made available to PASSL and/or XXXxxxxxx.xxxxxxxxx for the
continued provision of services corresponding to the
Sub-Provider Services by PASSL, XXXxxxxxx.xxxxxxxxx or a
Successor Operator after termination and at the cost of PASSL.
15.9 CONDUCT OF CLAIMS
If one party (the "CLAIMING PARTY") becomes aware of any matter that may
give rise to a claim by that party against the other under an indemnity
given under this Agreement, the following provisions shall apply:
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Final execution
15.9.1 the Claiming Party shall give notice of any such matter or claim
as soon as reasonably practicable to the other party and in any
event within five Business Days of becoming aware of such matter
or claim.
15.9.2 the Claiming Party agrees that:
(i) no admissions of liability shall be made by or on behalf
of the Claiming Party;
(ii) control of the defence and/or settlement of the claim
shall be carried out, subject to the provisions of the
Revenue Sharing Agreement, following reasonable
discussion between the Claiming Party and the other
party unless the Claiming Party fails to make itself
available for such discussion in such time as to ensure
that such discussions does not prejudice the other
party's ability to defend the claim within any
applicable timetable. However, except where the Revenue
Sharing Agreement provides otherwise, the final decision
on any matter concerning the conduct of the claim or its
settlement shall be made by the other party.
15.9.3 the Claiming Party shall give all reasonable assistance to the
other party, subject to the payment of reasonable costs and
expenses in connection with the claim, including, subject to any
restrictions imposed by law, giving access to relevant personnel
and information held by the Claiming Party.
15.9.4 The provisions of this Clause 15.9 shall apply to the conduct of
any claim in respect of any indemnity provided pursuant to this
Agreement and the relevant indemnity shall not apply to any loss
to the extent it is caused by failure of the Claiming Party to
comply with this Clause 15.9.
16 CONFIDENTIALITY
16.1 ACKNOWLEDGEMENT
16.1.1 Each party acknowledges that, in performing its obligations
under this Agreement, it may acquire Confidential Information of
the other party.
16.1.2 The Receiving Party acknowledges that the Confidential
Information includes information of the Disclosing Party or its
customers which is strategic, commercially sensitive or valuable
and will cause serious damage and loss to the Disclosing Party
if it is improperly disclosed or used.
16.1.3 Subject to Clause 16.5, the Receiving Party must keep the
Confidential Information of the Disclosing Party secret and
confidential and must not disclose any part of the Confidential
Information to any person other than to those of its employees
or sub-contractors who require access to the Confidential
Information in order to perform its obligations or exercise its
rights under this Agreement, and then only on a confidential
basis with the prior approval of the Disclosing Party.
16.1.4 Where the Receiving Party discloses Confidential Information of
the Disclosing Party to a sub-contractor it shall, at the
Disclosing Party's request, ensure that the sub-contractor
enters into a confidentiality agreement with the Receiving Party
on substantially the same terms as this Clause 16.
16.1.5 Where PASSL or XXXxxxxxx.xxxxxxxxx is entitled to disclose
Confidential Information of the Sub-Provider to a Successor
Operator pursuant to the terms of this Agreement (including
Source Code pursuant to the Escrow Agreement entered into
pursuant to Clause 12.5), then such disclosure shall be on terms
of confidentiality no less onerous than those set out in this
Clause 16.
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Final execution
16.2 NO USE OF CONFIDENTIAL INFORMATION
16.2.1 Subject to Clause 16.5, the Receiving Party must not, and must
ensure that none of its employees or sub-contractors will, use
Confidential Information except in connection with the
performance of its obligations or exercise of its rights under
this Agreement.
16.2.2 The Receiving Party is liable to the Disclosing Party for any
misuse of Confidential Information by its employees or
sub-contractors.
16.2.3 The Sub-Provider must ensure that, prior to removing any
Hardware or other equipment (including legacy equipment) from
the Central Site, it notifies PASSL of such planned removal and
that data of XXXxxxxxx.xxxxxxxxx and XXXxxxxxx.xxxxxxxxx
Confidential Information is, at PASSL's request, permanently
deleted from that Hardware or equipment. The Sub-Provider shall
not undertake any such removal unless PASSL has confirmed
whether or not such permanent deletion is required.
16.3 PERIOD OF OBLIGATIONS
Notwithstanding termination of this Agreement, the Receiving Party's
obligations under this Clause 16 continue with respect to any part of
the Confidential Information until that part passes into the public
domain, other than directly or indirectly as a result of, or in
connection with, any act or default of the Receiving Party or any of its
employees.
16.4 EFFECT OF TERMINATION
On termination of this Agreement for any reason whatsoever the Receiving
Party must, subject to Clause 16.5:
16.4.1 supply to the Disclosing Party, delete or destroy all documents,
reports, notes, memoranda, computer media and other material
which record or contain the Disclosing Party's Confidential
Information (including all copies of them) which are in the
Receiving Party's possession, custody or control, whether made
by XXXxxxxxx.xxxxxxxxx, PASSL, the Sub-Provider or otherwise;
16.4.2 on request of the Disclosing Party delete entirely and
permanently all of the Disclosing Party's Confidential
Information from every computer disk or electronic storage
facility of any type owned or used by the Receiving Party; and
16.4.3 cease to make use of, and make no further disclosure of, the
Disclosing Party's Confidential Information or any part of it,
and must confirm in writing promptly when it has complied with these
obligations.
16.5 EXCEPTIONS
This Clause 16 shall not apply to:
16.5.1 any information which is, or becomes generally available to, the
public other than as a result of a breach of this Clause 16;
16.5.2 any information which is acquired from a third party who owes no
obligation of confidence to the Disclosing Party in respect of
that information, where the use or disclosure accords with
rights lawfully granted by that third party;
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Final execution
16.5.3 any information which is independently developed by the
Receiving Party without the use of the Confidential Information;
16.5.4 the disclosure of any information which the Receiving Party is
required by law or any competent regulatory or taxation
authority to disclose, provided always that the Receiving Party
shall, to the extent reasonably possible whilst complying with
the relevant law or regulation, have notified the Disclosing
Party of such requirement prior to any such disclosure and
provided the Disclosing Party with a reasonable opportunity to
contend the requirement to disclose the information or to limit
the extent of the disclosure;
16.5.5 any information which is already known by the Receiving Party at
the time of its receipt (as evidenced by its written records);
or
16.5.6 any information which PASSL provides to XXXxxxxxx.xxxxxxxxx or
Buying Organisations in connection with the Prime Agreement or
any Service Provision Agreement provided that PASSL uses
reasonable endeavours to procure that such disclosure is on
terms the same as or substantially similar to those included in
the Prime Agreement and Service Provision Agreement (where such
Buying Organisation enters into a Service Provision Agreement);
16.5.7 any information disclosed by XXXxxxxxx.xxxxxxxxx or Buying
Organisations in connection with the Freedom of Information Xxx
0000.
17 NON-SOLICITATION
17.1 OBLIGATION
Except as expressly permitted by this Agreement, neither party shall
(other than in circumstances where this Agreement is terminated and
PASSL is entitled to a release of or access to the Source Code pursuant
to Clause 12.2.2) without the written consent of the other party (such
consent not to be unreasonably withheld or delayed):
17.1.1 at any time during the term of this Agreement, or for one year
after termination of this Agreement, solicit or endeavour to
entice away from or discourage from being employed or hired by
the other party any person who is at that time or was at any
time in the previous six (6) months an employee, consultant or
secondee of the other party engaged wholly or primarily in the
provision of the Zanzibar System or the Sub-Provider Services or
Prime Services, the management of the relationship with the
other party or the marketing, promotion, development,
implementation or adoption of the Zanzibar System; and
17.1.2 at any time during the term of this Agreement, or for one year
after termination of this Agreement, employ or attempt to employ
or hire or attempt to hire the services of as a consultant or
otherwise any person who is at that time or was at any time in
the previous six (6) months an employee, consultant or secondee
of other party engaged wholly or primarily in the provision of
the Zanzibar System or the Sub-Provider Services or Prime
Services or the marketing, promotion, development,
implementation or adoption of the Zanzibar System.
