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SCHEDULE R
LIVESCAN AND EIU’S
Schedule R (Livescan and EIU’s)
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CONTENTS
1.
INTRODUCTION....................................................................................................................1
ANNEX R-1 TERMS AND CONDITIONS .......................................................................................3
APPENDIX A - EIU CONTRACT EIU SERVICE DESCRIPTION............................................32
APPENDIX B - EIU CONTRACT EIU SERVICE LEVELS........................................................33
APPENDIX C – EIU CONTRACT EIU PRICING ........................................................................34
ANNEX R-2 LIVESCAN SERVICES DESCRIPTION
ANNEX R-3 LIVESCAN FUNCTIONAL REQUIREMENTS SPECIFICATION
Schedule R (Livescan and EIU’s)
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SCHEDULE R
LIVESCAN AND EIUs
1.
INTRODUCTION
1.1
The purpose of this Schedule is to set out the terms and conditions (“EIU Contract”) that
shall apply between the relevant Police Forces and the Contractor in relation to the provision
of EIU Services that the relevant Police Forces elect to order in accordance with Clause 8 of
Schedule B (Conditions of Contract). For the avoidance of doubt, in this Schedule
“Contract” without the prefix “EIU” continues to mean the IDENT1 Contract as defined in
Schedule C (Definitions).
1.2
All optional EIU Services listed in the Catalogue of systems, services and products (COSSP)
of Schedule E (Pricing) shall be purchased using this EIU Contract.
1.3
The terms and conditions of the EIU Contract that the Contractor shall enter into with the
relevant Police Forces described in Clause 1.1 above are set out in Annex R-1 (EIU
Contract). The terms of the EIU Contract cannot be amended, changed or varied in any way
without obtaining the prior written consent of the Authority.
1.4
The description of EIU Services that the Contractor shall provide to the Police Forces under
the EIU Contract shall be set out in Appendix A (EIU Services Description) of Annex R-1
(EIU Contract). Such description of Services shall be agreed in accordance with Schedule L
(Change Control Procedures) save that if the relevant EIU Service is for Livescan Services,
then the service description set out in Annex R-2 (Livescan Services Description) of this
Schedule shall be incorporated into Appendix A (EIU Services Description).
1.5
The Service Levels that shall be applied to the relevant EIU Service under the EIU Contract
shall be set out in Appendix B (EIU Service Levels) of Annex R-1(EIU Contract). Such
EIU Service Levels shall be agreed in accordance with Schedule L (Change Control
Procedures) save that if the relevant EIU Service is for Livescan Services, the Livescan
Service Levels in Part 3 of Schedule F (Service Level Requirements) of the Contract shall
be incorporated into Appendix B (EIU Service Levels).
1.6
The pricing that shall be applied to the relevant EIU Service under the EIU Contract shall be
set out in Appendix C (EIU Pricing) of Annex R-1(EIU Contract). Such EIU Pricing shall
be agreed in accordance with Schedule L (Change Control Procedures) save that if the
relevant EIU Service is for Livescan Services, the Livescan pricing in Schedule E (Pricing)
of the EIU Contract shall be incorporated into Appendix C (EIU Pricing).
1.7
Nothing in this EIU Contract shall have the effect of negating the provisions of the Contract
insofar as they relate to Police Forces.
Schedule R (Livescan and EIU’s)
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ANNEX R-1 OF SCHEDULE R
EIU CONTRACT
NOTE: The contract in this Annex R-1 is the draft EIU Contract that shall
be used by the Contractor to enter into contracts with the relevant Police
Forces for EIU Services under the IDENT1 Contract. This draft EIU
Contract represents the position agreed between the Authority and the
Contractor at the Effective Date of the IDENT1 Contract. The Parties
agree that there are still sections of the draft EIU Contract that require
further amendment after the Effective Date, predominantly in the areas of:
acceptance, licencing and Intellectual Property Rights, Limits of liability
and treatment of Livescan Assets upon expiry/termination. These areas do
not materially affect the substance of the draft EIU Contract and the
overall IDENT1 Contract is executed on the basis that the Parties shall
work in good faith to finalise the draft EIU Contract for incorporation into
this Schedule by the 31st of January 2005. If possible, the Parties shall
work together to complete the draft EIU Contract earlier than this date to
facilitate any orders received from the Police Forces.
Schedule R (Livescan and EIU’s)
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ANNEX R-1
TERMS AND CONDITIONS
1.
DEFINITIONS
In the EIU Contract:
(a)
interpretations are set out in Schedule C (Definitions) of the Contract; and
(b)
unless the contrary intention appears, capitalised terms shall have the meaning set out
in Schedule C (Definitions).
2.
CONTRACTOR PARENT COMPANY GUARANTEE
The Parent Company Guarantee set out in Schedule W (Parent Company Guarantee) of the
Contract shall apply to this EIU Contract.
3.
CONTRACTOR’S PRICING
The rates and prices submitted by the Contractor in Schedule E (Pricing) of the Contract and any
other prices subsequently agreed for new EIUs shall cover all its obligations, risks and contingencies
under the EIU Contract.
4.
ACCEPTANCE
4.1
In accordance with the agreed implementation and delivery plan and Acceptance Criteria
specified in the Order, the Contractor shall make available to the Police Force the relevant
EIU Services to be performed.
4.2
The Police Force shall accept the EIU Services and any other deliverables in accordance with
the procedures stipulated in the Order or where appropriate, as specified in Schedule H
(Acceptance Procedures).
4.3
The Acceptance Procedures shall be recorded as successful and the Contractor notified
accordingly where all the Acceptance Criteria are met (such notification shall not be delayed
unreasonably).
4.4
The Acceptance Procedures shall be recorded as unsuccessful and the Contractor notified
accordingly where any of the Acceptance Criteria are not met (such notification shall not be
delayed unreasonably).
4.5
If the Acceptance Procedures, in respect of the EIU Services or any deliverable, have not been
recorded as successful pursuant to Clause 4.5 by the Acceptance Date specified in the Order,
the Police Force shall either have the right:
4.5.1 to accept such part of the EIU Services or the deliverable as the Police Force may
decide and pay a pro-rated Charge therefor or such other charge, as may be agreed
between the parties; or
4.5.2 without prejudice to its other rights and remedies, to extend the Acceptance
Procedures period for a period or periods, specified by the Police Force, during which
the Contractor shall correct the fault which caused the Acceptance Procedure to be
recorded as unsuccessful;
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4.6
In the event that the Police Force extends the Acceptance Procedures period for a period
pursuant to Clause 4.5.2 and the Acceptance Procedures have not been recorded as successful
by the end of that period, the Police Force shall have the right either:
4.6.1 to accept such part of the EIU Services or the deliverable as the Police Force may
decide and pay a pro-rated Charge therefor or such other charge, as may be agreed
between the parties; or
4.6.2 to extend the Acceptance Procedures period for a further period in accordance with
Clause 4.5.2; or
4.6.3 to terminate this Order in accordance with Clause 30.1.
4.7
Further to the provisions of this Clause 4, any acceptance as defined in the Order or where
appropriate in Schedule H (Acceptance Procedures) of the Contract is provisional and
dependent on a 30-day period of satisfactory operational service unless otherwise stated in the
Order. This 30 day period shall start at the date of Acceptance.
5.
TERM
5.1
Unless otherwise agreed between the Parties or terminated in accordance with the provisions
of the EIU Contract or otherwise in accordance with law or equity, the EIU Contract shall
take effect on the agreed commencement date and shall continue for an initial term of five (5)
years from the said date (“Initial Term”).
5.2
Upon the Police Force giving the Contractor at least six (6) months’ written notice prior to the
expiry of the Initial Term, the Police Force shall have the ability to extend the Term beyond
the Initial Term set forth in Clause 5.1 above for a further twelve (12) month period save that
any extension must always have expired by the end of the Contract . Thereafter, the Police
Force shall have the ability to extend such extended Term by a further twelve (12) month
period by providing the Contractor with at least six (6) months’ written notice prior the expiry
of the Term save that any extension must always have expired by the end of the Contract.
Any extension under this Clause 5.2 shall be on existing terms and conditions upon written
notice to Contractor. The pricing for any extension period under this Clause 5.2 shall be in
accordance with the indicative pricing specified in Schedule E (Pricing) and subject to
Schedule L (Change Control Procedure). In any event, the EIU Contracts shall not exist
beyond the Term of the IDENT1 Contract.
5.3
Upon the expiry or Termination of the EIU Contract, the Contractor shall maintain the
Services (including any Optional Services) in accordance with the Service Levels detailed in
Schedule F (Service Level Requirements) until such time as the Police Force has obtained a
further service provider, including any Procurement Process during this period.
5.4
The Police Force shall have a right to terminate the EIU Contract for convenience at any time
during the Term in accordance with Clause 30 below.
5.5
On Termination (including, for the avoidance of doubt, expiry) of the EIU Contract, the
Contractor shall, if so requested by the Police Force, transfer title (and grant the relevant
Software licences) to the EIUs, Software (including Embedded Software), and the relevant
Intellectual Property Rights in accordance with Clause 21 of the IDENT1 Contract, and
Clauses 15.1.2, 20 and 31 below to enable continued use of the EIUs.
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6.
SCOPE OF THE SERVICES
6.1
In consideration of the payment of the EIU Service Charges, commencing on the
commencement date of the EIU Contract,, the Contractor shall provide the EIU Services to
the Police Force in accordance with Part 3 of Schedule F (Service Level Requirements).
