EXHIBIT 4.10
DATED: 5 NOVEMBER 2003
(1) FUTUREMEDIA PLC
AND
(2) ROYAL MAIL GROUP PLC
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AGREEMENT
IN RELATION TO
LEARNING FOR ALL SERVICES
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XXXXXX XXXXX
Solicitors
The Corn Exchange
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxx Xxxxxx XX00 0XX
Tel: 00000 000000
Fax: 00000 000000
Re: COM/NJR
xx.xxxxxxxxxxx.xxx
CONTENTS
CLAUSE PAGE
NUMBER
1. DEFINITIONS................................................................1
2. THE SERVICES...............................................................6
3. PACKAGES AND PRICING.......................................................6
4. MASTER RENTAL AGREEMENT....................................................7
5. TIMING.....................................................................8
6. PROJECT MANAGEMENT SERVICES................................................9
7. DELIVERY LIST AND PAYMENT PROCEDURES......................................11
8. ROYAL MAIL'S RESPONSIBILITIES.............................................12
9. THE CONTRACTOR'S RESPONSIBILITIES.........................................13
10. PERSONAL DATA.............................................................13
11. SUB-CONTRACTING...........................................................15
12. EXPIRY DATE...............................................................16
13. STEP-IN RIGHTS............................................................18
14. WARRANTIES................................................................20
15. CONTRACTOR PERSONNEL......................................................21
16. COMPLIANCE................................................................21
17. VARIATIONS................................................................21
18. SERVICES PERFORMED AT THE CONTRACTOR'S PREMISES...........................21
19. CONTRACTOR'S OBLIGATIONS..................................................22
20. ROYAL MAIL PROPERTY.......................................................22
21. CONTRACTOR PERSONNEL AT THE PREMISES......................................23
22. INTELLECTUAL PROPERTY RIGHTS..............................................24
23. CONFIDENTIALITY...........................................................25
24. INTELLECTUAL PROPERTY INDEMNITY...........................................26
25. LIMITATION OF LIABILITY...................................................27
26. INSURANCE.................................................................28
27. FORCE MAJEURE.............................................................28
28. WAIVER....................................................................28
29. NO AGENCY.................................................................29
30. NOTICES...................................................................29
31. ROYAL MAIL TRADE MARKS....................................................30
32. ENTIRE AGREEMENT..........................................................30
33. RECOVERY OF SUMS DUE......................................................30
34. PUBLICITY.................................................................30
35. GOVERNING LAW DISPUTE RESOLUTION..........................................31
36. CORRUPTION AND BRIBERY....................................................32
37. LANGUAGE..................................................................32
38. RECORDS...................................................................32
39. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999..............................33
Schedule 1 .................................................................. 35
Schedule 2 .................................................................. 40
Schedule 3 .................................................................. 42
THIS AGREEMENT is made the day of 2003
BETWEEN
1. FUTUREMEDIA PLC (registered in England under number 01616681) whose
registered office is at Xxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx, Xxxx Xxxxxx
XX00XX (the "Contractor" or "Futuremedia"); and
2. ROYAL MAIL GROUP PLC (registered in England under number 04138203)
whose registered office is at 000 Xxx Xxxxxx, Xxxxxx XX 1 V 9HQ ("Royal
Mail").
WHEREAS:
(A) The parties have agreed that the Contractor should provide Learning for
All services to employees of Royal Mail on the terms of this Agreement.
(B) The Contractor will take full operational, administrative and (save for
payments under the Master Rental Agreement) financial responsibility
for running the Learning for All services.
IT IS AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement the following definitions apply unless the context
requires otherwise:
"Acceptance Certificate" means a certificate to confirm that a
Package has been properly installed and
accepted by the relevant Employee, and
signed by the installer and the Employee
with all the boxes ticked in the form
attached at Appendix A;
"Business Day" means any day of the week excluding Saturday
or Sunday, save where such day is a
statutory, public or bank holiday observed
in the country where performance under this
Agreement is to take place;
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"Confidential Information" means information that is clearly identified
as confidential at the time of disclosure or
is by its nature confidential;
"Contractor's Premises" means the premises of the Contractor or such
other premises at which the Contractor may
perform the Services;
"Corporate Learning" means the Contractor's Solstra learning
Management System" management system and any
subsequent revisions, upgrades or
replacements thereof;
"Customer Satisfaction means the Employee satisfaction survey in
Survey" the form attached at Appendix I carried out
by the Contractor;
"Data" means personal data of Employees;
"Delivery List" means a schedule of confirmed deliveries of
Packages, in the form attached at Appendix
B, stating, inter alia, the model and PC
serial number of each Package and the name
and employee number of the Employee to whom
it was delivered;
"DP Legislation" means (i) Data Protection Xxx 0000, related
statutory instruments, regulations or codes
of practice; and (ii) the Privacy and
Electronic Communications (EC Directive)
Regulations 2003 as amended extended or
re-enacted from time to time;
"Employee Request" means a request from an Employee for a
Package under the Programmeme in the form
attached at Appendix C;
"Employees" means employees in the UK of Royal Mail;
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"Expiry Date" means the date of expiry of this Agreement
being the date set out in Clause 12.1;
"Finance Company" means Commonwealth Bank of Australia of 00
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX or
such other financial institution as Royal
Mail shall select from time to time;
"Installation Services" means the services provided by the
Contractor relating to the installation of
Packages, further details of which are set
out in Part 3 of the Process Model;
"IT System Policy" means Royal Mail policy governing access by
a third party to its information technology
systems, details of which are set out in
Appendix E;
"Master Rental Agreement" means an agreement to be entered into
between Royal Mail and the Finance Company,
as amended, supplemented or replaced from
time to time;
"Operations Team" means the team of four persons, two
appointed by the Contractor and two by Royal
Mail, comprising the Representatives and
assistants who shall perform the functions
set out in Clause 6.3 and 6.4;
"Packages" means the bundles of learning products and
services, computers and related equipment
and internet access at home, initial details
include those set out in Schedule 1;
"Personnel" means the personnel designated by the
Contractor to perform the Services;
"Premises" means any premises of Royal Mail;
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"Process Model" means the Process Model for the Programmeme
forming part of and appended to this
Agreement at Appendix D and initialled by
the parties for the purpose of
identification;
"Processing Services" means the services relating to the
processing of Employee Requests, further
details of which are set out in Part 2 of
the Process Model;
"Programmeme" means the Learning for All Programmeme to be
offered to Employees operated and managed by
the Contractor in accordance with this
Agreement;
"Project Management means the services provided by the
Services" Contractor in relation to the management,
administration and implementation of the
Programmeme, further details of which are
set out in Clause 6;
"Promotion Services" means the services relating to the promotion
only of the Programmeme to Employees,
further details of which are set out in Part
1 of the Process Model;
"Representative" means the key contact person or persons of
each party who shall be members of the
Operations Team as set out in Clause 6.2;
"Royal Mail Property" means any property or equipment owned by
Royal Mail, its employees, agents or
customers or which Royal Mail is entitled to
possess or use for any purpose;
"Royal Mail Trade Marks" means the Royal Mail trade marks set out in
the Schedule to the Royal Mail Branding
Licence Agreement set out in Appendix G;
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"Salary Sacrifice means an agreement between Royal Mail and an
Agreement" Employee in the form attached at Appendix F;
"Services" means all and any services, as defined in
Clause 2.1, to be provided by the Contractor
pursuant to this Agreement;
"Service Levels" means the levels at which those specific
services (and their corresponding specific
remedies for any breach) set out at Schedule
2 are to be performed;
"Software" means all computer software and such related
tools and technical user and other
documentation necessary for the provision of
the Services; and
"Support Services" means the services provided by the
Contractor relating to the support of the
Packages, further details of which are set
out in Part 4 of the Process Model.
