DATED 5 MARCH 2008
(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT ACTING THROUGH
THE DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENT
and
(2) LANDMARK INFORMATION GROUP LIMITED
___________________________________
SERVICES AGREEMENT
RELATING TO THE IMPLEMENTATION AND OPERATION
OF THE REGISTER FOR NON DOMESTIC ENERGY CERTIFICATES AND ASSOCIATED
CONSOLIDATED SERVICES
___________________________________
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CONTENTS
Part 1- INTERPRETATION
1
DEFINITIONS AND INTERPRETATION
1
Part 2- APPOINTMENT
2
TERM
3
3
DUE DILIGENCE
3
Part 3- SERVICE PROVISION
4
IMPLEMENTATION
4
5
THE SERVICES
4
6
SERVICE STANDARDS AND SERVICE LEVELS
5
7
GENERAL OBLIGATIONS OF THE OPERATOR
6
8
CHANGES TO THE SERVICES
8
9
CHANGES IN LAW/STANDARDS
8
10
CONTRACT MANAGEMENT
8
11
STEP IN RIGHTS 10
Part 4- FINANCE
12
FINANCING OF THE SCHEME 11
13
RIGHTS OF SET-OFF 11
14
REVIEW PROCESS 11
Part 5- SUB-CONTRACTING AND PERSONNEL
15
SUB-CONTRACTING 11
16
STAFF
11
17
KEY PERSONNEL 12
18
EMPLOYEE TRANSFER PROVISIONS 12
19
NON-SOLICITATION 12
Part 6- INTELLECTUAL PROPERTY
20
INTELLECTUAL PROPERTY RIGHTS 13
21
LICENCES GRANTED BY THE OPERATOR 13
22
LICENCES GRANTED BY THE AUTHORITY 14
23
ASSIGNMENT OF IPR IN DATABASE 14
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24
PROJECT SPECIFIC IPR AND SPECIALLY WRITTEN SOFTWARE 15
25
ESCROW
15
26
IPR INDEMNITY 16
Part 7- INFORMATION AND DATA
27
ACCESS AND INFORMATION REQUIREMENTS 17
28
AUTHORITY DATA 17
29
PERSONAL DATA 18
30
ACCESS TO THE DATABASE 20
31
FREEDOM OF INFORMATION 20
32
CONFIDENTIALITY 21
Part 8- WARRANTIES, LIABILITY AND INSURANCE
33
GENERAL WARRANTIES 23
34
GENERAL INDEMNITIES 24
35
CONTROL OF CLAIMS COVERED BY AN INDEMNITY 24
36
LIMITATION OF LIABILITY 25
37
INSURANCE AND TREATMENT OF RISK 26
Part 9- TERMINATION
38
TERMINATION 27
39
CONSEQUENCES OF TERMINATION 29
40
TRANSFER OF RESPONSIBILITY ON EXPIRY OR TERMINATION 29
Part 10- GENERAL
41
FORCE MAJEURE 30
42
DISPUTE RESOLUTION PROCEDURE 31
43
STATUS OF OPERATOR 31
44
COUNTERPARTS 32
45
VARIATION 32
46
ASSIGNMENT 32
47
WAIVER
32
48
NOTICES
32
49
INDEPENDENT LEGAL ADVICE 33
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50
SEVERABILITY 33
51
DISCRIMINATION 33
52
ANNOUNCEMENTS 33
53
ENTIRE AGREEMENT 34
54
THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 34
55
LAW AND JURISDICTION 34
SCHEDULE 1 - DEFINITIONS 35
SCHEDULE 2 - SERVICE REQUIREMENT SPECIFICATION
1
SCHEDULE 3 - IMPLEMENTATION 23
SCHEDULE 4 - PERFORMANCE MANAGEMENT 29
ANNEX TO SCHEDULE 4 - SERVICE LEVELS 33
SCHEDULE 5 - MANAGEMENT INFORMATION 35
SCHEDULE 6 - FINANCE 37
ANNEX 1 TO SCHEDULE 6 - BASELINE FINANCIAL MODEL 39
SCHEDULE 7 - CHANGE CONTROL PROCEDURE 40
SCHEDULE 8 - EXIT PLAN 46
SCHEDULE 9 - EMPLOYEES 50
SCHEDULE 10 - DISASTER RECOVERY 53
SCHEDULE 11 - NOT USED 59
SCHEDULE 12 - POLICIES AND STANDARDS 60
SCHEDULE 13 - SECURITY 62
SCHEDULE 14 - SUB-CONTRACTS AND SUB-CONTRACTORS 66
ANNEX TO SCHEDULE 14 - APPROVED MATERIAL SUB-CONTRACTORS 69
SCHEDULE 15 – DELIVERY SCHEDULE 70
SCHEDULE 16 - REVIEW PROCESS 71
SCHEDULE 17 - SOFTWARE 77
Part 1– Software 77
Part 2– Standard Licence Terms 77
Part 3– Enhanced Licence Terms 78
SCHEDULE 18 - DOCUMENTATION DELIVERABLES 79
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SCHEDULE 19 - PAYMENT ON TERMINATION 117
ANNEX 1 TO SCHEDULE 19 - TERMINATION FOR CONVENIENCE CAPS 120
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THIS AGREEMENT is made
AS A DEED on 2008
BETWEEN:
1.
THE SECRETARY OF STATE ACTING THROUGH THE DEPARTMENT FOR COMMUNITIES
AND LOCAL GOVERNMENT of Eland House, Bressenden Place, London SW1E 5DU (the
"
Authority"); and
2.
LANDMARK INFORMATION GROUP LIMITED (registered in England and Wales under number
2892083) whose registered office is at 5-7 Abbey Court, Eagle Way, Sowton, Exeter, Devon EX2
7HY (the
“
Operator”).
RECITALS
WHEREAS
A.
On 15 June 2007 the Authority issued a notice in the Official Journal of the European Union in
relation to its requirements for a contractor to deliver the operational elements of the Non Domestic
Energy Certificate Register and Associated Consolidated Services across England and Wales (the
"
Scheme").
B.
On 17 August 2007 the Authority issued an Invitation to Submit Outline Proposals (
"ISOP") to
operators who had pre-qualified through a Pre-Qualification Questionnaire process (
"PQQ")
C.
On 21 September 2007 the Authority issued a second Invitation to Submit Outline Proposals
(
"ISOP2") to operators who had pre-qualified through a Pre-Qualification Questionnaire process
(
"PQQ").
D.
Following negotiations with the Operator and other recipients of the ISOP2, on 14 December 2007
the Authority issued an Invitation to Submit Best and Final Offers ("
BAFO") to the Operator and
other potential service providers.
E
The Operator and other recipients of the ISOP2 submitted their Best and Final Offers
(“BAFO”) on
21 December 2007.
F.
Following conclusion of the negotiations and in reliance on representations made by the potential
service providers during the negotiations
, on 7 January 2008
the Authority selected the Operator
as its preferred service provider in respect of the Services on the terms set out in this Agreement.
IT IS AGREED as follows:-
PART 1-
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1
In this Agreement the terms and expressions set out in
Schedule 1 (Definitions) shall have the
meanings ascribed therein.
1.2 In
this
Agreement:
1.2.1
the Clause headings are included for convenience only and will not affect the construction
or interpretation of this Agreement;
1.2.2
the Clauses, Schedules, Annexes and Appendices form part of this Agreement and will
have effect as if set out in full in the body of this Agreement and any reference to this
Agreement shall include the Clauses, Schedules, Annexes and Appendices;
1.2.3
any reference to a Recital, Clause, Paragraph, Schedule, Annex or Appendix is to the
relevant recital to, Clause of, paragraph of, schedule to, annex to or appendix to this
Agreement (as the case may be);
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1.2.4
use of the singular includes the plural and vice versa;
1.2.5
words importing a particular gender do not exclude other genders;
1.2.6
any reference to a statute, statutory provision or statutory instrument includes a reference
to that statute, statutory provision or statutory instrument together with all rules and
regulations made under it as from time to time amended, consolidated or re-enacted;
1.2.7
any phrase introduced by the terms "including", "include", "in particular" or any similar
expression will be construed as illustrative and the words following any of those terms will
not limit the sense of the words preceding those terms;
1.2.8
any reference to "persons" includes natural persons, firms, partnerships, corporations,
associations, organisations, governments, government bodies, states, foundations and
trusts (in each case whether or not having separate legal personality);
1.2.9
the words "in writing" and "written" shall be interpreted to include any document which is
recorded in manuscript, typescript and any electronic communication (as defined in
Section 15 of the Electronic Communications Act 2000);
1.2.10
the words "day" and "month" mean calendar day and calendar month unless otherwise
stated;
1.2.11
all references to the Parties include their permitted successors and permitted assigns;
1.2.12
any reference to a public organisation, body or representative shall be deemed to include
reference to any successor(s) to such public organisation, body or representative or any
organisation, body, entity, or representative which (whether in whole or part) has or (as
appropriate) have taken over any of the functions, services or responsibilities of such
public organisation, body or representative, either entirely or in part (including any other
part of Government, any NDPB or private body);
1.2.13
any obligation on the Operator to comply with standards, specifications or procedures
(including those set out in
Schedule 13 (Policies and Standards) shall be deemed also to
include an obligation on the Operator to comply with the standards, specifications and
procedures issued by the Authority or any other statutory, regulatory or other properly
interested body with which the Operator is either legally required to comply or with which
the Operator reasonably could be expected to comply in order to conform to Good
Industry Practice; and
1.2.14 subject to the contrary being stated expressly in the Agreement, all communication
between the Parties shall be in writing or shall be confirmed in writing within one Working
Day of being made, or else shall be of no effect.
1.3
In the case of and to the extent of any conflict, inconsistency or ambiguity;
1.3.1 between:
(a)
these Clauses and
Schedule 1 (Definitions); and
(b) any
other
Schedules,
the Clauses and
Schedule 1 (Definitions) shall prevail;
1.3.2 between:
(a)
Schedule 2 (Service Requirement Specification); and
(b)
the Operator's Technical Specification for Delivery as described in Clause 5.2
(Service Requirement Specification and Operator’s Proposal).
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Schedule 2 (Service Requirement Specification) shall prevail,
and
1.3.3 between:
(a)
this Agreement; and
(b)
any documents referenced or referred to herein (other than those within the
scope of Clause
1.2.6) or to be approved by the Authority in accordance with
the terms of this Agreement (and which do not form part of the Agreement),
the provisions of this Agreement shall prevail.
1.4
Except as otherwise expressly provided in this Agreement, all remedies available to the Operator
or to the Authority for Default (of any nature or severity) under this Agreement are cumulative and
may be exercised concurrently or separately and the exercise of any one remedy shall not exclude
the exercise of any other remedy.
PART 2- APPOINTMENT
2.
TERM
2.1
Commencement: in consideration of the respective covenants, obligations and undertakings set
out herein, the sufficiency of which is hereby irrevocably and unconditionally acknowledged by the
Parties, this Agreement shall commence on the Effective Date and, subject to earlier termination in
accordance with this Agreement, shall continue in force until the later of:
2.1.1
the end of the day preceding the tenth anniversary of the Service Commencement Date
("
Original Expiry Date"); and
2.1.2
the end of the final day of any period of extension in accordance with Clauses 2.2 and 2.3
below,
at which point it shall expire automatically without notice.
2.2
The Authority has the option, at its sole discretion, by serving notice on the Operator in accordance
with Clause 2.3 to extend the term of this Agreement provided, however, that such extension shall
not extend the period of the Agreement to more than eleven years from and including the Service
Commencement Date.
2.3
The Authority may, by serving written notice on the Operator not less than six (6) months prior to
the Original Expiry Date extend this Agreement for, a period of twelve (12) months beyond the
Original Expiry Date; and the period of any such extension to run from and including, the Original
Expiry Date.
3.
DUE DILIGENCE
3.1
The Operator acknowledges that the Authority has delivered or made available all information and
documents that the Operator deems necessary and/or relevant for performance of its obligations
under this Agreement and consequently the Operator shall be deemed to have understood the
nature and extent of the Services and that it has satisfied itself that it will be able to provide the
Services in full compliance with its obligations under this Agreement.
3.2
Prior to sign-off by the Operator of any CCN, the Operator shall ensure that it has obtained all such
information necessary to ensure that the acknowledgements set out in this Clause
3 shall apply in
relation to each CCN prior to its implementation.
3.3
The Operator acknowledges that there shall not be any due diligence or joint verification after the
Effective Date.
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3.4
Subject to Clause 3.5, no warranty or undertaking is given by the Authority as to the accuracy,
completeness, adequacy or fitness for purpose of any information disclosed to or made available to
the Operator (whether directly or indirectly) in the course of any due diligence in accordance with
this Agreement, or that such information constitutes all of the information relevant or material to the
Services. The Operator acknowledges that it has and (as the case may be) shall make its own
enquiries to satisfy itself as to the accuracy of the information supplied to it in connection with this
Agreement. Accordingly, all liability on the part of the Authority in connection with:
3.4.1
any information, documents or data provided to or made available to the Operator
(whether directly or indirectly); and
3.4.2
any representations or statements made by or on behalf of the Authority,
in connection with such due diligence is, to the extent permitted by Law, hereby excluded.