Such Services (to be provided by the Contractor) are:
6.1.1 the services, functions, requirements, and responsibilities specified in the EIU
Contract (including, for the avoidance of doubt, Schedule D (Detailed Operational
Requirements)) with the exception of Schedule Q (Contractor’s Solution);
6.1.2 any services, functions, requirements, and responsibilities performed within the
twelve (12) month period preceding the relevant Transfer Date by the Incumbent
Supplier as part of the NAFIS Services and/or by the Incumbent Supplier’s
employees or its contractors who were displaced or transitioned to the Contractor or
whose functions were displaced as a result of the EIU Contract, even if the service,
function or responsibility is not specifically described in the EIU Contract;
6.1.3 any services, functions, requirements, and responsibilities agreed as New Services in
accordance with Schedule L (Change Control Procedure); and
6.1.4 any services, functions, and responsibilities (including any incidental services,
functions or responsibilities) reasonably and necessarily required for, or related to, the
proper performance and provision of the services, functions and responsibilities set
out in this Clause 6.1 (irrespective of whether such services, functions, and
responsibilities are set out in Schedule D (Detailed Operational Requirements)).
7.
SERVICE LEVELS
7.1
The Contractor shall, at all times, achieve or exceed the Service Levels in accordance with the
provisions of Schedule F (Service Level Requirements) Part 3. Without prejudice to the
first sentence above of this Clause 7.1, as a minimum, the Contractor shall provide the
Services:
7.1.1 except as expressly documented or referred to in Schedule F (Service Level
Requirements), at least at the same level of performance to that normally delivered
prior to TOR;
7.1.2 with promptness, diligence, and in accordance with Good Industry Practice;
7.1.3 in a professional manner, and in accordance with the practices and professional
standards used by, and consistent with levels of performance achieved by, well-
managed operations providing services similar to the Services;
7.1.4 consistent with the Contractor’s own standards for such services;
7.1.5 using efficiently the Assets, facilities, resources or services necessary to provide the
Services;
7.1.6 using adequate numbers of personnel that:
(a)
are appropriately experienced, qualified and trained;
(b)
are familiar, where appropriate, with the requirements set out in the EIU
Contract; and
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(c)
shall provide the Services with all reasonable skill, care and diligence; and
7.1.7 in compliance with all applicable Laws.
7.2
The Parties anticipate that the Service Levels shall improve over time and the Parties shall
mutually co-operate to identify improvements and efficiencies in the provision of the
Services.
7.3
Unless expressly specified otherwise in the EIU Contract, the Contractor shall adopt and
comply with the Police Force’s technology quality and certification procedures as set out in or
implemented pursuant to Schedule D (Detailed Operational Requirements), Schedule O
(Documentation) and Schedule K (Security).
7.4
The Contractor shall use the necessary measurement and monitoring tools and procedures
required to measure and report the Contractor’s performance against the applicable Service
Levels. Such measurement and monitoring shall permit reporting at a level of detail sufficient
to verify the Contractor’s compliance with the Service Levels.
8.
FAILURE TO PERFORM
If the Contractor commits a Service Level Failure, the Contractor shall take the steps identified in
Schedule F (Service Level Requirements). Notwithstanding the provisions of the preceding
sentence of this Clause 8, the Contractor shall promptly:
8.1
use Commercially Reasonable Efforts to preserve any data indicating the cause of the Service
Level Failure;
8.2
arrange all such additional resources as are necessary to perform the Services in accordance
with the Service Levels as early as practicable thereafter and at no additional charge to the
Police Force;
8.3
use Commercially Reasonable Efforts to minimise the impact of the Service Level Failure to
both the Police Force and all the Police Forces, and to prevent it from recurring; and
8.4
correct the Service Level Failure and meet the relevant Service Level.
9.
SERVICE CREDITS
9.1
If the Contractor fails to meet the required Service Levels in accordance with Schedule F
(Service Level Requirements) Part 3, the Police Force may deduct any Service Credits due
from the monthly EIU Service Charges for the applicable month in the next applicable invoice
in accordance with Schedule E (Pricing) and Schedule F (Service Level Requirements).
9.2
The Contractor acknowledges and agrees that the Service Credits are a price adjustment to
take into account Services that are not properly delivered to the Police Force and are not an
estimate of the loss or damage that may be suffered by the Police Force as a result of the
Contractor’s failure to meet any Service Level. Payment of any Service Credit by the
Contractor under the EIU Contract is without prejudice to any entitlement that the Police
Force may have to damages at Law from the Contractor resulting from, or otherwise arising in
respect of, any such breach of the EIU Contract, or to any right of the Police Force to
terminate the EIU Contract pursuant to Clause 30 below.
Schedule R (Livescan and EIU’s)
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10.
SERVICE CHARGES, INVOICING, AND TAXES
10.1
In consideration for the payment of the EIU Service Charges, the Contractor shall provide the
Services and meet and fulfil all the requirements of the Services. All EIU Service Charges
are set out in Schedule E (Pricing) of the Contract and the Police Force shall only be
required to pay to the Contractor those amounts set out therein. The Contractor acknowledges
that no additional amounts shall be paid by the Police Force for the provision of the Services
unless agreed pursuant to Schedule L (Change Control Procedure).
10.2
All EIU Service Charges due under the EIU Contract shall be paid in Pounds Sterling and the
Police Force shall pay the EIU Service Charges in accordance with the invoicing procedure
specified in Schedule E (Pricing).
10.3
Payment shall be made within thirty (30) days of receipt by the Police Force (at its nominated
address for invoices) of a valid invoice from the Contractor, in accordance with the provisions
of Schedule E (Pricing). Failure to pay within this period shall not constitute a material
Default of the EIU Contract.
10.4
The Police Force may withhold payment of any portion of the EIU Service Charges that it
disputes in good faith, in which case the Police Force shall use its Commercially Reasonable
Efforts to notify the Contractor in writing as soon as reasonably practicable from the date of
receipt of the relevant invoice under Clause 10.3 above giving its reasons and specifying any
additional information required to assist in resolving its concerns.
10.5
The Contractor shall continue to perform all its obligations under the EIU Contract,
notwithstanding any withholding of payment in accordance with Clause 10.4 above.
10.6
The Parties shall use Commercially Reasonable Efforts to resolve any dispute regarding the
EIU Service Charges within thirty (30) days of it arising. If the Parties fail to so resolve the
dispute, such dispute shall be determined in accordance with Schedule P (Dispute Resolution
Procedure) of the Contract.
10.7
Following resolution of any dispute, any amount agreed or adjudged to be due to the
Contractor shall promptly be paid on demand, together with interest thereon (which shall be
payable for the period from when such amount would originally have been due had such
amount not been withheld until payment) at the rate set out in Clause 10.11 below.
10.8
The EIU Service Charges are stated exclusive of VAT. The Police Force shall pay VAT on
the EIU Service Charges at the rate and in the manner prescribed by Law, from time to time.
The Contractor shall, where applicable, provide the Police Force with a valid VAT invoice
and such invoice shall be provided by the Contractor in the format and within the timescales
required by Law.
10.9
Any legislative requirement to account for the Services in Euro instead of and/or in addition
to Pounds Sterling, shall be implemented by the Contractor at nil charge to the Police Force.
10.10 Any conversion of EIU Service Charges stated in the EIU Contract from Pounds Sterling to
the Euro shall be undertaken at the official rate declared by HM Treasury at the time of the
changeover.
10.11 If either Party fails to pay any valid amount payable under the EIU Contract by the due date
specified in Schedule E (Pricing) or elsewhere in the EIU Contract (as applicable), the non-
paying Party shall be liable to pay interest on the overdue amount from the due date up to the
actual payment date at the rate of two percent (2%) per annum above the Bank of England’s
base rate from time to time applicable in the United Kingdom.
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10.12 All expenses that the Contractor incurs in providing the Services (including travel and
lodging, document reproduction, shipping, and telephone expenses) are included in the EIU
Service Charges as set forth in the EIU Contract. Accordingly, expenses are not separately
reimbursable by the Police Force except where otherwise agreed between the Parties.
10.13 The Contractor shall be liable for any applicable VAT and other applicable taxes and duties at
the prevailing rates payable by the Contractor on any goods and services used or consumed by
the Contractor in providing the Services where the tax is imposed on the Contractor’s
acquisition or use of such goods or services in its provision of the Services.
10.14 The Contractor shall be responsible for:
10.14.1 any taxes on its property or assets;
10.14.2 any taxes on its business; and
10.14.3 any taxes based on its net income or gross receipts.
10.15 The Contractor shall be liable for VAT, stamp duty and other taxes that are assessed against
or incurred on the transfer of assets from the Police Force to the Contractor, including the
transfer of Assets, Software, Third Party Contracts, or any other good or service transferred or
provided from the Police Force to the Contractor under the EIU Contract.
11.
RECOVERY OF SUMS DUE
Save where there is genuine dispute, if any sum of money shall be due from the Contractor, the same
may be deducted by the Authority or the Police Force (as applicable) from any sum then due or which
at any time thereafter may become due to the Contractor under the EIU Contract.
12.
POLICE FORCES
The day-to-day management and operational interfaces between the Contractor and the Police Force
shall be as set out in the Memorandum of Understanding or as otherwise agreed between the Parties.
13.
USE OF THIRD PARTIES AND COOPERATION WITH OTHER SERVICE
PROVIDERS
13.1
The Contractor shall be required to permit access (without any change to the EIU Service
Charges) to third parties or the Police Force itself in accordance with Clause 13.2 below.
13.2
The Contractor shall co-operate (without any change to the EIU Service Charges) to the
extent that it is able to do so without impacting on its ability to perform the Services with all
relevant parties, including but not limited to the Police Force or third parties under contract to
the Police Force to facilitate co-ordination of other services that impact upon or interact with
the Services, including by providing access to the Contractor Premises, Equipment, Software
and other facilities reasonably necessary to enable such services to be performed subject
always, to such third parties complying with the Contractor’s reasonable security and
confidentiality requirements.
13.3
For the avoidance of doubt, the obligations of the Contractor in this Clause 133 shall solely
relate to access and co-operation with the third parties described in Clauses 13.1 and 13.2
above and such obligations shall not apply to supporting such third parties nor is the
Contractor expected to incur additional costs beyond normal contract management in relation
to providing such access and co-operation.
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14.
CONSENTS AND LICENCES
14.1
The Contractor agrees to obtain and maintain throughout the Term at its own cost, all
consents and licences which are necessary for the Contractor to provide the Services and
Police Force to receive the benefits of the Services.
