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SCHEDULE B
KEY TERMS
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SCHEDULE B
KEY TERMS
PURPOSE
In addition to the terms and conditions set out in Schedule A (Form of Contract), the following Key
Terms detail at a high level the draft terms and conditions which the Authority envisages forming the
basis upon which it will contract with the successful tenderer.
AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
1. FORM OF THE CONTRACT
[Note to Tenderer: For the purposes of this Clause
1, “Tenderer” is used rather than “Contractor” as
per Section 2.2.5 of Part 1 of the ITT.]
1.1 The Authority shall require the Tenderer to agree to
use the Authority’s form of contract which shall
include (amongst others) the Key Terms set out in
this Schedule B (Key Terms).
1.2 The Tenderer must confirm whether it agrees to the
following provisions and if it does not, the Tenderer
must comply with the requirements of Sections 1 and
2 of Part 2(B) of this ITT. In the event that the
Tenderer makes no comment with regards to a
particular provision set out below, then this shall be
taken by the Authority as the Tenderer’s acceptance
to that particular provision.
2. CONTRACTOR
PARENT
COMPANY
GUARANTEE
The Contractor shall supply to the Authority a duly
executed guarantee by the Contractor’s parent
company of the Contractor’s obligations, in a form
specified or approved by the Authority.
3. SUFFICIENCY
OF
CONTRACTOR’S
RESPONSE TO THE ITT
Notwithstanding the provisions of Clause 4 of these
Key Terms, the Contractor is deemed to have
satisfied itself before submitting its response to the
ITT as to the accuracy and sufficiency of the rates
and prices submitted by the Contractor in its response
to the ITT which shall (except insofar as it is
otherwise provided in the Contract) cover all its
obligations under the Contract and shall be deemed
to have obtained for itself all necessary information
as
to
risks,
contingencies
and
any
other
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
circumstances which might reasonably influence or
affect the Contractor’s response to the ITT. In
addition, the Contractor is deemed to have examined
the requirements specified in this Contract. No
claims for additional payment shall be allowed on the
grounds of misinterpretation of any matter relating to
the requirements specified in this Contract on which
the Contractor could reasonably have satisfied itself
by a visit to the Authority’s premises, reference to
the Authority, or such other means as may have been
appropriate, including due diligence. No additional
compensation or time shall be granted on the basis of
any related matters arising for which a competent
Contractor would have made due allowance.
4. DUE DILIGENCE
4.1 The Contractor shall carry out such due diligence as
is necessary in order to ensure that, from the relevant
Transfer Date, it shall be able to provide the Services
in full compliance with the Contract, including the
pricing set out in Schedule E (Pricing) at the
Effective Date. Notwithstanding the generality of the
foregoing, the Contractor shall ensure that it has
made itself aware of, and satisfied itself as to, any
other matters relevant to the implementation and
fulfilment of the Services by the Contractor.
4.2 For all New Services, the Contractor shall perform a
similar due diligence exercise to that set out in
Clause 4.1 of these Key Terms prior to providing
such New Services.
4.3 The Contractor acknowledges that the Authority has
relied
on
the
Contractor’s
expertise
and
professionalism in carrying out its due diligence
exercise, its review of the supporting information,
and its general enquiries made during due diligence
liaison with the Authority and the Incumbent
Supplier.
4.4 The Contractor’s failure to carry out due diligence
prior to the Effective Date shall not be used as a
reason to increase the Service Charges, alter the
Service Levels and/or refuse to provide any of the
Services.
4.5 The Contractor acknowledges that, except as
contemplated by Clause 4.2 of these Key Terms in
relation to New Services, there shall not be any due
diligence or joint verification with the Authority after
the Effective Date.
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
5. TERM
5.1 Unless otherwise terminated in accordance with the
provisions of the Contract or otherwise in accordance
with law or equity, the Contract shall take effect on
the date of Effective Date and it shall continue for 8
(eight) years from the date of Transfer of Operational
Responsibility.
5.2 The Authority shall have the ability to extend the
initial Term set forth in Clause 5.1 of these Key
Terms for a further 1 (one) year period. Thereafter,
the Authority shall have the ability to extend such
extended Term by a further 1 (one) year period. Any
extension under this Clause 5.2 shall be on existing
terms and conditions upon written notice to
Contractor.
5.3 Upon the expiry of the Term of the Contract and
upon giving the Contractor 180 days prior written
notice, the Contractor shall maintain the IDENT1
Services and any Optional Services in accordance
with the Service Levels detailed in Schedule F
(Service Level Requirements) until such time as the
Authority has obtained a further service provider,
including any procurement process during this
period. During this period, the provisions of the
Schedule N (Exit Strategy) shall apply.
5.4 The Authority shall have a right to terminate the
Contract at any time during the Term in accordance
with Clause 43 of these Key Terms.
6. ANNUAL REVIEW OF THE CONTRACT
At least every 12 months during the Term, the
Contractor shall review the overall operation of the
Contract with the Authority to ensure that the
Services continue to meet the Authority’s strategic
Services requirements and shall implement changes
to the Services as necessary to meet those
requirements. The Contractor shall work with the
Authority and provide advice and guidance to the
Authority with regard to technology trends and
technology planning specific to the Authority’s
operational requirements.
7. SCOPE OF THE SERVICES
7.1 In consideration of the payment of the Service
Charges, commencing on the relevant Transfer Date,
the Contractor shall provide the Services to the
Authority and the Police Forces (including the
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
IDENT1 Services any Optional Services selected by
the Authority or the relevant Police Forces pursuant
to Clause 8 below and the Transition Services
pursuant to Clause 9 below), as the same may evolve
during the Term and as they may be supplemented,
enhanced, modified or replaced in accordance with
this
Contract,
but
excluding
any
services,
responsibilities or functions that are specifically
identified in this Contract as the Authority’s
responsibility or a third party’s responsibility. Such
Services are:
7.1.1 the services, functions and responsibilities
specified in the Contract;
7.1.2 any service, function or responsibility
performed within the twelve (12) month period
preceding the relevant Transfer Date 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 this Contract, even if
the service, function or responsibility is not
specifically described in this Contract;
7.1.3 any services, functions and responsibilities
agreed as New Services in accordance with
Schedule L (Change Control Procedure); and
7.1.4 any services, functions and responsibilities
(including any incidental services, functions or
responsibilities) not specified in this Contract
as within the scope of the Contractor’s
responsibilities, but reasonably and necessarily
required for, or related to, the proper
performance and provision of the services,
functions and responsibilities set out in this
Clause 7.1.
7.2 The Contractor shall commence the performance of
the Services in line with the Transition Plan detailed
in Schedule G (Transition), following the successful
completion of the Transition Plan defined in
Schedule H (Acceptance Procedures).
8. OPTIONAL SERVICES
8.1 The Contractor shall maintain a catalogue of
Systems,
Services
and
Products
(“COSSP”)
(“Catalogue”) in Schedule D (Services) of this
Contract. Items from the COSSP (“COSSP Items”)
may be purchased, at the sole discretion of the
Authority, from the Contractor by either the
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
Authority or any of the Police Forces. The COSSP
Items listed in the Catalogue shall be optional, and
therefore, neither the Authority nor the Police Forces
are under any obligation to purchase any item in the
COSSP.
8.2 If the Authority or any of the Police Forces selects
any of the COSSP Items, the Contractor shall supply
such COSSP Items to the Authority or the relevant
Police Forces (as applicable) for the Term of the
Contract (unless a shorter period is agreed by the
Parties) in accordance with the terms of this Contract.
8.3 The Contractor shall be responsible for maintaining
the list of COSSP Items detailed in Schedule D
(Services) in line with the then-current technology
and functionality. Any changes proposed by the
Contractor to the content of Schedule D (Services)
shall be made in accordance with the Change Control
Procedures detailed in Schedule L (Change Control
Procedure) and, unless otherwise agreed by the
Authority, shall not be subject to any increase in the
Service Charges to the Authority.