The restrictions set out in Clauses 17.1.1 and 17.1.2 shall not apply to
applications received in response to a public advertisement or to the
employment of any Relevant Employee pursuant to the Transfer Provisions.
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Final execution
17.2 CONSTRUCTION OF CLAUSE
Each of Clauses 17.1.1 and 17.1.2 will be taken to constitute a separate
obligation and will be construed independently of each other.
18 ASSIGNMENT AND SUB-CONTRACTING
18.1 ASSIGNMENT OR NOVATION
18.1.1 Subject to Clause 18.1.2, neither party shall be entitled to and
each party shall not assign, novate or otherwise transfer this
Agreement, in whole or in part, without the other party's prior
written consent (such consent not to be unreasonably withheld or
delayed).
18.1.2 In the event of a termination of the Prime Agreement, PASSL
shall be entitled where XXXxxxxxx.xxxxxxxxx requires it to do
so) to require the Sub-Provider to accept a novation or
assignment of the rights and future obligations of PASSL under
this Agreement and the Service Provision Sub-Agreements to a
third party. The Sub-Provider shall, at its own expense, execute
all such documents as are necessary to give effect to such a
novation or assignment.
18.2 SUB-CONTRACTING
18.2.1 The Sub-Provider must not, without PASSL's prior written consent
(such consent not to be unreasonably withheld or delayed),
sub-contract any of its rights and obligations under this
Agreement, the Service Provision Sub-Agreements or in connection
with the Supplier Agreement.
18.2.2 PASSL's consent to any such sub-contracting will not relieve the
Sub-Provider of its obligations to PASSL under this Agreement,
any Service Provision Sub-Agreement or in connection with the
Supplier Agreement and the Sub-Provider shall be fully
responsible to PASSL for the acts or omissions of its
contractors and their employees.
18.2.3 For the purposes of Clause 18.2.1, sub-contractors shall not
include individual contract staff whether hired on an individual
basis or through an agency where the Sub-Provider exercises
direction and control over the work of such contract staff.
PASSL's consent is not required in relation to the Sub-Provider
hiring such contract staff, provided that the Sub-Provider shall
remain liable to PASSL in respect of such contract staff.
18.2.4 If PASSL at any time reasonably considers that:
(i) a sub-contractor's performance of its obligations is
unsatisfactory; or
(ii) the relationship between PASSL and the sub-contractor is
adversely affecting the relationship between PASSL and
the Sub-Provider;
then PASSL may require the parties to meet to discuss PASSL's
concerns. If PASSL is not satisfied (in its sole and absolute
discretion) with the result of that meeting then it may, at any
time thereafter, by notice request the Sub-Provider to terminate
the Sub-Provider's contract with the sub-contractor and any
dispute as to whether such contract should be terminated will be
referred to the Dispute Resolution Procedure.
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19 INSURANCE
19.1 TYPES OF INSURANCE
19.1.1 Without limiting the Sub-Provider's obligations under this
Agreement and subject to Clause 19.3, the Sub-Provider shall:
(i) have in force and maintain with a reputable insurance
company for the term of this Agreement the insurance
stated in Schedule 15;
(ii) (subject to Clause 19.1.2) increase such insurance in
line with Schedule 15, such that the increased insurance
is in place from the beginning of the Month following
the Month in which the event specified in Schedule 15 as
giving rise to the obligation to increase such insurance
(INSURANCE EVENT") occurred (and thereafter have in
force and maintain such insurance in accordance with
Clause 19.1.1(i)).
19.1.2 Notwithstanding Clause 19.1.1(ii) the Sub-Provider shall not be
obliged to increase its insurance pursuant to Clause 19.1.1(ii)
unless and until it is receiving Revenue Share derived from
Annual Subscription Charges (as defined in Schedule 4 to the
Prime Agreement) and, in the event that an Insurance Event
occurs prior to such receipt of Revenue Share by the
Sub-Provider, the obligation to have such increased insurance in
place will apply from the Month following the Sub-Provider's
receipt of such Revenue Share.
19.1.3 Notwithstanding Clause 19.1.1(ii) or Clause 19.3, the
Sub-Provider shall not be obliged to increase solely that
element of its insurance coverage which relates to claims for
the infringement of Intellectual Property Rights ("IPR Claims
Insurance") if that increased coverage is not available to the
Sub-Provider in the insurance market at commercially reasonable
rates, provided that the Sub-Provider:
(i) gives notice to PASSL that such IPR Claims Insurance is
not available in accordance with this Clause 19.1.3 at
commercially reasonable rates, giving all such details
as PASSL may reasonably request;
(ii) reimburses PASSL to the extent that PASSL takes out
additional insurance to cover the lack of an increase in
such IPR Claims Insurance of the Sub-Provider and the
costs of such insurance taken out by PASSL are at
commercially reasonable rates.
For the avoidance of doubt, this Clause 19.1.3 shall not affect
any obligation of the Sub-Provider to increase its professional
indemnity insurance generally, including errors and omissions
coverage.
19.2 EVIDENCE
On request by PASSL the Sub-Provider must produce to PASSL reasonable
evidence that the Sub-Provider has complied with and continues to comply
with its obligations under this Clause 19 including a broker's letter in
a form satisfactory to PASSL confirming the extent of the Sub-Provider's
insurance and copies of the relevant insurance policies. On the renewal
of each insurance policy, the Sub-Provider shall send a copy of each
policy as renewed such that the Sub-Provider continues to comply with
its obligations under this Clause 19 together with a copy of the premium
receipt to PASSL for each such renewed policy or other appropriate
evidence that payment has been made.
19.3 REVIEW OF INSURANCE
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PASSL shall be entitled to review the level of the Sub-Provider's
insurance required under this Agreement every 12 months from the
Commencement Date based on the scope of the Sub-Provider Services, any
increase in the Sub-Provider's liability under Clause 10 and any
increase in the number of Service Provision Agreements executed by
PASSL. PASSL may (subject to Clause 19.1.3) reasonably require the
Sub-Provider to increase the insurance it has in place if the level of
the Sub-Provider's potential liability or the number of Service
Provision Agreements executed by the Sub-Provider has increased such
that the Sub-Provider's existing insurance is no longer sufficient in
the reasonable view of PASSL. PASSL may reasonably require the
Sub-Provider to amend its insurance policies if the scope of the
Sub-Provider Services has changed such that the policy wording
(including any exclusions from or conditions on the relevant insurance
coverage) is no longer appropriate in the reasonable view of PASSL. The
Sub-Provider shall promptly (and in any event within 30 days or a
request by PASSL under this Clause 19.3) take out, have in force and
maintain (subject to this Clause 19.3) with a reputable insurance
company for the term of this Agreement such additional or amended
insurance as is required under this Clause 19.3.
19.4 FAILURE TO MAINTAIN INSURANCE
In the event the Sub-Provider fails to take out or maintain any of the
insurance policies or amended insurance policies required pursuant to
this Clause 19, PASSL may itself provide or arrange such insurance and
may charge the cost of such insurance, together with an administration
charge of 10% of such cost, to the Sub-Provider either by way of
deduction from the Sub-Provider's Revenue Share or by recovering the
same as a debt due to PASSL from the Sub-Provider.
