EXPRESSION

MEANING

"Access of Information and Freedom of Information"

means the provisions of the Freedom of Information Act 2000 and relevant guidance

"Acquired Rights Directive Act"

means EC Directive 77/187 (as amended by EC Directive 98/50) the Local Government Act 1999

“Additional Services”

means as set out in Schedule 5 of this Agreement

"Additional Support Days"

means the provision by the Partner at the request of the Council of consultancy, training, support services and/or such other ICT services as agreed by the parties at the rates set out in Schedule 4 (Additional Support Days)

"Additional Support Days Cap"

shall be a number of days as agreed between the parties in each Operating Year and pro rata for part of an Operating Year calculated by reference to the Modernisation Fund

"Affiliate"

means in relation to any person, any holding company or subsidiary of that person or any subsidiary of such holding company and "holding company" and "subsidiary" shall have the meaning given to them in section 736 of the Companies Act 1985

"Agreement Period"

means the period during which this Agreement remains in force

"Appropriate Limit"

means as defined in Clause 45.8

"Approved Sub-Contractor"

means those set out in Schedule 25

"Assets"

means all assets and rights used by the Partner to operate and maintain the Services in accordance with this Agreement, including:-

(i) Hardware which the Partner employs in the provision of the Services

(ii) any rights in Software and any other intellectual property rights which the Partner employs in the provision of the Services

(iii) any books and records (including operating and maintenance manuals, health and safety manuals and other know how)

(iv) any plant, machinery, equipment, spare parts, tools and other assets (together with any warranties in respect of assets being transferred)

(v) any contractual rights (including rights arising under any Hardware related agreements) which are in the provision of the Services

(vi) any land or buildings which the Partner occupies in the provision of the Services

but excluding any assets and rights, in respect of which the Council is full legal and beneficial owner

"Background Information"

means all and any materials, documents, drawings, plans, data, models, financial information or any other information whatsoever relating in any way to the Services, made available by the Council or its agents in connection with the negotiation and preparation of this Agreement and during the process of competitive tender which preceded such negotiation and preparation, including PQQ, ISOP, ITN, Dataroom

"Benchmarked"

xxxx

"Benchmarking Date"

xxxx

"Benchmarking Exercise"

xxxx

"Best Value Performance Plan"

means the Best Value Performance Plan which is required to be provided by the Council each Financial Year in accordance with section 6 of the Local Government Act 1999

"Best Value Review"

means the review which is required to be conducted by the Council in accordance with section 5 of the Local Government Act 1999

"Budget"

means the budget for the provision of the Services as agreed by the parties in accordance with Schedule 11 (Payment and Performance Mechanism)

"2006/2007 Budget"

means the Council's Budget for the period 1 April 2006 to 31 March 2007 as notified to the Partner prior to the date of this Agreement

"Business Day"

means the hours during which the Council is usually open for business on any day other than a Saturday or Sunday or public holiday in England and Wales

"Business Plan"

means a plan prepared by the partner in accordance with clause 24

"Change in Law"

Xxxx

"Change Control Confirmation”

has the meaning given to it in Schedule 20 (Change Control)

“Change Control Procedure”

means a variation to the Services, as described in Schedule 20 (Change Control)

“Change Control Report”

means a report issued in response to a Notice of Change as described in Clause 33

“Claim”

Xxxx

“Claim Notice”

Xxxx

“Commencement Date”

means the date of this Agreement

“Commercial Endeavours”

means all such action as can be taken to fulfil the obligation in question which it is reasonably practicable to take by reference to Good Industry Practice and the nature and cost of such action having regard to all relevant circumstances (including the extent and nature of the obligation to be fulfilled, the likely success of such action and the effect of such action on the resources and financial position of the party taking such action). For the avoidance of doubt, a party exercising Commercial Endeavours shall not be obliged to take any action such as would (or might reasonably be expected to) result in the insolvency of that party, or it being required to cease trading (whether to avoid wrongful trading or otherwise)

“Commercially Sensitive Information”