1.2 In this Agreement (except where the context otherwise requires):
1.2.1 any reference to a Clause, Schedule or Appendix is to the
relevant clause of or schedule or appendix to this Agreement;
1.2.2 the clause headings are included for convenience only and
shall not affect the interpretation of this Agreement;
1.2.3 use of the singular includes the plural and vice versa;
1.2.4 use of any gender includes the other genders;
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1.2.5 any reference to a statute, statutory provision or subordinate
legislation ("legislation") shall (except where the context
otherwise requires) be construed as referring to:
(a) such legislation as amended and in force from time to
time and to any legislation which (either with or
without modification) reenacts, consolidates or
enacts in rewritten form any such legislation; and
(b) any former legislation which it re-enacts,
consolidates or enacts in rewritten form; and
1.2.6 any phrase introduced by the terms "including", "include", "in
particular" or any similar expression shall be construed as
illustrative and shall not limit the sense of the words
preceding those terms.
2. THE SERVICES
2.1 The Services shall consist of
2.1.1 the Promotion Services;
2.1.2 the Processing Services;
2.1.3 the Installation Services;
2.1.4 the Support Services;
2.1.5 the Project Management Services; and
2.1.6 the procurement of the Packages.
2.2 The Contractor shall provide the Services in accordance with the
provisions of this Agreement and shall meet the Service Levels.
2.3 The Contractor shall be fully responsible for the administration and
operation of this Programmeme and will provide guidance to Royal Mail
in the performance of Royal Mail's tasks and obligations under this
Agreement.
2.4 The Contractor shall advise Royal Mail where necessary with any inputs
or services required from it under the provisions of the Process Model
in accordance with those provisions and Royal Mail will use reasonable
endeavours to perform such inputs or services.
3. PACKAGES AND PRICING
3.1 The minimum specification of the contents of Packages, and the options
offered to Employees under the Programmeme, and the payments to be made
by Employees shall be as set out in Schedule 1.
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3.2 The initial prices payable by the Finance Company to the Contractor in
respect of each Package shall not exceed the sums set out in Schedule
1.
3.3 The Contractor shall acquire the hardware components comprised in
Packages from the suppliers named in Schedule 1 or such other suppliers
as the Operations Team may approve. The Contractor shall ensure that
manufacturer's warranties for a period of not less than 3 years are
provided with the hardware components of Packages other than printers.
The warranties in respect of desktops shall include repair on site and
those in respect of laptops shall include collection and return to the
supplier.
3.4 The Contractor may from time to time update the Packages, subject, in
the case of any material change, to the prior written consent of the
Operations Team. The Contractor shall give the Operations Team not less
than 30 days' prior written notice of any proposed material change, or,
if less than 30 days' notice is given to the Contractor by a supplier,
such notice as is reasonably practicable in the circumstances.
4. MASTER RENTAL AGREEMENT
4.1 This Agreement shall be subject to and conditional upon the signing of
a binding Master Rental Agreement between Royal Mail and the Finance
Company ("Condition").
4.2 If the Condition shall not have been fulfilled by 12 November 2003,
this Agreement shall automatically cease and terminate and neither
party shall have any claim of any nature whatsoever against the other
party.
4.3 Royal Mail shall use reasonable endeavours to sign the Master Rental
Agreement in a form acceptable to Royal Mail by the dates set out in
clause 4.2.
4.4 It is agreed that, under the terms of the Master Rental Agreement:
4.4.1 the Contractor shall sell to the Finance Company such Packages
as are the subject of Employee Requests in accordance with the
procedures contained in the Processing Services;
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4.4.2 the Contractor shall invoice the Finance Company and the
Finance Company shall pay the Contractor for Packages in
accordance with the procedures contained in the Installation
Services; and
4.4.3 the salaries of Employees who participate in the Programmeme
shall be reduced in accordance with Salary Sacrifice
Agreements under a salary sacrifice scheme to be circulated by
the Contractor and implemented by Royal Mail.
4.5 Royal Mail shall confirm in writing to the Contractor that a Master
Rental Agreement is in force for each relevant promotion period
established in accordance with Clause 5.3 and the rate for the relevant
promotion period.
5. TIMING
5.1 Subject to clauses 4.1, 4.2 and 4.3, the provisions of this Agreement
shall become effective upon signature.
5.2 Participation in the Programmeme shall be offered to Employees for an
initial period commencing on 6 November 2003and ending on 23rd December
2003.
5.3 The Programmeme shall, unless the parties otherwise agree in writing,
subsequently be offered to Employees for periods of 2 calendar months
in March/April and October/November in each year during the term of
this Agreement.
5.4 The parties agree that Employees shall only be entitled to participate
in the Programmeme if they have completed at least 12 calendar months
in employment with Royal Mail by the date of commencement of each offer
period specified in clauses 5.2 and 5.3.
5.5 The Contractor shall not be obliged to provide the Promotion Services
outside the promotion periods established in accordance with Clause
5.3, except to the extent that such services are reasonably necessary
for the proper provision of the Promotion Services during the periods
set out above.
5.6 The Contractor shall provide the Project Management Services, the
Promotion Services, the Processing Services, the Installation Services
and the Support Services and procure the Packages until the Expiry
Date, and, in the case of the Support Services, thereafter in
accordance with Clause 12.9.
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6. PROJECT MANAGEMENT SERVICES
6.1 The Contractor shall be responsible for the management of the
Programmeme.
6.2 Each party has appointed or shall appoint two Representatives as
members of the Operations Team. One nominated Representative of each
party will be the primary contact for the other party and all
communications, documentation and materials relating to the Agreement
and sent by the parties shall be sent to the appropriate
Representative. Each Representative is entitled to appoint an assistant
who may attend at meetings of the Operations Team. Each party shall
notify the other in writing promptly in the event of any change in its
Representative or Representative's assistant.