19.5 CONTINUANCE OF OBLIGATION
Without prejudice to any of the Sub-Provider's obligations at law, the
Sub-Provider's obligations under this Clause 19 shall continue for the
term of this Agreement and for the period of six (6) years following the
termination of this Agreement
20 FORCE MAJEURE
20.1 FORCE MAJEURE EVENTS
No party shall be liable to any other for any failure to fulfil its
duties hereunder if and to the extent that such failure results from a
Force Majeure Event, provided that the party unable to fulfil its duties
pursuant to this Clause 20 (the "AFFECTED PARTY") shall:
20.1.1 give written notice to the other party to this Agreement (the
"OTHER PARTY") as soon as reasonably practicable upon becoming
aware of the Force Majeure Event, such notice to contain the
following information:
(i) a description of the Force Majeure Event that has
occurred;
(ii) the date from which the event has prevented or hindered
the Affected Party in the performance of its duties
hereunder;
(iii) the duties hereunder so affected; and
(iv) its best estimate of the date upon which it will be able
to resume performance of the affected duties hereunder;
and
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20.1.2 shall at all times continue to take steps in accordance with
Good Industry Practice to resume full performance of its
obligations under this Agreement; and
20.1.3 shall at all times use all reasonable endeavours to mitigate the
consequences of the Force Majeure Event,
and the relief from liability under this Clause 20 shall last for the
duration of the Force Majeure Event only.
20.2 CONTINGENCY PLANS
Notwithstanding the generality of Clause 20.1, the Sub-Provider shall
not be able to rely on Clause 20.1 to the extent the failure results
from a failure to provide and implement the Contingency Plans in
accordance with this Agreement.
20.3 FINANCIAL CONSEQUENCES
Notwithstanding any other provision of this Agreement, where the
provision of the Sub-Provider Services is prevented or materially
affected by a Force Majeure Event, then the Sub-Provider's recovery of
Revenue Share under the Revenue Sharing Agreement shall be suspended
until the Sub-Provider resumes full performance of that Sub-Provider
Services or part thereof in accordance with this Agreement.
20.4 TERMINATION
If an Affected Party is excused under this Clause 20 from the
performance of any material obligation under this Agreement and, such
excusing of the Affected Party has a material adverse impact on the
provision of the Sub-Provider Services for a continuous period of 60
days, then the Other Party may at any time thereafter, and provided
performance or punctual performance by the Affected Party is still
excused, terminate this Agreement by notice to the Affected Party where
the provision of the Sub-Provider Services is substantially impaired.
21 GENERAL
21.1 NOTICES
21.1.1 Any communication or notice given pursuant to this Agreement
shall be in writing and shall be delivered by hand or sent by
facsimile or sent by first-class registered or recorded delivery
post within the United Kingdom or by registered airmail post
outside the United Kingdom to the address of the relevant party
as follows or to any other address as any party may notify for
the purposes of this Clause:
(i) in the case of PASSL:
PA Shared Services Limited
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Copied to the Senior Legal Advisor, PA Group
(ii) in the case of the Sub-Provider:
Elcom Systems Limited
0-0 Xxxxxxxx Xxxx
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Xxxxxxxxx
Xxxxxxxxx XX00 0XX
21.1.2 Any communication or notice pursuant to Clause 21.1.1 shall be
deemed to have been received and served:
(i) if hand-delivered, at the time of delivery;
(ii) if sent by facsimile, at the completion of transmission
during business hours at its destination or if not
within business hours at the opening of business hours
at its destination on the next Business Day and on:
(a) proof by the sender that it holds a printed
record confirming dispatch of the transmitted
notice to the addressee; and
(b) dispatch of the notice by post in accordance
with Clause 21.1.1 on the same day as its
transmission; and
(iii) if sent by post, within forty-eight (48) hours of
posting (exclusive of the hours of Sunday).
21.1.3 For the purpose of Clause 21.1.2 "business hours" means between
09.00 and 17.30 on a Business Day.
21.2 ENTIRE AGREEMENT
This Agreement and the Data Processor Agreement constitute the entire
agreement between the parties with respect to its subject matter and (to
the extent permissible by law) supersede all prior representations,
writings, negotiations or understandings with respect to that subject
matter, provided that neither party is attempting to exclude any
liability for fraudulent statements (including fraudulent
pre-contractual misrepresentations on which the other party can be shown
to have relied).
21.3 AMENDMENT
No variation of this Agreement (or of any of the documents referred to
in this Agreement) shall be valid unless it is in writing and signed by
or on behalf of each of the parties to it. The expression "variation"
shall include any variation, supplement, deletion or replacement however
effected. For the avoidance of doubt, an amendment to the Revenue
Sharing Agreement shall not effect an automatic variation to this
Agreement unless such variation to this Agreement has been specifically
agreed by the parties in writing in accordance with this Clause 21.3.
21.4 WAIVER
No failure to exercise nor any delay in exercising any right, power or
remedy by a party operates as a waiver. A single or partial exercise of
any right, power or remedy does not preclude any other or further
exercise of that or any other right, power or remedy. A waiver is not
valid or binding on the party granting that waiver unless made in
writing.
21.5 REMEDIES CUMULATIVE
Except where this Agreement provides otherwise, the rights, powers and
remedies provided to the parties in this Agreement are in addition to,
and do not exclude or limit, any right, power or remedy provided by law
or equity or by any agreement between the parties.
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21.6 INDEPENDENT CONTRACTOR
21.6.1 This Agreement does not set up or create an employer/employee
relationship, partnership of any kind, an association or trust
between the parties, each party being individually responsible
only for its obligations as set out in this Agreement and in
addition the parties agree that their relationship is one of
independent contractors. Save to the extent to which a party is
specifically authorised in writing in advance by the other party,
neither party is authorised or empowered to act as agent for the
other for any purpose and neither party shall on behalf of the
other enter into any contract, warranty or representation as to
any matter. Neither party will be bound by the acts or conduct of
the other, save for acts or conduct which the first party
specifically authorises in writing in advance.
21.6.2 The Sub-Provider is, and shall ensure that its permitted
sub-contractors shall be, responsible for all liability whatever,
whether arising at common law or by virtue of any statute,
relating to worker's compensation or employer's liability in
respect of its employees.
21.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which is an original but
all of which together constitute one and the same instrument.
21.8 INVALIDITY
If any provision in or any part of this Agreement shall be found to be
illegal or unenforceable under any enactment or rule of law then that
provision or part shall to that extent be deemed not to form part of this
Agreement and the remaining provisions shall continue in full force and
effect.
21.9 COSTS
Except as stated otherwise in this Agreement, each party shall bear its
own costs arising out of the negotiation, preparation and execution of
this Agreement.
21.10 FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds, instruments,
transfers or other documents as may be necessary or desirable to give full
effect to the provisions of this Agreement and the transactions
contemplated by it.
21.11 THIRD PARTY RIGHTS
The Contracts (Rights of Third Parties) Xxx 0000 shall apply to the
following provisions of this Agreement which benefit or grant rights to
XXXxxxxxx.xxxxxxxxx, a Successor Operator or Transferee or a contractor,
subcontractor or Affiliate of PASSL: Clauses 3.1.2(iv) (including the
provisions of each Service Provision Sub-Agreement corresponding to clause
23 of the relevant Service Provision Agreement) and 15.8.3. Such
provisions shall be enforceable by XXXxxxxxx.xxxxxxxxx, the Successor
Operator or Transferee or the contractor, subcontractor or Affiliate of
PASSL as appropriate in each case as though it were party to this
Agreement. Notwithstanding the foregoing, PASSL and the Sub-Provider shall
be entitled to vary this Agreement in accordance with Clause 21.3 and to
terminate this Agreement in accordance with its terms without the consent
of XXXxxxxxx.xxxxxxxxx, a Successor Operator or Transferee or any
contractor, subcontractor or Affiliates of PASSL.
Except in the case of Affiliates of PASSL, this contract does not
otherwise create any rights in any other entities for the purposes of the
Contracts (Rights of Third Parties) Xxx 0000 and no third party shall
otherwise have any rights under this Agreement. Affiliates of PASSL may
enforce any term of this
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Agreement which expressly or by implication confers a benefit upon them
provided that the parties shall be entitled to vary or terminate this
Agreement without the consent of any such Affiliate.