9. TRANSITION SERVICES
9.1 As used in this Contract, Transition shall relate to
either the FOC or TOR (as applicable) (including the
transfer of Assets and management) to be conducted
in accordance with the Transition Plan. Time shall be
of the essence in respect of the Contractor’s
compliance with the Transition Plan.
9.2 Process of Transition
9.2.1 The Contractor shall comply with the
requirements
set
out
in
Schedule
G
(Transition).
9.2.2 The Contractor shall be responsible for the
overall management of the Transition and shall:
a) Keep the Transition on schedule, within
cost and in accordance with the timetable
and budget set out in the Transition Plan;
and
b) identify and resolve, or assist the Authority
and any Police Forces in the identification
and
resolution
of,
any
problems
encountered in the timely completion of
each task identified in the Transition Plan,
whether or not the task is the responsibility
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
of the Contractor or the Incumbent
Suppliers.
9.2.3 From the Effective Date until completion of
Transition, the Contractor shall provide the
Authority with weekly progress reports that:
a) describe, in reasonable detail, the current
status of the Transition;
b) indicate the progress of the work being
performed;
c) identify any actual or anticipated problems
or delays;
d) assess the impact of such problems or
delays on the Contractor’s provision of the
Services; and
e) describe all actions being taken or to be
taken to remedy such problems or delays.
9.2.4 Subject to Clause 9.2.5 of these Key Terms, if
Transition is delayed or any Milestone in the
Transition Plan is not met, the Authority may
withhold the Service Charges and the Authority
may claim payment for, or set off against future
invoices, all costs and expenses incurred by the
Authority that relate to such delay, including
costs paid to the Incumbent Suppliers and third
parties.
9.2.5 If the Contractor fails to fulfil any of its
obligations with respect to Transition in
accordance with the Transition Plan and Clause
9 of these Key Terms by the dates specified in
the Transition Plan, the Contractor shall, at
Authority’s request and without prejudice to
the Authority’s other rights and remedies in
Law and under the Contract, arrange (at the
Contractor’s own cost) all such additional
resources as are necessary to fulfil said
obligation as early as practicable thereafter.
10. SERVICE LEVELS
10.1 The Contractor shall, at all times, achieve or exceed
the Service Levels in accordance with the provisions
of Schedule F (Service Level Requirements). In
addition, the Contractor shall provide the Services
with promptness, diligence, in accordance with Good
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
Industry Practice, 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.
10.2 At least annually during the Term, the Authority and
the Contractor shall review the Service Levels and
shall make adjustments to them as appropriate to
reflect improved performance capabilities associated
with advances in the technology, processes and
methods used to provide the Services.
10.3 The Parties anticipate that the Service Levels shall
improve over time and the Parties shall mutually
cooperate to identify improvements and efficiencies
in the provision of the Services.
11. FAILURE TO PERFORM
If the Contractor commits a Service Level Failure,
the Contractor shall take the steps identified in
Schedule F (Service Level Requirements) and shall
promptly:
11.1 investigate the underlying causes of the failure to
meet the Service Level and use Commercially
Reasonable Efforts to preserve any data indicating
the cause of the Service Level Failure;
11.2 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 Authority; and
11.3 prepare and deliver to the Authority a report
identifying the Service Level Failure and its causes in
accordance with Schedule F (Service Level
Requirements);
11.4 use Commercially Reasonable Efforts to minimize
the impact of the Service Level Failure to both the
Authority and all the Police Forces, and to prevent it
from recurring;
11.5 correct the Service Level Failure and meet the
relevant Service Level; and
11.6 advise the Authority, as and to the extent requested
by the Authority, of the status of remedial efforts
being undertaken.
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
12. SERVICE CREDITS
12.1 If the Contractor fails to meet a Service Level
Threshold, the Authority may deduct Service Credits
from the Service Charges on the next applicable
invoice in accordance with Schedule F (Service
Level Requirements).
12.2 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
Authority and are not an estimate of the loss or
damage that may be suffered by the Authority and
Police Forces as a result of the Contractor’s failure to
meet any Service Level. Payment of any Service
Credit by the Contractor under this Contract is
without prejudice to any entitlement that the
Authority may have to damages at Law from the
Contractor resulting from, or otherwise arising in
respect of, any such breach of this Contract, or to any
right of the Authority to terminate this Contract
pursuant to Clause 43 of these Key Terms.
13. VOLUME OF SERVICES
The Authority shall be permitted to reduce or increase the
volume / scope of the Services provided by the Contractor
in the event that Authority’s operational requirements
change during the Term, in accordance with the principles
set out in Schedule E (Pricing).
14. CHANGES TO THE SERVICES
14.1 New Services
Changes to the Services and the introduction of New
Services shall be agreed and implemented in
accordance with Schedule L (Change Control
Procedure).
14.2 Removal of Services/Bureaux
By written notice to the Contractor, the Authority
may, from time to time, remove any category (or part
thereof) of the Services (including any Bureaux)
from the scope of the Contract, in which case:
14.2.1 those removed services shall no longer be
part of the Services from the date specified in
the notice;
14.2.2 if necessary, the Service Charges shall be
equitably adjusted in accordance with the
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
procedure set out in Schedule E (Pricing) to
reflect the reduced scope and/or volume of
the Services; and
14.2.3 the Contractor shall provide Termination
Assistance in relation to the removed
services, as requested by the Authority.
14.3 Removal of Police Forces
From time to time, the Authority may inform the
Contractor that a Police Force will no longer receive
the Services (or part of the Services). In such
circumstances, the Authority may at its sole
discretion:
14.3.1 provide written notice to the Contractor to
remove that Police Force from the scope of
the Contract as of the date specified by the
Authority;
14.3.2 if necessary, request that the Service Charges
be equitably adjusted in accordance with the
procedure set out in Schedule E (Pricing) to
reflect the reduced scope and/or volume of
the Services;
14.3.3 request
that
the
Contractor
provide
Termination Assistance (including continuing
the benefit of any licences granted to the said
Police Force under this Contract) in relation
to the removed Police Force; and
14.3.4 if a Police Force is removed from the scope
of the Contract pursuant to this Clause 14.3
as a result of any UK government
reorganisation, the Contractor shall, if
requested by the Authority, provide the
Services to any new government entity
designated by the Authority under the terms
of this Contract for a reasonable period
designated by the Authority, which for the
avoidance of doubt, may include Termination
Assistance.
15. SERVICE CHARGES
15.1 All Service Charges are set out in Schedule E
(Pricing) and the Authority 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 Authority for the
provision of the Services unless agreed pursuant to
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
Schedule L (Change Control Procedure).
15.2 All Service Charges due under this Contract shall be
paid in Pounds Sterling and the Authority shall pay
the Service Charges in accordance with the invoicing
procedure specified in Schedule E (Pricing).
15.3 Payment shall be made within thirty (30) days of
receipt by the Authority (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 this Contract.
15.4 The Service Charges are stated exclusive of VAT.
The Authority shall pay the VAT on the Service
Charges at the rate and in the manner prescribed by
Law, from time to time.
15.5 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 Authority.
15.6 Any conversion of Service Charges stated in the
Contract from Pounds Sterling to the Euro shall be
undertaken at the official rate declared by HM
Treasury at the time of the changeover.
15.7 If either Party fails to pay any valid amount payable
under this Contract by the due date specified in
Schedule E (Pricing) or elsewhere in this 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 2%
per annum above the base rate of the National
Westminster Bank from time to time applicable in
the United Kingdom.
16. 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
Forces (as applicable) from any sum then due or
which at any time thereafter may become due to the
Contractor under this Contract.