14.2
The Contactor agrees that the pricing in Schedule E (Pricing) covers all consents and licences
required to deliver the Services and the Contractor’s Solution in Schedule Q (Contractor’s
Solution).
15.
THIRD PARTY CONTRACTS
15.1
Third Party Contracts
15.1.1 The Contractor shall obtain all Required Consents to perform the EIU Services.
Unless the Police Force otherwise agrees in writing, the Contractor shall pay any fees
(e.g. transfer or upgrade fees) that may be required to obtain a Required Consent for
any of the Third Party Contracts listed in Schedule S (Software, IPR and Third
Party Contracts). Subject to the Police Force’s approval, if a Required Consent
cannot be obtained, the Contractor may adopt any alternative approaches or
workarounds that are necessary and sufficient to provide the Services without the
relevant Required Consent.
15.1.2 Without prejudice to Clause Error! Reference source not found.(?) below, the
Contractor shall use its Commercially Reasonable Efforts to structure its
arrangements with any third party providers of services, including, by way of
example, software licences, maintenance contracts and equipment leases, so that the
relevant contracts may be transferred, assigned or novated to the Police Force or a
Successor Contractor (as applicable) as required pursuant to Termination Assistance
without the need for further consent, licence or payment of charges applicable to such
transfer, assignment or novation (as applicable), and that any on-going fees under
those arrangements payable by the Police Force after the Termination of the EIU
Contract are consistent with and no higher than the fees payable by the Contractor
prior to such Termination.
16.
PERSONNEL ACCESS
16.1
The Police Force reserves the absolute right under the EIU Contract to refuse to admit to any
Police Force Premises, any person employed or engaged by the Contractor, or by a
Subcontractor, whose admission to such Police Force Premises would be, in the sole opinion
of the Police Force or the applicable Police Force, undesirable. The Police Force shall
provide the Contractor with an explanation for such refusal wherever reasonably possible.
However, notwithstanding the foregoing, the Police Force reserves the right, at its sole
discretion, to withhold such explanation from the Contractor.
16.2
If and when directed by the Police Force, the Contractor shall provide a list of the names and
addresses of all persons who it is expected may require admission in connection with the
performance of the EIU Contract to any Police Force Premises, specifying the capacities in
which they are concerned with the EIU Contract and giving such other particulars as the
Police Force may reasonably require from time to time.
16.3
The Contractor's representatives, when engaged within the boundaries of the Police Force
Premises, shall comply with such rules, regulations and requirements (including those relating
to security) as may be in force from time to time for the conduct of personnel when at the
Police Force Premises and when outside the Police Force Premises.
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16.4
If the Contractor fails to comply with Clauses 16.2 and 16.3 above and the Police Force
(whose decision shall be final and conclusive) decides, at its sole discretion, that such failure
is prejudicial to the interests of the Police Force, then if the Contractor does not comply with
the provisions of Clause 16.2 or Clause 16.3 above (as applicable) within a reasonable time of
written notice from the Police Force requesting the Contractor’s compliance with Clauses
16.2 and 16.3, then the Police Force shall be entitled to terminate the EIU Contract for
material Default in accordance with Clause 30.1.1 below due to the EIU Contract’s failure to
comply with this Clause 16.
17.
DISCRIMINATION
The Contractor shall not unlawfully discriminate within the meaning and scope of the provisions of all
current UK employment Laws or European Union employment Laws or directives or any statutory
modification or re-enactment thereof relating to discrimination in employment or otherwise. The
Contractor shall take all reasonable steps to ensure the observance of these provisions by all servants,
employees or agents of the Contractor and all Subcontractors employed in the execution of the EIU
Contract.
18.
RESPONSIBILITY FOR SUBCONTRACTORS AND CONTRACTOR AFFILIATES
18.1
Notwithstanding any other provision of this Clause 18, the Contractor shall remain
responsible and liable at all times for the acts and omissions of its employees, Subcontractors
(including the Material Subcontractors) and Contractor Affiliates.
18.2
The Contractor shall use its Commercially Reasonable Efforts to ensure that all
Subcontractors’ equipment rental or lease agreements, software licences and/or Intellectual
Property Rights, and all other (non-employment) contracts which are necessary to the
performance of the Services, are assignable to the Police Force (without any transfer charge)
upon the Termination of the EIU Contract and the Contractor shall notify the Police Force of
the results of its efforts under this Clause 18.1.2 within one (1) month of the entry into of any
such agreement with the applicable Subcontractor.
19.
CONFIDENTIALITY
19.1
The Contractor shall abide by the provisions of the Official Secrets Acts 1911 to 1989. The
Contractor shall, by display of notices or by other appropriate means, ensure that all persons
engaged on any work in connection with the EIU Contract have notice that these statutory
provisions apply to them and shall continue so to apply after the Termination of the EIU
Contract. Without prejudice to the application of the Official Secrets Acts 1911 to 1989 to
any Confidential Information, the Contractor acknowledges that any Confidential Information
obtained by or provided to the Contractor in relation to the EIU Contract remains the property
of the Police Force, its servants or agents, operational partners or members as appropriate.
19.2
Each Party shall, on behalf of itself, ensure that:
19.2.1 it and any person employed or engaged by the relevant Party (in connection with the
EIU Contract in the course of such employment or engagement) shall only use
Confidential Information for the purposes of and the extent necessary, enabling it to
perform (or cause to be performed) or to enforce any of its rights or obligations under
the EIU Contract;
19.2.2 any person employed or engaged by either the Contractor or the Police Force, as
applicable, (in connection with the EIU Contract in the course of such employment or
engagement) shall not disclose any Confidential Information to any third party
without the prior written consent of the other Party;
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19.2.3 it shall take all necessary precautions to ensure that all Confidential Information is
treated as confidential and not disclosed (save as aforesaid) or used other than for the
purposes of the EIU Contract by their employees, servants, agents or Subcontractors;
and
19.2.4 without prejudice to the generality of the foregoing neither Party nor any person
engaged by them whether as a servant or a consultant or otherwise shall use the
Confidential Information for the solicitation of business from the other or by their
servants or consultants or by any third party.
19.3
The Contractor shall obtain from all Subcontractors, prior to their commencing work on the
Services or receiving any Confidential Information, a signed non-disclosure agreement.
19.4
The Contractor shall inform the Police Force of all third parties (including Subcontractors and
all Contractor Personnel) to whom it intends to disclose Confidential Information and the
Police Force shall have the right to veto the disclosure of Confidential Information to any
such persons, and in the event of such veto being exercised by the Police Force, the
Contractor shall not disclose any Confidential Information to any such vetoed person.
19.5
The provisions of Clause 19.2 above shall not apply to any information which:
19.5.1 is or becomes public knowledge other than by breach of this Clause19;
19.5.2 is in the possession of the receiving party without restriction in relation to disclosure
before the date of receipt from the disclosing party;
19.5.3 is received from a third party who lawfully acquired it and who is under no obligation
restricting its disclosure;
19.5.4 is independently developed without access to the Confidential Information;
19.5.5 is required to be disclosed by Law or pursuant to the rules or any order having the
force of law of any court, association or agency of competent jurisdiction or any
government agency; or
19.5.6 in the case of Contractor’s Confidential Information, the Police Force is obliged to
disclose under the Freedom of Information Act 2000 (“FOIA”) except where the
Parties agree that certain specified categories of information shall be protected from
disclosure under the FOIA in accordance with Clause 19.9 below.
19.6
Without limiting either Party’s right to disclose Confidential Information as described under
Clause 19.5.5 or 19.5.6 above (as applicable), prior to the either Party disclosing information
pursuant to Clauses 19.5.5 and 19.5.6 above (as applicable) and as soon as it is apparent that
such a disclosure may be necessary, the disclosing Party shall first contact the other Party to
enable that other Party to oppose such requirement for disclosure should that Party so wish.
19.7
Nothing in Clause 19 of this Schedule shall be deemed or construed to prevent the Police
Force from disclosing any Confidential Information obtained from the Contractor to:
19.7.1 any other department, office or agency of the Government (including the National
Audit Office) or other entity where required for its proper departmental,
parliamentary, governmental, statutory or judicial purposes provided that the Police
Force shall first advise that department, office or agency of the confidentiality
undertakings set out within Clause 19 of this Schedule; or
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19.7.2 any consultant, professional adviser or other person engaged by the Police Force in
connection with the EIU Contract provided that the Police Force shall first obtain
confidentiality undertakings commensurate to those within Clause 19 of this
Schedule. The Police Force shall notify the Contractor of the identity of such
consultant, professional adviser or other person as soon as is reasonably practicable.
19.8
Nothing in the EIU Contract shall prevent either Party from using techniques, ideas and
know-how gained during the Term in the furtherance of its normal business, to the extent that
this does not relate to a disclosure of Confidential Information or an infringement by such
Party of any Intellectual Property Right of the other Party (and for the purposes of this Clause
19.8, in the case of the Police Force, “other Party” shall include the Police Forces).
19.9
Nothing in the EIU Contract shall operate in any way to adversely affect any obligation
and/or rights of the Police Force under the FOIA. However, the Parties may expressly agree
in writing that certain specified categories of information shall be protected from disclosure
under the FOIA on the grounds that disclosure of such information is likely to prejudice the
commercial interests of the Contractor (or on other permissible grounds of exception from
disclosure under the FOIA).
19.10 Without prejudice to any other rights and remedies whether under the EIU Contract or at Law,
each Party agrees that damages would not be an adequate remedy for any breach of this
Clause 19 and that the other Party shall be entitled to apply for the remedies of injunction,
specific performance and/or other equitable relief for any threatened or actual breach of this
Clause19.
19.11 The obligations with respect to Confidential Information disclosed under the EIU Contract
shall survive Termination of the EIU Contract and continue for as long as such information
remains confidential.
20.
INTELLECTUAL PROPERTY RIGHTS
20.1
Save as set out herein, the EIU Contract shall not be deemed to assign or otherwise transfer to
any Party any Intellectual Property Rights of the other Party existing at the Effective Date.