21.12 GOVERNING LAW
The construction, validity and performance of this Agreement and the
transactions contemplated by it shall be governed by the laws of England
and, each party submits to the exclusive jurisdiction of the English
courts.
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IN WITNESS WHEREOF THIS AGREEMENT HAS BEEN EXECUTED THE DAY AND YEAR FIRST
WRITTEN ABOVE.
Final execution
SIGNED for and on behalf of PA SHARED )
SERVICES LIMITED by: )
Xxxxx Xxxxxxx ) /s/ Xxxxx Xxxxxxx
------------------------------ ) -----------------------------
Print Name and Title
SIGNED for and on behalf of ELCOM )
SYSTEMS LIMITED by: )
Xxxxxx X. Xxxxxxx ) /s/ Xxxxxx X. Xxxxxxx
------------------------------ ) -----------------------------
Print Name and Title
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SCHEDULE 1
DEFINITIONS AND INTERPRETATION
1 DEFINITIONS
The following definitions apply unless the context requires otherwise:
"@UK" means the sub-contractor of PASSL described as such in Schedule 13
to the Prime Agreement;
"ACCEPTANCE" means the date on which XXXxxxxxx.xxxxxxxxx notifies PASSL
that the relevant Stage has been accepted or the date on which the
relevant Stage is deemed accepted in either case in accordance with the
Prime Agreement;
"ACCEPTANCE CRITERIA" means the specific reasonable and objective criteria
agreed in advance in accordance with Schedule 5 to the Prime Agreement
(Acceptance) by PASSL and XXXxxxxxx.xxxxxxxxx, which XXXxxxxxx.xxxxxxxxx
shall use to determine the extent to which each Stage complies with the
Specification applicable to that Stage set out in Schedule 2 to the Prime
Agreement and the terms of the Prime Agreement;
"ACCEPTANCE TESTS" means the acceptance tests agreed in writing between
PASSL and XXXxxxxxx.xxxxxxxxx in accordance with Schedule 5 to the Prime
Agreement (Acceptance) for the purpose of testing each Stage against the
Specification and the Acceptance Criteria applicable to that Stage;
"ADDITIONAL SERVICES" means such services as may be added from time to
time to the scope or extent of the Prime Services under any Service
Provision Agreement or the Prime Agreement pursuant to the terms of such
Service Provision Agreement or the Prime Agreement;
"ADDITIONAL SERVICE ORDER" means an agreement to provide Additional
Services pursuant to the Prime Agreement or a Service Provision Agreement;
"AFFILIATE" means in relation to a company, any holding company,
subsidiary, subsidiary undertaking or fellow subsidiary or subsidiary
undertaking or any other subsidiaries or subsidiary undertakings of any
such holding company. For the purposes of this definition the words
"subsidiary" and "holding company" shall have the same meaning as in the
Companies Xxx 0000;
"BUSINESS DAY" means Monday to Friday excluding any bank or public
holidays in the United Kingdom;
"BUYING ORGANISATION" means any government department, agency or wider
public sector body in the United Kingdom;
"BUYING ORGANISATION SYSTEMS" means the software, computers, computer
terminals, computer peripherals, communications equipment and all other
computer equipment which are operated by or on behalf of any Subscribing
Buying Organisation from time to time;
"BUYING ORGANISATION USERS" means the employees and other personnel
(including agents and sub-contractors) of any Subscribing Buying
Organisation authorised in accordance with the Service Provision Agreement
to use the Zanzibar System;
"CCN" has the meaning ascribed to that term by Schedule 11;
"CENTRAL SITE" means the place where the Zanzibar System is hosted which
as at the Commencement Date is that specified in Schedule 7 to the Prime
Agreement Part D;
"CHANGE" has the meaning ascribed to that term by Clause 8.4;
i
"CHANGE CONTROL PROCEDURE" means the change control procedure stated in
Schedule 11;
"CHANGE IN LAW" means the coming into effect or repeal (without
re-enactment or consolidation) in England and Wales of any Law, or any
judgment of a relevant court of law which changes binding precedent in
England and Wales in each case after the date of this Agreement;
"CHANGE OF CONTROL" means, in relation to a party, where a person (or
persons acting in concert) acquires or agrees to acquire direct or
indirect control of (1) the material affairs of that party, (2) 50% or
more of the total voting rights conferred by all the issued shares in the
capital of that party which are ordinarily exercisable in general meeting
or (3) the composition of the main board of directors of that party. For
these purposes "PERSONS ACTING IN CONCERT", in relation to a party, means
persons who actively co-operate, pursuant to an agreement or understanding
(whether formal or informal) with a view to obtaining or consolidating
control of the things referred to above;
"COMMENCEMENT DATE" means the date of this Agreement;
"CONFIDENTIAL INFORMATION" means PASSL Confidential Information or the
Sub-Provider Confidential Information as appropriate;
"CONTINGENCY PLANS" means the plans setting out the provisions and
procedures for the recovery of the Sub-Provider Systems and the
Sub-Provider Services in the event of a disaster (being a major event that
significantly impacts the normal operation of the Prime Services or the
use of the Zanzibar System by the End Users). The Contingency Plans shall
reflect the requirements for service continuity and disaster recovery set
out in Schedule 6;
"CONTRACT MANAGEMENT TEAM" means the contract management team created by
XXXxxxxxx.xxxxxxxxx as specified in Paragraphs 12 to 15 of Schedule 22 to
the Prime Agreement;
"CONTRACT MANAGER" means in relation to a party, the person appointed by
that party under Clause 8.1 to manage that party's relationship with the
other party in connection with this Agreement. The Contract Manager of
each party as at the date of this Agreement is stated in Schedule 2.