17. REFINANCING
[Note to Tenderer: The Authority reserves the right
to introduce a refinancing Clause if it appears
necessary to the Authority depending on the nature
of the responses submitted by the Tenderer.]
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
18. POLICE FORCES
During the Term, the Contractor shall provide the
Services to the Authority and the Police Forces. All
of the Police Forces shall have the right to benefit
from the Services under the Contract and shall be
deemed third party beneficiaries under this Contract.
In particular, the Police Forces shall be deemed third
party beneficiaries in respect of any indemnity or any
limitation or exclusion of liability in favour of the
Authority which are hereby intended by the Parties to
be a right or benefit enforceable by such Police
Forces.
19. USE
OF
THIRD
PARTIES
AND
COOPERATION WITH OTHER SERVICE
PROVIDERS
19.1 The Contractor shall be required to permit access to
third parties or the Authority itself in accordance
with Clause 19.2 of these Key Terms.
19.2 The Contractor shall co-operate 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 Authority or third
parties under contract to the Authority 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.
20. CONSENTS AND LICENCES
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 Authority to receive the
benefits of the Services.
21. REQUIRED CONSENTS
The Contractor shall obtain all Required Consents
necessary to complete the Transition and to perform
the Services. Unless the Authority 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. Subject to Authority’s
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
approval, if a Required Consent cannot be obtained,
the Contractor may adopt any alternative approaches
or work-arounds that are necessary and sufficient to
provide the Services without the relevant Required
Consent. Contracts that are the subject of a Required
Consent shall be transferred from Authority to the
Contractor by appropriate mechanisms.
22. THIRD PARTY CONTRACTS
22.1 Without prejudice to Clause 29.4.1 of these Key
Terms, the Contractor shall 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 Authority 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 ongoing fees under those arrangements
payable by Authority after the Termination of the
Contract are consistent with and no higher than the
fees payable by the Contractor prior to such
Termination.
22.2 For the avoidance of doubt, Clause 22.1 of these Key
Terms shall not apply to the Authority’s third party
contract arrangements already in place prior to the
Effective Date.
23. CONTRACTOR PERSONNEL
The Contractor shall comply with the requirements
set out in Schedule M (HR and TUPE Information)
regarding Key Contractor Personnel and the approval
of personnel.
24. TUPE
If any of the Authority’s staff, the Incumbent
Supplier’s staff or any other staff employed or
engaged in the provision of the NAFIS Services
and/or SAFR Services (as applicable) transfer as a
result of TUPE, the applicable provisions of
Schedule M (HR and TUPE Information) shall
apply.
25. PERSONNEL ACCESS
25.1 On behalf of itself and/or any Police Force, the
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
Authority reserves the absolute right under this
Contract to refuse to admit to any Authority
Premises, any person employed or engaged by the
Contractor, or by a Subcontractor, whose admission
to such Authority Premises would be, in the sole
opinion of the Authority or the applicable Police
Force, undesirable.
25.2 If and when directed by the Authority, the Contractor
shall provide a list of the names and addresses of all
persons who it is expected may require admission in
connection with the performance of this Contract to
any Authority Premises, specifying the capacities in
which they are concerned with this Contract and
giving such other particulars as the Authority may
reasonably require from time to time.
25.3 The Contractor 's representatives, engaged within the
boundaries of the Authority Premises shall comply
with such rules, regulations and requirements
(including those relating to security contracts) as may
be in force from time to time for the conduct of
personnel when at the Authority Premises and when
outside the Authority Premises.
25.4 If the Contractor shall fail to comply with Clauses
25.2 and 25.3 of these Key Terms and if the
Authority (whose decision shall be final and
conclusive) shall decide, at its sole discretion, that
such failure is prejudicial to the interests of the
Authority and if the Contractor does not comply with
the provisions of Clause 25.2 or Clause 25.3 of these
Key Terms (as applicable) within a reasonable time
of written notice so to do, then the Authority may
terminate this Contract
26. 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
Contract.
27. RESPONSIBILITY FOR SUBCONTRACTORS
27.1 The Contractor shall not delegate or subcontract any
of its responsibilities without prior written approval
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
of the Authority.
27.2 The Contractor shall ensure that Subcontractors
comply with the terms and conditions of this
Contract as they apply to the Contractor and the
Contractor Personnel.
27.3 The Authority may require the Contractor to cease
using a Subcontractor if it has concerns about the
Subcontractor’s performance.
27.4 The Contractor shall remain responsible for the acts
and omissions of its employees and Subcontractors.
27.5 The Contractor shall use all reasonable efforts to
ensure that all Subcontractors’ equipment rental or
lease
agreements,
software
licences
and/or
Intellectual
Property
Rights,
and
all
other
(nonemployment) contracts which are necessary to
the performance of the Services, are assignable to the
Authority (without any transfer charge) upon the
Termination of the Contract and the Contractor shall
notify the Authority of the results of its efforts under
this Clause 27.5 within one (1) month of the entry
into of any such agreement with the applicable
Subcontractor.
28. CONFIDENTIALITY
28.1 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 Contract remains the
property of the Authority, its servants or agents,
operational partners or members as appropriate.
28.2 Each Party shall, on behalf of itself, ensure that:
28.2.1 it and any person employed or engaged by the
relevant Party (in connection with this
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 this Contract;
28.2.2 any person employed or engaged by either
the Contractor or the Authority, as applicable,
(in connection with this Contract in the
course of such employment or engagement)
shall
not
disclose
any
Confidential
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Information to any third party without the
prior written consent of the other Party;
28.2.3 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 this Contract by their employees,
servants, agents or Subcontractors; and
28.2.4 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.
28.3 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.
28.4 The Contractor shall inform the Authority of all third
parties (including Subcontractors and all Contractor
Personnel) to whom it intends to disclose
Confidential Information and the Authority 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 Authority, the
Contractor shall not disclose any Confidential
Information to any such vetoed person.
28.5 The provisions of Clause 28.2 of these Key Terms
shall not apply to any information which:
28.5.1 is or becomes public knowledge other than by
breach of Clause 28 of these Key Terms;
28.5.2 is in the possession of the receiving party
without restriction in relation to disclosure
before the date of receipt from the disclosing
party;
28.5.3 is received from a third party who lawfully
acquired it and who is under no obligation
restricting its disclosure;
28.5.4 is independently developed without access to
the Confidential Information; or
28.5.5 is required to be disclosed by Law or
pursuant to the rules or any order having the
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force of law of any court, association or
agency of competent jurisdiction or any
government agency.
28.6 Nothing in Clause 28 of these Key Terms shall be
deemed or construed to prevent the Authority from
disclosing any Confidential Information obtained
from the Contractor to any consultant, professional
adviser or other person engaged by the Authority in
connection with this Contract provided that the
Authority shall notify the Contractor of the identity
of such consultant, professional adviser or other
person as soon as reasonably practicable.
28.7 Nothing in Clause 28 of these Key Terms shall
prevent the Authority from using techniques, ideas
and know-how gained during the performance of this
Contract (or afterwards if terminated or on expiry of
the Contract) in the furtherance of its normal
business.
28.8 The obligations with respect to Confidential
Information disclosed under this Contract shall
survive Termination of this Contract and continue for
as long as such information remains confidential.
29. INTELLECTUAL PROPERTY RIGHTS
29.1 Intellectual Property Rights existing at the
Effective Date
Save as set out herein, this 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.
29.2 Authority Software and Authority Material
29.2.1 The Authority shall retain all right, title and
interest in and to all Authority Software and
Authority Material, including all Intellectual
Property Rights therein.
29.2.2 The Authority hereby grants the Contractor a
fully paid-up, non-exclusive, nontransferable
licence during the Term to use the Authority
Software and the Authority Material, only to
the extent necessary and for the sole purpose
of fulfilling the Services and/or performing
its other obligations under this Contract, with
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the right to grant sublicences thereunder to
Subcontractors only for such purpose.