Neither Party shall contest the ownership of any such Intellectual Property Rights belonging
to the other Party prior to the Effective Date.
20.2
For the purposes of this EIU Contract, and to the extent relevant to the EIU Contract, the
rights and obligations of the Contractor and the Police Force set out in Clause 29 (Intellectual
Property Rights) of the Contract shall apply.
21.
REGULATORY AND LEGAL COMPLIANCE
21.1
Save to the extent the Contractor is prevented from doing so due to any applicable United
States of America export laws or regulations (to the extent such laws or regulations apply to
the EIU Contract) and without prejudice to Clause 21.2, the Contractor shall provide the
Services consistent with regulatory requirements to which the Police Force is subject, and the
Contractor shall make any necessary changes to the Services to comply with such
requirements (without any increase to the EIU Service Charges). Regulatory requirements
include (among others) data protection legislation, import and export restrictions and
requirements imposed by UK regulatory authorities. The Contractor shall ensure that any
such change shall be implemented by the Contractor so as not to have an adverse effect on, or
give rise to increased inconvenience in, the receipt of the Services or cause the Services to
cease to fulfil the requirements and specifications of the Police Force.
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21.2
The Parties acknowledge that any costs relating to the compliance of any material
Discriminatory Change in Law after the Effective Date shall be subject to the Change Control
Procedures set out in Schedule L (Change Control Procedure). All other changes in Law
shall be at the Contractor’s cost.
22.
DATA PROTECTION
22.1
The Parties shall each comply with their respective obligations under the DPA. Neither Party
shall do any act that puts the other Party in breach of its obligations under the DPA and
nothing in the EIU Contract shall be deemed to prevent any Party from taking the steps it
reasonably deems necessary to comply with the DPA.
22.2
The Parties acknowledge that:
22.2.1 the Police Force alone shall determine the purposes for which and the manner in
which Police Force Personal Data is, or is to be, processed in the performance of the
Services;
22.2.2 the Police Force shall be the “Data Controller” (as defined in the DPA) in respect of
all Police Force Personal Data; and
22.2.3 the Contractor shall be the “Data Processor” (as defined in the DPA) in respect of
Police Force Personal Data.
22.3
In a manner that conforms to any time-scales set out in the DPA, and, in any event, as soon as
reasonably practicable, the Contractor shall, and shall procure that any relevant
Subcontractors shall, comply with any reasonable written request by the Police Force to:
22.3.1 correct or delete inaccurate Police Force Personal Data;
22.3.2 provide a copy of Police Force Personal Data relating to a “Data Subject” (as
defined in the DPA) that is stored in any form of retrieval or storage facilities in the
possession or control of the Contractor;
22.3.3 provide information about the Police Force’s processing of Police Force Personal
Data;
22.3.4 provide information to enable the Police Force to maintain its registration as required
under the DPA;
22.3.5 assist in respect of any request or notice, or any anticipated request or notice, by or on
behalf of any Data Subject in respect of Police Force Personal Data; and
22.3.6 otherwise provide reasonable assistance to the Police Force as necessary to allow the
Police Force to comply with the DPA.
22.4
All Police Force Personal Data shall remain the property of the Police Force (which may be
withheld or withdrawn by the Police Force at the Police Force’s sole discretion). The
Contractor shall not, without the Police Force’s prior written authorisation:
22.4.1 use Police Force Personal Data for the Contractor’s or Subcontractors’ own purposes,
including marketing purposes; or
22.4.2 transfer, disclose, assign, sell lease or otherwise provide any of Police Force Personal
Data to third parties or transfer the Police Force Personal Data across any country’s
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border except solely to the extent such Police Force Personal Data is transferred to
countries or territories within the European Economic Area or the United States of
America for the sole purpose of providing the Services required under the EIU
Contract.
22.5
The Contractor shall promptly notify the Police Force if any complaints are received about the
processing of Police Force Personal Data from third parties, and the Contractor shall not make
any admissions or take any action which may be prejudicial to the defence or settlement of
any such complaint and shall provide to the Police Force such reasonable assistance as it may
require in connection with such complaint.
22.6
DPA – Seventh Data Protection Principle
The Contractor acknowledges that it is obliged to comply with the “Seventh Data
Protection Principle” in respect of Police Force Personal Data (as set out in the
DPA) and, in particular, that it shall comply with the following obligations:
22.6.1 taking appropriate technical and organisational security measures (including those
measures set out in Schedule D (Detailed Operational Requirements), Schedule K
(Security) and in accordance with any other security requirements expressly set out
in the EIU Contract) to safeguard against unauthorised and unlawful processing of
Police Force Personal Data and against accidental loss or destruction of, or damage
to, Police Force Personal Data. In doing so, the Contractor shall have regard to the
state of technological development and cost of implementing any measures in order to
comply with the legislation in determining which measures are appropriate;
22.6.2 only processing Police Force Personal Data in accordance with written instructions
given by the Police Force, including as set out in the EIU Contract;
22.6.3 taking reasonable steps to check the reliability of those Contractor Personnel that
have access to Police Force Personal Data;
22.6.4 and ensuring that all of the Contractor Personnel involved in processing Police Force
Personal Data have undergone reasonably adequate training in the care and handling
of Police Force Personal Data.
23.
DATA LOSS
23.1
The Contractor shall use its Commercially Reasonable Efforts to preserve the integrity of the
Police Force Data held or controlled by the Contractor pursuant to the performance of the EIU
Contract and to prevent any misuse, corruption, destruction or loss of the same.
23.2
The Contractor shall ensure that the Police Force can recover all Police Force Data in
accordance with this Clause 23.
23.3
The Contractor and the Police Force shall each take reasonable precautions (having regard to
the nature of their other respective obligations under the EIU Contract) to preserve the
integrity of the Police Force Data and to prevent any corruption or loss of the Police Force
Data.
23.4
The Contractor shall not, without the prior written agreement of the Police Force, insert or
allow the insertion into any Software of any code which would have the effect of disabling or
otherwise shutting down all or any portion of the Contractor’s Solution, including during any
period of Termination Assistance. For the avoidance of doubt, this Clause 23.4 is not
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intended nor should be interpreted in any manner as being to prevent normal operation and
maintenance activities, including prudent responses to emergency situations.
23.5
The Contractor shall not delete or remove any copyright notices contained within or relating
to the Police Force Data.
23.6
As part of the Services, the Contractor shall:
23.6.1 take such steps as are necessary to ensure that, in the event of any corruption or loss
of the Police Force Data howsoever caused, the Contractor is in a position to restore
or procure the restoration of the Police Force Data; and
23.6.2 at the request of the Police Force in the event of any corruption or loss of the Police
Force Data and without prejudice to any other remedies that may be available to it
either under the EIU Contract or otherwise, restore or procure the restoration of the
Police Force Data to its state immediately prior to the said corruption or loss, or, at
the direction of the Police Force, the data should be restored to another state, that is
technically possible, as the Police Force sees fit to specify. The Contractor shall be
entitled to reasonable costs unless the corruption or loss of data was due to the
Contractor’s Default.
24.
DISPUTE RESOLUTION PROCEDURE
The Parties shall comply with the provisions of Schedule P (Dispute Resolution Procedure).
25.
SECURITY REQUIREMENTS
The Contractor shall comply with the Security requirements as set out in Schedule K (Security).
26.
ACCOMMODATION / ACCESS TO PREMISES
26.1
Save where the Police Force or an MOU between the Contractor and a Police Force indicates
otherwise, any Police Force Premises made available to the Contractor by the Police Force in
connection with the EIU Contract shall be made available to the Contractor free of charge and
such Police Force Premises shall be used by the Contractor solely for the purpose of
performing the EIU Contract. The Contractor shall have the use of such Police Force
Premises as licensee and shall vacate the same upon the Termination of the EIU Contract or at
such earlier date as the Police Force may determine in its sole discretion, or temporarily in the
event of urgent operational need. Subject to the provisions of any relevant MOU, if the Police
Force requests the Contractor to vacate such Police Force Premises, reasonable additional
Contractor costs resulting from the Police Force’s actions shall be negotiated in accordance
with Schedule L (Change Control Procedure), save that such costs shall be to the account of
the Contractor if the Police Force’s request to vacate such Police Force Premises is due to the
default of the Contractor under the EIU Contract or under the terms of the relevant MOU.
The Contractor shall use its Commercially Reasonable Efforts to minimise the costs incurred
due to any relocation under this Clause 26.1.
26.2
Without prejudice to the terms of any MOUs or applicable security policies, the Contractor
shall comply with all reasonable security requirements of the Police Force while on any and
all of the Police Force Premises, and shall procure that all of its employees, agents and
Subcontractor shall likewise comply with such requirements.
27.
WARRANTIES AND REPRESENTATIONS
27.1
The Contractor warrants and represents that, throughout the Term of the EIU Contract:
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27.1.1 at all times, the Contractor has full capacity and authority and all necessary consents
(including but not limited to, where its procedures so require, the consent of the
Contractor Parent Company) to enter into and to perform the EIU Contract and that
the EIU Contract is executed by a duly authorised representative of the Contractor;
27.1.2 the Contractor has the full capacity and authority to grant the licences referred to in
Clause 29 of Schedule B (Conditions of Contract) and/or shall secure such
authorisation from third parties relative to their products;
27.1.3 the Contractor is not aware as at the Effective Date of anything within its reasonable
control which might or will adversely affect its ability to fulfil its obligations under
the EIU Contract;
27.1.4 the Contractor’s signing, delivery and performance of the EIU Contract shall not
constitute:
(a)
a violation or any law, judgement, order or decree;
(b)
a material default under any material contract by which it or any of its assets
are bound; or
(c)
an event that would, with notice or lapse of time, or both, constitute such a
default.