3.5
The Authority warrants at the Effective Date that the documentation and/or information provided to
the Operator is, to the best of its knowledge, accurate in all material respects.
3.6
Where the information supplied by or on behalf of the Authority (including the information warranted
in Clause
3.5) is incorrect or insufficient the Operator acknowledges that it shall not:
3.6.1
be relieved of any of its obligations under this Agreement; or
3.6.2
be entitled to claim against the Authority,
except to the extent of any fraudulent misrepresentation made by or with the actual knowledge of
the Authority.
PART 3- SERVICE PROVISION
4.
IMPLEMENTATION
The activities of the Parties in the Implementation Phase shall be governed by
Schedule 3 (Implementation).
5.
THE SERVICES
5.1
The Services
5.1.1
With effect from the Effective Date, the Operator shall supply the Implementation Services
in accordance with the provisions of this Agreement.
5.1.2
With effect from the Service Commencement Date, the Operator shall supply the
Operational Services in accordance with the provisions of this Agreement.
5.1.3
The Operator acknowledges that it is not the exclusive supplier of any Service, or any
other services to or for the benefit of the Authority or Authorised Users. The Authority
shall be entitled at any time to:
(a)
provide services similar to the Services for itself; or
(b)
obtain services similar to the Services from a third party.
5.2
Service Requirement Specification and Operator's Proposal
5.2.1
The Operator shall provide the Services:
(a)
so as to meet the Service Requirement Specification at Schedule 2;
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(b)
in accordance with the Technical Specification for Delivery Reference 2008
February 20 Landmark NDEPC Register Technical Specification v1;
(c)
in accordance with the Delivery Schedule detailed at Schedule 15.
5.2.2
To avoid doubt, the obligations in Clauses
5.2.1 are independent obligations. In particular:
(a)
the fact that Operator has acted in accordance with the Technical Specification
for Delivery shall not be a defence to an allegation that the Operator has not
met the Service Requirement Specification; and
(b)
the fact that Operator has met the Service Requirement Specification at
Schedule 2 shall not be a defence to an allegation that the Operator has failed
to provide the Services in accordance with the Technical Specification for
Delivery.
5.2.3
Without prejudice to Cl
ause 5.2.1 if it should be found that the Technical Specification for
Delivery does not fulfil the Service Requirement Specification, the Operator shall at its
own expense amend the Technical Specification for Delivery and rectify the Services or
any part affected.
5.3
Guidance and Co-operation
The Operator shall use its reasonable endeavours to ensure that the Services are provided in
accordance with all reasonable guidance and guidelines issued to the Operator by the Authority
from time to time and the Operator will co-operate fully with the Authority at all times in the
provision of the Services under the Agreement. Where the Authority issues the Operator with new
or amended guidance which results in material costs being reasonably incurred by the Operator
and which materially impact the Operating Reserve, this shall be subject to the Change Control
Procedure.
5.4
Disaster Recovery Services
The Operator shall provide the Disaster Recovery Services
in accordance wit
h Schedule 10 (Disaster Recovery) throughout the Term.
6.
SERVICE STANDARDS AND SERVICE LEVELS
6.1
Service Standards
6.1.1
The Operator will perform its obligations under this Agreement:
(a)
in accordance and in compliance with:
(i)
the terms of this Agreement;
(ii)
any applicable Law; and
(iii) Good
Industry
Practice;
(b)
allocating sufficient resources at all times to provide the Services in accordance
with this Agreement;
(c)
having due regard to the Authority's requirement that the Operator uses all
resources in an efficient and cost effective manner; and
(d)
ensuring that no act or omission of the Operator, Sub-Contractors, Staff or other
persons used in connection with the Services brings or could bring the Authority
into disrepute.
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6.1.2
In the event of any conflict between any of the requirements referred to in Clause
6.1.1,
the Operator will draw such conflict to the attention of the Authority and the Authority shall
determine (in its sole discretion) which requirement shall have precedence.
6.2
Performance and Service Levels
The Operator will provide the Services so as to achieve or exceed the Service Levels. Subject
always to the Authority's rights of termination in Clause
38 and any other rights which do not
constitute a financial remedy, where the Authority (at its discretion) elects that a Service Credit is
payable (and has been paid) for a service failure, such Service Credit will be the Authority's sole
financial remedy in respect of such failure to achieve the relevant Service Level(s).
6.3
Monitoring of Service Levels and Reporting Obligations
The Operator shall provide records of, and reports summarising, the performance of the Services
achieved by the Operator against the Service Levels in accordance with the requirements of
Schedule 4 (Performance Management). Such recording and monitoring shall be subject to rights
of audit in accordance with the provisions of this Agreement including Clause
21 and
Schedule 6 (Finance).
6.4
Provision of Management Information
The Operator shall provide Management Information to the Authority
in accordance with
Schedule 5 (Management Information) throughout the Term.
6.5
Service Levels and Continuous Improvement
6.5.1
The Operator will use its reasonable endeavours to introduce any Good Industry Practice
methodology, processes and systems in particular those which impact in a positive
manner for the continual improvement of the Services having regard to the following areas
of benefit; fiscal, training and development, business processes and administrative
systems, subject always to the Operator's need to maintain financial viability of the
Services in accordance with the Financial Model.
6.5.2
The Operator is committed to the process of continuous improvement of the Services and
all Service Levels. Accordingly, through processes including (but not limited to):
(i)
initiatives to achieve Value for Money; and
(ii)
the introduction of improvements in the delivery of the Services
(including through adoption of changes to or the introduction of new
methodologies, tools and processes),
the Operator will keep all Services under review and where it is reasonable to conclude
either that the Service Level for a Service should be increased to a more demanding level
than the Service Level then current, or that a Service not currently subject to a Service
Level should become so subject, the Service Level shall be increased, or a new Service
Level introduced, as appropriate. Increased or new Service Levels shall be agreed in
accordance with the Change Control Procedure.
7.
GENERAL OBLIGATIONS OF THE OPERATOR
7.1
Co-operation with Authorised Users
7.1.1
The Operator shall:
(a)
co-operate fully with all relevant Authorised Users;
(b)
co-ordinate its efforts with any relevant Authorised Users to ensure that:
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(i)
valid data provided by the Authorised Users is efficiently and
effectively integrated into and/or with the provision of the Services
and/or the Scheme; and
(ii)
any issues which develop between the Operator and such Authorised
Users are managed proactively with the aim of suitable and prompt
resolution;
(c)
provide such information regarding the operation and delivery of the Services as
is reasonably required by the Authority or an Authorised User in connection with
the services provided by them;
(d)
attend any meetings with any relevant Authorised Users reasonably called by
the Authority;
(e)
provide a first level help-desk to assist Authorised Users to identify where
problems or faults relating to the Services are caused or contributed to by
circumstances from time to time subsisting on such Authorised Users' side of
the interface with the Services.
7.2
Without prejudice to the generality of Clause
7.1.1 above, the Operator shall agree operating
procedures with each Accreditation Scheme (such operating procedures to be uniform and applied
equally in respect of payment terms and lodgements) to be agreed by the Authority.
7.3
Review of Technology
7.3.1
The Operator will establish and implement internal procedures whereby developments
and innovations in technology and business processes and changes in industry practice
are regularly reviewed to determine whether their adoption could have a beneficial impact
upon the provision of any of the Services.
7.3.2
The Operator will promptly bring to the attention of the Authority all opportunities (other
than those of a trivial nature) for improving Service quality or reducing Service cost which
come to its attention, whether as a result of the procedures referred to in Clause
7.3.1 or otherwise.
7.4
Cost Savings
The Operator agrees that throughout the course of this Agreement it will identify all savings
reasonably and properly available to the Operator in the marketplace or through its internal
organisation, and potential beneficial changes in the Services and terms generally offered by the
Operator to Authorised Users, and will ensure that Authorised Users receive the benefit of such
savings and changes provided that any such savings and changes which result in material costs
being incurred by the Operator and which materially impact the Operating Reserve are addressed
through the Change Control Procedure. In complying with its obligations in this Clause, the
Operator will ensure that the Authority:
7.4.1
has reasonable access to existing and emerging skills of the Staff at all times during the
Term;
7.4.2
benefits fully from the technological and commercial advances in the market which lead to
greater functionality, performance and geographical coverage being obtainable at the
same or lower cost;
7.4.3
achieves Value for Money in relation to the Services; and
7.4.4
benefits from any cost savings and benefits achieved by the Operator resulting from the
standardisation in the use of technology.
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7.5
Early Warning of Problems
The Operator shall promptly warn the Authority whenever the Operator has reasonable grounds to
believe that any failure on the part of the Authority, an Authorised User or any third party to carry
out its obligations and responsibilities under or associated with this Agreement, or the manner in
which they are carried out, will have, or threatens to have, a detrimental effect on the quality of the
Services or the efficiency or cost (to the Authority) of their supply or the performance of any other
obligations of the Operator under this Agreement.
7.6
Portability of Data
The Operator shall ensure that all Authority Data can be extracted from the Operator's systems and
is transferable (in such format as the Authority may reasonably require) to and fully usable by the
Authority and/or an Authorised User and/or a New Operator whether alone or in conjunction with
the licences and rights granted, assigned or licensed pursuant to the provisions set out in Part 6
(Intellectual Property) of this Agreement provided that the Operator will not be in breach of this
Clause if the Authority Data is not fully usable due to:
7.6.1
any use of the Authority Data by the Authority and/or an Authorised User and/or a New
Operator which is materially different to the previous use of such data; or
7.6.2
defective systems and/or processes used by the Authority and/or an Authorised User
and/or a New Operator.
7.7
Access to Data
The Operator shall ensure that only those persons authorised by Law to access the data held as
part of the Scheme gain access to such data.
8.
CHANGES TO THE SERVICES
8.1
Any request or requirement for a Change to the Services shall be subject to the Change Control
Procedure.
8.2
New services and deliverables to be performed or delivered by the Operator and modifications to
Services and Deliverables introduced through the Change Control Procedure shall be subject to
such test procedures as the Authority may agree acting reasonably.
9.
CHANGES IN LAW/STANDARDS
9.1
TThe Operator shall bear the cost of ensuring that the Services and this Agreement comply with:
9.1.1
all changes in Law; and
9.1.2
all changes in Standards,
except for Authority Specific Changes in Law and Authority Specific Changes in Standards, in
respect of which the provisions of Schedule 16 (Review Process) shall apply.
10.
CONTRACT MANAGEMENT
10.1
Partnership Working
The Authority and the Operator acknowledge the benefits accruing to each of them if this
Agreement is performed in a spirit of co-operation and partnership. Accordingly, the Authority and
the Operator shall each seek to work closely together in a spirit of trust and co-operation to
facilitate effective performance by the Operator of the provision of the Services.
10.2
Co-Operation and Liaison
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10.2.1
The Operator acknowledges that the successful provision of the Services requires the
Operator to co-operate and liaise with other partners and stakeholders.
10.2.2
The Operator shall be under a general obligation to facilitate the provision of the Services
by co-operating with the Authority, its partners and stakeholders, including (without
limitation):-
(a)
attending liaison meetings where appropriate; and
(b)
providing to other partners and stakeholders relevant information regarding the
Services.
10.3
Contract Management
10.3.1
The Authority may implement a contract management board (the "
Contract Management
Board") as a forum for communication and discussion between the parties at a senior
level of strategic and other fundamental issues relating to the provision of the Services
and this Agreement generally. If implemented then the Contract Management Board shall
meet at the Authority's premises (unless otherwise agreed) at times specified by the
Authority and during the Implementation Phase it is anticipated that such meetings would
be held on a monthly basis. The Operator's Contract Manager will attend meetings of the
Contract Management Board. In the event that the Contract Manager is unavailable, the
Operator may nominate, with the consent of the Authority an alternative appropriate
person (who shall be a senior manager of the Operator with knowledge of the Services
being performed by the Operator) to attend meetings of the Contract Management Board.
10.3.2
The Operator shall appoint:-
(a)
a Service Supervisor who shall be responsible for the day-to-day delivery of the
Services. The Operator shall ensure that the Service Supervisor has the
authority to take all day-to-day operational decisions in relation to the provision
of the Services. The Service Supervisor shall not have the authority to make or
agree amendments to this Agreement; and
(b)
a Contract Manager who shall have overall responsibility for delivery of the
Services to the Authority. The Operator shall ensure that the Contract Manager
has the authority to take all strategic decisions in relation to this Agreement.