6.3 The Contractor shall convene regular meetings of the Operations Team to
review the performance of the Programmeme. Unless agreed otherwise, the
performance review meetings shall take place quarterly. These reviews
will take into account, inter alia, the following: employee
satisfaction/complaints, service levels, documentation, management
information, after sales service and administrative support by the
Contractor, suitability of Packages, number of Packages supplied to
Employees and progress of the Programmeme and results of any
audit/inspection on the Services carried out by Royal Mail.
6.4 The Operations Team shall be responsible for reviewing and approving
any proposed changes to any of the following:
6.4.1 the content, quality, or minimum specification of Packages and
the price to be charged to the Finance Company and payments to
be made by the Employee; and
6.4.2 the identity of any suppliers of any material hardware
components of Packages.
Any decision of the Operations Team in relation to the matters set out
in this Clause 6.4 shall require the consent of Royal Mail, such
consent not to be unreasonably withheld or delayed.
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6.5 The Contractor shall:
6.5.1 provide Royal Mail, at no charge, access to information,
documents, systems and equipment used in or for the Packages
in order for Royal Mail to carry out such study as it
reasonably thinks desirable to measure and compare any of the
costs of the Packages against similar computer components and
equipment available in the market from other computer
components and equipment providers (provided that nothing in
this clause shall require the Contractor to disclose any
information which would endanger the protection of any of the
Contractor's intellectual property or which is commercially
confidential); and
6.5.2 notify Royal Mail if the Contractor or any of its affiliates
becomes aware that computer components and equipment similar
to the Packages are provided by any person to another person
under terms which are materially more favourable or beneficial
(taken as a whole) than those given to Employees (taken as a
whole), provided that, for the purpose of this Clause 6.5
"materially more favourable or beneficial" shall mean, in
relation to any costs, that such costs are in excess of at
least ten (10) per cent compared to the costs applicable to
the Packages.
6.6 Upon Royal Mail becoming aware that computer components and equipment
similar to the Packages are being provided on materially more
favourable or beneficial terms, Royal Mail shall have the right, by
notifying the Contractor, to require the Contractor to take the
necessary measure to provide the Packages on terms similar to such
better terms.
6.7 The Contractor shall at no charge provide Royal Mail access to such
information as may be required for audit and inspection purposes under
this Agreement.
6.8 For the purpose of this Clause 6 the Representatives, assistants and
address of each party shall, until amended by notice in writing, be:
for Royal Mail: for the Contractor:
Xxxxxx Xxxxxx (Primary Contact) Xxxxxx Xxxxxxx (Primary contact)
(assisted by such person as is (no assistant)
notified to the parties from
time to time)
Xxx Xxxx Xxxxx Xxxxxx
(assisted by Xxxxxx Xxxxx) (no assistant)
Address: Coton House, Management Address: Xxxx Xxxxx, Xxxx Xxxxxx
Xxxxxx, Xxxxx, Xxxxxxxxxxxx Xxxxxxxx, Xxxx Xxxxxx
XX00 0XX XX0 0XX
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7. DELIVERY LIST AND PAYMENT PROCEDURES
7.1 For the avoidance of doubt, the procedures relating to the issue and
acceptance of Delivery Lists and invoicing and payment by the
Contractor are set out in this Clause 7.
7.2 The Contractor shall issue to Royal Mail a weekly Delivery List, and an
Acceptance Certificate to confirm that each Package itemised in the
Delivery List has been accepted by the relevant Employee.
7.3 As soon as practicable (and in any event within 5 Business Days of
receipt) Royal Mail will:
7.3.1 confirm in writing their receipt and confirmation of each
Delivery List and associated Acceptance Certificates to the
Contractor and to the Finance Company; or
7.3.2 request the Contractor to issue a revised Delivery List and
Acceptance Certificate with any queried items removed or
corrected or properly completed.
Royal Mail shall query items only if it believes details of those items
are inconsistent with Packages listed at Schedule I and validly
accepted by Employees or if any Acceptance Certificate has not been
properly completed or unsigned. The deadline for approval of any
re-issued Delivery List or Acceptance Certificate shall remain the same
as the deadline for the original document.
7.4 After confirmation by Royal Mail in accordance with Clause 7.3.1, the
Contractor shall issue to the Finance Company a weekly consolidated
invoice of all amounts due to the Contractor in respect of items
contained in each Delivery List confirmed in writing by Royal Mail. The
Contractor and the Finance Company shall enter into an agreement
regarding terms of payment by the Finance Company to the Contractor.
Royal Mail shall be responsible for payments to the Finance Company in
accordance with the terms of the Master Rental Agreement.
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8. ROYAL MAIL'S RESPONSIBILITIES
8.1 Royal Mail's responsibilities under this Agreement are as follows:
8.1.1 Royal Mail shall provide the Contractor reasonable access to
Employees to enable the Contractor to perform the Promotion
Services in accordance with Clause 5 and the provisions set
out in Part 1 of the Process Model;
8.1.2 Royal Mail shall review Delivery Lists and Acceptance
Certificates in accordance with the provisions of Clause 7;
8.1.3 Royal Mail shall appoint Representatives in accordance with
Clause 6; and
8.1.4 procure that a Master Rental Agreement is in force not less
than 14 days before the commencement of the promotion period
as contemplated by Clause 4.5 or, if later, by the date when
the Packages in respect of that promotion period are agreed.
8.2 For the purpose of Clause 8.1.1, Royal Mail shall, where lawful,
possible and with the agreement of the local or other relevant
managers, give the Contractor access to Royal Mail's premises and/or
allow the Contractor to invite Employees to suitable alternative
locations, having regard to local industrial relations issues, for the
purpose of carrying out roadshows, and shall allow the Contractor to
invite Employees via poster sites and team briefings to roadshows at
locations appropriate to their places of work.
8.3 Royal Mail shall not promote, or procure or permit any third party to
promote, any scheme competing with the Programmeme in any material
respect to its employees during the period to the Expiry Date.
8.4 Royal Mail shall send introductory e-mails to the managers at the
premises chosen for the roadshows.
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8.5 The Contractor shall attend and carry out the roadshows arranged in
accordance with clause 8.2.
8.6 The Contractor acknowledges that Royal Mail has no obligations under
this Agreement other than the obligations set out in Clauses 8.1 to
8.4.
9. THE CONTRACTOR'S RESPONSIBILITIES
9.1 The Contractor shall perform the Services in accordance with the
Service Levels and the provisions of this Agreement. In the event that
the Contractor fails to meet any Service Levels, the Contractor shall
forthwith notify Royal Mail in writing, and the provisions set out in
Schedule 2 shall apply.