27.1.5 the Services shall be supplied and rendered with all due skill, care, promptness and
diligence by appropriately experienced, qualified and trained personnel and executed
in a professional manner;
27.1.6 the Contractor shall discharge its obligations hereunder with all due skill, care and
diligence including but not limited to good industry practice and (without limiting the
generality of this Clause 27.1.6) in accordance with its own established internal
procedures; and
27.1.7 the EIU Service Charges were independently established by the Contractor and
proposed to the Police Force without any collusion with any third party or any
employee, adviser or representative of the Police Force; and
27.1.8 all statements and representations made by or on behalf of the Contractor in writing
or recorded in written form shared between the Parties during the procurement
process were, to the best of the Contractor’s knowledge and belief, true, complete and
accurate at the time that they were made or given, and that by the Effective Date the
Contractor advised the Police Force in writing of any material fact, matter or
circumstance of which the Contractor has been aware since making such proposals or
responses which would render any such statement or representation false or
misleading.
27.2
Each warranty shall be construed as a separate warranty and shall not be limited or restricted
by reference to or inference, from, the terms of any other warranty or any other terms of the
EIU Contract. Except as expressly stated in the EIU Contract, all warranties and conditions,
whether express or implied by statute, common-law or otherwise (including but not limited to
fitness for purpose) are hereby excluded to the extent permitted by Law.
28.
INDEMNITIES
28.1
Indemnity by the Contractor
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28.1.1 Subject always to the Police Force’s proper observance of its obligations under
Clause 28.2.3 to Clause 28.2.5 below (if applicable) and the provision of Clause 29.6
below, the Contractor shall indemnify, defend and hold the Police Force, its
respective officers, directors, employees, successors and assignees harmless from and
against any Losses (including, where applicable, Losses resulting from Claims
brought by third parties) arising from or in connection with any of the following:
(a)
any Claim by a third party that the performance or receipt of the Services
(except in so far as it relates to Police Force Software or Police Force
Material or the Claim is based on or attributable to the fact that the Police
Force has Modified the Contractor Software, Contactor Material, or Work
Product contrary to the terms such Contractor Software, Contractor Material
or Work Product is provided to the Police Force under the EIU Contract), any
Contractor Software, any Contractor Material, any Work Product or any other
resource provided or used by the Contractor or by any Subcontractor or other
third party on behalf of the Contractor in performing the Services, or the
possession, use, Modification, reproduction or exploitation of any of the same
by or on behalf of the Police Force in the intended manner actually or
allegedly infringes a third party’s Intellectual Property Rights, moral rights or
rights in respect of its confidential information;
(b)
any Claim by a third party that any Police Force Software or Police Force
Material infringes a third party’s Intellectual Property Rights if the Claim is
based on or attributable to the fact that the Contractor or any Subcontractor
has Modified, or has had Modified by a third party, any of the Police Force
Software or Police Force Material, or has used, Modified, reproduced or
exploited Police Force Software or Police Force Material in contravention of
any term or condition that the Police Force has disclosed to the Contractor;
(c)
any fine or penalty imposed by Law arising as a result of any Default by the
Contractor;
(d)
compensation and interest paid to a third party due to a Default by the
Contractor;
(e)
any Default committed by the Contractor, or by any Subcontractor, or by
Contractor Personnel in respect of the Contractor’s confidentiality obligations
under the EIU Contract;
(f)
death or personal injury caused by a negligent act or omission of the
Contractor or any of Subcontractors where the Contractor or any of the
Subcontractors is legally liable or responsible for that death or personal
injury;
(g)
loss or damage to real or tangible personal property belonging to a third
party, where the Contractor or any of the Subcontractors is legally liable or
responsible for that loss or damage;
(h)
any Claim for damages or compensation payable to any person employed by
the Contractor or any of its Subcontractors where the Contractor or any of the
Subcontractors is legally liable or responsible for that loss or damage;
(i)
any Claim by third parties arising out of any wilful, deliberately or
intentionally wrongful, negligent or reckless act or omission of the Contractor
which causes any breach by the Police Force of any of its statutory duties;
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(j)
any Claim by third parties arising out of any act or omission of the Contractor
which causes any breach by the Police Force of any of its duties under the
DPA; and
(k)
without prejudice to Clause 28.1.1 above, any reasonably foreseeable Loss or
Claim by third parties in connection with the loss or corruption or any of the
data held or controlled by the Contractor in connection with the Services,
whether arising out of the act, neglect or omission of the Contractor,
employees, personnel, agents, contractors, Subcontractors or otherwise
28.2
Indemnity by the Police Force
28.2.1 Subject always to the Contractor’s proper observance of its obligations under Clause
28.2.3 to Clause 28.2.5 below (if applicable) and the provision of Clause 29.6 below,
the Police Force shall indemnify, defend and hold the Contractor and its respective
officers, directors, employees, successors, and assignees harmless from and against
any Losses arising from or in connection with any of the following:
(a)
any Claim by a third party that any Police Force Software or Police Force
Material provided to or used or reproduced by or on behalf of the Contractor
under the EIU Contract, in the intended manner, infringes a third party’s
Intellectual Property Rights or right of that third party in respect of its
confidential information, unless such Claim is based on or attributable to the
fact that the Contractor has Modified the same, or has had the same Modified
by a third party;
(b)
death or personal injury caused by negligent act or omission of the Police
Force where the Police Force is legally liable or responsible for that death or
personal injury;
(c)
any fine or other penalty imposed by Law on the Contractor arising as a result
of any breach by the Police Force of the EIU Contract;
(d)
any Default by the Police Force in respect of its confidentiality obligations
under the EIU Contract; and
(e)
any Claim by third parties arising out of any act or omission of the Police
Force which causes any breach by the Contractor of any of its duties under
the DPA.
28.2.2 The Contractor’s liability to the Police Force under the indemnities referred to in
Clause 28.2.1 of this Schedule and the indemnities set out elsewhere in the EIU
Contract shall be without prejudice to any other right or remedy available to the
Police Force.
28.2.3 Anticipation of Infringement
(a)
If any item or component used by the Contractor to provide the Services
becomes, or in either Party’s reasonable opinion is likely to become, the
subject of an infringement or misappropriation Claim, the Contractor shall, in
addition to its obligation to indemnify the Police Force (and in addition to the
other rights the Police Force may have under the EIU Contract) promptly at
the Contractor’s expense, and in relation to Clause 28.2.3(a) and 28.2.3(b)
below at the Contractor’s sole discretion:
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(i)
use its Commercially Reasonable Efforts to secure the right to
continue using the item on terms which are reasonable acceptable to
the Police Force, such acceptance not to be unreasonably withheld; or
(ii)
replace or Modify the item to make it non-infringing, provided that
any such replacement or Modification shall not degrade the
performance or quality of the affected component of the Services; or
(iii)
if, and only if, the Contractor cannot comply with either Clause
28.2.3(a) or Clause 28.2.3(b) above, the Contractor shall remove the
item from the Services and the EIU Services Charges shall be
refunded to the Police Force or reduced to reflect that removal.
28.2.4 Enforcement of Indemnities
It is not necessary for a Party to incur expense or make payment before enforcing a
right of indemnity conferred by the EIU Contract.
28.2.5 Indemnification Procedures
(a)
Each Party shall notify the other in writing as soon as it knows or becomes
aware of any event arising in connection with the EIU Contract which it
believes may give rise to a Claim under the provisions of the indemnity
obligations in the EIU Contract.
(b)
Each Party shall promptly notify the other Party if any Claim or demand is
made or action brought against the first mentioned Party to which the above
may apply. The indemnifying Party shall at its own expense conduct any
litigation and/or any negotiations arising there from and shall have the
exclusive right to defend, conduct and settle all claims or proceedings in
connection therewith provided that where there is an impact upon the
indemnified Party, the indemnifying Party shall consult with the indemnified
Party and provided further that an indemnifying Party shall not settle such
claim or demand without the indemnified Party’s consent unless the
settlement incorporates an absolute release of the indemnified Party from all
liability in connection with such claim or demand.
(c)
The indemnified Party shall at the request of the indemnifying Party afford to
the indemnifying Party all reasonable assistance for the purpose of contesting
any Claim or demand made or action brought against the indemnified Party to
which the above may apply. The indemnifying Party shall reimburse the
indemnified Party for all reasonable costs and expenses (including but not
limited to legal costs and disbursements) incurred in so doing.
(d)
The indemnified Party shall not make any admissions which may be
prejudicial to the defence or settlement of any Claim, demand or action in
connection with any indemnities given in the EIU Contract.
29.
LIABILITY AND LIMITATION OF LIABILITY
29.1
Liability Cap for this EIU Contract
Subject to Clauses 29.3 (overall liability cap), 29.5 and 29.6 below, the annual
aggregate liability of either Party to the other (including the Direct Loss of the Police
Forces as set out in Clause 29.4 below) for any Loss relating to or arising in
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connection with the EIU Contract, and whether based on an action or claim in
contract, equity, negligence, intended conduct, tort or otherwise shall be limited per
annum to the greater of:
29.1.1 the previous 12 month’s EIU Service Charges paid or payable by the Police Force
under the EIU Contract immediately preceding the time at which the Direct Loss
occurred; or
29.1.2 £500,000 (five hundred thousand pounds).
29.2
Property Loss
29.2.1 Notwithstanding the liability cap set out in Clause 29.1 above but subject to overall
liability cap in Clause below, Losses relating to real or tangible property shall be
limited per annum to the greater of:
(a)
the previous 12 months Service Charges paid or payable by the Police Force
under the EIU Contract immediately preceding the time at which the property
Loss occurred; or
(b)
£5 million pounds.
29.3
Overall Liability Cap
29.3.1 Subject to the exclusion set out in Clause 29.6 below, the Contractors total liability
per annum under all EIU Contracts shall not exceed the Liability Cap referred to in
Clause 41 of Schedule B (Conditions of Contract).
29.4
Direct Loss of the Police Forces
Any action by the Police Force for any Direct Loss suffered in connection with the Services
shall be conducted by the Authority on behalf of the Police Force in accordance with Clause
41.2 of Schedule B (Conditions of Contract) and shall be subject to the limitations set out in
this Clause 29.