Changes to the identity of Contract Manager shall be notified by the
relevant party to the other party by written notice;
"CONTRACT YEAR" means the period of 12 months from the Service
Commencement Date and each successive period of 12 months;
"CORE HOURS" means 08:00 to 18:00 in the United Kingdom on Business Days;
"CRITICAL SERVICE LEVEL DEFAULT EVENT" has the meaning set out in the
Service Provision Agreements;
"CUSTOMER OBLIGATIONS" means the obligations of XXXxxxxxx.xxxxxxxxx set
out in the Prime Agreement (including those set out in Schedule 22 to the
Prime Agreement);
"CUSTOMER SATISFACTION QUESTIONNAIRE" means the customer satisfaction
questionnaires to be used by the PASSL for the Satisfaction Reviews;
"DATA PROCESSOR AGREEMENT" means the agreement between PASSL, the
Sub-Provider and elcom, inc.;
"DATA PROTECTION DIRECTIVES" means the European Union Directive entitled
"Directive 95/46/EC of the European Parliament and of the Council of 24
October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data", the
European Union Directive entitled "Directive 2002/58/EC of the European
Parliament and of the Council of 12 July 2002 concerning
ii
the processing of personal data and the protection of privacy in the
electronic communications sector" and any future European Union Directives
relating to data protection;
"DATA PROTECTION LEGISLATION" means any legislation in force from time to
time which implements the Data Protection Directives and is applicable to
the provision of the Sub-Provider Services pursuant to this Agreement;
"DEBTOR" has the meaning set out in Clause 5.4;
"DELIVERABLES" means the deliverables (if any) set out in Schedule 2
together with any further deliverables agreed between the parties from
time to time via the Change Control Procedure;
"DEVELOPMENT FUND" means the fund set up and operated in accordance with
Schedule 4 to the Prime Agreement;
"DISCLOSING PARTY" means PASSL in relation to the disclosure of PASSL
Confidential Information and the Sub-Provider in relation to the
disclosure of the Sub-Provider Confidential Information;
"DISCOUNT AMOUNTS" means the amount by which PASSL agrees to reduce the
annual subscription fees payable under the Service Provision Agreements in
accordance with the mechanism set out in Schedule 4 to the Prime
Agreement;
"DISPUTE RESOLUTION PROCEDURE" means the applicable procedure for the
resolution of disputes between the parties as described in Clause 8.5;
"DRAFT EXIT PLAN" has the meaning set out in Schedule 2;
"ELCOM, INC." means elcom, inc., a Delaware corporation whose principal
place of business is at 00 Xxxxxx Xxx, Xxxxxxx, XX00000;
"EMPLOYMENT LIABILITIES" means any and all losses, liabilities (including,
without limitation, any taxation), costs (including reasonable legal costs
and disbursements), charges, expenses, damages, compensation or award
arising out of or connected with employment or the employment
relationship, or termination of employment, or termination of the
employment relationship;
"END USER" means an individual, including, without limitation, an
employee, customer or supplier of XXXxxxxxx.xxxxxxxxx, Buying Organisation
Users or Supplier Users, who uses the Zanzibar System or any part of the
Zanzibar System;
"EPROCUREMENT SOLUTIONS TOOLKIT" means the suite of e-procurement services
offered by XXXxxxxxx.xxxxxxxxx to Buying Organisations and suppliers to
Buying Organisations from time to time;
"EPS CONTRACT" means the Prime Contractor Agreement dated 5th November
2001 and made between Cap Gemini Ernst & Young UK plc (now Capgemini UK
Plc) ("Capgemini") and the Sub-Provider strictly in connection with the
Principal Agreement dated 5th November 2001 between The Scottish Ministers
and Capgemini;
"ESCROW AGREEMENT" has the meaning as defined in Clause 12.7;
"ESCROW RELEVANT CHANGE OF CONTROL" means a Change of Control giving rise
to the right of PASSL to terminate this Agreement under Clause 14.4.1;
"ERP" means enterprise resource planning;
iii
"EURO" means the single European currency unit established by all Member
States of the European Union or any of them;
"EXCUSING CAUSE" means for the purpose of this Agreement, one or more of
the following:
(a) an event directly attributable to a breach by XXXxxxxxx.xxxxxxxxx of
the Customer Obligations; or
(b) an event directly attributable to XXXxxxxxx.xxxxxxxxx' act or
omission in performing any part of the Sub-Provider Services
following XXXxxxxxx.xxxxxxxxx' exercise of step-in rights in respect
of that part of the Sub-Provider Services pursuant to Clause 3.12;
(c) a breach by the Sub-Provider which arises directly as a result of
the Sub-Provider acting on the written express instructions of
XXXxxxxxx.xxxxxxxxx unless the Sub-Provider was negligent or acted
other than in accordance with Good Industry Practice in following
such instructions;
"EXISTING SALES CONTRACTS" means the Sub-Provider's existing contracts
with Buying Organisations and/or other third parties for the supply of
systems, products or services which compete with the whole or a
substantial part of the Zanzibar System, which contracts are as set out in
Schedule 30;
"EXIT PHASE" means:
(a) in the event that this Agreement is continuing at the date notice of
termination of the Prime Agreement is served or this Agreement is
reinstated in accordance with Clause 15.2.1 following notice to terminate
the Prime Agreement, the period from notice of termination of the Prime
Agreement until the date of expiry of the Prime Agreement Exit Phase; or
(b) in the event that this Agreement is terminated and the Prime Agreement
is continuing, the period from notice of termination until the earlier of
(i) the date the obligations under the Exit Plan have been fulfilled; or
(ii) the date on which the Sub-Provider Services have been successfully
migrated over to PASSL or a Successor Operator; or (iii) the date which is
six months after the date on which the relevant termination was due to
take effect;
(c) in the event that this Agreement is continuing and the Prime Agreement
is continuing, the period from notice of termination of a component under
Clause 4.4A.2 until the earlier of (i) the date the obligations under the
Exit Plan have been fulfilled; or (ii) the date on which such component
has been successfully replaced and the associated Sub-Provider Services
successfully migrated over to PASSL or a Successor Operator;
"EXIT PLAN" means the document agreed between PASSL and the Sub-Provider
in accordance with Schedule 2 describing the obligations of PASSL and the
Sub-Provider to facilitate the orderly transfer of the Sub-Provider
Services to PASSL or a Successor Operator or a contractor or
sub-contractor of either of them or the orderly replacement of any
component under Clause 4.4A.2 during any Exit Phase;
"FORCE MAJEURE EVENT" means any event outside of the reasonable control of
a party including:
(a) strike, lock-out or any other industrial action or labour dispute
(except those occurring in relation to the Sub-Provider's or its
sub-contractors' own employees);
(b) act of war (whether declared or undeclared), invasion, armed
conflict, act of foreign enemy, blockade, embargo, revolution, riot,
insurrection, civil commotion, sabotage, terrorism or the threat of
sabotage or terrorism;
iv
(c) except to the extent that they constitute remedies or sanctions
lawfully exercised by a competent government or administrative
authority as a result of any breach by the Sub-Provider of any
directive or any law in effect on the date of this Agreement, any
act of state or other exercise of sovereign, judicial or executive
prerogative by any competent government authority;
(d) epidemic, plague, explosion, chemical or radioactive contamination
or ionising radiation, lightning, earthquake, tempest, flooding,
fire, cyclone, hurricane, typhoon, tidal wave, whirlwind, storm,
volcanic eruption and other unusual and extreme adverse weather or
environmental conditions or action of the elements, meteorites,
collision or impact by any vehicle, vessel or aircraft or objects
falling from aircraft or other aerial devices or the occurrence of
pressure waves caused by aircraft or other aerial devices travelling
at supersonic speed; or
(e) act of God;
"GENERAL CHANGE IN LAW" means a Change in Law other than a Specific Change
in Law;
"GOOD INDUSTRY PRACTICE" means in relation to any undertaking and any
circumstances, the exercise of that degree of skill, care, prudence and
foresight which would reasonably be expected from a reasonably skilled and
experienced person engaged in the same type of undertaking under the same
or similar circumstances;
"GUARANTEE" means the deed of guarantee between PACSL and
XXXxxxxxx.xxxxxxxxx dated on or about the date of this Agreement;
"HARDWARE" means the computers, computer terminals, computer peripherals,
communications equipment, telecommunications links and all other computer
equipment which are to be supplied by the Sub-Provider, or operated by or
on behalf of the Sub-Provider, in providing the Sub-Provider Services or
performing its obligations under this Agreement or the Service Provision
Sub-Agreements or in connection with the Supplier Agreements, including
(where applicable) those specified in Schedule 7 to the Prime Agreement
Part A, but excluding PASSL Systems, XXXxxxxxx.xxxxxxxxx Website,
XXXxxxxxx.xxxxxxxxx System and the Buying Organisation Systems;
"IMPAQ" means the sub-contractor of PASSL described as such in Schedule 13
to the Prime Agreement;
"INDEMNIFIED" has the meaning defined in Clause 9.3.5(i);
"INDEMNIFIER" has the meaning defined in Clause 9.3.5(iii);
"INTELLECTUAL PROPERTY RIGHTS" means patents, trade marks, copyright,
typography rights, database rights (including rights of extraction),
registered designs and unregistered design rights, domain names, trade
secrets and the right to keep information confidential, and all rights or
forms of protection of a similar nature or having equivalent or similar
effect to any of them which may subsist anywhere in the world, whether or
not any of them are registered and including applications for registration
of any of them;
"KEY PERSONNEL" means those individuals listed as such in Schedule 2;
"LAW" means:
(a) any applicable statute or proclamation or any delegated or
subordinate law;
(b) any enforceable community right within the meaning of section 2(1)
Xxxxxxxx Xxxxxxxxxxx Xxx 0000;
(c) any applicable guidance, direction or determination with which the
Sub-Provider Services are or the Zanzibar System is bound to comply;
and
v
(d) any applicable judgment of a relevant court of law which is a
binding precedent in England and Wales;
in each case in force in England and Wales;
"LIVE ENVIRONMENT" means an operational or production environment in which
a system or software (or a discrete part of such system or software) is
available for the processing of live business transactions or is otherwise
in live use;
"LONG STOP DATE" means:
(a) in relation to Stage 1, 180 days from the Commencement Date;
(b) in relation to Stage 2, 180 days from the date on which the Stage 2
Development Criteria are achieved; or
(c) in relation to Stage 3, 180 days from the date on which the Stage 3
Development Criteria are achieved;
(as applicable);
"LOSSES" means any and all losses, damages, costs, expenses (including
reasonable legal fees) and other liabilities (of whatever nature and
howsoever arising) whether foreseeable or not and whether quantifiable or
not.