Xxxx

“Confidential Information”

xxxx

“Consents”

means all permissions, consents, approvals, certificates, permits, licences and authorisations (including those from a Relevant Authority or owner of intellectual property rights) required for the performance of any of the Partner's obligations under this Agreement excluding any Council Consents

“Contact Centre”

means the contact centre more particularly described in the Contact Centre Operational Plan

“Contact Centre Operational Plan”

means the Contact Centre Operational Plan as set out in Schedule 2 (Specification and Operational Plans)

"Control"

means the holding of securities in a company conferring a majority of the voting rights in it or the right to appoint or remove a majority of its board of directors

xxxx

Xxxx

“Corrective Action Notice”

Xxxx

“Corrective Action Procedure”

means as defined in clause 37 (Corrective Action)

"Council Claim Value"

Xxxx

“Council Consents”

means all permissions, consents, approvals, certificates, permits, licences and authorisations (including those from a Relevant Authority or owner of intellectual property rights) relating to the Initial Assets, the ICT Assets and the Transferring Assets insofar as required to deliver the Services in accordance with the terms of this Agreement excluding any Consents

"Council's Elected Members"

means the elected members of the Council

"Council Final Notice"

means as defined in Clause 32

“Council Non Fault Step-In Notice”

means as defined in Clause 32.3

"Council Premises"

means any premises owned or occupied by the Council where the Services may be or are carried out

"Council Premise Licences"

means the licenses for the Council Premises set out in Part 1 of Schedule 21 (Property Agreement)

"Council Policies and Standards"

means the standards set out in Schedule 13 (Council Standards) as at the date of this Agreement

“Council Representative”

means the person appointed as the "Partnership Manager" by the Council and notified to the Partner from time to time

“Council Responsibilities”

means the list of Council responsibilities in order to allow the Partner to properly deliver the Services set out at Schedule 14 (Council Responsibilities)

“Council Software”

means all that Software which is owned by the Council (and which is not transferred to the Partner as an Initial Asset) but the use of which is required by the Partner in the provision of the Services

"Council Vehicles"

Xxxx

“Council Warning Notice”

means as set out in Clause 38 (Step-In for Partner Default)

“Data”

has the meaning given to it in Clause 42.1 (Intellectual Property and IT)

“Data Protection Legislation”

means as defined in Clause 50 (Data Protection)

“Default Interest Rate”

Xxxx

“Disaster Recovery Plan”

means the plan set out at Schedule 8 (Disaster Recovery Plan)

“Disengagement Obligations”

Xxxx

“Dispute Resolution Procedure”

xxxx

“Duty of Best Value”

means the duty imposed on the Council by Part 1 of the Local Government Act 1999 and under which the Council is under a statutory duty continuously to improve the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness and to the guidance issued from time to time by the Secretary of State, Audit Commission and the Chartered Institute of Public Finance and Accountancy (and their successor bodies as the case may be from time to time) pursuant to, or in connection with, Part 1 of that Act

"Economic Growth Plan"

means the document of that name set out in schedule 2 (Specification and Operational Plans)

"Environmental Information Regulations"

means the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such regulations

"Equipment"

means the plant, machinery, equipment (including Hardware) and other items to be provided and/or maintained by the Partner in accordance with the terms of this Agreement and used in the provision of the Services

"Excusing Cause"

means:

any breach of any express provision of this Agreement by the Council or any agent, servant, employee or Sub-Contractor of the Council (unless, and to the extent, caused or contributed to by the Partner or any of its agents, servants, employees or Partner Sub-Contractors including any Seconded Personnel);

any deliberate or negligent act or omission of the Council or any agent, servant, employee (excluding any Seconded Personnel) or Sub-Contractor of the Council, save where:

(i) (and to the extent) caused or contributed to by the Partner or any of its agents, servants, employees or Partner Sub-Contractors;

(ii) the Council or any of its agents, servants, employees or Sub-Contractors is acting in accordance with a recommendation or instruction of the Partner or any of its agents, servants, employees or Partner Sub-Contractors;