10.3.3
The Operator shall not remove or replace its Service Supervisor or Contract Manager
unless:
(a)
requested to do so in writing by the Authority;
(b)
the Service Supervisor or Contract Manager resigns or is dismissed; or
(c)
the Authority agrees to such removal or replacement (such agreement not to be
unreasonably withheld or delayed).
10.3.4
Any replacement for the Operator's Service Supervisor or Contract Manager shall require
the prior written consent of the Authority (such consent not to be unreasonably withheld or
delayed).
10.3.5
The Authority shall appoint a Contract Manager who shall have overall responsibility for
managing all issues arising out of the provision of the Services or otherwise arising out of
this Agreement. The identity of the Authority's Contract Manager and his/her replacement
from time to time will be notified to the Operator in writing.
10.3.6
The Authority's and Operator's Contract Managers together with the Operator's Service
Supervisor shall meet not less than once per quarter and during the Implementation
Phase not less than once per fortnight. The venue for the meeting shall, unless otherwise
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agreed be at the Authority's premises. Either Party may request more frequent meetings
with a view to:-
(a)
ensuring that the other Party is fully briefed on relevant information material to
this Agreement and to the provision of the Services;
(b)
ensuring the successful and efficient operation of this Agreement and provision
of the Services;
(c)
considering operational issues with a view to improving the provision of the
Services;
(d)
settling at an early stage any potential areas of dispute without the need of a
formal referral to the Dispute Resolution Procedure; and
(e)
escalating areas of dispute within the Dispute Resolution Procedure.
11.
STEP IN RIGHTS
11.1
Without prejudice to the provisions of
Schedule 4 (Performance Management) or to any remedy
that the Authority may have (whether under this Agreement or otherwise):
11.1.1
where the Authority reasonably believes that the Operator’s failure to provide any part of
the Services to the relevant Service Level or otherwise in accordance with this Agreement
has an adverse, material impact on the business of the Authority or on the running of the
Scheme;
11.1.2
where the Authority reasonably believes that the Operator is about to commit such a
failure which, if committed, would have such an impact;
11.1.3 where the Authority considers it necessary in order to carry out any of its statutory
obligations, functions or other duties;
11.1.4
on the occurrence of a Force Majeure Event; or
11.1.5
on the occurrence of an Insolvency Event in respect of the Operator,
the Authority may, by giving such written notice to the Operator as the Authority considers
reasonable in the circumstances, exercise its right under Cl
ause 11.2.
11.2
In the circumstances set out in Clause
11.1 the Authority may make arrangements for the Authority
to provide and perform itself or through another contractor, such part of the Services as it decides
in its discretion. Where any failure on the Operator's part is, in the reasonable opinion of the
Authority, due to the failure of the Operator's management or supervisory staff to perform their work
adequately or at all, or is due to the absence or insufficiency of such staff, the Authority may cause
the relevant Services to be managed and supervised by the Authority's own staff, or the staff of
another contractor and the Operator shall be relieved of its obligations hereunder insofar as they
relate directly to the Services removed from its control and only during the period the Services are
removed from its control.
11.3
Where the Authority exercises its right pursuant to Claus
e 11.2, the Operator shall:-
11.3.1 provide the Authority and Authority Personnel such access as is necessary for the
Authority to exercise its right;
11.3.2
grant and procure that any Sub-Contractor or relevant third party grants the Authority such
licences as are reasonably required (for itself or a contractor appointed to perform the
step-in services) for the purposes of the Authority exercising its right;
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11.3.3
afford (and procure that its Sub-Contractors afford) to the Authority (and any contractor
appointed to perform the step-in services) such co-operation and access to any of the
Operator's Intellectual Property, the Third Party Intellectual Property, Operator systems,
premises, equipment, documents, information or other items as are reasonably required
for the purposes of exercising its right; and
11.3.4
reimburse the Authority for any Losses incurred in taking the actions described in Clause
11.2.
PART 4- FINANCE
12.
FINANCING OF THE SCHEME
12.1
The Scheme shall be financed through a statutory Non-Domestic lodgement fee current at the time
of lodgement . This fee is detailed in Statutory Instrument 2007 No 991 The Energy Performance of
Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 Part 6 Register of
Certificates.
12.2
A summary page of the Baseline Financial Model is attached to Annex 1 of Schedule 6. The
Baseline Working Model is held by the Authority and the Operator
13.
RIGHTS OF SET-OFF
13.1
The Authority may set off any sum of money which is payable by the Operator to the Authority,
recoverable from the Operator by the Authority or otherwise against any sum then due, or which at
any later time may become due, to the Operator under or in relation to this Agreement or any other
agreement with the Authority.
13.2
Any overpayment by the Authority to the Operator under this Agreement shall be a sum of money
recoverable from the Operator.
14.
REVIEW PROCESS
The financing of the Scheme shall be reviewed in accordance with Schedule 16 (Review Process)
and the Operator shall comply with its obligations thereunder throughout the Term.
PART 5- SUB-CONTRACTING AND PERSONNEL
15.
SUB-CONTRACTING
15.1
The Operator may not enter into any Sub-Contract without the prior written consent of the
Authority, such consent not to be unreasonably withheld or delayed. In seeking the Authority's
consent for any Sub-Contract the Operator shall provide the Authority on request with a copy of the
terms of the proposed Sub-Contract including in relation to the relevant charges a statement in
accordance with the Open Book Accounting Principles set out in
Schedule 6 (Finance). For the
avoidance of doubt, the Operator shall also be required to obtain the Authority's prior written
consent if it proposes to vary or terminate any Sub-Contract or if any Sub-Contractor proposes to
sub-sub-contract all or any part of the Sub-Contractor's obligations under the Sub-Contract, such
consent not to be unreasonably withheld or delayed.
15.2
The provisions of
Schedule 14 (Sub-Contracts and Sub-Contractors) shall apply.
15.3
The Operator shall remain responsible for the acts and omissions of its Sub-Contractors as though
they were its own.
16.
STAFF
16.1
The Operator warrants and represents that:
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16.1.1 all Staff will be properly trained and instructed, qualified and adequately skilled and
competent to the levels necessary to undertake the Services;
16.1.2
it shall use its best endeavours to ensure that its Staff shall execute the Services on
behalf of the Authority in a workmanlike manner using the level of skill, care and expertise
to be expected of competent and trained providers of services that are the same or similar
to the Services;
16.1.3
it has at all times from the Effective Date (including without limitation, Staff holidays),
sufficient Staff with levels of skills commensurate with the Services, as required by this
Agreement. Such provision shall include appropriate cover for voluntary absence or
sickness;
16.1.4
all Staff shall be properly and adequately supervised at all times whilst performing the
Services; and
16.1.5
any and all records created or maintained by the Operator under this Agreement are clear,
accurate and up-to-date and shall include without limitation, record keeping of all
permanent and occasional Staff as evidence of skill levels, training and induction and
such records will be available at any time for inspection by the Authority and the Audit
Agents in accordance with the provisions of this Agreement.
17.
KEY PERSONNEL
17.1
The Operator shall prepare and submit to the Authority for approval the names of the Key
Personnel to be employed under this Agreement, together with the positions held, the number of
years in the employment of the Operator and the type of experience held.
17.2
The Operator shall be responsible for ensuring that the list of Key Personnel is kept up-to-date and
re-issued to the Authority during the Agreement upon any changes being made to the list in
accordance with Clause 17.3. The Operator shall ensure that the Key Personnel shall remain
suitably skilled and experienced to carry out their roles during the Term of the Agreement.
17.3
The Operator shall obtain the prior written consent of the Authority, which shall not be
unreasonably withheld, before the replacement of any Key Personnel, and the Operator shall use
all reasonable endeavours to ensure that Key Personnel remain in office. The Operator shall
ensure that a process of skill and knowledge transfer occurs prior to any Key Personnel ceasing to
be involved in relation to the Services suitable to ensure continuity of Services and to ensure that
the change does not have an adverse impact on the performance of the Services.
18.
EMPLOYEE TRANSFER PROVISIONS
The provisions of
Schedule 9 (Employees) shall apply to govern the Parties' obligations in respect
of the Staff upon expiry of termination of the whole or any part of the Services.
19.
NON-SOLICITATION
19.1
Neither Party shall during the Term for six months following the termination or expiry of this
Agreement either directly or indirectly solicit or entice away (or seek to attempt to solicit or entice
away):
19.1.1 from the employment of the other Party, other than through genuine and general
advertising in the course of recruitment, any person employed by the other Party who in
the twelve (12) months prior to the date upon which the Party in question directly or
indirectly solicits or entices away (or seeks to attempt to solicit or entice away such
employee) has been regularly involved in the receipt and/or administration of the Services;
19.1.2 any person employed by any professional advisor to the other Party who has been
regularly involved in the establishment of the Scheme.
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19.2
The Operator shall procure that Sub-Contractors also observe Clause
19.1 above.
PART 6- INTELLECTUAL PROPERTY
20.
INTELLECTUAL PROPERTY RIGHTS
20.1
Except as expressly set out in this Agreement:
20.1.1
the Authority shall not acquire any right, title or interest in or to the Intellectual Property
Rights of the Operator or its licensors, including:
(a) the
Operator
Software;
(b)
the Third Party Software; or
(c)
the Operator's Background IPRs,
and
20.1.2
the Operator shall not acquire any right, title or interest in or to the Intellectual Property
Rights of the Authority or its licensors, including:
(a) the
Authority
Software;
(b)
the Authority Data;
(c) the
Database;
(d)
the Project Specific IPRs;
(e)
the Authority's documentation, processes and procedures; and
(f)
the Authority's Know-How.
20.2
Where either party acquires, by operation of law, title to Intellectual Property Rights that is
inconsistent with the allocation of title set out in Clause
20.1, it shall assign in writing such
Intellectual Property rights as it has acquired to the other party on the request of the other party
(whenever made).
21.
LICENCES GRANTED BY THE OPERATOR
21.1
The Operator hereby grants to the Authority a licence of the Operator Software and the Operator's
Background IPRs on the Standard Licence Terms.
21.2
The Operator shall procure that the owners or the authorised licensors of any Third Party Software
hereby grant a direct licence to the Authority on the Standard Licence Terms. If the Operator
cannot obtain for the Authority a licence materially in accordance with the Standard Licence Terms
the Operator will consult with the Authority on whether the rights that can be obtained are
nevertheless acceptable to the Authority or whether the Operator should seek to use an alternative
provider of software.
21.3
On termination or expiry of the Agreement, the Operator shall, if requested by the Authority grant or
procure the grant to any New Operator of a licence for a period of up to six (6) months to Use any
Operator Software, Operator's Background IPRs or Third Party Software on the Standard Licence
Terms.
21.4
The Operator hereby grants to the Authority a non-exclusive licence to copy the Documentation for
any purpose connected with the receipt of the Services or that is incidental to the exercise of the
rights granted to the Authority under this Agreement.
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22.
LICENCES GRANTED BY THE AUTHORITY
22.1
The Authority hereby grants to the Operator a royalty-free, non-exclusive, non-transferable licence
during the Term to use:
22.1.1 the
Authority
Software;
22.1.2 the
Database;
22.1.3
the Authority's documentation, processes and procedures and Know How.
22.1.4
the Specially Written Software from the date the relevant rights are transferred to the
Authority in accordance with Clause
24.2;
22.1.5
the Project Specific IPRs from the date the relevant rights are transferred to the Authority
in accordance with Clau
se 24.2; and
22.1.6
the Authority Data.
22.2
The licence granted in Clause
22.1:
22.2.1
includes the right to grant sub-licences to Sub-Contractors provided that any relevant Sub-
Contractor has entered into a confidentiality undertaking with the Operator on the same
terms as set out in Clau
se 32 (Confidentiality); and
22.2.2
is granted solely to the extent necessary for performing the Services in accordance with
this Agreement. The Operator shall not, and shall procure that the Sub-Contractors do
not, use the licensed materials for any other purpose or for the benefit of any person other
than the Authority.
22.3
Neither party shall have any right to use any of the other party's names, logos or trade marks on
any of its products or services without the other party's prior written consent.
22.4
In the event of the termination or expiry of this Agreement, the licence referred to in Clause
22.1,
any sub-licence granted in accordance with Clause
22.2.1 and any licence granted in accordance
with Clause
22.3 shall terminate automatically (subject to any requirement to continue to provide
the Services under the Exit Plan) and the Operator shall deliver to the Authority all material
licensed to the Operator pursuant to Clause
22.1 or Clause
22.3 in the Operator's possession or
control.
23.
ASSIGNMENT OF IPR IN DATABASE
23.1
The Operator hereby assigns to the Authority, with full title guarantee, title to and all rights and
interest in the Database or shall procure that the first owner of the Database assigns it to the
Authority on the same basis.
23.2
The assignment under Claus
e 23.1 shall either take effect on the Effective Date or as a present
assignment of future rights that will take effect immediately on the coming into existence of the
Database, as appropriate.