29.5
Consequential Loss
Subject to Clause 29.4 above, neither Party shall be liable for indirect or consequential loss or
damage. Nothing in this Clause 29 shall affect the Police Force’s rights under Clause 41 of
Schedule B (Conditions of Contract).
29.6
Exclusions
29.6.1 The Liability Cap shall not apply to, and each Party accepts unlimited liability for any
Direct Losses suffered or incurred by the other Party (the “Aggrieved Party”)
resulting from:
(a)
death or personal injury caused by the negligent acts or omissions of either
Party, its employees, agents or subcontractors;
(b)
any breach of obligations implied by Section 12 of the Sale of Goods Act
1979 or Section 2 of the Supply of Goods and Services Act 1982 (or any
subsequent amendment or replacement thereof);
(c)
any Claim for which the Contractor must indemnify pursuant to Clause
28.1.1(a) (Services/Contractor Software/Contractor Material/Work Product
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and Intellectual Property Rights) above; Clause 28.1.1(b) (Police Force
Software/Police Force Material and Intellectual Property Rights) above;
Clause 28.1.10 (Confidential Information) above; and Clause 28.1.10 (death
and personal injury) above;
(d)
any Claim for which the Police Force must indemnify pursuant to Clauses
28.2.128.2.1(a) (Intellectual Property Rights), 28.2.128.2.1(b) (death or
personal injury) and 28.2.128.2.1(d) (Confidential Information) above;
(e)
any fraudulent pre-contractual misrepresentation made by either Party upon
which the other Party can be shown to have relied;
(f)
any Claim for fraud or other criminal acts;
(g)
any Losses suffered by the Aggrieved Party resulting from an intentional or
wilful act or omission of the Party amounting to misconduct;
(h)
any Default by the Contractor in respect of its obligations under Schedule K
(Security);
(i)
the wrongful Termination, repudiation or abandonment of the EIU Contract
in whole or in part; or
(j)
any other liability which cannot be excluded by Law.
29.7
Misrepresentation
29.7.1 Save as provided in this Clause 29.7 and without prejudice to the warranties set out in
Clause 27 of this Schedule, neither Party shall have any remedy in respect of any
untrue statement (whether written or oral) made to it upon which it relied in entering
into the EIU Contract and which is not expressly incorporated into the EIU Contract
(“Misrepresentation”) and neither Party shall have any liability to the other Party
other than pursuant to the express terms of the EIU Contract.
29.7.2 Nothing in the EIU Contract shall exclude or limit either Party’s liability for any
fraudulent Misrepresentation.
29.8
Duty to Mitigate
Each Party shall have a duty to mitigate Losses for which the other Party is responsible.
29.9
Increase of the EIU Service Charges
The Contractor acknowledges that in the event that the EIU Service Charges paid or payable
by the Police Force significantly increase at any time during the Term, the Contractor agree to
discuss, in good faith with the Authority, an upwards adjustment to the Liability Cap set out
in Clause 29.1.2 above.
30.
TERMINATION
30.1
Police Force’s Right to Terminate
30.1.1 The Police Force may at any time by notice in writing terminate the EIU Contract (in
whole or in part) as from the date of service of such notice if:
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(a)
the Contractor commits a material Default of the EIU Contract and the
Contractor shall have failed to remedy such material Default within thirty
(30) days of notice by the Police Force (or such longer period if agreed by the
Parties);
(b)
the material Default is not capable of being cured;
(c)
the Contractor commits repeated Defaults of its duties or obligations under
the EIU Contract, the cumulative effect of which shall be deemed to be a
material Default of the EIU Contract, and the Contractor shall have failed to
remedy such material Default within thirty (30) days of notice by the Police
Force (or such longer period if agreed by the Parties);
(d)
the Contractor becomes Insolvent;
(e)
if a Force Majeure Event occurs and the Police Force exercises its option to
terminate the EIU Contract in accordance with Clause 33.3.3 below;
(f)
there is a Change of Control of the Contractor or the Contractor Parent
Company, which in the Police Force’s reasonably opinion is to the Police
Force’s detriment or is likely to be to the detriment of the Police Force;
30.1.2 the Police Force, by giving written notice to the Contractor, may terminate the EIU
Contract for convenience (in whole or in part) at any time during the Term, as of the
date specified in the notice of Termination. For the avoidance of doubt, any removal
of Services/Bureaux or Police Forces as described in Clause Error! Reference
source not found. (?) of Schedule B (Conditions of Contract) shall not be deemed a
termination for convenience under this Clause 30.1.2.
30.2
The Contractor’s Right to Terminate For Payment Disputes
30.2.1 The Contractor shall not be entitled to terminate the EIU Contract if there is a dispute
between the Parties in respect of any invoice payable under the EIU Contract. Due to
the reliance by the Police Force on the Services, the Contractor shall not be permitted
to terminate the EIU Contract unless the Police Force fails to pay an undisputed valid
invoice for the relevant EIU Service Charges within ninety (90) days of the due date
in accordance with Clause 30.2.2 below.
30.2.2 The Contractor shall not terminate the EIU Contract in accordance with Clause 30.2.1
above unless the Contractor has give the Police Force:
(a)
a further ninety (90) days of notice of the Police Force’s failure to make such
payment; and
(b)
a further written notice to the notice in Clause 30.2.20 above to the Police
Force of not less than fourteen (14) days prior to the expiry of such ninety
(90) days.
30.2.3 The Contractor acknowledges and agrees that failure by the Police Force to pay an
undisputed valid invoice, as described in Clause 30.2.1 above, is the only ground
upon which the Contractor may terminate the EIU Contract.
31.
CONSEQUENCES OF TERMINATION
31.1
Termination
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In the event that the EIU Contract is Terminated as provided for herein, the following
provisions shall apply:
31.1.1 Default of the Contractor / Termination under Clause 30.1.1 of this Schedule:
where Termination is due to the Default of the Contractor as identified in Clause
30.1.1 above or as otherwise set out in Clause 30.1.1 above (save for Termination due
to a Force Majeure Event which is subject to Clause 31.1.3 below):
(a)
the Contractor shall repay forthwith to the Police Force all EIU Service
Charges paid up to and including such Termination Date other than EIU
Service Charges in respect of any Services or part thereof properly performed
in accordance with the EIU Contract;
(b)
subject to Clause Error! Reference source not found. above, the Police
Force shall not have any liability to the Contractor for the period after and
from the Termination Date; and
(c)
the Police Force shall be entitled, at its option, to:
(i)
if appropriate, buy the EIUs for the Fair Market Value of such EIUs
as calculated in accordance with the formula in Schedule T (Assets);
or
(ii)
refuse to buy the EIUs and in such event, the Police Force shall not
have any liability to the Contractor for the period after and from the
Termination Date;
31.1.2 Termination for Convenience by the Police Force/Police Force Default: subject to
Clause 31.1.4 below, where Termination is due to the Police Force terminating for
convenience in accordance with Clause 30.1.2 above or the Termination is due to the
Contractor terminating in accordance with Clause 30.2 above, any liability of the
Police Force to the Contractor arising under Clauses 31.1.21.2(a), 31.1.2 and
31.1.2(b) below shall be paid by the Police Force to the Contractor. The Parties shall
calculate if any, cash amount needs to be paid by the Police Force to the Contractor,
in addition to the sums paid under Clauses 31.1.2(a), 31.1.2(b), and 31.1.2(b) below,
to restore (but not exceed) the Contractor’s IRR as set out in Schedule E (Pricing) at
the Effective Date. Such calculation shall determine the Contractor’s projected
expenditure and projected revenues (as identified in Schedule E (Pricing)) under the
EIU Contract up to the date of Termination, and the Contractor's obligation to make
expenditure after the date of Termination shall be deducted from such calculation.
The Police Force’s liability to the Contractor under Clause 31.1.2(a), 31.1.2(b), and
31.1.2(b) below is as follows:
(a)
the Police Force shall be liable to the Contractor for any reasonable
Subcontractor break costs actually incurred by the Contractor that arise due to
the Police Force terminating for Convenience or the Contractor terminating
for the Police Force’s default in accordance with Clause 30.2 above (as
applicable), save that in the case of a Material Subcontractor(s), liability
under this Clause 31.1.2(a) shall not arise unless the Contractor has already
complied with Clause 18 above;
(b)
the Police Force shall, if relevant and appropriate, be entitled to buy the EIUs
(and the Contractor shall sell such EIUs to the Police Force) for the Fair
Market Value of such EIUs as calculated in accordance with the formula in
Schedule T (Assets);
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31.1.3 Termination for Force Majeure: where Termination is due to a Force Majeure
Event, the Police Force shall be entitled, at its option, to:
(a)
if appropriate, buy the EIUs (and the Contractor shall sell such EIUs to the
Police Force) for the Fair Market Value of such EIUs as calculated in
accordance the formula in Schedule T (Assets) or;
(b)
refuse to buy the EIUs and in such event, the Police Force shall not have any
liability to the Contractor for the period after and from the Termination Date;
31.1.4 if the Police Force terminates for convenience in accordance with Clause 30.1.2
above or the Contractor terminates for the Police Force’s default in accordance with
Clause 30.2 above (as applicable), the Contractor shall:
(a)
cancel all capital and recurring costs and commitments in connection with the
provision of the Services;
(b)
without prejudice to the obligations of the Contractor under Clause 18 above,
terminate all contracts with its Subcontractors in connection with the
provision of the Services on the best possible terms which can reasonably be
negotiated; and
(c)
reduce labour costs by the redeployment or release of staff; and
in the event that the Contractor does not take any of the actions described in this
Clause 31.1.4, the Police Force shall not pay any sums in excess of those which the
Police Force would have paid, had such actions been taken by the Contractor;
31.1.5 the Contractor shall deliver up to the Police Force or destroy, at the sole discretion of
the Police Force, all property owned by the Police Force, including but not restricted
to the Police Force Data and the Police Force Personal Data, in its possession; and
31.1.6 the Contractor shall use all Commercially Reasonable Efforts to assign or novate in
favour of the Police Force or to any person or Successor Contractor as may be
designated for the purpose by the Police Force all relevant resources, including any
equipment leases, third party hardware, network services, maintenance agreements,
support agreements as the Police Force may designate which are relevant and
necessary for the provision of the Services including agreements relating to the Third
Party Software, Third Party Material, and the Work Product.