"MANAGEMENT BOARD" means the management board specified in Paragraph 4 of
Schedule 22 to the Prime Agreement;
"MANAGEMENT INFORMATION" means information collected from the Zanzibar
System including any Sub-Provider System which relates to transactions
processed through the Zanzibar System or data which has been imported into
the Zanzibar System from Buying Organisation Systems to be used for the
analysis of spending trends that PASSL is obliged to make available to
individual Subscribing Buying Organisations in accordance with the terms
of the Service Provision Agreements or Supplier Agreements;
"MONTH" means a calendar month;
"MONTHLY REPORT" means the reports set out in Schedule 2;
"OGC" means The Office of Government Commerce;
"XXXXXXXXX.XXXXXXXXX AUDITORS" has the meaning set out in Clause 7.2;
"XXXXXXXXX.XXXXXXXXX FEE" means the amount payable to XXXxxxxxx.xxxxxxxxx
as specified in, and in accordance with, Schedule 4 to the Prime
Agreement.
"XXXXXXXXX.XXXXXXXXX MARKS" means the brands, logos, trade marks (whether
registered or unregistered), domain names and other marks which are listed
in Schedule 3 to the Prime Agreement or otherwise agreed between PASSL and
XXXxxxxxx.xxxxxxxxx in writing;
"XXXXXXXXX.XXXXXXXXX SYSTEM" means the IT system used by
XXXxxxxxx.xxxxxxxxx to perform its business and to access the Prime
Services comprising of hardware, software and other computer and
communications equipment;
vi
"XXXXXXXXX.XXXXXXXXX WEBSITE" means the website operated by
XXXxxxxxx.xxxxxxxxx and having such URL as PASSL may notify to the
Sub-Provider from time to time in writing through which End Users can gain
access to the XXXxxxxxx.xxxxxxxxx Website;
"OPEN SOURCE SOFTWARE" means software whose source code is published and
made available to the public, enabling anyone to copy, modify and
redistribute that source code on the terms of the applicable open source
software licence;
"OPERATIONS MANUAL" means the document describing the procedures to apply
in respect of the provision of the Sub-Provider Services;
"OTHER MATERIAL SUB-PROVIDERS" means @UK, IMPAQ and PACSL;
"PASSL CONFIDENTIAL INFORMATION" means all information which is marked as
confidential or which by its nature would be deemed to be confidential
relating to PASSL, XXXxxxxxx.xxxxxxxxx, the Buying Organisations and
Suppliers, and its or their customers or business which is disclosed to
the Sub-Provider or its Affiliates, or its or their employees or
contractors, by or on behalf of PASSL, XXXxxxxxx.xxxxxxxxx or the Buying
Organisations or Suppliers, or which is otherwise acquired by the
Sub-Provider, its Affiliates or its or their employees or contractors
directly or indirectly from PASSL or XXXxxxxxx.xxxxxxxxx, Buying
Organisations or Suppliers or which otherwise comes to the knowledge of
the Sub-Provider, its Affiliates, or its or their employees or contractors
in connection with this Agreement or any Service Provision Sub-Agreement,
whether the information is in oral, visual or written form or is recorded
in any other medium and includes the Transaction Data, Management
Information, XXXxxxxxx.xxxxxxxxx System, PASSL Systems, Buying
Organisation Systems and Personal Data;
"PASSL MARKS" means the brands, logos, trade marks (whether registered or
unregistered), domain names and other marks which PASSL uses in connection
with the Zanzibar System and/or the Prime Services and/or the Prime
Agreement (excluding for the avoidance of doubt the XXXxxxxxx.xxxxxxxxx
Marks and the Sub-Provider Marks);
"PASSL SYSTEMS" means systems owned or licensed by PASSL, the Other
Material Sub-Providers or their respective sub-contractors (excluding the
Sub-Provider Systems) comprising of hardware, software and other computer
and communications equipment and forming part of the Zanzibar System, used
in connection with the provision of the Prime Services or accessed, used
or interfaced with by the Sub-Provider in connection with this Agreement;
"PERFORMANCE INCENTIVES" means the amounts payable to PASSL in respect of
service level breaches pursuant to this Agreement and/or the Service
Provision Sub-Agreements;
"PERSONAL DATA" means personal data obtained by the Sub-Provider or its
sub-contractors in connection with the provision of the Sub-Provider
Services;
"PERSONAL DATA", "DATA SUBJECT" and "PROCESSING" have the meaning given to
those terms by the Data Protection Legislation and "PROCESSED" shall have
a corresponding meaning;
"PRIME AGREEMENT" means the Framework Agreement which is to be entered
into by PASSL and XXXxxxxxx.xxxxxxxxx on or around the date of this
Agreement and which relates to the Zanzibar System;
"PRIME AGREEMENT CHANGE CONTROL PROCEDURE" means the change control
procedure set out in Schedule 11 to the Prime Agreement;
vii
"PRIME AGREEMENT DRAFT EXIT PLAN" means the draft exit plan of PASSL
provided for in Schedule 14 to the Prime Agreement;
"PRIME AGREEMENT DISPUTE RESOLUTION PROCEDURE" means the dispute
resolution procedure included in Schedule 12 to the Prime Agreement;
"PRIME AGREEMENT EXIT PHASE" means the period defined in Schedule 14 to
the Prime Agreement;
"PRIME AGREEMENT EXIT PLAN" means the document agreed between PASSL and
XXXxxxxxx.xxxxxxxxx pursuant to Schedule 14 to the Prime Agreement;
"PRIME AGREEMENT MANAGEMENT MEETING" has the meaning given to that term by
Clause 8.3.2;
"PRIME SERVICES" means all those services which PASSL is to provide to
XXXxxxxxx.xxxxxxxxx, Subscribing Buying Organisations and Suppliers
pursuant to the terms of the Prime Agreement, the Service Provision
Agreements and the Supplier Agreements including the provision of all
Stages of the Zanzibar System and related services to XXXxxxxxx.xxxxxxxxx,
Subscribing Buying Organisations and Suppliers;
"PROJECT" means the delivery of the Prime Services to XXXxxxxxx.xxxxxxxxx,
Subscribing Buying Organisations and Suppliers;
"PROJECT OBJECTIVES" means the objectives set out in Clause 1A.6;
"RECEIVING PARTY" means PASSL in relation to the receipt of the
Sub-Provider Confidential Information and the Sub-Provider in relation to
the receipt of PASSL Confidential Information;
"RECTIFICATION PROPOSAL" means a proposal under the Prime Agreement to
remedy a breach or (if appropriate) re-perform a non-conforming service
directly resulting from a breach which may set out details of the action
to be taken and the timetable for remedy or re-performance (as
applicable);
"RELEVANT EMPLOYEE" means any employee employed immediately before the
Transfer Event wholly or mainly engaged in providing the service or
services forming the undertaking which is the subject of the relevant
transfer;
"RELEVANT EMPLOYER" means an employer of any of the Relevant Employees
immediately before the Transfer Event;
"REVENUE SHARE" means the share of or payments in respect of Zanzibar
Revenue (or any portion of Zanzibar Revenue) payable to the Sub-Provider
pursuant to the terms of the Revenue Sharing Agreement;
"REVENUE SHARING AGREEMENT" means the revenue sharing agreement entered
into on or around the date of this Agreement by PASSL, the Sub-Provider
and the Other Material Sub-Providers;
"SATISFACTION REVIEW PLAN" means the plan set out in Schedule 16 to the
Prime Agreement detailing how PASSL proposes to monitor, report and act
upon the outcome of regular Satisfaction Reviews;
"SATISFACTION REVIEWS" means the satisfaction reviews conducted by PASSL
to monitor the satisfaction of Subscribing Buying Organisations with the
services provided by PASSL pursuant to the Service Provision Agreements;
"SERVICE COMMENCEMENT DATE" means the date on which PASSL first starts
providing services relating to the Zanzibar System to the Subscribing
Buying Organisations;