23.3
The Operator shall waive or procure a waiver of any moral rights in the Database assigned to the
Authority under this Agreement.
23.4
To the extent that it is necessary for the Authority to obtain the full benefits of ownership of the
Database, the Operator hereby grants to the Authority and shall procure that any relevant third
party licensor shall grant to the Authority a perpetual, irrevocable, non-exclusive, assignable,
royalty-free and global licence to use, sub-license and/or commercially exploit any Operator's
Background IPRs or (subject to Clause
21.2) IPRs owned by a third party that are embedded in or
which are an integral part of the Database.
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24.
PROJECT SPECIFIC IPR AND SPECIALLY WRITTEN SOFTWARE
24.1
The Operator hereby assigns to the Authority, with full title guarantee, title to and all rights and
interest in the Project Specific IPRs and the Specially Written Software or shall procure that the first
owner of the Project Specific IPRs and the Specially Written Software assigns them to the Authority
on the same basis provided that nothing in this Clause shall oblige the Operator to purchase or
obtain a licence to any domain names from any previous registrant.
24.2
The assignment under Clause
24.1 shall either take effect on the Effective Date or as a present
assignment of future rights that will take effect immediately on the coming into existence of the
relevant Project Specific IPRs and the Specially Written Software, as appropriate.
24.3
The Operator shall waive or procure a waiver of any moral rights in any copyright works assigned
to the Authority under this Agreement.
24.4
If requested to do so by the Authority, the Operator shall without charge to the Authority execute all
documents and do all such further acts as the Authority may require to perfect the assignment
under Clause
24.1 or shall procure that the owner of the Project Specific IPRs and the Specially
Written Software does so on the same basis.
24.5
The Authority shall grant to the Operator a licence of the Project Specific IPRs and the Specially
Written Software to enable the Operator to provide the Services.
24.6
Subject to Clause
24.7 and to the extent only that this is necessary to enable the Authority to obtain
the full benefits of ownership of the Specially Written Software as an integrated product, the
Operator hereby grants to the Authority and shall procure that any relevant third party licensor shall
grant to the Authority a perpetual, irrevocable, non-exclusive, assignable, royalty-free and global
licence to Use, sub-license and/or commercially exploit any Operator's Background IPRs and
Intellectual Property Rights owned by a third party that are embedded in or which are an integral
part of the Specially Written Software, provided that, where the Specially Written Software consists
of customisation of Operator Software and/or Third Party Software, this Clause
24.6 shall not have
the effect of granting to the Authority any greater rights over the Operator Software and/or the Third
Party Software than the Standard Licence Terms and (for the avoidance of doubt) Clause
21.2 shall apply.
24.7
The Operator will deliver to the Authority, promptly following its development and prior to the
Services Commencement Date, the Specially Written Software in both Source Code and binary
code forms and shall provide updates of the Source Code within three (3) months of any new
release on media that is reasonably acceptable to the Authority.
25.
ESCROW
25.1
In respect of Software which exists as at the Effective Date, the Operator shall within no later than
20 Working Days of the Effective Date and, in respect of Software which does not exist as at
Effective Date and which is developed after the Effective Date, within no later than 20 Working
Days of the date upon which the same is accepted and approved by the Authority, deposit the
Source Code (or such part thereof that the NCC shall be able to accept) of such part of the
Software that consists of Deposited Software in escrow with the Escrow Agent on the basis of the
"NCC Standard Single User Agreement" or on such other terms as the Authority, the Operator and
the Escrow Agent shall agree. The Operator shall ensure that the deposited version of the Source
Code is the current version of the Deposited Software and that the deposited version is kept up-to-
date as the Deposited Software is modified or upgraded. The Operator shall pay all storage fees
under the escrow agreement (which shall be Eligible Expenditure) and the Authority shall pay any
release fees.
25.2
Where the Operator is unable to procure compliance with the provisions of Clause
25.1 in respect
of any Third Party Software, it shall provide the Authority with written evidence of its inability to
comply with these provisions and shall agree with the Authority a suitable alternative to escrow that
affords the Authority the nearest equivalent protection. The Operator shall be excused from its
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obligations under Clause
25.1 only to the extent that the parties have agreed on a suitable
alternative.
25.3
In circumstances where the Authority obtains the release of the Source Code from escrow, the
Operator hereby grants to the Authority a perpetual, assignable, royalty-free and non-exclusive
licence to Use and support the Source Code version of the Deposited Software to the extent
necessary for the receipt of the Services or any Replacement Services or the Authority’s normal
business undertakings.
26.
IPR INDEMNITY
26.1
The Operator shall at all times, during and after the Term, on written demand indemnify the
Authority and keep the Authority indemnified against all Losses incurred by, awarded against or
agreed (subject to the terms of Clause
26.2) to be paid by the Authority arising from an IPR Claim.
26.2
The Authority agrees that:
26.2.1
it will notify the Operator in writing of any IPR Claim;
26.2.2
it will allow the Operator to conduct all negotiations and proceedings and will provide the
Operator with such reasonable assistance required by the Operator, each at the
Operator's cost, regarding the IPR Claim; and
26.2.3
it will not, without first consulting with the Operator, make an admission relating to the IPR
Claim.
26.3
The Operator shall consider and defend the IPR Claim diligently using competent counsel and in
such a way as not to bring the reputation of the Authority into disrepute insofar as this is reasonably
possible given the nature and circumstances of the IPR Claim.
26.4
The Operator shall not settle or compromise any IPR Claim without the Authority's prior written
consent (not to be unreasonably withheld or delayed).
26.5
If an IPR Claim is made, or the Operator anticipates that an IPR Claim might be made, the
Operator may, at its own expense and sole option, either:
26.5.1
procure for itself and/or the Authority the right to continue using the relevant item which is
subject to the IPR Claim; or
26.5.2
replace or modify the relevant item with non-infringing substitutes provided that:
(a)
the performance and functionality of the replaced or modified item is at least
equivalent to the performance and functionality of the original item;
(b)
the replaced or modified item does not have an adverse effect on any of the
Services, the Database or any other information or technologies system used in
connection with the Services including, for the avoidance of doubt, any
software, equipment and cabling;
(c)
there is no additional cost to the Authority; and
(d)
the terms of the Agreement shall apply to the replaced or modified Services.
26.6
If the Operator elects to modify or replace an item pursuant to Clause
26.5.2 or to procure a licence
in accordance with Clause
26.5.1, but this has not avoided or resolved the IPR Claim, then the
Authority may terminate this Agreement by written notice with immediate effect and, without
prejudice to the indemnity set out in Clause
26.1, the Operator shall be liable for all reasonable and
unavoidable costs of the substitute items and/or services including the additional costs in
implementing and maintaining the substitute items.
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26.7
The provisions of Claus
es 26.1 to 26.6 (inclusive) shall not apply in respect of any IPR Claim to the
extent caused by:
26.7.1
any use by or on behalf of the Authority of the Software in either case in combination with
any item not supplied pursuant to this Agreement (save for items which might reasonably
be expected to be used by or on behalf of the Authority in connection with the Software);
or
26.7.2
the use by the Authority of the Software in a manner not reasonably to be inferred from
the provisions of this Agreement.
PART 7- INFORMATION AND DATA
27.
ACCESS AND INFORMATION REQUIREMENTS
27.1
The Operator shall maintain during the Term and shall retain for a period of at least seven (7) years
from the expiry or termination of this Agreement full, clear, accurate and up-to-date accounts
relating to the Services in accordance with the provisions of this Agreement.
27.2
The accounts required under Clause
27.1 and
Schedule 6 (Finance) shall both during and after the
expiry or termination of this Agreement, be open to inspection at reasonable times and upon
reasonable notice by the Authority or any Audit Agent, and their employees, agents or
representatives as they may reasonably request. Such persons shall be entitled to take copies of
or extracts from such accounts. The Operator shall on reasonable notice furnish oral or written
explanations of the accounts if required.
27.3
The Operator's costs in complying with this Clause shall be borne by the Operator.
27.4
The Operator shall during the Term provide access to the Authority's Data to the Authority
Personnel and Audit Agents.
27.5
The Operator shall provide access to its premises (and shall procure access to those of its sub-
contractors) at all reasonable times and on reasonable notice to the Authority and the Audit Agents
to inspect such documents as the Authority considers necessary in connection with this Agreement
and where appropriate to speak to the Staff.
27.6
The Operator shall procure access to the sites of any approved Sub-Contractors on the basis set
out in Clause
27.5 above.
28.
AUTHORITY DATA
28.1
The Operator shall not acquire any right in, or title to, any part of the Authority Data whether
existing prior to the Effective Date, or created after such date. Title in the Authority Data shall
remain with the Authority at all times.
28.2
The Operator shall not:
28.2.1
disclose, use, modify or adapt the Authority Data;
28.2.2
merge or combine the Authority Data with other data;
28.2.3
derive or extrapolate data from the Authority Data;
28.2.4
store, copy, disclose or use the Authority Data; or
28.2.5
reproduce the Authority Data in whole or in part in any form
except as may be expressly required by, or necessary for, performance by the Operator of its
obligations under this Agreement.
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28.3
The Operator shall not remove any proprietary or copyright notices contained within or relating to
any Authority Data.
28.4
The Operator shall be responsible for maintaining, in accordance with Good Industry Practice and
all express requirements of this Agreement, secure back ups of all the Authority Data in the
possession or control of the Operator and its Sub-Contractors and immediately following any
collection, processing, storage and transmission of such Authority Data by or on their behalf. The
Operator shall be responsible for preserving the integrity of Authority Data and preventing
unauthorised disclosure, misuse, interception, theft, corruption or loss. Any such Authority Data
that is lost, degraded or damaged shall, where copies of such data exist (in any form), promptly be
reinstated and/or reconstituted by the Operator, at its own cost where the loss, degradation or
damage is due to any Default of the Operator (including but not limited to any Default of a Sub-
Contractor). If the Operator fails to do so within two (2) Working Days from and including the date
of loss, degradation or damage, then the Authority may by itself or by appointment of a third party
undertake the reinstatement and/or reconstitution of such Authority Data at the Operator’s cost and
the Operator shall procure that its Sub-Contractors co-operate fully in such process.
28.5
The Operator shall ensure that the back ups of Authority Data held by the Operator, or on its behalf
by Material Sub-Contractors, are made available to the Authority at all times upon request in such
format as the Authority may reasonably require.
28.6
If at any time the Operator suspects or has reason to believe that Authority Data has or may
become corrupted in any way, the Operator shall notify the Authority forthwith of the remedial
action it proposes to take and shall agree any proposed remedial action with the Authority in
advance of taking action.
28.7
Save to the extent otherwise permitted by the Authority in writing (whether in this Agreement or
otherwise) the Operator shall not (and shall ensure that its Sub-Contractors shall not):
28.7.1
process or take any Authority Data outside the EEA (or cause or permit the same to
happen);
28.7.2
due to the manner in which it delivers (or requires to be delivered) the Services, cause or
permit Authority Data to be accessed from outside the EEA; or
28.7.3
undertake (or cause to be undertaken) application development outside the EEA.
28.8
Following termination of this Agreement, for any reason whatsoever, the Operator shall, at the
Authority's option either erase or destroy any Authority Data or return any Authority Data to the
Authority or to any New Operator.
29.
PERSONAL DATA
29.1
The Parties agree that the Authority is a Data Controller for any Personal Data which the Operator
Processes in order to perform the Services and the Authority hereby appoints the Operator as Data
Processor in relation to such Personal Data and, subject to Clause
15, authorises the Operator to
appoint Sub-Contractors as further Data Processors on behalf of the Authority, provided that such
further Data Processors are engaged on terms providing equivalent rights to the Authority against
the further Data Processors and equivalent protections in relation to the Personal Data to those set
out in this Agreement.
29.2
The Operator shall:
29.2.1 process the Personal Data only on behalf of the Authority in compliance with the
Authority’s instructions and this Agreement. If for whatever reason the Operator cannot
provide such compliance, it agrees to inform the Authority promptly of its inability to
comply, and the Authority is entitled to suspend the Processing of Personal Data;
29.2.2
without prejudice to the generality of Clause
29.2.1, ensure that those of its employees
who are used to Process Personal Data under this Agreement have first been trained in
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the law of data protection and in the care and handling of Personal Data and that no other
personnel of the Data Processor are allowed access to the Personal Data;
29.2.3
process the Personal Data in accordance with the laws of the United Kingdom;
29.2.4
ensure that it provides to all Data Subjects information which is required to be made
available to Data Subjects under the first data protection principle;
29.2.5
promptly notify the Authority about:
(a)
any legally binding request for disclosure of the Personal Data by a law
enforcement department prior to any such disclosure unless otherwise
prohibited;
(b)
any accidental or unauthorised access which may affect the Personal Data;
29.2.6
notify the Authority in such format and with such frequency as the Authority may direct of
any Data Subject Requests received directly from Data Subjects;
29.2.7
respond to any such Data Subject Request in accordance with Clause
29.3 below, unless
it has been otherwise instructed not to do so by the Authority;
29.2.8
deal promptly and properly with all inquiries from the Authority relating to the Operator’s
Processing of the Personal Data;
29.2.9
not disclose the Personal Data to a third party in any circumstances other than at the
specific request of the Authority, or where obliged to do so under any Law;
29.2.10 not transfer the Personal Data outside the EEA without the prior written consent of the
Authority;
29.2.11 upon reasonable request from the Authority, submit its data processing facilities,
procedures and documentation relating to Personal Data, and those of its sub-processors,
to scrutiny by the Authority or the Audit Agents in order to ascertain compliance with
relevant Law and the terms of this Agreement; and
29.2.12 on request by the Authority, promptly provide information which the Authority requires in
order to comply with:
(a)
Data Subject Requests; and
(b)
requests from the Information Commissioner.