31.2
The Contractor shall use Commercially Reasonable Efforts to mitigate the amount of any
sums payable by the Police Force under Clause 31.1 above.
31.3
The Parties acknowledge and agree that in respect of any Termination under the EIU
Contract, each Party’s total liability arising from such Termination shall be limited to the
amounts payable by the relevant Party under Clauses 31.1.1, 31.1.2, and 31.1.3 above (as
applicable).
31.4
The Termination of the EIU Contract shall not prejudice or affect any right of action or
remedy which shall have accrued or shall thereafter accrue to either Party.
31.5
All terms of the EIU Contract (including the applicable provisions of Schedule N (Exit
Strategy)) shall continue to have full force and effect for as long as is necessary to protect the
interests of either Party.
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32.
THE POLICE FORCE’S FAILURE TO PERFORM ITS OBLIGATIONS
32.1
Save as otherwise set out in Clause 30.2.1 above, the failure by the Police Force to perform
any of its responsibilities set forth in the EIU Contract shall not be deemed to be grounds for
Termination by the Contractor provided, however, that the Contractor’s non-performance of
its obligations under the EIU Contract shall be excused (and the Contractor shall have no
obligation to pay Service Credits in respect thereof) if and to the extent that such non-
performance by the Contractor results from the failure by the Police Force to perform its
responsibilities and obligations under the EIU Contract.
32.2
Without prejudice to the provisions of Clause 32.1 above, the Contractor agrees to provide the
Police Force with written notice within five (5) working days from the date the Contractor
knows (or reasonably should have known) of such non-performance by the Police Force and
agrees to use Commercially Reasonable Efforts to perform, to the extent possible, the
Services to be performed by the Contractor notwithstanding the failure by the Police Force to
perform its responsibilities and obligations under the EIU Contract.
32.3
The Police Force agrees to pay the Contractor for any additional reasonable and actual
expenses over and above the EIU Service Charges, incurred as a result of the Contractor
complying with Clause 32.2 of this Schedule.
32.4
In the event of any delay arising due to the Police Force’s failure to perform any of its
responsibilities as described in Clause 32.1 above, both Parties shall use all reasonable
endeavours to mitigate the impact of such delay and the Parties shall discuss if any change is
required to be made to any affected plan or timetable as a result of such delay.
33.
FORCE MAJEURE
33.1
Save to the extent the Contractor is under an obligation to provide the Disaster Recovery
Services set out in Schedule D (Detailed Operational Requirements) and subject to Clause
33.3 below, neither Party shall be liable for any Default or delay in performance of its
obligations under the EIU Contract if and to the sole extent the Default or delay is caused,
directly or indirectly, by a Force Majeure Event, but in each case only if and to the sole extent
that the non-performing Party is without fault in causing the Default or delay, and the Default
or delay could not have been prevented by reasonable precautions.
33.2
Actions upon Force Majeure Event Occurring
Upon the occurrence of a Force Majeure Event, the defaulting Party shall:
33.2.1 immediately notify the other Party of the occurrence of the Force Majeure Event,
describe, at a reasonable level of detail, the circumstances causing such delay of
performance and give an estimate of when performance will recommence; and
33.2.2 use Commercially Reasonable Efforts to perform (or recommence performing) its
obligations as soon as, and to the extent, possible, including the use of alternative
sources, workarounds, and plans.
33.3
If a Force Majeure Event substantially prevents or delays the Contractor’s performance
necessary for the performance of a function reasonably identified by the Police Force as
critical for more than 3 consecutive days, then without limiting any other rights of the Police
Force, the Police Force may at its option:
33.3.1 direct the Contractor to procure that function from a third party service provider, in
which case the Contractor shall be liable for payment for the provision of those
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Services by the third party service provider for as long as the delay in performance
continues; and
33.3.2 remove the affected function from the scope of the EIU Contract without any increase
in EIU Service Charges for the remaining Services; or
33.3.3 terminate the EIU Contract in whole or in part, without liability to the Police Force as
of a date specified by the Police Force in a written notice of Termination to the
Contractor and the provisions of Clause 30 of this Schedule shall apply.
33.4
The Contractor shall not have the right to any additional payments from the Police Force as a
result of any Force Majeure Event or the performance of its obligations under this Clause 33.
33.5
The failure of any of the Subcontractors to perform any obligation owed to the Contractor
shall only constitute a Force Majeure Event with respect to the Contractor’s performance of
the Services if and to the sole extent that the failure by the Subcontractor is itself caused by a
Force Majeure Event.
33.6
For the avoidance of doubt, nothing in this Clause 33 shall affect the Contractors obligations
to provide the Disaster Recovery Services described in Schedule D (Detailed Operational
Requirements) or any disaster recovery services that the Contractor has agreed to provide to
the Police Force or the Police Forces under any agreement for such disaster recovery services.
34.
HEALTH AND SAFETY
34.1
Nothing in the EIU Contract shall release either Party from their obligations under any
requirements of Law in relation to health and safety to provide prior written notice of any
health or safety hazards associated with equipment, material or other substances supplied by
either Party, or facilities used in the performance of work under the EIU Contract.
34.2
The Contractor shall notify the Police Force of any health and safety hazards which may arise
in connection with the performance of the EIU Contract.
34.3
The Police Force shall notify the Contractor of any health and safety hazards which may exist
or arise at the Police Force Premises and which may affect the Contractor. The Contractor
shall draw these hazards to the attention of its employees and Subcontractors or any persons
engaged by the Contractor in the performance of the EIU Contract at the Police Force
Premises.
34.4
The Police Force reserves the right to exclude from the Police Force Premises any employee
or agent or representative of the Contractor on safety grounds.
34.5
The Contractor warrants that any equipment, materials or other substances which it requires to
bring on to the Police Force Premises, or is required to provide, for the purposes of the EIU
Contract, are not a safety hazard.
34.6
The Police Force reserves the right to inspect such equipment, materials or other substances
and to refuse them entry to the Police Force Premises if it considers them to be unsafe or pose
unacceptable risks of injury or damage to persons or property. Neither Party shall be liable to
the other for any additional costs or delays to the EIU Contract resulting from any decision
under this condition.
34.7
The Contractor shall inform all persons engaged in the performance of the EIU Contract at the
Police Force Premises of all such hazards and shall instruct such persons in connection with
any necessary associated safety measures.
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35.
CORRUPT GIFTS AND PAYMENTS OF COMMISSION
35.1
The Contractor shall neither:
35.1.1 offer or give or agree to give any person employed by the Police Force 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 the EIU Contract or any other agreement with the Police Force or for showing or
forbearing to show favour or disfavour to any person in relation to the EIU Contract;
nor
35.1.2 enter into the EIU Contract if in connection with it commission has been paid or
agreed to be paid to any person employed by the Police Force or acting on its behalf
by the Contractor or on the Contractor 's behalf or to the Contractor 's knowledge,
unless before the EIU Contract is made particulars of any such commission and of the
terms and conditions of any agreement for the payment thereof have been disclosed in
writing to the Police Force.
35.2
In the event of any breach of this Clause 35 by the Contractor or by anyone employed by the
Contractor or acting on the Contractor's behalf, including Subcontractors, (whether with or
without the knowledge of the Contractor) or the commission of any offence by the Contractor
or by anyone employed by the Contractor or acting on behalf of the Contractor under the
Prevention of Corruption Acts, 1889 to 1916 in relation to the EIU Contract or any other
contract with the Police Force, the Police Force may summarily terminate the EIU Contract
for material Default in accordance with Clause 30.1.1 above by notice in writing to the
Contractor. Provided always that such Termination shall not prejudice or affect any right of
action or remedy which shall have accrued or shall accrue thereafter to the Police Force and
provided always that the Police Force may recover from the Contractor the amount or value
of any such gift, consideration or commission.
35.3
The decision of the Police Force shall be final and conclusive in any dispute, difference or
question arising in respect of:
35.3.1 the interpretation of this Clause 35 (except so far as the same may relate to the
amount recoverable from the Contractor under Clause 35.2 in respect of any loss
resulting from such Termination of the EIU Contract); or
35.3.2 the right of the Police Force under this Clause 35 to terminate the EIU Contract; or
the amount or value of any such gift, consideration or commission.
36.
NOTICES
36.1
Notices given under the EIU Contract shall be in writing in the English language and made by
an authorised officer of the Police Force or the Contractor as the case may be. The Parties
shall, from time to time, provide each other with a list of personnel designated as “authorised
officers”.
36.2
Notices issued pursuant to Clause 36.1 shall be addressed to:
36.2.1 for The Police Force:
(a)
for commercial matters:
TBC
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Telephone:
Fax:
E.mail:
(b)
for all technical matters affecting the EIU Contract:
TBC
Telephone:
Fax:
E.mail:
36.2.2 for the Contractor:
(a)
for commercial matters:
Karen Hatcher, Northrop Grumman Information Technology Inc., Mail
Station FP1/6190, 12900 Federal Systems Park Drive, Fairfax, VA 22033
USA.
Telephone: +1.703.968.1871
Fax: +1.703.968.1633
E.mail: [email address]
(b)
for all technical matters affecting the EIU Contract:
Rodney Forry, Program Manager, Northrop Grumman Information
Technology Inc., Mail Station FP1/6189, 12900 Federal Systems Park Drive,
Fairfax, VA 22033 USA.
Telephone: +1.703.803.-5534
Fax: +1.703.968.1633
E.mail: [email address]
and such address of either Party may be altered by notice given in accordance
with Clause 36.1 above and this Clause 36.2.