29.2.3 The Contractor and Subcontractors shall
cease any and all use of the Authority
Software and Authority Material upon
Termination of this Contract.
29.3 Contractor Software and Contractor Material
29.3.1 Subject to Clause 29.5.3 of these Key Terms,
the Contractor shall retain all right, title and
interest in and to the Contractor Software and
Contractor Material, including all Intellectual
Property Rights therein.
29.3.2 The Contractor shall not use any Contractor
Software or Contractor Material as part of, or
in the provision of, the Services without first
demonstrating to the Authority that the
Contractor Software or Contractor Material
(as applicable) proposed to be used satisfies
the Authority’s requirements, including the
Authority’s security requirements (as set out
in
Schedule
K
(Security)
and
its
requirements
in
connection
with
the
Authority’s ability to exit from this Contract
as set out in Schedule N (Exit Strategy). The
Contractor shall be responsible for installing,
operating and maintaining the Contractor
Software
or
Contractor
Material
(as
applicable) at its own expense.
29.3.3 The Contractor hereby grants to the
Authority,
the
Police
Forces,
their
contractors, agents and employees a licence
to use, operate, and copy the Contractor
Software and Contractor Material for the
purpose of the Authority and the Police
Forces
receiving
the
benefit
of
the
worldwide, fully paid-up, non-exclusive
Services during the Term. The licence
granted under this Clause 29.3.3 shall take
effect on the date that the relevant Contractor
Software or Contractor Material is first used
by or on behalf of the Contractor to provide
the Services.
29.3.4 Subject to the terms agreed pursuant to
Clause 29.3.5 of these Key Terms, with effect
from the Termination Date, the Contractor
grants to the Authority, Police Forces,
Successor Contractor, and their contractors,
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agents
and
employees,
a
perpetual,
worldwide, fully paid-up, nonexclusive
licence to use, operate, adapt, copy, maintain,
support, modify and enhance all the
Contractor Software (including, for the
avoidance of doubt, the Contractor Software
Source Code) and Contractor Material for the
purpose of the Authority or the Police Forces
(as applicable) receiving and/or the Successor
Contractor(s) and their contractors agents and
employees providing services similar to those
provided by the Contractor prior to the
Termination Date.
29.3.5 Prior to the Termination Date of this
Contract, the Parties shall use Commercially
Reasonable Efforts to agree the terms
pursuant to which the Contractor shall
support
the
Contractor
Software
and
Contractor
Material
after
Termination,
provided that such terms shall be no more
restrictive than those offered by the
Contractor to other customers.
29.4 Third Party Software and Third Party Material
29.4.1 Subject to Clause 29.9 of these Key Terms,
the Contractor shall provide such Third Party
Software and Third Party Material as is
necessary or appropriate to supply the
Services or otherwise in accordance with any
technology planning agreed by the Authority.
Before installing any Third Party Software or
Third Party Material (as applicable), the
Contractor shall obtain or provide (as
applicable) a licence on terms agreed with the
Authority
(“Licence”)
enabling
the
Authority, the Police Forces, or their
Subcontractors or their permitted assignees,
rights to use the Third Party Software and/or
Third Party Material (as applicable), as
appropriate, during the Term and from the
Termination Date for the purposes obtaining
the Services and/or to perform the Services or
engage a third party to do so, as applicable.
The Contractor shall be liable for any
additional costs associated with the above.
29.4.2 The Contractor shall ensure that Third Party
Software
and
Third
Party
Material
acquisitions (including Modifications to any
Third Party Software that was already in use
as at the Effective Date) shall be in the
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Contractor’s name, provided that prior to the
introduction of such Third Party Software or
Third Party Material.
a) the Contractor shall use Commercially
Reasonable Efforts to obtain the right to
grant to the Authority, all Police Forces
and
their
respective
agents
and
employees, a perpetual, worldwide, fully
paid, non-exclusive licence to use,
operate, adapt, copy, maintain, support,
modify and enhance such Software or
Material at the Termination of this
Contract and at no additional charge to
the Authority; and
b) the Contractor shall not use any Third
Party Software as part of, or in the
provision of, the Services without first
demonstrating to the Authority that the
Third Party Software proposed to be used
satisfies the Authority’s requirements,
including
the
Authority’s
security
requirements (as set out in Schedule K
(Security) and its requirements in
connection with its ability to exit from
this Contract as set out in Schedule N
(Exit Strategy).
29.5 Work Product
29.5.1 Subject to Clause 29.5.3 of these Key Terms
and provided the Authority pays for the
creation of the relevant Work Product, the
Authority shall own all rights, title and
interest (including all Intellectual Property
Rights) in and to all Work Product, together
with all copies thereof, subject, in the case of
Modifications to Third Party Software or
Third Party Material included in such Work
Product, to the terms of the relevant licences
or contracts for such Third Party Software or
Third Party Materials.
29.5.2 The Authority hereby grants to the Contractor
a world-wide, fully paid-up, nonexclusive,
non-transferable licence during the Term to
use the Work Product, only to the extent
necessary and for the sole purpose of
fulfilling the Services and/or performing its
other obligations under this Contract, with the
right to grant sub-licences thereunder to
Subcontractors only for such purpose.
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29.5.3 Unless the Parties expressly agree otherwise,
all Modifications to Contractor Software and
Contractor Material shall be deemed to be
Work Product for the purposes of this
Contract. The Contractor may request that
particular Modifications to the Contractor
Software and/or Contractor Material (as
applicable) should be deemed to be
Contractor Software or Contractor Material
(as applicable) rather than Work Product
(such request to be supported by a
demonstration to the Authority of the
benefits, financial or otherwise, that could
accrue to the Authority from such a position)
in which case the Parties shall discuss such
request and attempt to agree through the
Change Control Procedure set out in
Schedule L (Change Control Procedure)
the impact of such request.
29.6 Non-Infringement, Conformation to Specification
and Conformation of Ownership
29.6.1 The Contractor shall ensure that the
Contractor Software, Contractor Material
Work Product, or any other product provided
by the Contractor or any Subcontractor, and
its use by the Authority, Police Forces, and
any Successor Contractors in the intended
manner, shall not infringe any Intellectual
Property Rights or moral right of any third
party.
29.6.2 Subject to Clause 29.6.1 of these Key Terms,
the Contractor and all relevant Subcontractors
confirm that:
a) they own or have the right to use or
otherwise exploit, and shall, at all
relevant times, own or have the right to
use or otherwise exploit, the Equipment,
Material, Software and all Intellectual
Property Rights necessary to provide the
Services;
b) they shall not infringe any third party’s
Intellectual Property Rights in supplying
the Services; and
c) they have, and shall at all relevant times
have, full right to grant the licences and
provide any Assets, Work Product and/or
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Software to the Authority as set out in
this Contract.
29.7 Escrow
The Contractor shall keep the Source Code of all
Software produced as part of the Work Product and
of all Contractor Software current, and shall, upon
receipt of a written request by the Authority, place
the Source Code of all such Software in escrow with
the National Computing Centre, Manchester, on the
terms of its tripartite agreement or on such other
terms as the Contractor and the Authority shall from
time to time mutually agree.
29.8 Cataloguing
The Contractor shall maintain a continuously updated
inventory of all Contractor Software, Contractor
Material, Authority Software, Authority Material,
Third Party Software, Third Party Material and all
Work Product which are used as part of, or in the
provision of, the Services hereunder from time to
time.
29.9 Third Party Legacy Software and Materials
For the avoidance of doubt, the obligations of the
Contractor in Clauses 29.4.1 and 29.4.2 of these Key
Terms shall not apply in relation the Third Party
Software and the Third Party Material existing at the
Effective Date.