9.2 The Contractor expressly acknowledges that Royal Mail has not made any
representation or warranty as to the number of Employees who may
participate in the Programmeme or any level of turnover which may
result from the Programmeme.
9.3 The Contractor shall use all reasonable endeavours to implement
measures agreed between the parties to seek to ensure that Employees do
not contact Royal Mail or any associated company for any reason
relating to the Programmeme or the Services. The initial measures to be
implemented are set out in Appendix H.
9.4 The Contractor shall use all reasonable endeavours that all obligations
of and warranties from any supplier of any element of the Packages are
directly enforceable by Royal Mail and by the relevant Employee.
9.5 The Contractor shall ensure that the software installed with any
Package shall be supplied with licences for use by the Employee and
Employee's household.
9.6 In the event the Customer Satisfaction Surveys indicate to Royal Mail
dissatisfaction by 20 or more Employees for any promotion period as
defined in clauses 5.2 and 5.3 in respect of any particular matter in
the Customer Satisfaction Survey then the Contractor shall use all
reasonable endeavours to remedy or improve such matter to the
satisfaction of Royal Mail.
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10. PERSONAL DATA
10.1 The Contractor hereby undertakes and warrants:
10.1.1 to use Data only for the purpose of providing the Services and
in accordance with instructions given to the Contractor from
time to time by Royal Mail;
10.1.2 not to use the Data for the benefit of the Contractor or of
any third party other than pursuant to a further separate
written agreement with Royal Mail;
10.1.3 not to copy, reproduce or reduce to writing any part of the
Data except as may be reasonably necessary for the provision
of the Services. Any such copies reproductions or reductions
to writing shall be the property of Royal Mail.
10.2 The Contractor warrants that it will at all times observe its
obligations as set out in the DP Legislation. In particular, the
Contractor undertakes to:
10.2.1 apply to the Data no lesser security measures and degree of
care than those which Royal Mail applies to the Data as
notified in writing by Royal Mail to the Contractor from time
to time;
10.2.2 take appropriate technical and organisational measures against
unauthorised or unlawful processing of Data and against
accidental loss or destruction of, or damage to, Data;
10.2.3 not transfer the Data or any part of it outside the European
Economic Area without the prior written consent of the Royal
Mail.
10.3 The Contractor shall permit Royal Mail and/or its authorised
representatives to have access to its premises and to the Data in its
possession or control, at reasonable times and on reasonable notice,
for the purposes of verifying the Contractor's compliance with its
obligations under this Agreement.
10.4 The Contractor warrants shall provide any reasonable assistance
necessary to Royal Mail to enable the Royal Mail to:
10.4.1 respond to enquiries from or information/enforcement notices
served by the Information Commissioner's Office;
10.4.2 respond to complaints from data subjects; and
10.4.3 investigate any breach or alleged breach of the DP
Legislation.
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10.5 The Contractor hereby indemnifies Royal Mail and holds Royal Mail
harmless in respect of any loss, damage, costs or expenses incurred by
Royal Mail as a result of any breach of the DP Legislation by the
Contractor.
10.6 Within one month of completion of the Services or receipt of a
reasonable written request from Royal Mail, the Contractor shall return
to Royal Mail or destroy (as the parties shall agree at the time) all
documents and materials (and all copies thereof) containing the Data
and certify in writing to Royal Mail that it has complied with the
requirements of this clause. Notwithstanding the completion of the
Services or the return of the Data, the Contractor shall continue to be
bound by the undertakings set out in this Clause 10.
10.7 Royal Mail reserves all rights in the Data. Other than as expressly set
out in this Agreement no right or licence is granted to the Contractor
and none shall be implied from this Agreement.
10.8 The Contractor hereby warrants that it holds a valid notification as
required under the DP Legislation and that this notification is
relevant for the purpose of the Services.
11. SUB-CONTRACTING
11.1 Futuremedia may not sub-contract the provision of any of the Services
without the prior written consent of Royal Mail, such consent not to be
unreasonably withheld or delayed. Any request for consent shall be made
to Royal Mail's nominated Representative.
11.2 For the purpose of Clause 11.1, Royal Mail hereby consents:
11.2.1 to the sub-contracting of the provision of the telephone help
line forming part of the Services; and
11.2.2 to the sub-contracting of the Installation Services,in each
case in accordance with the provisions of the Process Model.
11.3 Notwithstanding any sub-contracting of any of the Services, the
Contractor shall remain responsible for the provision of those Services
and any act or omission of its sub-contractors.
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12. EXPIRY DATE
12.1 The Expiry Date in respect of the Services shall be 36 months from the
date of this Agreement, unless terminated earlier in accordance with
the provisions set out below.
12.2 Either party may terminate this Agreement immediately by giving notice
in writing to the other party if the other party is in material breach
of any of its obligations under the Agreement and fails to remedy the
breach (if capable of remedy) within thirty days of a written notice so
to do.
12.3 Either party may terminate this Agreement immediately by giving notice
in writing to the other party if
12.3.1 the other party has a receiver or administrative receiver
appointed over the whole or any part of its undertaking or
assets;
12.3.2 the other party passes a resolution for winding up other than
for the purpose of bona fide solvent amalgamation or
reconstruction;
12.3.3 an order is made for the appointment of an administrator to
manage the affairs, business and property of the other party
or documents are filed with a court of competent jurisdiction
for the appointment of an administrator of the other party or
notice of intention to appoint an administrator is given by
the other party or its directors or by a qualified floating
charge holder (as defined in paragraph 14 of Schedule B 1 to
the Insolvency Act 1986);
12.3.4 the other party enters into any voluntary arrangement with its
creditors;
12.3.5 the other party ceases or threatens to cease to carry on
business; or
12.3.6 the other party is unable to pay its debts as they fall due.
12.4 Royal Mail may terminate this Agreement immediately by giving notice in
writing to the Contractor if
12.4.1 the reputation of Royal Mail is damaged as a result of any act
or omission of the Contractor other than in the proper
performance of its obligations under this Agreement;
12.4.2 not less than 10% of the issued share capital of the
Contractor is acquired by a person or persons acting in
concert (as defined in The City Code on Takeovers and Mergers)
who are,. in Royal Mail's reasonable opinion, competitors of
Royal Mail in any of its core businesses of mail, postal,
parcel and courier services involving the delivery of physical
items;
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12.4.3 in the event that breaches of the Service Levels in any period
reach the termination threshold specified in Schedule 2;
12.4.4 the tax treatment of the Programmeme is changed in a way
materially less advantageous to Royal Mail or Employees; or
12.4.5 if Royal Mail exercises its rights under Clause 13.
12.5 Any termination of this Agreement will not prejudice the rights or
remedies of either party, whether under this Agreement or otherwise,
and will not affect any accrued rights or liabilities of either party
at the date of termination.