(iii) the consequences of any such deliberate act or omission or other acts or omissions giving rise to such failure would have been prevented by the proper performance of the Partner's obligations under this Agreement;

"Expiry Date"

means the 15^th anniversary of the Services Start Date or if earlier the effective date on which this Agreement is terminated by one party exercising a lawful right to terminate this Agreement

“Fast Track Adjudication Procedure”

has the meaning set out in Schedule 28 (Dispute Resolution Procedure)

"Failure"

xxxx

"Fee"

xxxx

"Financial Year"

means any year commencing 1 April and ending 31 March which falls wholly or partly within the Agreement Period

"FOIA"

means the Freedom of Information Act 2000 and any subordinate legislation (as defined in section 84 of the Freedom of Information Act 2000) made under the Freedom of Information Act 2000 from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such Act

"Force Majeure Event"

means any one or more of the following:

(i) war, civil war, armed conflict or terrorism; or

(ii) nuclear, chemical or biological contamination unless the source or cause of the contamination is the result of actions of the Partner; or

(iii) pressure waves caused by devices travelling at supersonic speeds

(iv) any event which is beyond the reasonable control of the party in question,

provided that such event materially affects the ability of the party seeking to rely upon it to perform its part of this Agreement except to the extent that:

(a) it is directly caused or materially contributed to by either party seeking to rely on Clause 51 (Force Majeure) excluding strikes, lock outs or other industrial action, whether of the affected party's own employees or others; and/or

(b) it is subsisting as at the date hereof

"Fees Regulations"

means the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (as amended, varied or replaced from time to time)

"Formal Notice"

means a formal notice issued under this Agreement in accordance with Clause 6 (Notices)

"Good Industry Practice"

means the exercise of that degree of skill, diligence, prudence and foresight and operating practice which would reasonably and ordinarily be expected from a skilled and experienced contractor (engaged in the same type of undertaking as that of the Partner)

"Guarantee"

xxxx

"Guarantor"

xxxx

"Hardware"

means any and all computer, telecommunications and network equipment and any asset which relies in any respect on computer hardware or other information technology (whether embedded or not)

"Highways and Maintenance Contract"

means the Highways and Maintenance Contract 2003 - 2007 entered into between the Council and Alfred McAlpine Asset Management Services

"Highways and Maintenance Service Element"

xxxx

"ICT Assets"

xxxx

"ICT Assets Fee"

xxxx

"ICT Assets Licences"

xxxx

"Information"

has the meaning given under Section 84 of the Freedom of Information Act 2000

"Initial Assets"

means those assets which are licensed to the Partner under this Agreement for the purpose of being used by the Partner in the provision of the Services as set out in Part 1 of Schedule 18 including Hardware and Software

“Insured Liability”

xxxx

"Intellectual Property Rights" or “IPR”

means all present and future intellectual and industrial property rights of any kind whatsoever now or hereafter existing including without limitation patents, trade marks, service marks, domain names, rights in designs, trade names, copyrights, database rights, know-how, whether or not any of these is registered or capable of registration and including applications for any such right, all extensions and renewals thereof, all rights in inventions, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world from time to time;

"Job Creation Target"

means the job creation target set out in schedule 11 (Payment & Performance Mechanism)

"Joint Venture Activities"

means any activities permitted to be undertaken by the Partner in accordance with the Joint Venture Agreement

"Joint Venture Agreement"

means the joint venture agreement of even date between the Mouchel Parkman Services Limited (company registration number 1686040 whose registered office is at West Hall, Parvis Road, West Byfleet, Surrey, KT14 6EZ) and the Council

"Key Performance Indicators"

Xxxx

"Key Staff"

means the individuals and job descriptions detailed in Schedule 26 (Key Partner Personnel)

"Laws"

means any statute, statutory instrument. standards, law, production, order resolution, notice, rule of court, bye-law, directive, code of conduct or other instrument or requirement having the force of law within any national or local jurisdiction issued, declared, passed or given effect to in any manner by H.M. Parliament, the legislative making institutions of the European Union, any court or other judicial form, any Commission of Inquiry, local authority, statutory undertaker or relevant authority or any other body or person having such power and having force contemporaneously with the Partner's performance of the Services