30. REGULATORY AND LEGAL COMPLIANCE
30.1 The Contractor shall provide the Services consistent
with regulatory requirements to which the Authority
is subject, and the Contractor shall make any
necessary changes to the Services to comply with
such requirements. 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 Authority.
30.2 The Parties acknowledge that any costs relating to
the compliance of any material Discriminatory
Change in Law shall be subject to the Change
Control Procedures set out in Schedule L (Change
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Control Procedure). All other changes in Law shall
be at the Contractor’s cost.
31. DATA PROTECTION
31.1 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 this
Contract shall be deemed to prevent any Party from
taking the steps it reasonably deems necessary to
comply with the DPA.
31.2 The Parties acknowledge that:
31.2.1 the Authority alone shall determine the
purposes for which and the manner in which
Authority Personal Data is, or is to be,
processed in the performance of the Services;
31.2.2 the Authority shall be the “Data Controller”
(as defined in the DPA) in respect of all
Authority Personal Data; and
31.2.3 the Contractor shall be the “Data Processor”
(as defined in the DPA) in respect of
Authority Personal Data.
31.3 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 instruct
any Subcontractors to, comply with any reasonable
written request by the Authority to:
31.3.1 correct or delete inaccurate Authority
Personal Data;
31.3.2 provide a copy of Authority 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;
31.3.3 provide information about the Authority’s
processing of Authority Personal Data;
31.3.4 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
Authority Personal Data; and
31.3.5 otherwise provide reasonable assistance to
the Authority as necessary to allow the
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Authority to comply with the DPA.
31.4 All Authority Personal Data shall remain the property
of the Authority (which may be withheld or
withdrawn by the Authority at the Authority’s sole
discretion). The Contractor shall not, without the
Authority’s prior written authorisation:
31.4.1 use Authority Personal Data for the
Contractor’s
or
Subcontractors’
own
purposes, including marketing purposes; or
31.4.2 transfer, disclose, assign, sell lease or
otherwise provide any of Authority Personal
Data to third parties or transfer the Authority
Personal Data across any country’s border
except to countries or territories within the
European Economic Area.
31.5 The Contractor shall promptly notify the Authority if
any complaints are received about the processing of
Authority 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 Authority such reasonable assistance as it may
require in connection with such complaint.
31.6 DPA – Seventh Data Protection Principle
the Contractor acknowledges that it is obliged to
comply with the “Seventh Data Protection
Principle” in respect of Authority Personal Data (as
set out in the DPA) and, in particular, that it shall
comply with the following obligations:
31.6.1 taking
appropriate
technical
and
organisational
security
measures,
in
accordance with the requirements of this
Contract, to safeguard against unauthorized
and unlawful processing of Authority
Personal Data and against accidental loss or
destruction of, or damage to, Authority
Personal Data. In doing so, the Contractor
will 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;
31.6.2 only processing Authority Personal Data in
accordance with written instructions given by
the Authority, including as set out in this
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Contract;
31.6.3 taking reasonable steps to check the
reliability of those Contractor Personnel that
have access to Authority Personal Data; and
31.6.4 ensuring that all of the Contractor Personnel
involved in processing Authority Personal
Data have undergone reasonably adequate
training in the care and handling of Authority
Personal Data.
32. DATA LOSS
32.1 The Contractor shall ensure that the Authority can
recover all Authority Data in accordance with this
Clause 32.
32.2 The Contractor and the Authority shall each take
reasonable precautions (having regard to the nature
of their other respective obligations under this
Contract) to preserve the integrity of the Authority
Data and to prevent any corruption or loss of the
Authority Data. 32.3
32.3 The Contractor shall not delete or remove any
copyright notices contained within or relating to the
Authority Data.
32.4 As part of the Services, the Contractor shall:
32.4.1 take such steps as are necessary to ensure
that, in the event of any corruption or loss of
the Authority Data howsoever caused, the
Contractor is in a position to restore or
procure the restoration of the Authority Data;
and
32.4.2 at the request of the Authority in the event of
any corruption or loss of the Authority Data
and without prejudice to any other remedies
that may be available to it either under the
Contract or otherwise, restore or procure the
restoration of the Authority Data to its state
immediately prior to the said corruption or
loss, or, at the direction of the Authority, the
data should be restored to another state, that
is technically possible, as the Authority 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.
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33. CONTRACT MANAGEMENT
The Contractor and the Authority shall undertake
their respective obligations with relation to the
contract
management
activities
(“Contract
Management”) detailed in Schedule I (Contract
Management).
34. BENCHMARKING
34.1 From time to time during the Term, the Authority
may have the Service Charges, Service performance
or
Pass-through
Expenses
reviewed
by
an
independent
organisation
with
demonstrated
benchmarking expertise, methodology and data
sources (“the Benchmarker”) to measure the
Service
Charges,
Service
performance
or
Passthrough Expenses to determine if the Service
Charges are competitive, the Service performance
efficient,
effective
and
productive
and
the
Passthrough Expenses are competitive in the market
place.
34.2 The Contractor shall provide full co-operation and
documentation to the Benchmarker in order for the
Benchmarker to carry out the tasks described above,
(subject to the Benchmarker meeting reasonable
confidentiality requirements).
34.3 The benchmarking costs shall be split equally
between the Authority and the Contractor.
34.4 If the benchmarking shows that the Service Charges
or Pass-through Expenses are not price competitive
and if they are higher than charges for services
comparable to the Services, the Contractor shall
assist the Authority in determining the causes of the
uncompetitive pricing and to the extent that the
uncompetitive pricing is not caused by the
Authority’s unique requirements as identified by the
Benchmarker, the Contractor shall take the following
corrective action, as applicable:
34.4.1 in respect of the Service Charges, the
Contractor shall lower the Service Charges to
match the identified lower charges for the
comparable services; or
34.4.2 in respect of the Pass-through Expenses, the
Contractor
shall
put
in
place
new
arrangements immediately in order to secure
lower Pass-through Expenses in order to
match the lower charges for comparable pass-
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through expenses.
34.5 If the benchmarking shows that the Service
performance
is
not
efficient,
effective
and
productive, the Contractor shall lower the Service
Charges accordingly in order to reflect the actual
value of the Service performance being received by
the Authority.
34.6 As an alternative to Clauses 34.4 or 34.5 of these
Key Terms, and at the discretion of the Authority, the
Authority may obtain the relevant Services from a
third party or perform the Services itself and in such
circumstances those Services shall no longer be in
scope and no Service Charges or Pass-through
Expenses for such Services shall be payable.
35. AUDIT RIGHTS AND ACCESS
The Parties shall comply with the provisions of
Schedule J (Access and Inspection of Records).
36. DISPUTE RESOLUTION PROCEDURE
The Parties shall comply with the provisions of
Schedule P (Dispute Resolution Procedure).
37. SECURITY REQUIREMENTS
The Contractor shall comply with the Security
requirements as set out in Schedule K (Security).
38. ACCESS TO PREMISES
38.1 Save where the Authority indicates otherwise, any
Authority Premises made available to the Contractor
by the Authority in connection with this Contract
shall be made available to the Contractor free of
charge and such Authority Premises shall be used by
the Contractor solely for the purpose of performing
this Contract. The Contractor shall have the use of
such Authority Premises as licensee and shall vacate
the same upon the Termination this Contract or at
such earlier date as the Authority may determine in
its sole discretion, or temporarily in the event of
urgent operational need.
38.2 The Contractor shall comply with all reasonable
security requirements of the Authority while on the
Premises, and shall procure that all of its employees,
agents and Subcontractor shall likewise comply with
such requirements.