12.6 Any termination of this Agreement however caused, shall not affect the
coming into force or the continuance in force of any provision of this
Agreement which is expressly or by implication intended to come into or
continue in force on or after such termination.
12.7 Upon termination of this Agreement, both parties shall forthwith
destroy or (at either party's option) return all copies and records of
Confidential Information (including, without limitation, all ideas and
inventions) disclosed by the other party.
12.8 TUPE
12.8.1 Request for Information.
The Contractor will provide Royal Mail with such information as it may
reasonably request about the Contractor's employees engaged on the work
covered by this Agreement including their length of service, age, terms
and conditions of employment, any claims they may have made against the
Contractor and any liabilities of whatsoever nature the Contractor may
have towards them.
Confidentiality Undertaking.
Royal Mail will take all necessary precautions to ensure that the
information referred to above is given only to service providers who
have qualified to tender for the future provision of the services.
Royal Mail will require that such service providers shall treat the
information in confidence; that they shall not communicate it except to
such persons within their organization and to such extent as may be
necessary for the purpose of preparing a response to an invitation to
tender issued by Royal Mail; and that they shall not use it for any
other purpose.
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12.8.2 The Contractor will not:
(a) at any time during the contract period, or any extension of
the original contract period, move into the undertaking or the
relevant part of the undertaking which provides the Services,
any persons in its employment who do not meet the standards of
skill and experience or who are in excess of the number of
persons required to perform this Agreement; or
(b) during the period of notice, make any substantial change in
the terms and conditions of employment of persons employed to
perform this Agreement which is inconsistent with the
Contractor's established employment and remuneration policies.
12.8.3 Indemnity.
Royal Mail will not be responsible for any redundancy payments
for the duration of this Agreement and/or that the Contractor
may incur as a result of termination of the Agreement.
Should there be held to be a transfer to which TUPE
legislation applies, Royal Mail will not indemnify the
Contractor against any claims arising from transferred
employees.
12.9 Notwithstanding the termination or expiry of this Agreement, the
Contractor shall continue to provide the Support Service to each
Employee who has received a Package until the expiry of 3 years from
the date of the Acceptance Certificate of that Package.
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13. STEP-IN RIGHTS
13.1 If the Contractor is unable to meet its obligations under this
Agreement, or the provisions of Clause 12.3 apply in respect of the
Contractor then it shall notify Royal Mail forthwith. Upon notification
by the Contractor, or if the Contractor is unable to meet its
obligations or the provisions of Clause 12.3 (as the case may be) but
the Contractor fails to give such notification, Royal Mail shall:
13.1.1 have the right to perform all or part of the relevant Services
in place of the Contractor or to secure the services of
another supplier, by notice to the Contractor (the "Step-in
Rights"); and/or
13.1.2 require the Contractor to use all reasonable endeavours to
find, by a date set by Royal Mail at its own discretion, an
alternative supplier to perform all or part of the relevant
Services in place of the Contractor (the "Alternative
Supplier").
13.2 In the event that Royal Mail exercises its Step-In Right in respect of
any Services in accordance with Clause 13.1.1:
13.2.1 Royal Mail shall not be obliged to accept any further Delivery
Lists (except in respect of those Packages properly installed
and accepted prior to the time of exercise); and
13.2.2 the Contractor shall be liable for and shall pay to Royal Mail
all costs, charges and expenses incurred by Royal Mail in
performing such Services.
13.3 In the event that Royal Mail requires the Services to be performed by
an Alternative Supplier in accordance with Clause 13.1.2:
13.3.1 the Alternative Supplier and arrangements will be notified to
Royal Mail for approval;
13.3.2 the Contractor shall procure that performance by the
Alternative Supplier shall in all respects meet the
requirements of this Agreement; and
13.3.3 the Contractor shall be responsible for paying the Alternative
Supplier any such sums payable to the Contractor from the
Finance Company (including any difference between any such
amount payable to the Contractor and any amount payable by
Royal Mail to the Alternative Supplier) so far as it may
lawfully do so.
13.4 The arrangements set out in this Clause 13 shall not prejudice any
other right or remedy of Royal Mail in respect of any breaches by the
Contractor of its obligations under this Agreement.
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13.5 The Contractor shall use all reasonable endeavours to procure that all
contracts and sub-contracts entered into by it for the purpose of the
provision of the Services contain such provisions as are reasonably
necessary to permit Royal Mail to exercise the rights granted under
Clause 13.
13.6 If Royal Mail exercises its rights under Clause 13, the Contractor
shall provide Royal Mail with such information and such access to its
books and records and its employees, and do all such other things, as
may reasonably be required to enable Royal Mail to continue to provide
the Programmeme.
14. WARRANTIES
14.1 With regard to the provision of the Services, the Contractor warrants
that in performing the Services the Contractor shall use (and procure
that the Personnel use) and exercise all reasonable skill and care in
accordance with good industry practice in the performance of its
obligations under this Agreement.
14.2 The Contractor warrants that the Packages shall be free from defects in
materials and workmanship as far as reasonably possible.
14.3 The Contractor shall, without prejudice to Royal Mail's other remedies,
forthwith remedy any breach of the warranties set out in this Clause
and Clause 10 at its own expense and to the reasonable satisfaction of
Royal Mail. The Contractor shall repair, replace or otherwise provide a
fully functioning alternative whilst any breach is being remedied, such
alternative to be approved in advance by Royal Mail.
14.4 The Contractor warrants that it has the rights to grant the rights set
out in this Agreement.
14.5 Except as expressly stated in this Agreement, all warranties and
conditions, whether express or implied by statute, common law or
otherwise (including but not limited to fitness for purpose and
suitability) are hereby excluded to the extent permitted by law.
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15. CONTRACTOR PERSONNEL
15.1 The Contractor shall:
15.1.1 make reasonable efforts to maintain continuity in relation to
the Personnel; and
15.1.2 ensure that all of the Personnel have all the requisite skill,
experience, qualifications and knowledge necessary to perform
the tasks assigned to them and in doing so adopt reasonable
and proper standards of behaviour, and in the event of breach
of this sub-clause the Contractor shall, upon written request
of Royal Mail, rectify the breach by promptly replacing the
Personnel concerned.
16. COMPLIANCE
16.1 The Contractor and all Personnel shall at all times perform the
Services in compliance with all statutory requirements for health,
safety, welfare and environmental protection and shall conform to all
relevant laws including statutes, regulations and by-laws of local or
other authorities.
17. VARIATIONS
17.1 All variations to the Services and/or any changes to this Agreement
shall be mutually agreed in writing and signed by the parties prior to
implementation.