"SERVICE LEVELS" means the service levels specified in Schedule 2;
viii
"SERVICE MANAGER" means in relation to a party, the person appointed by
that party to manage delivery of the Sub-Provider Services or the Prime
Services (as applicable). The Service Manager of each party as at the date
of this Agreement is stated in Schedule 2. Changes to the identity of the
Service Manager shall be notified by the relevant party to the other party
by written notice;
"SERVICE PROVISION AGREEMENT" means an agreement (as amended from time to
time in accordance with its terms) between PASSL and a Buying Organisation
relating to access or use of or services preparatory to the Zanzibar
System, which PASSL anticipates at the date of this Agreement will
ordinarily be substantially in the form set out in Schedule 19 to the
Prime Agreement or in the form otherwise agreed between PASSL and
XXXxxxxxx.xxxxxxxxx from time to time;
"SERVICE PROVISION CHARGES" means the charges in consideration of which
PASSL is to provide the Prime Services as set out in Schedule 4 to the
Prime Agreement and/or each Service Provision Agreement;
"SERVICE PROVISION SUB-AGREEMENT" means as defined in Clause 3.1.3;
"SERVICES SUBJECT TO STEP-IN" means the Management Information data
warehouse to be provided as part of Stage 3 and such other Prime Services
as are agreed via the change control procedure in the Prime Agreement to
be appropriate to attract step-in rights;
"SOFTWARE" means the computer programs to be supplied by the Sub-Provider,
or operated by or on behalf of the Sub-Provider, in providing the
Sub-Provider Services or performing its obligations under this Agreement,
the Service Provision Sub-Agreements or in connection with the Supplier
Agreements, including the Third Party Software, and the Sub-Provider
Software;
"SOURCE CODE" means the source code and other materials and documentation
defined in the Escrow Agreement as "the Material";
"SPECIFICATION" means
(a) in relation to Stage 1, the functional, operational, performance and
technical specifications set out and expressly stated in Schedule 2
to the Prime Agreement (by means of an "X" in the Stage 1 or the
COTS column) as being applicable to Stage 1;
(b) in relation to Stage 2, the functional, operational, performance and
technical specifications set out and expressly stated in Schedule 2
to the Prime Agreement (by means of an "X" in the Stage 2 column) as
being applicable to Stage 2; and
(c) in relation to Stage 3, the functional, operational, performance and
technical specifications set out and expressly stated in Schedule 2
to the Prime Agreement (by means of an "X" in the Stage 3 column) as
being applicable to Stage 3;
"SPECIFIC CHANGE IN LAW" means a Change in Law which effects the provision
or receipt of the Sub-Provider Services but only with regard to Buying
Organisations;
"STAGE" means either Stage 1, Stage 2 or Stage 3 (as applicable);
"STAGE 1" means that functionality which is designed to meet the
Specification applicable to Stage 1;
"STAGE 2" means that functionality which is designed to meet the
Specification applicable to Stage 2 (which functionality, for the
avoidance of doubt, is additional to that included within Stage 1);
"STAGE 3" means that functionality which is designed to meet the
Specification applicable to Stage 3 (which functionality is, for the
avoidance of doubt, additional to that included within Stage 1 and Stage
2);
ix
"STAGE COMMENCEMENT DATE" means the date on which the PASSL first starts
providing services relating to a particular Stage to the Subscribing
Buying Organisations;
"STAGE 2 DEVELOPMENT CRITERIA" means the existence of 5 Subscribing Buying
Organisations in respect of which the "Go Live Date" (as defined in the
Service Provision Agreement) has occurred plus a further 2 Subscribing
Buying Organisations in respect of which the "Go Live Date" (as defined in
the Service Provision Agreement) need not have occurred but which must
have contracted with PASSL for access to the Zanzibar System and the Prime
Services as a whole and not solely for Preliminary Services (as defined in
the Service Provision Agreement);
"STAGE 3 DEVELOPMENT CRITERIA" means the existence of all such Subscribing
Buying Organisations as are required to meet the Xxxxx 0 Xxxxxxxxxxx
Xxxxxxxx plus a further 2 Subscribing Buying Organisations in respect of
which the "Go Live Date" (as defined in the Service Provision Agreement)
need not have occurred but which must have contracted with PASSL for
access to the Zanzibar System and the Prime Services as a whole and not
solely for Preliminary Services (as defined in the Service Provision
Agreement);
"STANDARD SPA TERMS AND CONDITIONS" means the Standard Terms and
Conditions relating to the Zanzibar System forming part of the standard
Service Provision Agreement included in Schedule 19 to the Prime
Agreement;
"STANDARDS OF SERVICE" means the minimum requirements set out in Schedule
2;
"START-UP PERIOD" means any period agreed between PASSL and
XXXxxxxxx.xxxxxxxxx pursuant to the change control procedure in the Prime
Agreement during which XXXxxxxxx.xxxxxxxxx will not be entitled to
exercise step-in rights under the Prime Agreement in respect of any
Services subject to Step-in (or any part of them);
"SUB-FRAMEWORK MANAGEMENT MEETING" has the meaning given to that term by
Clause 8.3.2;
"SUB-PROVIDER ADDITIONAL SERVICE ORDER" means an order for the
Sub-Provider to provide Sub-Provider Services corresponding to Additional
Services in the form set out in Schedule 33;
"SUB-PROVIDER CONFIDENTIAL INFORMATION" means all confidential information
of the Sub-Provider, its Affiliates or sub-contractors including that
relating to the Sub-Provider Systems, the Sub-Provider Software, the
specification of the Sub-Provider Systems, the Sub-Provider, its
Affiliates or sub-contractors or its or their customers or business which
is disclosed to PASSL, its employees or contractors, by or on behalf of
the Sub-Provider or its Affiliates or which is otherwise acquired by PASSL
or its employees or contractors directly or indirectly from the
Sub-Provider or which otherwise comes to the knowledge of PASSL, its
employees or contractors in connection with this Agreement, whether the
information is in oral, visual or written form or is recorded in any other
medium;
"SUB-PROVIDER GUARANTEE" means the deed of guarantee between the Guarantor
and PASSL dated on or about the date of this Agreement;
"SUB-PROVIDER GUARANTOR" means in relation to the Sub-Provider Guarantee,
Elcom International, Inc.;
"SUB-PROVIDER MARKS" means the brands, logos, trade marks (whether
registered or unregistered), domain names and other marks which the
Sub-Provider uses in relation to the branding of the Zanzibar System
and/or Services (excluding for the avoidance of doubt the
XXXxxxxxx.xxxxxxxxx Marks and the PASSL Marks);
x
"SUB-PROVIDER RECTIFICATION PROPOSAL" means a proposal under this
Agreement to remedy a breach or (if appropriate) re-perform a
non-conforming service setting out details of the action to be taken and
the timetable for remedy or re-performance (as applicable);
"SUB-PROVIDER SERVICE PROVISION ORDER" means a document in the form set
out in Schedule 31 which is to be executed by the Sub-Provider in
accordance with this Agreement in respect of each Service Provision
Agreement proposed to be entered into by PASSL and which will cause a
Service Provision Sub-Agreement to come into effect and form part of such
Service Provision Sub-Agreement;
"SUB-PROVIDER SERVICES" means all those services which the Sub-Provider is
to provide to PASSL, XXXxxxxxx.xxxxxxxxx, Subscribing Buying Organisations
and Suppliers pursuant to the terms of this Agreement, the Service