29.3
On receipt of a Data Subject Request directly or a request from the Authority to deal with a Data
Subject Request that the Authority has received and passed onto the Operator, the Operator will
promptly, and in any event within any applicable statutory response periods, respond to such Data
Subject Request on behalf of the Authority and in compliance with the DPA and shall then carry out
any and all necessary subsequent correspondence whether with the Data Subject or otherwise in
order to deal with such Data Subject Request on behalf of the Authority. The Operator shall keep
records of all Data Subject Requests and responses and shall make these available to the
Authority on request. The contents of any such Data Subject Request shall constitute the
Authority's Confidential Information and any response thereto forms part of Authority Data.
29.4
The Operator warrants that it has appropriate operational and technological processes and
procedures in place to safeguard against any unauthorised or unlawful access, loss, destruction,
theft, use or disclosure of the Personal Data.
29.5
The Operator shall indemnify and shall keep indemnified the Authority against all Losses suffered
by the Authority as a result of any failure by the Operator to comply with its obligations in
accordance with any part of this Claus
e 29.
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30.
ACCESS TO THE DATABASE
30.1
The Authority may during the hours of 9.00am to 5.00pm on a Working Day and having given
reasonable prior notice have access to the premises of the Operator or any part or parts thereof
and to the Authority's Data in whatever form (whether or not such data is held on the Database),
including for the avoidance of doubt all Personal Data, for the purposes of viewing, inspecting,
downloading or copying any data or other information of whatever nature held by the Operator.
The Operator shall at its own cost provide appropriate training to a reasonable number of the
Authority Personnel to enable them to access the Authority's Data.
30.2
The Authority will when accessing the Operator’s premises cause as little disruption to the Operator
or the Staff as reasonably practicable and shall conduct themselves whilst on the Operator's
premises in accordance with the Contractor's reasonable instructions and applicable Health and
Safety rules.
30.3
The Authority may during the hours of 6.00am to 10.00pm on an Operational Day have access by
electronic means to the Database or any part or parts thereof and to the Authority's Data in
whatever form (whether or not such data is held on the Database), including for the avoidance of
doubt all Personal Data, for the purposes of viewing, inspecting, downloading or copying any data
or other information of whatever nature held by the Operator as part of the Database. The
Operator shall at its own cost provide appropriate training to a reasonable number of the Authority
Personnel to enable them to access the Authority's Data electronically.
30.4
For the avoidance of doubt where the Authority is investigating fraud or other unlawful activity the
Authority shall be entitled to require the Operator to provide access to the Authority's Data outside
of the times set out in this Clause
30 and (save where the suspected fraud or other unlawful activity
is that of the Operator) the reasonable costs associated therewith shall be Eligible Expenditure.
31.
FREEDOM OF INFORMATION
31.1
The Operator acknowledges that the Authority is subject to the requirements of FOIA and the
Environmental Information Regulations and shall assist and cooperate with the Authority to enable
the Authority to comply with its Information disclosure obligations.
31.2
The Operator shall and shall procure that its Sub-Contractors shall:
31.2.1
provide the Authority with a copy of all Information in its possession, or power in the form
that the Authority requires within five (5) Working Days (or such other period as the
Authority may specify) from and including the date of the Authority's request; and
31.2.2
provide all assistance as may be requested by the Authority to enable the Authority to
respond to a Request for Information within the time for compliance set out in section 10
of the FOIA or regulation 5 of the Environmental Information Regulations (as the case
may be).
31.3
The Authority shall be responsible for determining in its absolute discretion whether any
Information is exempt from disclosure in accordance with the provisions of FOIA or the
Environmental Information Regulations. The Authority shall, in accordance with any
recommendations of the Code, take reasonable steps, where appropriate, to give the Operator
advanced notice of any disclosure, or failing that, to draw the disclosure to the Operator's attention
after any disclosure where such disclosure may involve the Information or any of the Operator's
Confidential Information.
31.4
In no event shall the Operator respond directly to a Request for Information unless expressly
authorised to do so by the Authority.
31.5
The Operator acknowledges that the Authority may be obliged to disclose Information without
consulting or obtaining consent from the Operator, or despite having taken the Operators' views
into account.
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31.6
The Operator acknowledges that the Commercially Sensitive Information is of indicative value only
and the Authority may be obliged to disclose it in accordance with Clause
31.3.
32.
CONFIDENTIALITY
32.1
The Operator acknowledges that in respect of any Confidential Information obtained by the
Operator from, or relating to, the Authority, the Crown or their respective servants or agents or any
Crown Servant, including in the course of tendering for this Agreement, a duty of confidentiality is
owed to the Authority and the Crown.
32.2
Each Party agrees, for itself and in the case of the Authority the Authority Personnel and, in the
case of the Operator, the Staff to keep confidential and not to disclose to any person (save as set
out in Claus
e 31 and otherwise as hereinafter provided in this Clause
32) and to safeguard any
Confidential Information provided to it, or arising or acquired by it in relation to the terms or
performance of this Agreement.
32.3
The Operator shall not and shall procure that Staff shall not disclose any Confidential Information to
any third party without the prior written consent of the Authority.
32.4
The following circumstances shall not constitute a breach of the obligations of confidentiality
contained in this Clause
32:
32.4.1
disclosure of Confidential Information by the Operator to the Sub-Contractor and Staff but
only to the extent necessary to enable the Operator to perform (or to cause to be
performed) or to enforce any of its rights or obligations under this Agreement;
32.4.2
disclosure of Confidential Information by either Party when required to do so by Law;
32.4.3
disclosure of Confidential Information by the Authority to Authority Personnel to the extent
necessary to enable the Authority to perform (or to cause to be performed) or to enforce
any of its rights or obligations under this Agreement;
32.4.4 disclosure to any consultant, sub-contractor or other person engaged by a Party in
connection herewith (including any New Operator), who needs to know the information, to
the extent necessary to enable that Party to perform (or cause to be performed) the
Services or to enforce any of its rights under this Agreement, provided that that Party shall
have first obtained from the consultant, sub-contractor or other person (as the case may
be) obligations of confidentiality to protect disclosure of such information no less onerous
to those set out in this Clau
se 32;
32.4.5
disclosure of Confidential Information by either Party where and to the extent that the
Confidential Information has, except as a result of breach of confidentiality by or on behalf
of that Party, become publicly available or generally known to the public at the time of
such disclosure;
32.4.6
disclosure of Confidential Information by either Party where and to the extent that the
Confidential Information is already lawfully in the possession of a recipient or lawfully
known to it prior to such disclosure;
32.4.7
possession of Confidential Information by either Party where it has been acquired from a
third party who is not in breach of Law or any obligation of confidence in providing that
Confidential Information;
and in the case of the Authority any disclosure of Confidential Information:
32.4.8
to the extent required for the purpose of the continued fulfilment of the Services in the
event of termination of Services and/or this Agreement;
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32.4.9
in relation to the procurement process for the Services as may be required to be published
in the Official Journal of the European Union or under other procurement related
requirements;
32.4.10 to any body to whom the Authority considers it necessary to disclose Confidential
Information to fulfil its statutory and/or public functions, any NDPB, statutory corporation,
other department, office or agency of the Government (including, for the avoidance of
doubt, the National Audit Office) or other Crown Body or entity and/or (in any such case)
their servants or agents, where required for its proper departmental, parliamentary,
governmental, statutory or judicial purposes and the Operator hereby permits further
disclosure by such NDPBs, statutory corporations, Crown Bodies or entities to other
Crown Bodies;
32.4.11 as may be required in accordance with Clause
31 (Freedom of Information);
32.4.12 in connection with the exercise of the audit rights set out in this Agreement; and
32.4.13 to any person conducting or otherwise involved in an Office of Government Commerce
'gateway review'.
32.5
In relation to any disclosure of Confidential Information under this Agreement by either Party, the
Party intended to disclose shall use its reasonable endeavours to give the other Party prompt
advance written notice of this disclosure and, where relevant, to consult and give the other Party
reasonable opportunity to comment on the nature and extent of disclosure and take account of any
reasonable comment made by the other Party.
32.6
The Operator shall, with respect to any Confidential Information it receives from the Authority or in
connection with the Services:
32.6.1
use, and shall ensure that all Sub-Contractors and Staff use, the Confidential Information
solely for the purposes of this Agreement;
32.6.2
take, and shall ensure that all Sub-Contractors and Staff take, all necessary precautions
to ensure that all Confidential Information is held in confidence;
32.6.3
comply, and shall ensure that all Sub-Contractors and Staff comply, with all instructions
and/or guidelines produced by the Authority from time to time for the handling and storage
of Confidential Information generally or for specific items;
32.6.4
obtain from all employees of the Operator (whether under the employees' standard terms
and conditions or otherwise) obligations of non-disclosure on terms no less onerous than
contained in this Claus
e 32; and
32.6.5 obtain from all Sub-Contractors, consultants or other parties to whom disclosure is
permitted under this Clause
32 (other than employees to whom Clause
32.6.4 shall apply)
prior to their commencing work on the Services or receiving any Confidential Information,
a signed non-disclosure undertaking providing equivalent obligations of confidentiality as
contained in this Claus
e 32.
32.7
Without prejudice to any other rights and remedies that the other Party would have, each Party
agrees that damages may not be an adequate remedy for any breach of this
Clause 32 and that
the other Party shall be entitled to seek the remedies of injunction, specific performance and/or
other equitable relief for any threatened or actual breach of this Clause
32.
32.8
The Operator shall not, either itself or by any Staff, consultant or other third party, use the
Authority's Confidential Information other than for the purposes of this Agreement, including without
limitation:
32.8.1
soliciting further business from the Authority, from any other part of the Crown or any
Contracting Authority; or
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32.8.2
seeking or obtaining any commercial or pecuniary advantage other than in connection
with the performance of the Services.
32.9
The obligations with respect to Confidential Information disclosed under this Agreement shall
survive termination or expiry of this Agreement and shall continue for a period of seven (7) years
from the date of expiry or termination of this Agreement.
32.10
Save as specified in Cl
ause 32.11, upon the Authority’s written request, and in any event on
termination or expiry of this Agreement and/or any Services, the Operator shall promptly return:
32.10.1 all or any specified part of the Authority Data and any Authority’s Confidential Information
which it received while providing the relevant Services;
32.10.2 all (or any specified part of any) physical and written records containing any Authority
Data or Authority’s Confidential Information related to the relevant Services; and
32.10.3 all (or any specified part of any) documentation relating to any other Confidential
Information related to the relevant Services,
to the Authority or, if requested by the Authority, destroy or delete the same in a manner specified
by the Authority and promptly certify to the Authority that it has done the same.
32.11 Clause
32.10 shall not apply to any copies of Confidential Information necessary for the continued
maintenance, operation and development work forming part of obligations of the Operator pursuant
to Schedule 8 (Exit Plan), until its completion.
32.12
The Operator shall maintain a list in writing of the non-disclosure undertakings completed in
accordance with this
Clause 32. Where requested by the Authority in writing the Operator shall
provide the Authority with a copy of the list and, subsequently upon request by the Authority in
writing, copies of such of the listed non-disclosure undertakings as required by the Authority.
PART 8- WARRANTIES, LIABILITY AND INSURANCE
33.
GENERAL WARRANTIES
33.1
The Operator warrants and represents to the Authority for the benefit of the Authority that:
33.1.1
it has full capacity power and authority to enter into and perform its obligations under this
Agreement and has no conflicting obligations to any third party (whether contractual or
otherwise);
33.1.2
all Sub-Contractors have full capacity power and authority to perform their obligations in
connection with this Agreement and have no conflicting obligations to any third party
(whether contractual or otherwise);
33.1.3
this Agreement is executed by a duly authorised representative of the Operator;
33.1.4
it has not, and will not (and shall procure that each Material Sub-Contractor has not and
shall not) enter into any fixed or floating charge or other encumbrance which would take
priority to the assignments or vesting of Intellectual Property in the Authority referred to in
Clause
20;
33.1.5
there is no proceeding pending or, to the knowledge of the Operator, threatened which
challenges or may have a material adverse affect on this Agreement or on the ability of
the Operator to carry out its obligations under this Agreement;
33.1.6
the Operator and its Sub-Contractors have not and will not, during the provision of the
Services, violate any applicable Laws or Standards; and
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33.1.7 all statements and representations in pre-contractual proposals in the Operator’s
response to the PQQ, ISOP and BAFO when made by the Operator to the Authority were,
in the context they were given at the time, true, complete and accurate in all material
respects, and that the Operator has advised the Authority of any fact, matter or
circumstance of which it has become aware since making such proposals which would
render any such statement or representation false or misleading.