18. SERVICES PERFORMED AT THE CONTRACTOR'S PREMISES
18.1 Subject to not less than 2 Business Days' prior written notice, where
the Services or part thereof are carried out at the Contractor's
Premises or any other relevant premises, the Contractor shall ensure
that Royal Mail or any person authorised by it shall be entitled to
full and free access to the Contractor's Premises or any other relevant
premises during normal business hours to carry out any inspection,
examination or testing or other quality assurance as is reasonably
deemed necessary. Such inspection, examination or testing shall not
release the Contractor from any obligation under this Agreement.
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19. CONTRACTOR'S OBLIGATIONS
19.1 The Contractor shall take all reasonable steps to ensure that in
carrying out the Services no computer viruses, worms, software bombs or
similar items are introduced into any Royal Mail Property, computer
systems or networks operated by Royal Mail.
19.2 The Contractor shall only obtain access to any of Royal Mail's
information systems if expressly authorised in writing to do so and
shall at all times comply with the IT System Policy.
20. ROYAL MAIL PROPERTY
20.1 All Royal Mail Property shall at all times remain the property of Royal
Mail and the Contractor shall have no rights in and to the said
equipment other than as bailee in relation to any Royal Mail Property
held at the Contractor's Premises.
20.2 The Contractor undertakes that it shall:
20.2.1 not use Royal Mail Property other than for the provision of
the Services;
20.2.2 promptly give notice to Royal Mail of the happening of any
material loss or damage to Royal Mail Property;
20.2.3 co-operate with Royal Mail so as to afford Royal Mail or its
authorised representatives access to inspect Royal Mail
Property;
20.2.4 at all times keep Royal Mail Property in its sole possession
at the Contractor's Premises and not sell, assign, mortgage,
charge, let or hire that Royal Mail Property nor, without the
prior written consent of Royal Mail, remove or replace or
permit the removal or replacement of Royal Mail Property or
any part thereof from the Contractor's Premises;
20.2.5 operate Royal Mail Property properly and in accordance with
the manufacturer's or supplier's instructions (as the case may
be) or other instructions supplied by Royal Mail;
20.2.6 not modify or alter Royal Mail Property; and
20.2.7 clearly identify Royal Mail Property as such and keep it
separate from other equipment.
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20.3 Upon termination or expiry of this Agreement, the bailment contained in
this Clause 20 shall terminate forthwith and the Contractor shall
return all such Royal Mail Property to the possession of Royal Mail.
The Contractor shall be responsible for all loss of or damage to Royal
Mail Property at the Contractor's Premises (except for any condition
properly attributable to fair wear and tear) during the term of the
bailment under this Clause 20.
20.4 Unless otherwise specified, any Royal Mail Property removed by the
Personnel from the Premises(s) shall be collected there from and
re-delivered thereto at the expense of the Contractor, and from
collection until delivery shall be at the risk of the Contractor.
Delivery shall be deemed to take place on signature for the items by a
responsible Royal Mail employee or authorised agent.
20.5 The Contractor acknowledges that Royal Mail makes Royal Mail Property
available to the Contractor on an as is basis and no warranty,
condition, undertaking or term, express or implied, statutory or
otherwise, is given or assumed by Royal Mail in relation to Royal Mail
Property and all such warranties, conditions, undertakings and terms
are hereby excluded.
20.6 Unless otherwise agreed between the parties in writing, Royal Mail
shall not charge the Contractor for use of any Royal Mail Property when
it is required to enable the Contractor to deliver the Services.
21. CONTRACTOR PERSONNEL AT THE PREMISES
21.1 Royal Mail shall afford to the Contractor such access to the Premises
as is necessary for the performance of the Services, subject to prior
agreement as to date and time.
21.2 Royal Mail may request and obtain from the Contractor a list of the
Personnel attending the Premises.
21.3 Royal Mail may refuse admission to the Premises to any member of the
Personnel, or require any such member to leave such Premises, at any
time and for any reason. If Royal Mail requires any member of the
Personnel to leave the Premises, the Contractor shall ensure that he or
she promptly does so. The Contractor may claim for reasonable costs
incurred as a result of Personnel not being allowed admission to the
Premises or being required to leave the Premises where the Contractor
has followed all prior agreed instructions and access was refused due
to an act or omission of Royal Mail.
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21.4 While the Personnel attend the Premises, the Contractor shall use its
reasonable endeavours to ensure that they conform to Royal Mail's codes
and regulations, adopt proper standards of behaviour, and co-operate
with Royal Mail employees or agents with designate security
responsibilities.
21.5 If requested to do so by Royal Mail, the Contractor shall provide
reasonable cooperation to Royal Mail in the preparation of an
appropriate health and safety plan and shall use its reasonable
endeavours to ensure that the Personnel adhere to such a plan once it
has been prepared and agreed. However, the Contractor reserves the
right to charge for this on a time and materials basis.
21.6 The Contractor shall use all reasonable endeavours to ensure that in
the provision of the Consultancy Services the Contractor does not
interfere with the operations of Royal Mail, its employees or agents or
any other contractor engaged at the Premises whether or not the
Contractor is provided with sole access to the Premises.
21.7 The Contractor shall be responsible at its own risk and expense for the
delivery to, unloading at and removal from the Premises of all plant,
equipment and things of all kinds necessary for the provision of the
Services. Unless otherwise agreed between the parties in writing, all
such items shall remain the responsibility of the Contractor who shall
be liable for the care, safety and storage thereof and shall remove
them at the end of each visit or collection of visits relating to a
single project and leave the Premises in a clean, tidy and safe
condition.
21.8 The Contractor shall notify Royal Mail immediately of any damage, loss
or injury to property or persons occurring at the Premises of which the
Contractor and/or the Personnel are or ought reasonably to be aware.
22. INTELLECTUAL PROPERTY RIGHTS
22.1 Where Software is required to enable Royal Mail to obtain the full
benefit of the Services the Contractor hereby agrees to grant to Royal
Mail a non-exclusive, nontransferable licence to use the Software for
that purpose.
22.2 Royal Mail will not, without the Contractor's prior written consent,
copy or (except as permitted by law) decompile or modify the Software,
nor copy the manuals or documentation.
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22.3 Should Royal Mail choose to receive specific content from third party
suppliers, then Royal Mail will sign the content related agreements
reasonably required by the owner of the copyright in the Software to
protect the owner's interest in that Software.
22.4 All intellectual property and other rights in the Corporate Learning
Management System shall at all times remain the property of the
Contractor.
23. CONFIDENTIALITY
23.1 Each party (the receiving party) shall keep confidential and shall not
disclose to any third party any Confidential Information of the other
party which has been disclosed to it under or pursuant to this
Agreement, nor use the same for any purpose other than the performance
of this Agreement. The receiving party may disclose such information to
its employees, officers, advisers and permitted subcontractors to the
extent necessary for the performance of this Agreement. The Contractor
shall use all reasonable endeavours to ensure that all such persons are
aware of and comply with these obligations as to confidentiality and
that they shall, if so required, give a written confidentiality
undertaking to Royal Mail in a form prescribed by Royal Mail.