Provision Sub-Agreements and in connection with the Supplier Agreements
including the provision of all Sub-Provider Systems and related services
and the services assigned to the Sub-Provider in Schedule 2;
"SUB-PROVIDER SOFTWARE" means any software and related documentation,
products and packages which are owned, by the Sub-Provider or any
Sub-Provider Affiliate and which is used to provide the Sub-Provider
Services, (including any modifications, enhancements or new versions of
such software or documentation (including without limitation, modules and
add-ons created by or on behalf of the Sub-Provider to interface with the
Sub-Provider Software) developed by or on behalf of the Sub-Provider or
any Sub-Provider Affiliate during the term of this Agreement) including
any software specified as being software of the Sub-Provider in Schedule 7
to the Prime Agreement Part C;
"SUB-PROVIDER SYSTEMS" means all those systems including Hardware,
Software and communications links which are provided by the Sub-Provider
under or in connection with this Agreement including all those elements of
the Zanzibar System identified as being the responsibility of the
Sub-Provider in Schedule 2 (and which working in conjunction with each
other and all the other elements of the Zanzibar System will enable the
Zanzibar System to be provided in accordance with the provisions of the
Prime Agreement) excluding for the avoidance of doubt the PASSL Systems;
"SUB-PROVIDER TRAINING MATERIALS" means any training materials (including
methodologies) but excluding the Sub-Provider Software which are supplied
to PASSL in connection with or for the purposes of this Agreement
(including, but not limited to, training materials related to the computer
programs listed in Schedule 7 to the Prime Agreement Part C);
"SUBSCRIBING BUYING ORGANISATIONS" means any Buying Organisation which has
concluded a Service Provision Agreement to access and use the Zanzibar
System (which Service Provision Agreement has not expired or been
terminated);
"SUCCESSOR OPERATOR" means the entity (which may include PASSL or
XXXxxxxxx.xxxxxxxxx or a Subscribing Buying Organisation) succeeding the
Sub-Provider in the provision or operation of all or any of the
Sub-Provider Services (including any entity succeeding PASSL in the
provision or operation of any or all of the Prime Services including
Sub-Provider Services);
"SUPPLIER AGREEMENT" means an agreement between PASSL and a Supplier to
access or use the Zanzibar System which PASSL anticipates, at the date of
this Agreement will be substantially in the form attached at Schedule 20
to the Prime Agreement or in the form otherwise agreed between PASSL and
XXXxxxxxx.xxxxxxxxx from time to time;
"SUPPLIERS" means suppliers of products and services who (directly or
acting through their agents):
xi
(a) enter into agreements with the PASSL pursuant to which such Supplier
will advertise and/or offer goods and/or services via the Zanzibar
System; or
(b) are authorised to access and use the Zanzibar System; or
(c) otherwise receive orders from Subscribing Buying Organisations via
the Zanzibar System;
"SUPPLIER USERS" means the employees and other personnel (including agents
and sub-contractors) of any Supplier authorised in accordance with the
Supplier Agreement to use the Zanzibar System;
"TERM SHEET" means the term sheet forming part of the Service Provision
Agreement detailing the specific Prime Services, Service Provision Charges
and special conditions applicable to a particular Subscribing Buying
Organisation;
"TERMINATION DATE" has the meaning set out in Clause 14.1;
"THIRD PARTY CONTRACTS" means any licence agreement or other agreement
between the Sub-Provider or its Affiliates and a third party regarding the
provision of any hardware, software, equipment or services for the
purposes of, or in connection with, the operation, implementation or
maintenance of the Zanzibar System or the provision of the Sub-Provider
Services, including licence agreements in respect of the Third Party
Software;
"THIRD PARTY SOFTWARE" means any Software the Intellectual Property Rights
in which are not owned by the Sub-Provider or any other Affiliate of the
Sub-Provider, including any Open Source Software and those listed in
Schedule 7 to the Prime Agreement Part B and for the avoidance of doubt
excluding the Sub-Provider Software;
"TRANSACTION DATA" means all information, text, drawings or other data
provided to, or generated by or on behalf of, PASSL or the Sub-Provider in
connection with the provision of the Prime Services or the performance of
the Prime Agreement, the Service Provision Agreements or the Supplier
Agreements and which relates to transactions processed through the
Zanzibar System;
"TRANSFER DATE" means the date on which a Transfer Event occurs;
"TRANSFER EVENT" means any event or circumstances including, but not
limited to, the commencement, the expiry or termination of this Agreement,
which constitutes a relevant transfer pursuant to the Transfer Provisions
and/or a transfer pursuant to Article 1 of Council Directive 2001/23/ EC,
as amended;
"TRANSFER PROVISIONS" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981 as amended and any other applicable provision
of law effecting the transfer of employees;
"TRANSFERABLE HARDWARE" means any hardware owned or licensed by the
Sub-Provider which is dedicated exclusively to the Management Information
data warehouse to be provided as part of Stage 3 and such dedicated
hardware as is agreed between the parties via the Change Control Procedure
as being capable of transfer to PASSL or XXXxxxxxx.xxxxxxxxx during the
Exit Phase;
"TRANSFEREE" means the Sub-Provider or PASSL or XXXxxxxxx.xxxxxxxxx or a
Subscribing Buying Organisation or a Successor Operator to whom a Relevant
Employee transfers on a Transfer Date;
"TRANSFEROR" means the Sub-Provider or PASSL or XXXxxxxxx.xxxxxxxxx or any
other person from whom a Relevant Employee transfers on a Transfer Date;
xii
"TRANSFERRED DELIVERABLES" means any Deliverables the Intellectual
Property Rights in which are agreed via the Change Control Procedure to be
transferred to PASSL (for transfer to XXXxxxxxx.xxxxxxxxx) pursuant to
Clause 12.1.2;
"TULCRA" means the Trade Union and Labour Relations (Consolidation) Xxx
0000, as amended;
"VAT" means United Kingdom value added tax and any similar tax in any
other jurisdictions;
"VIRUSES" has the meaning ascribed to that term by Clause 9.2.1;
"ZANZIBAR REVENUE" means the Service Provision Charges received by PASSL
in accordance with the terms of the Service Provision Agreements excluding
expenses chargeable to the relevant Subscribing Buying Organisation in
accordance with Schedule 4. For the avoidance of doubt, any Performance
Incentives paid or payable to the Subscribing Buying Organisations under
the Service Provision Agreements shall not be deducted when calculating
the Service Provision Charges;
"ZANZIBAR SYSTEM" means the system which PASSL is due to provide to
XXXxxxxxx.xxxxxxxxx and Subscribing Buying Organisations pursuant to the
Prime Agreement and Service Provision Agreements consisting of Stage 1 and
(subject to achievement of the Stage 2 Development Criteria in accordance
with this Agreement) Stage 2 and (subject to achievement of the Stage 3
Development Criteria in accordance with this Agreement) Stage 3 including
all modification and enhancements made to such systems (or the
Sub-Provider Systems forming part of such systems) by or on behalf of the
PASSL or the Sub-Provider from time to time.
"ZANZIBAR USER GROUP" means the user group of representatives of
Subscribing Buying Organisations, which will operate in the manner
specified in Paragraphs 6 to 11 of Schedule 22 to the Prime Agreement.
xiii