Each of the above warranties shall be construed as a separate warranty and representation by the
Operator and shall not be limited or restricted by reference to, or inference from, the terms of any
other warranty or representation or any other terms of this Agreement.
33.2
Except as provided in this Agreement, there are no express warranties, representations,
undertakings or conditions (statutory or otherwise) made by either Party and all warranties,
representations, undertakings and conditions (statutory or otherwise) implied to be made by either
Party, including implied warranties as to satisfactory quality and fitness for a particular purpose, are
hereby excluded to the maximum extent permitted by Law.
34.
GENERAL INDEMNITIES
34.1
The Operator shall indemnify and shall keep indemnified the Authority against all Losses suffered
by the Authority in respect of:
34.1.1
any death or personal injury; and
34.1.2
any loss of or damage to property; and
34.1.3
any claims brought against the Authority by any of the Authority's employees or former
employees and/or any of the Operator's employees;
arising as a result of any act or omission of the Operator (or any of the Operator's employees or
Sub-Contractors).
35.
CONTROL OF CLAIMS COVERED BY AN INDEMNITY
35.1
If the Authority becomes aware of a matter which may give rise to a claim under an indemnity given
by the Operator in this Agreement:
35.1.1
the Authority shall promptly notify the Operator as soon as is reasonably practicable and
in any event within fifteen (15) Working Days of becoming aware of the matter (stating in
reasonable detail the nature of the matter and, if practicable, the amount claimed) and
consult with the Operator with respect to the matter. If the matter has become the subject
of proceedings, where reasonably practicable the Authority shall notify the Operator within
sufficient time to enable the Operator to prepare any statement of case;
35.1.2
the Authority shall provide the Operator and its advisers reasonable access to premises
and Authority Personnel and to all relevant assets, documents and records that it
possesses or controls for the purposes of investigating the matter and enabling the
Operator to take the steps referred to in Clause
35.1.1;
35.1.3 the Operator shall provide to the Authority reasonable access to information that it
possesses or controls and to the Staff for the purposes of understanding the nature and
status of the action being taken under Clause
35.1.1 and shall consult with and take due
account of the views of the Authority in relation to the proposed actions to be taken prior
to settlement or compromise of the claim. The Operator shall not use the Authority's
name without the Authority's prior written consent (such consent not to be unreasonably
withheld or delayed);
35.1.4
the Operator (at its cost) may take copies of the relevant documents or records save for
any documents or records in respect of which the Authority claims privilege;
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35.1.5
each Party shall, and shall procure that its relevant employees and professional advisers
shall, use the documentation and information obtained pursuant to this Clause
35 solely
for the purposes described and shall otherwise keep the documentation and information
confidential in accordance with Clause
32 where such information constitutes Confidential
Information. When a claim subject to an indemnity is concluded, documentation provided
by either Party to the other for the purposes of the claim shall be returned; and
35.1.6
the Parties may agree that the Operator has the exclusive conduct of the proceedings and
if so the Operator indemnifies the Authority for all costs incurred as a result of a request or
choice by the Operator to conduct such proceedings.
36.
LIMITATION OF LIABILITY
36.1
Exclusion of certain categories of loss
36.1.1
Neither Party shall have any liability to the other for any claim to the extent that the same
is or can be characterised as a claim for (or arising from):
(a)
loss of revenue or profits;
(b)
loss of goodwill;
(c)
loss of business opportunity
; or
(d)
indirect, consequential or special loss or damages,
regardless of the form of action, whether in contract, strict liability or tort (including
negligence), and regardless of whether the first named Party knew or had reason to know
of the possibility of the loss, injury, or damage in question.
36.1.2
The provisions of Clause
36.1.1 shall not limit the Authority's right to recover from the
Operator:
(a)
additional administrative and operational costs and expenses incurred by the
Authority resulting from the Default of the Operator;
(b)
wasted expenditure or charges rendered unnecessary and incurred by the
Authority arising from the Default of the Operator; and
(c)
the cost of the procurement process for and the procurement of Replacement
Services in respect of any unexpired period between the Effective Date and the
Original Expiry Date.
36.2
Cap on the Operator’s liability
36.2.1
The Operator's aggregate liability to the Authority (excluding claims to which Clause
36.3 applies) in respect of all losses, damages, costs, claims or expenses suffered by the
Authority arising out of or in connection with:
(a)
any and all Defaults by the Operator (including but not limited to, claims arising
in respect of a breach of warranty); and
(b)
any and all torts or breaches of statutory duty committed by the Operator (or
any Sub-Contractor or Staff) in connection with the performance or purported
performance of the Operator’s obligations under this Agreement,
occurring in each Contract Year (excluding claims to which Clause
36.3 applies) will be
limited and will in no circumstances whatsoever exceed the higher of:
(c)
of the Charges paid or payable in the previous financial year; and
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(d)
Indexed.
36.3
Claims and Remedies not subject to Limitation
36.3.1 Nothing contained in this Agreement will restrict the Operator's liability for death or
personal injury resulting from any act, omission or negligence of the Operator or the Staff.
36.3.2
Nothing contained in this Clause will limit the Operator’s liability for:
(a)
fraud or fraudulent misrepresentation;
(b)
any claim under the indemnities in Claus
e 29.5, Clau
se 26.1, Clause
34 and/or
Clause
35.1.6;
(c)
any claim under the employee provisions set out in
Schedule 9 (Employees).
36.3.3
Nothing in this Clause
36 will affect the Authority's right to terminate this Agreement
and/or any Services in accordance with this Agreement.
36.4
Period for Claims
Where either Party (the "Claimant") becomes aware that circumstances exist pursuant to which it
has grounds for a claim against the other arising out of or in connection with this Agreement, the
Claimant will not (unless otherwise provided by law without the possibility of contractual waiver or
limitation) be entitled to pursue such claim after the sixth anniversary of the date on which the
Claimant ought reasonably to have become aware of such claim.
37.
INSURANCE AND TREATMENT OF RISK
37.1
The Operator shall maintain for the duration of the Term and (in relation to professional errors and
omission insurance only) a period of three (3) years thereafter the following policies of insurance
(equivalent to Standard & Poor's AAA rating) with insurers of good repute and:
37.1.1
public liability insurance providing minimum cover of
any
one occurrence the number of occurrences being unlimited;
37.1.2
professional errors and omissions insurance appropriate to the business undertaken by
the Operator, providing minimum cover of
per
occurrence and in the aggregate per annum, cover to include claims made by reason of:
(a)
misappropriation of funds;
(b)
dishonesty of individual partners, directors, employees or self employed
persons contracted to and under the supervision of the Operator.
37.1.3
insurances required to comply with all statutory insurance requirements, including but not
limited to, employer’s liability insurance, and
37.1.4 crime (fidelity guarantee) insurance providing minimum cover of
per event or series of connected events in respect of fraudulent acts
including internal and external collusion;
37.1.5
computer “All Risks” insurance to include:
(a)
“All Risks” of physical loss or damage to computer and/or ancillary equipment,
including reinstatement of data costs following loss of information on fixed discs;
(b)
damage to computer records and reinstatement of data costs following loss of
information on computer records;
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(c)
additional cost of working expenditure necessarily and reasonably incurred in
order to prevent or minimise the interruption of the computer equipment; and
(d)
cover to include loss or damage caused by breakdown.
37.1.6
all such insurances must be effective in each case not later than the date on which the
relevant risk commences under this Agreement;
37.1.7
the insurances shall be maintained from time to time on terms no less favourable than
those generally available to a prudent operator operating to Good Industry Practice in
respect of risk insured in the international insurance market from time to time.
37.2
The Operator shall promptly pay all premiums payable and other sums due in respect of the
insurance policies referred to in Clause
37.1 and not do anything which may cause the policies to
be vitiated in whole or in part.
37.3
The insurance policies referred to in Clause
37.1 shall extend to cover all Sub-Contractors and
Staff where appropriate to the activities they undertake on behalf of the Operator.
37.4
In respect of the insurance policies referred to in Clauses
37.1.1 and 37.1.3, the Operator shall
ensure that they contain an ‘indemnity to principals' Clause in favour of the Authority,
37.5
The Operator shall on the written request of the Authority from time to time produce details of the
policies to the Authority together with evidence of payment of all premiums due.
37.6
The Operator shall notify the Authority twenty (20) Working Days prior to the cancellation or non-
renewal of any of the insurances listed in Clause
37.1.
37.7
Neither Party shall do anything or fail to take any reasonable action or permit anything within its
power to occur which would entitle any insurer to refuse to pay any claim under any of the policies
referred to in Clause
37.1.
37.8
The Operator shall give the Authority notification within twenty (20) Working Days after any claim in
excess of
on any of the insurance policies referred to in this
Clause accompanied by full details of the incident giving rise to the claim.
37.9
Neither failure to comply or full compliance with the insurance provisions of this Agreement shall
relieve the Operator of its liabilities and obligations under this Agreement.
PART 9- TERMINATION
38.
TERMINATION
38.1
Termination of Agreement by the Authority 'for cause' (including change of Control and/or
insolvency of the Operator and/or failure to Achieve a Milestone).
Without prejudice to such other rights as the Authority may have, this Agreement or the relevant
part of the Services may be terminated in whole or in part at any time by written notice by the
Authority (such notice to be effective on the date stated in that notice) if:
38.1.1 a Milestone is not Achieved by the relevant Long-Stop Date for that Milestone in
accordance with and subject to the provis
ions of Schedule 3 (Implementation);
38.1.2
the Operator is in material, continuing or repeated Default in respect of its obligations
under this Agreement and:
(a)
fails within thirty (30) Working Days of receipt of written notice (from and
including the day on which notice is deemed to be received) of the Default from
the Authority to remedy the Default; or
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(b)
the Default is not capable of being remedied;
38.1.3
a Deemed Material Default occurs;
38.1.4
there is a change in the Control of the Operator or any of its holding companies (as
defined in sections 736 and 736A of the Companies Act 1985) which the Authority
considers may: (i) have an adverse impact on the Services and/or (ii) adversely affect its
reputation, provided that such notice is given to the Operator within six (6) months from
and including the date on which the Authority is notified by the Operator of such change in
Control. The Operator shall promptly notify the Authority in writing in the event of any
change in Control to which this Clause
38.1.4 applies where such notification is not
prohibited by Law;
38.1.5
any of the following events (or any event analogous to any of the following occurs in a
jurisdiction other than England and Wales) occurs in respect of the Operator or any of its
holding companies (as defined in section 736 and 736A of the Companies Act 1985):
(a)
a proposal is made for a voluntary arrangement within Part I of Insolvency Act
1986 or of any other composition scheme or arrangement with, or assignment
for the benefit of, its creditors;
(b)
a shareholder’s meeting is convened for the purpose of considering a resolution
that it be wound up or a resolution for its winding-up is passed (other than in
either case as part of, and exclusively for the purpose of, a bona fide
reconstruction or amalgamation not involving a reduction of capital);
(c)
a petition is presented for its winding up or for the making of an administration
order, or an application is made for the appointment of a provisional liquidator
(in each case which is not dismissed within fourteen (14) Working Days from
and including the date of its service) or a creditor’s meeting is convened
pursuant to section 98 of Insolvency Act 1986;
(d)
a receiver, administrative receiver or similar officer is appointed over the whole
or any part of its business or assets;
(e)
it is or becomes insolvent within the meaning of section 123 Insolvency Act
1986; and/or
38.1.6
the Operator is in Default and as a result the Authority incurs costs, losses or damages
that exceed the aggregate value of the relevant liability cap set out in Clause
36.2 in a
Contract Year.
38.2
Termination of Agreement for Convenience
The Authority shall be entitled to terminate this Agreement for convenience by serving not less than
six (6) months' written notice from and including the date notice is served, to expire at any time.
38.3
Termination of Services and/or this Agreement for continuing Force Majeure Event
Either party may during the continuance of any Force Majeure Event by written notice to the other
party terminate this Agreement or the relevant part of the Services in whole or in part by written
notice if a Force Majeure Event occurs which continues for more than ninety (90) Working Days
from and including the date of the Force Majeure Event.
38.4
Payment on Termination
The provisions of
Schedule 19 (Payment on Termination) shall apply.
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39.