23.2 The provisions of this Clause shall not apply to Confidential
Information which:
23.2.1 is or becomes publicly known otherwise than as a result of a
breach of the terms of this Agreement; or
23.2.2 is known to the receiving party under no obligation of
confidence, at the time of disclosure by the other party; or
23.2.3 is lawfully obtained by the receiving party without any
obligation of confidence from a third party who is free to
divulge the same; or
23.2.4 is independently developed by the receiving party without
reference to any Confidential Information.
23.3 The receiving party may disclose any Confidential Information of the
other party to the extent that it is required to be disclosed to any
governmental or other authority or regulatory body or to the extent
required by law.
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23.4 Upon request, and in any event upon expiry or termination of this
Agreement for whatever reason, the Contractor shall return forthwith to
Royal Mail any confidential Information provided under this Agreement.
For the avoidance of doubt, this requirement shall apply to material or
information in whatever form including, but not limited to, electronic
form and shall include all notes, copies or extracts of the information
or material, whether stored or recorded separately by the Contractor or
otherwise. The Contractor shall use all reasonable endeavours to ensure
that any such information or material which has been disclosed to any
person employed or engaged by the Contractor shall be returned
forthwith. The Contractor shall certify in writing that the provisions
of this Clause have been complied with, if so required by Royal Mail.
23.5 The obligations in this Clause shall cease to have effect three years
after the Expiry Date.
24. INTELLECTUAL PROPERTY INDEMNITY
24.1 Subject to the limitation on liability set out in Clause 25 the
Contractor indemnifies and shall keep indemnified Royal Mail against
all damages, costs, expenses and losses awarded by the court of
competent jurisdiction presiding over any third party claim that the
possession, use or exploitation by Royal Mail of any product provided
by the Contractor under this Agreement or any part of it in accordance
with the terms of this Agreement, infringe(s) that third party's
intellectual property rights, as well as any damages agreed by the
Contractor in settlement of said claim and any reasonable expenses
incurred by Royal Mail in defense of said claim, provided that unless
otherwise agreed with Royal Mail:
24.1.1 Royal Mail shall promptly notify the Contractor of any such
claim;
24.1.2 Royal Mail shall lend the Contractor all reasonable assistance
in the defense of such claim, at the Contractor's cost;
24.1.3 the Contractor shall be exclusively authorised to conduct the
defence and/or settlement of such claim;
24.1.4 Royal Mail shall not make any admission which may be
prejudicial to the defence or settlement of such claim without
the prior written approval of the Contractor not to be
unreasonably withheld or delayed.
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24.2 Should Royal Mail undertake to conduct independently a defence and/or
settlement of any third party claim arising from the infringement or
alleged infringement of that party's intellectual property rights in
breach of the procedures set out in Clause 24.1 it will do so at its
own risk and expense and will not be able to recover any such damages,
costs and expenses as it may incur from the Contractor.
24.3 Subject to the provisions of Clause 24.2 in the event of a claim under
Clause 24.1 which prevents Royal Mail from using any product or any
part of it or them in accordance with this Agreement, the Contractor
shall make all reasonable efforts, as soon as reasonably possible to:
24.3.1 provide Royal Mail with an alternative non-infringing product
of equivalent or increased functionality and performance, for
use in accordance with this Agreement; or
24.3.2 obtain for Royal Mail the right to use the product concerned
in accordance with this Agreement without the infringement of
any third party intellectual property right; or
24.3.3 promptly modify the product without any degradation in
functionality or performance, so that its use in accordance
with this Agreement does not infringe any third party
intellectual property right.
24.4 This Clause 24 states the entire liability of the Contractor to Royal
Mail in relation to infringement of intellectual property rights.
25. LIMITATION OF LIABILITY
25.1 Neither party excludes or limits liability to the other for death or
personal injury as a result of its negligence.
25.2 Subject to Clause 25.1, each party's total liability in contract, tort
(including negligence or breach of statutory duty), misrepresentation,
restitution or otherwise, arising in connection with the performance or
contemplated performance of this Agreement shall be limited to the
aggregate sum of GBP10,000,000 (ten million pounds).
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25.3 The parties expressly agree that should any limitation or provision
contained in this Clause be held to be invalid under any applicable
statute or rule of law it shall to that extent be deemed omitted but if
any party thereby becomes liable for loss or damage which would
otherwise have been excluded such liability shall be subject to the
other limitations and provisions set out herein.
26. INSURANCE
26.1 The Contractor shall take out and maintain the insurance cover set out
in Schedule 3, or such other levels as may from time to time be
approved by the Operations Team.
26.2 The Contractor shall provide Royal Mail with a copy of such insurance
policies or any insurance certificate giving details of the insurance
cover at any time on request by Royal Mail.
26.3 If the Contractor fails to take out and maintain insurance pursuant to
this Clause and, after seven Business Days of having been requested to
comply with its obligations to do so, has not so complied, Royal Mail
shall be entitled to effect such insurance on the Contractor's behalf
and the Contractor shall on demand reimburse Royal Mail for the premium
paid by Royal Mail.
27. FORCE MAJEURE
27.1 Neither party shall be liable to the other for any failure or delay in
performing its obligations hereunder where such failure or delay is
caused by circumstances beyond the reasonable control of the party
concerned.
28. WAIVER
28.1 In no event shall any delay, neglect or forbearance on the part of
either party in enforcing (in whole or in part) any provision of this
Agreement be or be deemed to be a waiver thereof or a waiver of any
other provision or shall in any way prejudice any right of that party
under this Agreement.
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29. NO AGENCY
29.1 No provision of this Agreement creates a partnership between Royal Mail
and the Contractor or makes one party the agent of the other party for
any purpose. Neither Royal Mail nor the Contractor has authority or
power to bind, to agree in the name of, or to create a liability for
the other in any way or for any purpose.
30. NOTICES
30.1 All notices required or permitted under this Agreement or required by
statute, law or regulation shall be in writing and shall be deemed to
be sufficiently given if delivered by hand, sent by first class prepaid
post (or prepaid airmail where the address of the recipient is outside
the United Kingdom) or facsimile transmission or electronic
communication to the address or the facsimile number or electronic
communication address of the Contractor's Representative or Royal
Mail's Representative as appropriate given in Clause 6 (with, in the
case of Royal Mail, in relation to any dispute or breach, a copy to The
Company Secretary at the registered office) or such other address or
facsimile number or electronic communication address as may be
subsequently notified to the other party in writing in accordance with
this Clause.