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39. WARRANTIES AND REPRESENTATIONS
39.1 The Contractor warrants and represents that,
throughout the term of this Contract:
39.1.1 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 this Contract and that this
Contract is executed by a duly authorized
representative of the Contractor;
39.1.2 the Contractor has the full capacity and
authority to grant the licences referred to in
Clause 29 of these Key Terms and/or shall
secure such authorisation from third parties
relative to their products;
39.1.3 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 fulfill its obligations under this
Contract;
39.1.4 the Contractor’s signing, delivery and
performance of this Contract will 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.
39.1.5 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;
39.1.6 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) in accordance with
its own established internal procedures; and
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39.1.7 the Service Charges were independently
established by the Contractor and proposed to
the Authority without any collusion with any
third party or any employee, adviser or
representative of the Authority.
39.2 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 Contract. Except
as expressly stated in this 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
40. INDEMNITIES.
40.1 Indemnity by the Contractor
40.1.1 The Contractor shall indemnify, defend and
hold the Authority, the Police Forces and
their
respective
officers,
directors,
employees, agents, advisers, independent
contractors,
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 the
performance or receipt of the Services,
any Contractor Software, any 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 Authority 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
Authority Software or Authority 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 Authority Software or
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Authority
Material,
or
has
used,
Modified,
reproduced
or
exploited
Authority Software or Authority Material
in contravention of any term or condition
that the Authority has disclosed to the
Contractor;
c) any fine or other penalty imposed by Law
arising as a result of any Default by the
Contractor;
d) any unrecovered overpayment made to a
third party as a result of any Default by
the Contractor;
e) compensation and interest paid to a third
party due to a Default by the Contractor;
f) any Default committed by the Contractor,
or by any Subcontractor, or by Contractor
Personnel in respect of the Contractor’s
confidentiality obligations under this
Contract;
g) 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;
h) loss or damage to real or tangible
personal property, where the Contractor
or any of the Subcontractors is legally
liable or responsible for that loss or
damage;
i) any Claim for damages or compensation
payable to any person employed by the
Contractor or any of its Subcontractors;
j) any Claim by third parties arising out of
any act or omission of the Contractor
which causes any breach by the Authority
of any of its statutory duties.
k) any Claim by third parties arising out of
any act or omission of the Contractor
which causes any breach by the Authority
of any of its duties under the DPA; and
l) any Loss or Claim by third parties in
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
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.
40.2 Indemnity by the Authority
40.2.1 The Authority shall indemnify, defend and
hold the Contractor and its respective
officers,
directors,
employees,
agents,
advisers, independent contractors, 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
Authority Software or Authority Material
provided to or used or reproduced by or
on behalf of the Contractor under this
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 Authority
where the Authority 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 Authority of this
Contract; and
d) any Default by the Authority in respect of
its confidentiality obligations under this
Contract.
41. LIABILITY AND LIMITATION OF LIABILITY
41.1 Liability Cap
Subject to Clauses 41.3 and 41.4 of these Key Terms,
the annual aggregate liability of either Party to the
other (including the Direct Loss of the Police Forces
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
as set out in Clause 41.2 of these Key Terms) for any
Direct Loss relating to or arising in connection with
this 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:
41.1.1 the previous 12 month’s Service Charges paid
or payable by the Authority under this
Contract immediately preceding the time at
which the Direct Loss occurred; or
41.1.2 £20,000,000 (twenty million pounds), (the
“Liability Cap”).
41.2 Direct Loss of the Police Forces
41.2.1 The Authority and the Contractor agree that
the Authority shall have the right to bring
actions against the Contractor for any Direct
Loss suffered by each of the Police Forces in
connection with the Services. Where the
Authority brings an action on behalf of a
Police Force, the Parties also agree that the
Direct Loss of each such Police Force shall
be deemed the actual and Direct Loss of the
Authority and shall be subject to the
limitations set out in this Clause 41.
41.2.2 For the avoidance of doubt both Parties
acknowledge that the Contractor’s obligations
and liabilities under this Clause 41 shall
include any liabilities incurred whilst
performing any of the Services at the
Authority Premises.
41.3 Consequential Loss
Subject to Clause 41.2 of these Key Terms, neither
Party shall be liable for indirect or consequential loss
or damage.
41.4 Exclusions
The Liability Cap shall not apply to, and each Party
accepts unlimited liability for, and hereby agrees to
fully indemnify the other Party (“the Aggrieved
Party”) against, and on demand make good to the
Aggrieved Party, any losses suffered or incurred by
the Aggrieved Party resulting from:
41.4.1 death or personal injury caused by the
negligent acts or omissions of either Party, its
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
employees, agents or subcontractors;
41.4.2 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);
41.4.3 the breach by a Party, its employees agents or
Subcontractors (as applicable) of any
restriction on the disclosure of Confidential
Information of the other Party as set out in
this Contract;
41.4.4 any Claim for which either Party must
indemnify the other pursuant to Clauses 40.1
or 40.2 of these Key Terms, as the case may
be;
41.4.5 any indemnity from one Party to the other in
respect of the indemnities set out in Schedule
M (HR and TUPE Information).
41.4.6 any
fraudulent
pre-contractual
misrepresentation made by either Party upon
which the other Party can be shown to have
relied;
41.4.7 any Claim for fraud or other criminal acts;
41.4.8 any Losses suffered by the Aggrieved Party
resulting from an intentional or wilful act or
omission of the Party; 41.4.9
41.4.9 any Default by the Contractor in respect of its
obligations under Schedule K (Security);
41.4.10 the wrongful Termination, repudiation or
abandonment of the Contract in whole or in
part; or
41.4.11 any other liability which cannot be excluded
by Law.
41.5 Misrepresentation
41.5.1 Save as provided in this Clause 41.5 and
without prejudice to the warranties set out in
Clause 39 of these Key Terms, 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 this Contract and which is not expressly
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
incorporated
into
this
Contract
(“Misrepresentation”) and neither Party
shall have any liability to the other Party
other than pursuant to the express terms of
this Contract.
41.5.2 Nothing in this Contract shall exclude or limit
either Party’s liability for any fraudulent
Misrepresentation.
41.6 Duty to Mitigate
Each Party shall have a duty to mitigate Losses for
which the other Party is responsible.
41.7 Increase of the Service Charges
The Parties acknowledge that in the event that the
Service Charges paid or payable by the Authority
significantly increase at any time during the Term,
the Parties agree to discuss in good faith an upwards
adjustment the Liability Cap set out in Clause 41.1 of
these Key Terms.
42. INSURANCE
The Contractor shall effect with a reputable insurance
company or companies acceptable to the Authority a
policy or policies of insurance covering all the
matters which are the subject of the indemnities and
undertakings on the part of the Contractor contained
in this Contract to a level of cover acceptable to the
Authority. If requested by the Authority, a certificate
evidencing the existence of such policies shall be
provided by the Contractor to the Authority.
43. TERMINATION
43.1 Authority’s Right to Terminate
43.1.1 The Authority may at any time by notice in
writing terminate this Contract (in whole or
in part) as from the date of service of such
notice if:
a) the Contractor commits a Material
Default of the Contract not cured within
thirty (30) days of notice by the
Authority;
b) the Material Default is not capable of
being cured;
c) the Contractor commits repeated Defaults
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
of its duties or obligations under the
Contract, the cumulative effect of which
will be deemed to be a Material Default
of the Contract;
d) the Contractor becomes Insolvent;
e) if a Force Majeure Event occurs and the
Authority
exercises
its
option
to
terminate the Contract in accordance with
Clause 47.3.3 of these Key Terms;
f) there is a Change of Control of the
Contractor or the Contractor Parent
Company;
43.1.2 the Authority, by giving written notice to the
Contractor, may terminate this Contract for
convenience at any time during the Term, as
of the date specified in the notice of
Termination. [Note to the Tenderer: As
identified in Section 1.3.4 of Part 2(B) of the
ITT, the Tenderer shall indicate in its
response to the ITT if there are any costs or
consequences
associated
with
the
Authority’s
right
to
terminate
for
convenience pursuant to this Clause.]