"Legal Requirements"

means Law and Legislation applicable to the Services

"Legislation"

means any Act of Parliament or subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, any exercise of the Royal Prerogative, and any enforceable community right within the meaning of section 2 of the European Communities Act 1972, in each case in the United Kingdom

"Local Commissioner"

means the local government commissioner as defined in Part III of the Local Government Act 1974

"Local Job Creation Protocol"

means the document of that name set out in Schedule2 (Specification & Operational Plans)

"Losses"

means any direct liability, costs (including the costs of enforcement expenses), injures, losses, judgments, legal costs, damages, or increased costs or expenses

"Modernisation Fund"

xxxx

"Notice of Change"

has the meaning set out in paragraph 1.2 of Schedule 20 (Change Control)

"Open Book Accounting"

means the disclosure by the Partner of all material data and information which relate to the performance of the Partner's obligations under this Agreement including staff costs, resources used, valuations, cost variations, profit margins, payment mechanisms, budget planning, defaults, claims, insurance, recovery of costs and any other matter which is reasonably incidental to the performance of the Partner's obligations under this Agreement

"Operational Plans"

means those plans set out in Schedule 2 (Specification and Operational Plans) as amended or updated by agreement with the Council annually as part of the business planning process

"Partner Personnel"

means the Partner, its employees and other staff, its agents and Partner Sub-Contractors and staff of Partner Sub-Contractors engaged in the provision of the Services or otherwise involved in the performance of the Partner's part of this Agreement

"Partner Software"

means all that Software the IPR in which is owned by the Partner or Partner Sub-Contractor Partner an Affiliate of Partner (whether transferred to the Partner as an Initial Asset under this Agreement or generated by the Partner itself or any Affiliate) and used by the Partner in the provision of the Services but excluding the Specially Written Software

“Partner Sub-Contractors"

xxxx

"Partnership Building"

means the new partnership building more particulary described in part 2 of schedule 21 (Property Agreements)

"Partnership Building Occupation Date"

means the date to be agreed between the parties (both acting reasonably and in good faith) when the Partner shall take occupation of the Partnership Building

"Pay and Grading Review"

means the pay and grading review which the Council is required to undertake in accordance with the 2004 National Joint Council Pay Agreement which should be completed by 31 March 2007

"Payment and Performance Mechanism"

means the Fees payable for the Services in accordance with the provisions of Schedule 11 (Payment and Performance Mechanism)

"Penalties”

means the penalties as set out in Schedule 11 (Payment and Performance Mechanism)

"Personal Data"

means personal data as defined in the Data Protection Act 1998 and/processed by the Partner on behalf of the Council

"Premises"

means land and buildings, fixtures, fittings, plant and equipment now or at any time hereafter existing from which the Services are provided

"Prohibited Act"

means:-

(a) offering giving or agreeing to give any officer or employee of the Council any gift or consideration of any kind as an inducement or reward:

(i) for doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Agreement or any other contract with the Council or

(ii) for showing or not showing favour or disfavour to any person in relation to this Agreement or any other contract with the Council

(b) entering into this Agreement or any other contract with the Council in connection with which commission has been paid or has been agreed to be paid by the Partner or on its behalf, or to its knowledge, unless entering into this Agreement or any other contract with the Council in connection with which commission has been paid or has been agreed to be paid by the Partner or on its behalf, or to its knowledge, unless before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed

"Programs"

means the Council Software, Partner Software, the Specially Written Software and the Third Party Software

"Property Agreements"

means the agreements set out at Schedule 21 (Property Agreements)

"Property Service Element"

means the Service Element relating to the property services more particularly described in Schedule 2 (Specification and Operational Plans)

"RBH"

means Rochdale Boroughwide Housing Limited (Company Number 4394435) whose registered office is situated at PO Box 69, The Old Post Office, The Esplanade, Rochdale, Lancashire OL16 1AE