36.3
A notice given in accordance with Clauses 36.1 and 36.2 above; shall deemed to be received:
36.3.1 if left at the recipient’s address during normal business hours, on the date of delivery;
36.3.2 if sent by prepaid registered post, two (2) days after the date of posting;
36.3.3 if sent by an express courier with a reliable system for tracking delivery, on the date
of delivery to the recipient; and
36.3.4 if sent by fax or electronic mail to the fax number or electronic mail address specified
below (as may be altered by giving notice in accordance with this Clause 36) during
normal business hours, and provided that a confirmation copy is sent by the Party
giving notice in accordance with a method specified above, upon receipt as evidenced
by production of a satisfactory transmission report by the fax machine which sent the
fax or receipt by the notifying Party of a confirmation of receipt report in respect of
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the electronic mail sent, as appropriate, or if outside the normal business hours of the
recipient, then at the beginning of the recipient’s next working day.
37.
GENERAL PROVISIONS
37.1
Save as otherwise expressly stated in the Contract, the Contractor may not assign, novate or
otherwise transfer its rights or transfer its obligations under the EIU Contract without the
prior written consent of the Authority.
37.2
The Police Force shall be entitled to:
37.2.1 assign, novate, or otherwise transfer its rights or obligations under the EIU Contract
or any part thereof to any contracting authority (as defined in Regulation 3(1) of the
Public Services Contracts Regulations 1993, as amended) (a "Contracting Police
Force") provided that any such assignment, novation or transfer shall not increase the
burden of the Contractor's obligations pursuant to the EIU Contract; or
37.2.2 novate the EIU Contract to any other body (including but not limited to any private
sector body) which substantially performs any of the functions that previously had
been performed by any Contracting Police Force.
37.3
Notwithstanding the provisions of Clause 19 of this Schedule, in the event of an assignment,
novation or transfer (as applicable) pursuant to Clauses 37.1 or 37.2 above, the Police Force
shall be entitled to disclose to any transferee any Confidential Information of the Contractor
which relates to the performance of the Services by the Contractor or their replacement or
successors. In such circumstances, the Police Force shall authorise the transferee to use such
Confidential Information only for purposes relating to the performance of the Services.
37.4
Any change in the legal status of the Police Force shall not affect the validity of the EIU
Contract. In such circumstances, the EIU Contract shall bind and inure to the benefit of any
successor body to the Police Force.
37.5
Except with the written consent of the other Party neither Party shall make any press
announcements or publicise the EIU Contract in any way, such consent shall not be
unreasonably held or delayed. Both Parties shall take all reasonable steps to ensure the
observance of the provisions of this Clause 37.5 by all their servants, employees, agents and
consultants. The Police Force shall be entitled to publicise the EIU Contract in accordance
with any legal or quasi legal obligation upon the Police Force, including any examination of
the EIU Contract by the National Audit Office pursuant to the National Audit Act 1983 or
otherwise.
37.6
In the event of there being a change to any statutes, enactments, orders, regulations or other
similar instruments where any such change necessitates a change to the Services as specified
in Schedule D (Detailed Operational Requirements), the Parties shall enter good faith
negotiations to make such adjustments to the EIU Service Charges as may be necessary to
compensate the Contractor for such additional costs as are both reasonably and necessarily
incurred by the Contractor in accommodating such changes.
37.7
Save as provide in Clause Error! Reference source not found.(?) of the Contract, a person
who is not a Party to the EIU Contract has no right to under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of the EIU Contract save that the Contractor
acknowledges that the Police Force shall enter into the EIU Contract for the benefit of the
Police Forces and such Police Forces shall be third party beneficiaries under the EIU
Contract. For the avoidance of doubt, the Police Forces shall have the right to enforce any
term of the EIU Contract pursuant to the Contracts (Rights of Third Parties) Act 1999. The
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Police Force and the Contractor may agree to rescind or vary the EIU Contract without the
consent of the Police Forces or any other third party.
37.8
Independent Contractor and Relationship between the Parties
37.8.1 The Contractor, in providing the Services, shall be acting as an independent
contractor. Nothing in the EIU Contract, including references to “partnership”, shall
create any relationship of agent and principal, partnership, or employer and employee
between the Parties or between one of the Parties and the other Party’s personnel,
agents, employees or subcontractors.
37.8.2 Nothing in the EIU Contract shall give either Party any authority to act or make
representations or commitments on behalf of the other Party or to create any
contractual liability to a third party on behalf of the other Party.
37.9
Electrical Requirements
37.9.1 Where the Police Force is providing Premises in accordance with that specified in the
Order:
(a)
the Contractor shall be responsible for the electrical connections to be made
to the EIU Services in accordance with the provisions specified in the Order;
(b)
the Police Force shall make available the Electricity Supply in accordance
with the Order;
(c)
the Contractor warrants that the EIU Services shall function on the Electricity
Supply in accordance with the provisions of this Order.
37.9.2 The Contractor warrants that the system when operating shall not cause electrical
interference beyond the limits laid down in the relevant standard specified in the
Order. For the purpose of this Clause 37.9.2 the system shall be deemed to include
any testing and monitoring instruments supplied under this Order.
37.10 Damage to Plant, Tackle and Tools
37.10.1 All plant, tackle and tools at the Premises provided by or on behalf of the Contractor
shall stand at the risk and be in the sole charge of the Contractor unless damaged due
to the negligence of the Police Force.
37.10.2 The Contractor shall be required to remove all such plant, tackle and tools which it
brings to the Premises.
37.10.3 The Contractor shall ensure that all such plant, tackle and tools shall meet minimum
safety standards required by law.
37.11 Amendments and Variations
The EIU Contract Terms and Conditions shall not be varied or amended unless such variation
or amendment is agreed in writing by duly authorised representatives of the Authority and the
Contractor.
37.12 Entirety of EIU Contract
The EIU Contract constitutes the entire agreement between the Parties as to its subject matter;
and in relation to that subject matter, and, in the absence of fraud, supersedes any prior
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warranties, indemnities, undertakings, conditions, understanding, commitments or agreements
between the Parties, whether oral or written.
37.13 Governing Law
37.13.1 The construction, performance and validity of the EIU Contract shall be governed by
English law.
37.13.2 Subject to Clause 19 above and the procedures set out in Schedule P (Dispute
Resolution Procedure) (to the extent such procedures are applicable), the Parties
irrevocably agree that the courts of England shall have, and the Parties shall submit
to, the exclusive jurisdiction of the courts of England to settle any disputes which
may arise out of or in connection with the EIU Contract and that accordingly any
proceedings arising out of or in connection with the EIU Contract shall be brought in
such courts located in London, England and the Parties waive any objection to
proceedings in any such courts on the ground of venue or on the ground that the
proceedings have been brought in an inconvenient forum.
37.13.3 For the purposes of serving any Claims, proceedings or notices on the Contractor in
connection with the EIU Contract, the Contractor hereby irrevocably appoints the
Company Secretary of Northrop Grumman Information Overseas, Inc. (a company
registered in England and Wales as an overseas company under Company Number:
FC018485) to accept service of such Claims, proceedings, or notice on behalf of the
Contractor at the following branch address in the UK:
Company Secretary of Northrop Grumman Information Overseas, Inc, Northrop
Grumman Mission Systems International, Inc., 16 Charles II Street, London SW1Y
4QU.
37.13.4 Solely for the purposes of providing the Contractor with a copy of any Claims,
proceedings or notices served under Clause 37.13.3 above, the Police Force shall, at
the same time of serving any Claims, proceedings or notices under Clause 37.13.3
above, send a copy of such Claims, proceeding or notices to the person responsible
for commercial matters at the address set out in Clause 36.2.20 above.
37.14 No delay, neglect or forbearance on the part of either Party in enforcing against the other
Party any term or condition of the EIU Contract shall either be or be deemed to be a waiver or
in any way prejudice any right of that Party under the EIU Contract.
37.13 If any provision of the EIU Contract is held invalid, illegal or unenforceable for any reason by
any court of competent jurisdiction, such provision shall be severed and the remainder of the
provisions hereof shall continue in full force and effect as if the EIU Contract had been
executed with the invalid provisions eliminated. In the event of a holding of invalidity so
fundamental as to prevent the accomplishment of the purpose of the EIU Contract, the Police
Force and the Contractor shall immediately commence good faith negotiations to remedy such
invalidity.
Schedule R (Livescan and EIU’s)
31
Signature Version
Released under FOI in full on 16th July 2009
PITO
IDENT1 CONTRACT
Northrop Grumman
Released under FOI in full on 16th July 2009
APPENDIX A - EIU CONTRACT
EIU SERVICE DESCRIPTION
[Note: If Livescan is the EIU Service, then use the “Livescan Service Description” in Annex R-2
below and incorporate those provisions in this Annex A. If a different EIU Service, then the
relevant service description will need to be agreed with the Police Force via Schedule L (Change
Control Procedures).]
Schedule R (Livescan and EIU’s)
32
Signature Version
Released under FOI in full on 16th July 2009
PITO
IDENT1 CONTRACT
Northrop Grumman
Released under FOI in full on 16th July 2009
APPENDIX B - EIU CONTRACT
EIU SERVICE LEVELS
[Note: If Livescan is the EIU Service, then use the Livescan Service Levels identified in Schedule
F (Service Level Requirements) of the IDENT1 EIU Contract. If a different EIU Service, the
service levels required will need to be agreed with the Police Force via Schedule L (Change Control
Procedures).]
Schedule R (Livescan and EIU’s)
33
Signature Version
Released under FOI in full on 16th July 2009
PITO
IDENT1 CONTRACT
Northrop Grumman
Released under FOI in full on 16th July 2009
APPENDIX C – EIU CONTRACT
EIU PRICING
[Note: If Livescan is the EIU Service, then use the Livescan pricing identified in Schedule E
(Pricing) of the IDENT1 EIU Contract. If a different EIU Service, the pricing will need to be
agreed with the Police Force via Schedule L (Change Control Procedures).
Schedule R (Livescan and EIU’s)
34
Signature Version
Released under FOI in full on 16th July 2009