43.2 The Contractor’s Right to Terminate
43.2.1 The Contractor shall not be entitled to
terminate this Contract if there is a dispute
between the Parties in respect of any invoice
payable under this Contract. Due to the
reliance by the Authority on the Services, the
Contractor shall not be permitted to terminate
the Contract unless the Authority fails to pay
an undisputed valid invoice for the relevant
Service Charges within ninety (90) days of
the due date in accordance with Clause 43.2.2
of these Key Terms.
43.2.2 The Contractor shall not terminate the
Contract in accordance with Clause 43.2.1 of
these Key Terms above unless the Contractor
has give the Authority:
a) further ninety (90) days of notice of the
Authority’s
failure
to
make
such
payment; and
b) a further written notice to the notice in
Clause 43.2.2(a) above to the Authority
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
of not less than fourteen (14) days prior
to the expiry of such ninety (90) days.
43.2.3 The Contractor acknowledges and agrees that
Clause 43.2.1 of these Key Terms sets out the
only grounds upon which the Contractor may
terminate this Contract.
44. CONSEQUENCES OF TERMINATION
44.1 In the event that the Contract is Terminated as
provided for herein:
44.1.1 where Termination is due to the Default of
the Contractor, the Contractor shall repay
forthwith to the Authority all monies paid up
to and including such Termination Date other
than monies in respect of any Services or part
thereof properly performed in accordance
with the Contract;
44.1.2 the Contractor shall deliver up to the
Authority or destroy, at the sole discretion of
the Authority, all property owned by the
Authority, including but not restricted to the
Authority Data and the Authority Personal
Data, in its possession;
44.1.3 the Authority shall have the option to
purchase for its Fair Market Value, less the
value of any outstanding Service Credits and
less any monies already paid in respect of
those items, all Equipment/Assets (including
but not restricted to equipment, hardware, and
supply of documentation) owned by the
Contractor which is being used by the
Contractor solely for the purpose of providing
the Services;
44.1.4 the Contractor shall use all Commercially
Reasonable Efforts to assign or novate in
favour of the Authority or to any person or
Successor Contractor as may be designated
for the purpose by the Authority all relevant
resources, including any equipment leases,
third party hardware, network services,
maintenance agreements, support agreements
as the Authority 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;
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
44.1.5 the Contractor shall provide Termination
Assistance in accordance with Clause 46 of
these Key Terms; and
44.1.6 the Authority or a Successor Contractor shall
be entitled to offer employment to any
employee of the Contractor who has been
within 6 months of the Termination Date
involved in performing the Contractor's
obligations hereunder. The Contractor agrees
that if such person accepts such an offer, the
Contractor shall release such employee from
any breach of his/her employment contract
with the Contractor which such acceptance
may otherwise involve.
44.2 The Termination of this Contract shall not prejudice
or affect any right of action or remedy which shall
have accrued or shall thereafter accrue to either
Party.
44.3 In the event of the Termination of this Contract by
the Authority, the provisions of Clauses [Note to
Tenderer: The relevant Clause cross-references will
be added by the Authority prior to signature] and the
provisions of Schedule [Note to Tenderer: Any
relevant
Schedule
provisions
shall
be
crossreferenced by the Authority prior to signature.]
shall survive the Termination of this Contract by the
Authority.
45. THE AUTHORITY’S FAILURE TO PERFORM
ITS OBLIGATIONS
45.1 Save as otherwise set out in Clause 43.2.1 of these
Key Terms, the failure by the Authority to perform
any of its responsibilities set forth in this 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 this Contract shall be excused (and the
Contractor will have no obligation to pay Service
Credits in respect thereof) if and to the extent that
such non-performance results from the failure by the
Authority to perform its responsibilities and
obligations under this Contract.
45.2 Without prejudice to the provisions of Clause 45.1 of
these Key Terms, the Contractor agrees to provide
the Authority with written notice within five (5)
working days of such non-performance by the
Authority
and
agrees
to use
Commercially
Reasonable Efforts to perform, to the extent possible,
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
the Services to be performed by the Contractor
notwithstanding the failure by the Authority to
perform its responsibilities and obligations under this
Contract.
45.3 The Authority agrees to pay the Contractor for any
additional reasonable and actual expenses over and
above the Service Charges, incurred as a result of the
Contractor complying with Clause 45.2 of these Key
Terms.
46. TERMINATION ASSISTANCE
Upon Termination in whole or in part of this
Contract, the Contractor will provide Termination
Assistance in accordance with Schedule N (Exit
Strategy). [Note to Tenderer: Schedule N (Exit
Strategy) shall contain a) exit provisions as
currently described in Schedule N (Exit Strategy);
and b) termination assistance required by the
Authority on Termination or removal of any Part of
the Services as provided for under this Contract.]
47. FORCE MAJEURE
47.1 Neither Party will be liable for any Default or delay
in performance of its obligations under this 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.
47.2 Actions upon Force Majeure Event Occurring
Upon the occurrence of a Force Majeure Event, the
defaulting Party shall:
47.2.1 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
47.2.2 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.
47.3 If a Force Majeure Event substantially prevents or
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
delays the Contractor’s performance necessary for
the performance of a function reasonably identified
by the Authority as critical for more than 3
consecutive days, then without limiting any other
rights of the Authority, the Authority may at its
option:
47.3.1 direct the Contractor to procure that function
from a third party service provider, in which
case the Contractor will be liable for payment
for the provision of those Services by the
third party service provider for as long as the
delay in performance continues; and
47.3.2 remove the affected function from the scope
of this Contract without any increase in
Service Charges for the remaining Services;
or
47.3.3 terminate this Contract in whole or in part,
without liability to the Authority as of a date
specified by the Authority in a written notice
of Termination to the Contractor and the
provisions of Clause 43 of these Key Terms
shall apply.
47.4 The Contractor shall not have the right to any
additional payments from the Authority as a result of
any Force Majeure Event or the performance of its
obligations under this Clause 47.
47.5 The failure of any of the Subcontractors to perform
any obligation owed to the Contractor will 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.
47.6 For the avoidance of doubt, nothing in this Clause 47
shall affect the Contractors obligations to provide the
disaster recovery services described in the DOR or
any disaster recovery services that the Contractor has
agreed to provide to the Authority or the Police
Forces under any agreement for such disaster
recovery services.
48. STEP IN RIGHTS
48.1 General Right of Step-in
48.1.1 The Services provided under this Contract are
vital to the Authority and the Police Forces.
As a result, the Authority and/or the Police
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
Force shall be entitled to exercise step-in
rights in accordance with this Clause 48.
48.1.2 Notwithstanding any other provision of this
Contract and without prejudice to any other
right or remedy of the Authority:
a) if the Authority considers that a Default
or failure by the Contractor of an
obligation under this Contract may create
an immediate and serious threat to the
business and operational effectiveness of
the Authority; or
b) if it appears to the Authority necessary in
the interests of carrying out its business,
or in order to secure the carrying out of
any statutory function or obligation; or#
c) in any circumstances entitling the
Authority to Terminate all or any part of
the Contract for Material Default in
accordance with Clause 43,
the Authority may give notice requiring the
Contractor to take such reasonable steps as
the
Authority
considers
necessary
or
expedient in the circumstances to mitigate or
preclude such state of affairs forthwith. If the
Contractor fails to take such reasonable steps
as the Authority may think necessary and
within such time as the Authority thinks fit,
then the Authority may take such steps itself
or engage others to take such steps.