"RBH Revenue"

means the charge payable to RBH as set out in the 2006/2007 Budget

"Relevant Authority"

means any court with the relevant jurisdiction and any local, national or supra-national agency, inspectorate, minister, ministry, official or public or statutory person of the government of the United Kingdom or of the European Union

"Remedial Period"

means as defined in clause 37 (Corrective Action)

"Requests for Information"

shall have the meaning set out in the FOIA or the Environmental Information Regulations as relevant (where the meaning set out for the term "request" shall apply) and for the purpose of this Agreement shall relate to such a request which the Council is required to comply with under the FOIA or the Environmental Information Regulations

"Required Action"

means as defined in Clause 31.4

“Retained Services”

means services not within the scope of the Services operated by the Council or a party connected to the Council or to whom the Council provides Services

“Secondment Agreement”

means the Agreement as set out at Schedule 16 (Secondment Agreement)

“Seconded Personnel”

means the personnel seconded by the Council to the Partner as set out in Schedule 1 of the Secondment Agreement and any replacement or additional employees of the Council seconded to the Partner in accordance with the terms of the Secondment Agreement

“Service Commencement”

means the commencement of the Services

“Service Element”

means each of the Services specified in Schedule 2 (Specification and Operational Plans)

“Service Period”

means the period from the Services Start Date to the Expiry Date or the date the Agreement terminates, whichever occurs first

“Services”

means the operating obligations of the Partner (more particularly described in the Specification and the Contact Centre Transition Plan) and in the provisions of this Agreement the Disengagement Obligations, the Additional Services commissioned in accordance with the terms of this Agreement)

“Services Start Date”

means 1 April 2006

“Software"

means all computer programs in both source and object code form, including all modules, routines and sub-routines of such programs and all source and other preparatory materials relating to them, including user requirements, functional specifications and programming specifications, ideas, principles, programming languages, algorithms, flow charges, logic, logic diagrams, orthographic representations, file structures, coding sheets, coding and any manuals or other documentation relating to them and computer generated works.

"Specially Written Software"

means that Software which is written by or on behalf of the Partner or any Partner Sub-Contractor and supplied or employed (or due to be supplied or employed) in the delivery of the Services including any revisions, modifications or enhancements thereto

"Specification"

means the description of the Services, and the service levels to be attained by the Partner in the provision of the Services as set out in Schedule 2 and any modifications or addition thereto as may from time to time be agreed in accordance with the this Agreement

“”Step-In Services”

means as set out at Clause 31.3.1

“Step-In Commencement Date”

means as set out at Clause 31.3.2

“Step-In Period”

means as set out in Clause 31.3.3

“Step-In Notice”

means as set out at Clause 31.7.

“Step-Out Plan”

means as set out at Clause 31.8

"Sub-Contractor"

means any person including the Approved Sub-Contractor to whom either party sub-contracts any part of its obligations under the Agreement at any time

xxxx

xxxx

"Survey"

means any survey conducted or commissioned by the Council of members of the public or any Council personnel in relation to the standard of performance of the Services

"Term"

means the period of 15 years from the services Start Date

"Third Party"

means a person other than the Council, the Partner, any Affiliate of the Partner, Partner Personnel, Seconded Personnel or the Guarantor

"Third Party Assets"

means those Assets which are used by the Partner in connection with the provision of the Services but are owned by a Third Party

"Third Party Software"

means Software, the IPR in which is owned by a Third Party and which is used in the provision of the Services

xxxx

xxxx

"Transferring Contracts"

means the contracts set out in Part 2 of Schedule 17

"TUPE"

has the meaning given to it in the Secondment Agreement

“Uninsured Liability”

means all liabilities of the Partner under or in respect of this Agreement (or the subject matter thereof) other than an Insured Liability

"User Complaint"

means a complaint received from any member of the public served by the Council or from any council personnel

"VAT"

means any value added tax

"Warning Notice"

means as defined in Clause