CONSEQUENCES OF TERMINATION
39.1
Notwithstanding the expiry or termination of this Agreement for any reason, it shall continue in force
to the extent necessary to give effect to those of its provisions which expressly or by implication
have effect after termination, for any reason whatsoever, including without limitation, Clauses
7.7(Access to Data),
12 (Financing of the Scheme)
, 15.3 (Sub-Contrac
ting), 18 (Employee Transfer
Provisions),
19 (Non-Solicitati
on), 20 (Intellectual Property Rights
), 21 (Licences Granted by the
Operator),
26 (IPR Indemnity),
27 (Access and Information Requirements)
, 29 (Personal Data),
30 (Access to the Data
base), 31 (Freedom of Information),
32 (Confidentiality),
34 (General
Indemnities),
36 (Limitation of Liability),
37 (Insurance and Treatment of Risk),
40 (Transfer of
Responsibility on Expiry or Termination)
, 53 (Entire Agreemen
t), 54 (The Contracts (Rights of Third
Parties) Act 1999),
55 (Law and Jurisdiction).
39.2
Termination of this Agreement and/or any Service shall not affect the rights of either Party accruing
or accrued prior to its termination.
39.3
The Operator will prepare final accounts for the period up to and including the date of termination in
accordance with
Schedule 6 (Finance).
39.4
For the avoidance of doubt, the licence granted at Clause
22.1 shall terminate upon expiry or
termination of this Agreement and completion of the Services in accordance with the Exit Plan.
40.
TRANSFER OF RESPONSIBILITY ON EXPIRY OR TERMINATION
40.1
Upon the day which is six (6) months before the expiry of this Agreement, or as soon as the
Operator is aware of the proposed termination of this Agreement but in any event within one (1)
month of receipt of notice of termination, or of the provision by it of the Services or any part thereof,
the Operator shall deliver an Exit Plan (which is acceptable to the Authority) and comply with the
provisions of
Schedule 8 (Exit Plan).
40.2
The Operator shall promptly provide such assistance and comply with such timetable as the
Authority may reasonably require for the purpose of ensuring an orderly transfer of responsibility to
the Authority or to a New Operator, as the Authority may determine in its sole discretion, upon the
expiry or other termination of this Agreement. The Authority shall be entitled to require the
provision of such assistance both prior to and, for a reasonable period of time after the expiry or
other termination of this Agreement.
40.3
Such assistance may include (without limitation) the delivery of documents and the Authority's Data
in the possession or control of the Operator which relate to this Agreement and the provision of
assistance in relation to any negotiation with the proprietor of Third Party Software in respect of the
provision of Third Party Software licences. The Operator shall comply with the requirements of
Schedule 2 in relation to the collection and back-up of the Authority's Data and ensure that such
copies are accurate and up-to-date and shall deliver the Authority's Data to the Authority or any
third party designated by the Authority in such format as is reasonably specified by the Authority.
40.4
The Operator shall promptly and fully answer all reasonable questions about the Services which
may be asked by the Authority for the purpose of adequately understanding the manner in which
the Services have been provided.
40.5
Where Sub-Contracts have been entered into by the Operator for the sole purpose of providing the
Services to the Authority, the Authority may require the Operator to use all reasonable endeavours
to procure that those Sub-Contracts are assigned to the Authority or to a third party, as the
Authority may determine in its sole discretion.
40.6
The Operator undertakes that it shall not, and will ensure that its Staff shall not, knowingly do or
omit to do anything which may adversely affect the ability of the Authority to ensure an orderly
transfer of responsibility of the Services.
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PART 10- GENERAL
41.
FORCE MAJEURE
41.1
Effect of Force Majeure
41.1.1
Subject to the remaining provisions of this Clause, to the extent that either Party is
prevented from performing its obligations under this Agreement for reasons beyond the
Party in question's reasonable power to control (a "
Force Majeure Event") then that
Party's duty to perform its obligations under this Agreement will (during the continuation of
the Force Majeure Event) be read and construed as an obligation to perform such
obligations to the best level achievable in the circumstances of the Force Majeure Event.
41.1.2 Notwithstanding
Clause
41.1.1, the following shall not be deemed to constitute a Force
Majeure Event for the purpose of this Agreement:
(a)
industrial action, strikes or lock-outs by employees of either Party or its sub-
contractors;
(b)
deliberate sabotage of, or malicious or reckless damage to, equipment or data
where the sabotage is attributable to the relevant Party, its employees or Sub-
Contractors or the employees of the Sub-Contractors;
(c)
in relation to the Operator only, any event which a prudent services provider,
operating to Good Industry Standards, could reasonably have foreseen and
prevented or avoided (for example, including without limitation a virus attack
which could have been prevented by use of anti-virus software of failure to
obtain supplies of goods or services for use within the Services where those
supplies are available);
(d)
change in Law; and
(e)
an event which is attributable to a Party's wilful act, neglect or failure to take
reasonable precautions against the Force Majeure Event.
41.2
Effect of suspension of a Service
To the extent that any Force Majeure results in any Service being suspended (which includes such
Service being delivered to a level where it is of no practical benefit), then the Authority may, at its
sole discretion, require the application of one of the following options (and may change the option
from time to time by written notice):
41.2.1
the Operator shall procure the provision of such Service from an alternative supplier until
cessation of the suspension or may procure the provision of such Service direct from an
alternative supplier or
41.2.2
the Operator shall provide such alternative services (during the period of the suspension)
as will be calculated to minimise the disruption as a result of the suspension.
41.3
Conditions on claiming Force Majeure
The Party seeking relief from its obligations due to a Force Majeure Event (the "
Affected Party")
will not be entitled to invoke the provisions of Clause
41.1 unless it fully performs the following
obligations:
41.3.1
on becoming aware of any Force Majeure Event which gives rise, or which is likely to give
rise, to any failure in the performance of its obligations under this Agreement, it notifies
the other Party as soon as reasonably practicable after becoming aware of such event,
giving details of the Force Majeure Event, the obligations on its part which are or are likely
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to be affected and its reasonable estimate of the period for which such failure will continue
or is likely to take place; and
41.3.2
it provides written confirmation and reasonable evidence of such Force Majeure Event
within three (3) Working Days of notification (from and including the day on which notice is
received) under Clause
41.3.1
41.4
Mitigation and cessation of Force Majeure
41.4.1
As soon as reasonably practicable following notification under Claus
e 41.3.2 the Parties
shall consult with each other in good faith and use all reasonable endeavours to agree
appropriate terms to mitigate the effects of the Force Majeure Event and to facilitate the
continued performance of the Services. Without prejudice to Clause
41.1.1, where the
Operator is the Affected Party it shall take steps in accordance with Good Industry
Practice to overcome or minimise the consequences of the Force Majeure Event.
41.4.2
The Affected Party shall notify the other Party as soon as reasonably practicable after the
Force Majeure Event ceases or no longer causes the Affected Party to be unable to
comply with its obligations under this Agreement. Following such notification this
Agreement shall continue to be performed on the terms existing immediately before the
occurrence of the Force Majeure Event.
42.
DISPUTE RESOLUTION PROCEDURE
42.1
In the event that a dispute arises as a result of this Agreement, the dispute shall be referred in the
first instance to the Authority’s Contract Manager and the Operator’s Contract Manager.
42.2
Where agreement cannot be reached between the Authority’s Contract Manager and the
Operator’s Contract Manager the matter shall be referred to the Authority's Director of New Homes
and Sustainable Development (or an equivalent) and the Chief Executive of the Operator for
consideration.
42.3
If the dispute cannot be resolved by the Parties' representatives under Clauses
42.1 or 42.2 within
a maximum of fourteen (14) days after it has been referred in accordance with such Clauses the
dispute shall be determined in accordance with Clause
s 42.4 to 42.7 inclusive.
42.4
If the dispute cannot be resolved under Clauses
42.1 or 42.2 above, the Parties will attempt to
settle the dispute by mediation in accordance with the Centre for Effective Dispute Resolution
("
CEDR") Model Mediation Procedure ("
Model Procedure"). To initiate a mediation, either Party
shall give written notice ("
Mediation Notice") to the other Party requesting a mediation of the
dispute and shall send a copy of the Mediation Notice to CEDR requesting CEDR to nominate a
mediator in the event that the Parties are unable to agree such appointment by negotiation.
42.5
The mediation shall commence within twenty eight (28) days of the Mediation Notice being served.
Neither Party will terminate such mediation until each Party has made its opening presentation and
the mediator has met each Party separately for at least one (1) hour. Thereafter paragraph 14 of
the Model Procedure will apply.
42.6
Neither Party shall commence any legal proceedings against the other until thirty (30) days after
such mediation of the dispute in question has failed to resolve the dispute.
42.7
The Parties will co-operate with any person appointed as mediator providing him or her with such
information and other assistance as he shall require and such Party will pay his or her costs as he
or she shall determine, or if no determination is made by the mediator, by the Parties in equal
portions.
43.
STATUS OF OPERATOR
43.1
In carrying out its obligations under this Agreement the Operator agrees that it will be acting as an
independent contractor and nothing in this Agreement shall create, or be deemed to create, a
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partnership, joint venture, or the relationship of principal and agent or employer and employee
between the Parties.
43.2
The Operator shall not say or do anything that may lead any other person to believe that the
Operator is acting as the agent of the Authority.
43.3
The Operator shall bear exclusive responsibility for the payment of national insurance contributions
and for discharge of any income tax in relation to its Staff or such similar liability arising out of
remuneration or the performance of the Services under this Agreement.
44.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which, when executed
and delivered, will be an original, and all the counterparts together will constitute one and the same
instrument.
45.
VARIATION
No amendment or variation to this Agreement shall be effective unless it is in writing and signed by
or on behalf of each of the Parties by their duly authorised representatives. The Operator shall
comply with any formal procedures for amending or varying this Agreement un
der Schedule 7 (Change Control Procedure) or which the Parties may have agreed from time to time.
46.
ASSIGNMENT
46.1
The benefit and burden of this Agreement may not be assigned or transferred in whole or in part by
the Operator without the prior written consent of the Authority. Such consent may be given subject
to any conditions which the Authority considers necessary.
46.2
The Authority shall be entitled to:
46.2.1
assign, novate or otherwise dispose of its rights and obligations under this Agreement or
any part thereof to any contracting authority (as defined in the Public Contracts
Regulations 2006) (a "
Contracting Authority") provided that any such assignment,
novation or other disposal shall not increase the burden of the Operator's obligations
pursuant to this Agreement; or
46.2.2
novate this Agreement 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 the Authority.
46.3
The Authority shall be entitled to disclose to any transferee any Confidential Information of the
Operator which relates to the performance of the Services by the Operator. In such circumstances
the Authority shall authorise the transferee to use such Confidential Information only for purposes
relating to the performance of the Services and for no other purposes and, for the avoidance of
doubt, the transferee shall be bound by the confidentiality requirements set out in Cl
ause 32.
47.
WAIVER
No delay by or omission by either Party in exercising any right, power, privilege or remedy under
this Agreement shall operate to impair such right, power, privilege or remedy or be construed as a
waiver thereof. Any single or partial exercise of any such right, power, privilege or remedy shall not
preclude any other or further exercise thereof or the exercise of any other right, power, privilege or
remedy.
48.
NOTICES
48.1
Any notice or other communication under or in connection with this Agreement shall be in writing in
the English language and shall be delivered personally or sent by pre-paid registered or recorded
delivery post or by facsimile or other electronic media, to the Party intended to receive the notice of
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communication at its address set out in this Agreement or such other address as that Party may
specify by notice in writing to the Party giving notice.
48.2
In the absence of evidence of earlier receipt, any notice or other communication shall be deemed
to have been duly given:
48.2.1
if delivered personally, when left at the address referred to in Clause
48.1;
48.2.2
if sent by mail, forty eight (48) hours after posting it;
48.2.3
if sent by air mail seven (7) days after posting it; and
48.2.4
if sent by facsimile or other electronic media, when clearly received in full provided that a
copy of the notice or communication is also put into the post in accordance with
Clause
48.1 within twenty four (24) hours following despatch of the initial version.
49.
INDEPENDENT LEGAL ADVICE
The Parties acknowledge that this Agreement has been freely entered into by both Parties after
due negotiation and opportunity to obtain independent legal advice on its terms and effect.
50.
SEVERABILITY
If any provision or part of a provision of this Agreement shall be or shall become unenforceable,
void or invalid (as the case may be) such provision or part thereof shall not affect and shall be
deemed to be severed from the remainder of this Agreement to the intent that the remainder of the
affected provision and this Agreement shall be or shall continue to be fully enforceable and valid.
51.