48.1.3 Unless the Authority exercises its step–in
rights pursuant to this Clause 48, the
Contractor shall reimburse the Authority for
all costs reasonably incurred by it in taking
the steps or engaging others to take the steps
referred to this Clause 48 (including the
relevant administrative expenses of the
Authority, with an appropriate sum in respect
of general staff costs and overheads).
49. HEALTH AND SAFETY
49.1 Nothing in the 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
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
in the performance of work under the Contract.
49.2 The Contractor shall notify the Authority of any
health and safety hazards which may arise in
connection with the performance of this Contract.
49.3 The Authority shall notify the Contractor of any
health and safety hazards which may exist or arise at
the Authority 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 this Contract at the Authority
Premises.
49.4 The Authority reserves the right to exclude from the
Authority Premises any employee or agent or
representative of the Contractor on safety grounds.
49.5 The Contractor warrants that any equipment,
materials or other substances which it requires to
bring on to the Authority Premises, or is required to
provide, for the purposes of the Contract, are not a
safety hazard.
49.6 The Authority reserves the right to inspect such
equipment, materials or other substances and to
refuse them entry to the Authority 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 Contract resulting
from any decision under this condition.
49.7 The Contractor shall inform all persons engaged in
the performance of this Contract at the Authority
Premises of all such hazards and shall instruct such
persons in connection with any necessary associated
safety measures.
50. CORRUPT GIFTS AND PAYMENTS OF
COMMISION
50.1 The Contractor shall neither:
50.1.1 offer or give or agree to give any person
employed by the Authority any gift or
consideration of any kind as an inducement
or reward for doing or forbearing to do or for
having done or forborne to do any act in
relation to the obtaining or performance of
this Contract or any other agreement with the
Authority or for showing or forbearing to
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
show favour or disfavour to any person in
relation to this Contract; nor
50.1.2 enter into this Contract if in connection with
it commission has been paid or agreed to be
paid to any person employed by the Authority
or acting on its behalf by the Contractor or on
the Contractor 's behalf or to the Contractor 's
knowledge, unless before this Contract is
made particulars of any such commission and
of the terms and conditions of any agreement
for the payment thereofhave been disclosed in
writing to the Authority.
50.2 In the event of any breach of this Clause 50 by the
Contractor or by anyone employed by the Contractor
or acting on the Contractor 's behalf (whether with or
without the knowledge of the Contractor ) or the
commission of any offence by the Contractor or by
anyone employed by the Contractor or acting on
behalf of the Contractor under the Prevention of
Corruption Acts, 1889 to 1916 in relation to this
Contract or any other contract with the Authority, the
Authority may summarily terminate this Contract 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 Authority
and provided always that the Authority may recover
from the Contractor the amount or value of any such
gift, consideration or commission.
50.3 The decision of the Authority shall be final and
conclusive in any dispute, difference or question
arising in respect of:
50.3.1 the interpretation of this Clause 50 (except so
far as the same may relate to the amount
recoverable from the Contractor under Clause
50.2 in respect of any loss resulting from
such Termination of this Contract); or
50.3.2 the right of the Authority under this Clause
50 to terminate this Contract; or
50.3.3 the amount or value of any such gift,
consideration or commission
51. NOTICES
51.1 Notices given under this Contract shall be in writing
in the English language and made by an authorized
officer of the Authority or the Contractor as the case
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
may be. The Parties shall, from time to time, provide
each other with a list of personnel designated as
“authorised officers”.
51.2 Notices issued pursuant to Clause 51.1 shall be
addressed to:
51.2.1 for The Authority:
a) for commercial matters:
Marc
Roffey,
Purchasing
Manager,
Police
Information Technology Organisation, Commercial
Directorate, New King’s Beam House, London SE1
9QY.
Telephone: 020 8358 5465.
Fax: 020 8358 5536
E.mail: [email address]
b) for all technical matters affecting the Contract:
[insert
relevant
name]
Police
Information
Technology Organisation, New King’s Beam House,
London SE1 9QY. Tel: [insert relevant telephone
number]
Telephone: [insert relevant telephone number]
Fax: [insert relevant telephone number]
E.mail: [insert relevant telephone number]
51.2.2 for the Contractor:
a) for commercial matters: [insert relevant address
and contact details, including telephone, fax
and email]; and
b) for all technical matters affecting the Contract:
[insert relevant address and contact details,
including telephone, fax and e-mail],
and such address of either Party may be altered by
notice given in accordance with Clauses 51.1 and
Clause 51.2 of these Key Terms.
51.3 A notice given in accordance with Clauses 51.1 and
51.2 of these Key Terms; shall deemed to be
received:
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AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
51.3.1 if left at the recipient’s address during normal
business hours, on the date of delivery;
51.3.2 if sent by prepaid registered post, two (2)
days after the date of posting;
51.3.3 if sent by an express courier with a reliable
system for tracking delivery, on the date of
delivery to the recipient; and
51.3.4 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 Clause 51 of these Key
Terms) 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 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.
52. GENERAL PROVISIONS
52.1 The Contractor may not assign, novate or otherwise
transfer its rights or transfer its obligations under the
Contract without the prior written consent of the
Authority.
52.2 The Authority shall be entitled to:
52.2.1 assign, novate, or otherwise transfer its rights
or obligations under this 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 Authority")
provided that any such assignment, novation
or transfer shall not increase the burden of the
Contractor's obligations pursuant to this
Contract; or
52.2.2 novate this 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 Authority.
52.3 Notwithstanding the provisions of Clause 28 of these
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Part3 – Draft Form of Contract and Schedules
Final IDENT1 ITT : 4 September 2003
PITO (4900)
Released under FOI in full on 13th December 2005
Tenderer
AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
Key Terms, in the event of an assignment, novation
or transfer (as applicable) pursuant to Clauses 52.1 or
52.2 of these Key Terms, the Authority 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 Authority shall authorise the
transferee to use such Confidential Information only
for purposes relating to the performance of the
Services.
52.4 Any change in the legal status of the Authority shall
not affect the validity of the Contract. In such
circumstances, the Contract shall bind and inure to
the benefit of any successor body to the Authority.
52.5 Except with the written consent of the other Party
neither Party shall make any press announcements or
publicise the Contract in any way. Both Parties shall
take all reasonable steps to ensure the observance of
the provisions of this Clause 52.5 by all their
servants, employees, agents and consultants. The
Authority shall be entitled to publicise this Contract
in accordance with any legal or quasi legal obligation
upon the Authority, including any examination of
this Contract by the National Audit Office pursuant
to the National Audit Act 1983 or otherwise.
52.6 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
(Services), the Parties shall enter good faith
negotiations to make such adjustments to the 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.
52.7 A person who is not a Party to the Contract has no
right to under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of the Contract save
that the Contractor acknowledges that the Authority
shall enter into the Contract for the benefit of the
Police Forces and such Police Forces shall be third
party beneficiaries under this Contract. For the
avoidance of doubt, the Police Forces shall have the
right to enforce any term of this Contract pursuant to
the Contracts (Rights of Third Parties) Act 1999. The
Authority and the Contractor may agree to rescind or
vary the Contract without the consent of the Police
Forces or any other third party.
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Part3 – Draft Form of Contract and Schedules
Final IDENT1 ITT : 4 September 2003
PITO (4900)
Released under FOI in full on 13th December 2005
Tenderer
AUTHORITY’S REQUIREMENTS
TENDERER’S RESPONSE
52.8 No delay, neglect or forbearance on the part of either
Party in enforcing against the other Party any term or
condition of the Contract shall either be or be deemed
to be a waiver or in any way prejudice any right of
that Party under the Contract.
52.9 If any provision of this 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 this
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 this contract, the
Authority and the Contractor shall immediately
commence good faith negotiations to remedy such
invalidity.
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Part3 – Draft Form of Contract and Schedules
Final IDENT1 ITT : 4 September 2003