30.2 Any notice shall be deemed to have been served as follows:
30.2.1 if delivered by hand on a Business Day, at the time of
delivery to the address of the recipient;
30.2.2 if sent by first class prepaid post, two Business Days after
the date of posting;
30.2.3 if sent by prepaid airmail, six Business Days after the date
of posting;
30.2.4 if sent on a Business Day by facsimile transmission or
electronic communication, on successful transmission by the
sender.
30.3 In the event that any address appearing in this Agreement is, or is
subsequently changed to, an address outside the United Kingdom the
party whose address is outside the United Kingdom shall appoint a firm
of solicitors resident in England to be its agent and accept service of
all legal process in England in respect of any matter arising out of or
in connection with this Agreement. The service of legal process on such
firm will be deemed to be service on the recipient.
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31. ROYAL MAIL TRADE MARKS
31.1 Royal Mail licences the Contractor to use the Royal Mail Trade Marks on
the terms of the Branding Licence Agreement set out in Appendix G,
which the parties will be deemed to have entered into on the date of
this Agreement.
32. ENTIRE AGREEMENT
32.1 This Agreement sets out the entire agreement and understanding between
the parties relating to the subject matter of this Agreement. The terms
and conditions set out in this Agreement or implied by statute or by
judicial decision take priority over any other arrangements,
communications (whether verbal or written), representations, warranties
whether contained in the Contractor's documents or elsewhere and which
relate to the subject matter herein.
33. RECOVERY OF SUMS DUE
33.1 Where the Contractor owes any sum of the money to Royal Mail under this
Agreement or any damages as a result of the breach thereof, the amount
may be deducted from any sum now due or which may become due to the
Contractor under this Agreement or any other contract or agreement
between Royal Mail and the Contractor.
34. PUBLICITY
34.1 The Contractor shall not, without the written permission of Royal Mail,
advertise or disclose to third parties that it is undertaking or has
undertaken work for Royal Mail nor disclose the contents of this
Agreement, provided that nothing herein shall prevent:
34.1.1 any announcement or disclosure required under any applicable
law or regulation, or any rule of any applicable investment
exchange; or
34.1.2 the disclosure of any matter which is in the public domain.
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35. GOVERNING LAW DISPUTE RESOLUTION
35.1 In the event of any dispute, difference or question of interpretation
arising between the parties, the parties will make all reasonable
attempts to settle by discussion, referring to management if necessary.
35.2 Subject to the procedure described in Clause 35.1 being exhausted if
any dispute arises out of this Agreement, the parties will attempt to
settle by mediation in accordance with the Centre for Dispute
Resolution Model Mediation Procedure. To initiate a mediation a party
must give notice in writing to the other party(ies) to the dispute.
35.3 If the mediation in accordance with Clause 35.2 fails or is terminated,
then the parties may agree to refer the dispute to an expert for final
resolution pursuant to Clause 35.54 or any party may commence court
proceedings.
35.4 Subject to Clause 35.3, the dispute may be referred for final
determination to an expert (the "Expert") who shall act as an expert
and not as arbitrator, such referral and determination to take place as
follows:
35.4.1 the Expert shall be selected by mutual agreement or, failing
agreement, within ten (10) working days after a request by one
party to the other, shall be chosen at the request of either
party by the President for the time being of the Computer
Services and Software Association who shall be requested to
choose a suitably qualified and experienced expert for the
dispute in question. In connection with the conduct of the
dispute, the Expert shall have the widest discretion allowed
under English Law to ensure a just, expeditious and final
determination of the dispute.
35.4.2 Within forty (40) working days after the Expert has accepted
the appointment, the parties shall submit a written report on
the dispute to the Expert and to each other and twenty (20)
working days thereafter shall submit any written replies they
wish to make to the Expert and to each other.
35.4.3 Both parties will then afford the Expert all necessary
assistance which the Expert requires to consider the dispute
including but not limited to full access to the Services and
Products and any documentation or correspondence relating to
the Services and Products.
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35.4.4 The decision of the Expert shall be final and binding and not
subject to appeal.
35.4.5 The Expert shall have the same powers to require any party to
produce any documents or information to him and the other
party as an arbitrator and each party shall in any event
supply to him such information which it has and is material to
the matter to be resolved and which it could be required to
produce on discovery.
35.4.6 The fees of the Expert shall be born by the parties in the
proportion as shall be determined by the Expert having regard
(amongst other things) to the conduct of the parties.
35.5 Subject to Clauses 35.2, 35.3 and 35.4, this Agreement shall be
governed by English law and the parties submit to the exclusive
jurisdiction of the English Courts.
36. CORRUPTION AND BRIBERY
36.1 Neither party shall give or offer to give anyone employed by the other
party an inducement of any kind or any gift that could be perceived by
others to be a bribe.
36.2 Any breach of the provisions of this Clause 36 shall be a breach of
this Agreement which is incapable of remedy.
37. LANGUAGE
37.1 English shall be the language of this Agreement and all notices,
documents and communications relating to this Agreement must be made in
the English language. In the event that this Agreement or any part of
it is translated from, or into, any other language, the English text
shall in any event prevail.
38. RECORDS
38.1 The Contractor shall promptly create and, for a period of six years
after the Expiry Date, retain, adequate paper or electronic records of
all matters reasonably relevant to this Agreement and the Contractor's
performance hereunder. The Contractor shall use all reasonable
endeavours to ensure that said records are accurate and comprehensive
and are created and stored in such a way that their authenticity can be
subsequently easily verified. Upon written request, the Contractor
shall allow representatives of Royal Mail access to the said records
and shall allow the said records to be copied by the said
representatives at Royal Mail's reasonable cost using Contractor's
onsite copying facilities. The Contractor shall ensure that any
subcontractors engaged by the Contractor for the purposes of this
Agreement shall grant the same rights to Royal Mail as those contained
in this Clause.
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39. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
39.1 This Agreement does not create any right enforceable by any person who
is not a party, except that the terms of this Agreement may be enforced
by Employees subject to and in accordance with the terms of this
Agreement and the Contracts (Rights of Third Parties) Xxx 0000.
39.2 Notwithstanding that any term of this Agreement may be or become
enforceable by a person who is not a party to it, the terms of this
Agreement or any of them may be varied, amended or modified or this
Agreement may be suspended, cancelled or terminated by agreement in
writing between the parties or this Agreement may be rescinded (in each
case), without the consent of any such third party.
IN WITNESS WHEREOF THIS AGREEMENT was signed on the date set out in page 1.
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SIGNED for and on behalf of ) /s/ Xxxx Xxxxxxxxx
FUTUREMEDIA PLC ) Xxxx Xxxxxxxxx, CEO
SIGNED for and on behalf of ) /s/ Xxx Xxxx
ROYAL MAIL GROUP PLC ) Xxx Xxxx, Head of Technology Purchasing
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