DISCRIMINATION
51.1
The Operator shall:-
51.1.1 not discriminate against, victimise or harass any person on the grounds of race,
nationality, ethnic origin, religion, gender, sexual orientation, disability or age or any other
grounds set out in Law, and so far as possible shall comply with any code of practice
issued pursuant to any Law making any of the foregoing unlawful;
51.1.2
inform the Authority as soon as possible after it becomes aware of any investigation or
proceedings brought against the Operator, or a Sub-Contractor including allegations of
any of the matters set out in Clause
51.1.1;
51.1.3
indemnify the Authority against any Losses the Authority may incur as a result of the
Operator's breach of this Clause
51; and
51.1.4
impose obligations on any Sub-Contractor in substantially the same terms as set out in
this Clau
se 51.
52.
ANNOUNCEMENTS
52.1
Save as specified in this Clause
52 or with the written consent of the other Party, neither Party shall
make any public announcement concerning this Agreement in any way.
52.2
Both Parties shall take all reasonable steps to ensure the observance of the provisions of this
Clause by all their employees, agents, consultants and sub-contractors.
52.3
The Authority shall be entitled to publicise this Agreement:
52.3.1
in accordance with any legal obligation upon the Authority, including any examination of
this Agreement by the National Audit Office pursuant to the National Audit Act 1983 or
otherwise;
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52.3.2
in the circumstances specified in Clauses
31 an
d 32; and
52.3.3 in accordance with proper parliamentary or Governmental procedures or practice
(including but not limited to obligations to report to Parliament and in accordance with
Parliamentary orders and to dealing with Ministerial correspondence).
52.4
The Parties acknowledge that the National Audit Office has the right to publish details of this
Agreement in its reports produced pursuant to the National Audit Act 1983 (whether to Parliament
or otherwise).
53.
ENTIRE AGREEMENT
53.1
This Agreement constitutes the entire understanding between the Parties relating to the subject
matter of this Agreement and, save as may be expressly referred to or referenced herein,
supersedes all prior representations, writings, negotiations or understandings with respect hereto,
except in respect of any fraudulent misrepresentation made by either Party.
53.2
Each of the Parties acknowledges and confirms that it does not enter into this Agreement in
reliance upon any representation or warranty or other undertaking not fully reflected in the terms of
this Agreement and neither of the Parties shall have any liabilities in respect of any representation,
warranty or other undertaking made prior to the Effective Date unless such representation,
warranty or other undertaking was made fraudulently.
54.
THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
54.1
Subject to Clause
54.2, this Agreement is not intended to create any benefit, claim or rights of any
kind whatsoever enforceable by any person who is not a Party to this Agreement. Accordingly, the
Parties confirm that no term of this Agreement is enforceable under the Contracts (Rights of Third
Parties) Act 1999 by a person who is not a Party to this Agreement.
54.2
It is the intention of the Parties that any other department, officer or agency of the Crown, may as
required from time to time act as the Authority's agent in enforcing the Authority's rights under this
Agreement.
55.
LAW AND JURISDICTION
55.1
This Agreement shall be subject to the laws of England and Wales save that, in relation to any
matter on which laws of England and Wales conflict, it shall be governed by the laws of England
only.
55.2
Subject to the provisions of Clause
42 and Clause
55.3, both Parties agree that the courts of
England and Wales shall have exclusive jurisdiction to hear and settle any action, suit, proceeding
or dispute arising out of or in connection with this Agreement ("Proceedings") and irrevocably
submit to the jurisdiction of those courts.
55.3
The submission to the jurisdiction of the courts of England and Wales does not limit the Authority's
right to take any Proceedings in any one or more jurisdictions, nor does the taking of Proceedings
by the Authority in any one or more jurisdictions preclude the Authority taking Proceedings in
another jurisdiction and to the extent permitted by applicable law.
EXECUTED by the Parties
AS A DEED on the first date in this Agreement.
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Schedule 1
DEFINITIONS
Accreditation Scheme
A scheme approved by the Secretary of State in accordance with-
(a) regulation 25 of the Energy Performance of Buildings (Certificates
and Inspections) (England and Wales) Regulations 2007; or
(b) regulation 17F of the Building Regulations 2000.
Achieve
in respect of any test, to successfully pass a test and, in respect of a
Milestone means completion of the event or task represented by the
Milestone, and
"Achieved" and
"Achievement" shall be construed
accordingly;
Advisory Report
A report issued by an energy assessor pursuant to regulation 19 of the
Energy Performance of Buildings (Certificates and Inspections)
(England and Wales) Regulations 2007;
Affiliate
in relation to a body corporate, any other entity which directly or
indirectly Controls, is Controlled by, or is under direct or indirect
common Control with, that body corporate from time to time;
Agreement
the body of this document together with its Recitals, Schedules,
Annexes and Appendices;
Audit Agent
• any internal and external auditors of the Authority;
• statutory or regulatory auditors of the Authority;
• the Comptroller and Auditor General, his staff and/or any appointed
representatives of the National Audit Office and/or the National
Audit Office for Wales;
• authorised successors to any of the above; and
• the
Review
Panel;
Authorised User
anyone that is authorised by regulations set out in paragraph 1 of
Schedule 2 (Service Requirement Specification) to access the Non
Domestic Energy Certificate Register. In some cases it can include
anonymous members of the general public who are authorised but not
registered;
Authority Cause
any breach by the Authority of any of the Authority’s express material
obligations (unless caused or contributed to by the Operator or as the
result of any act or omission by the Authority to which the Operator has
given its prior consent);
Authority Data
any information in whatever form which relates to the Scheme and
which is held by or on, entered into, generated or processed by or
retrievable from the systems (or any part thereof), established by the
Operator to administer the Scheme with or without modification
including, for the avoidance of doubt:-
•
all data contained in any report submitted to the Operator for
inclusion in the Scheme or generated by the Operator in the
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provision of the Services;
•
the Database(s);
Authority Personnel
employees, officers, consultants, contractors, agents and
representatives of the Authority;
Authority Software
software which is owned by or licensed to the Authority, including
software which may be used by the Operator for the purposes of
providing the Services, but excluding the Operator Software;
Authority Specific
material changes in Law which relate specifically to or affect the
Changes In Law
Authority and/or the Services but excluding any such changes in Law
which at the Effective Date could reasonably have been foreseen by an
experienced service provider of comparable services;
Authority Specific
material Changes in Standards which exclusively relate to or
Changes In Standards
exclusively affect the Authority and the Services but excluding any
such Changes In Standards which at the Effective Date could
reasonably have been foreseen by an experienced service provider of
comparable services with experience of both private and public sector
customers;
Baseline Financial
the Operator's initial financial model approved by the Authority (a
Model
summary of which is attached as an Annex to
Schedule 6 (Finance)).
Baseline Working
means the full Baseline Financial Model as agreed in writing by the
Model
Authority from time to time;
Breakage Costs
shall have the meaning ascribed to it in
Schedule 19 (Payment on
Termination);
CCN
has the meaning ascribed to it in
Schedule 7 (Change Control
Procedure);
Change
a change to the Services (whether or not requiring a change to this
Agreement) or a change to this Agreement;
Change Control
the change control procedure s
et out in Schedule 7 (Change Control
Procedure
Procedure);
Code
means the Lord Chancellor's code of practice on the management of
records issued under section 46 of FOIA;
Commercially
the information referred to in Clause 32 (Confidentiality) comprising the
Sensitive Information
information of a commercially sensitive nature relating to the Operator,
its IPR or its business or which the Operator has expressly indicated to
the Authority that, if disclosed by the Authority, would cause the
Operator significant commercial disadvantage or material financial loss;
Confidential
all information in any form (including without limitation all Personal
Information
Data) which is confidential in nature or which may reasonably be
regarded as such:
(i) whether or not that information is marked or designated as
confidential or proprietary;
(ii) whether or not disclosed by one Party to the other Party;
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(iii) whether arising prior to or during the Term; and
(iv) whether commercial, financial, technical or otherwise,
including all trade secrets, processes, plans, intentions, product
information, financial and other books, records, accounts, forecasts,
and analyses, technical data, know how, models, reports, drawings,
designs, specifications and schedules whether or not relating to the
Services together with all developments, modifications, additions,
alterations and amendments thereto, information relating to market
opportunities, transactions, business undertaken or to be undertaken
by the disclosing Party, information concerning that Party's customers,
clients, suppliers, holding companies and/or subsidiaries, made by
either Party in the course of performance of this Agreement together
with the terms of this Agreement and the content of negotiations which
preceded the entering into of this Agreement;
Contract Manager
the contract managers appointed by the Parties in accordance with
Clauses
10.3.2(b) and
10.3.5;
Contracting Authority
the meaning ascribed in Clause
46.2.1;
Contract Year
a period of twelve (12) months commencing on the Effective Date or
any anniversary thereof and ending on the day immediately preceding
the following anniversary of the Effective Date;
Control
(i) in relation to any business entity, the power of a person to secure (a)
by means of the holding of shares or the possession of voting power in
or in relation to that or any other entity; or (b) by virtue of any powers
conferred by the articles of association or other document regulating
that or any other business entity, that the affairs of the first-mentioned
business entity are conducted in accordance with that person’s wishes;
but
(ii) in relation to a partnership means the right to a share of more than
one half of the assets or income of the partnership,
(and “
Controls” and “
Controlled” shall be construed accordingly);
Correction Plan
the Operator's plan for the resolution of any non-conformities in any
Deliverable to be agreed in accordance with
Schedule 3 (Implementation);
Critical Services
the Services set out in Section 1 of the Technical Specification for
Delivery;
Crown
means Queen Elizabeth II and any successor;
Crown Body
any department, office or agency of the Crown;
Crown Servant
the meaning set out in section 12 of the Official Secrets Act 1989;
Data Controller
the meaning set out in section 1(1) of the DPA;
Data Processor
the meaning set out section 1(1) of the DPA;
Data Subject
the meaning set out in section 1(1) of the DPA;
Data Subject Request
a Subject Access Request or other request or objection received from
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a Data Subject under the DPA;
Database
any database or record whether in electronic or print form that contains
or incorporates the Authority's Data, including the rights in or to the
database developed and supplied by the Operator to the Authority in
accordance with this Agreement, and including the Non Domestic
Energy Certificate Register;
Deemed Material
a Default which entitles the Authority to terminate this Agreement or
Default
any of the Services in accordance with Clause
38 and so designated at
Paragraphs 4.10.2 and 7
of Schedule 4 (Performance Management),
Paragraph 9.1.2 of
Schedule 10 (Disaster Recovery) and Paragraph
2.2 of
Schedule 13 (Security);
Default
any breach of a Party’s obligations under this Agreement or any act or
omission, negligence or statement of either Party, its employees,
agents or sub-contractors or its sub-contractors' employees or agents
in connection with or in relation to this Agreement and in respect of
which such Party is liable to the other;
Default Notice
the meaning ascribed to it Paragraph 4.6 of
Schedule 4 (Performance
Management);
Delay
the period of time by which the implementation of the Services by
reference to the Implementation Plan is delayed arising from a failure
to Achieve a Milestone;
Deliverable
any output which may be procured, created, developed or modified by
or on behalf of the Operator during the performance of the Services,
whether solely or jointly by the Operator with others and including an
output which is required to be delivered by the Operator at a Milestone
Date;
Deposited Software
the Software set out in
Schedule 17 (Software), the Source Code of
which is to be placed in escrow;
Disaster
the meaning ascribed to it
in Schedule 10 (Disaster Recovery);
Disaster Recovery Plan
the meaning ascribed to it
in Schedule 10 (Disaster Recovery);
Disaster Recovery
the group of Services to be provided by the Operator in accordance
Services
with the Disaster Recovery Plan and
Schedule 10 (Disaster Recovery)
which may involve the provision of relevant Services by alternative
means and any other services required to restore the Services to
normal running;
Display Energy
a certificate which complies with regulation 17 of the Energy
Certificate
Performance of Buildings (Certificates and Inspections) (England and
Wales) Regulations 2007;
Dispute Resolution
the escalation and dispute resolution procedure set out in Clause
36;
Procedure
Documentation
descriptions of the Services and Service Levels, technical
specifications, user manuals, operating manuals, process definitions
and procedures, and all such other documentation as:
(a)
is required to be supplied by the Operator to the Authority
under this Agreement;
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(b)
is required by the Operator in order to provide the Services;
or
(c)
has been or shall be generated for the purpose of providing
the Services;
Domain Names
The domain names (to be agreed by the parties) purchased and
registered by the Operator on the Authority's behalf;
DPA
the Data Protection Act 1998;
EEA
the European Economic Area;
Effective Date
the date of this Agreement;
Eligible Expenditure
shall have the meaning ascribed to it in
Schedule 6 (Finance);
Energy Assessor
An individual who is a member of an accreditation scheme;
Energy Documents
includes Non Domestic Energy Performance Certificates,
recommendation reports, display energy certificates and advisory
reports;
Energy Model Input
the data entered into the energy model to produce one or more of the
Data
energy documents;
Enhanced Licence
the licence terms set out in Part 3 of
Schedule 17 (Software);
Terms
Environmental
the Environmental Information Regulations 2004 (as amended) and
Information
any successor(s) thereto;
Regulations
Escrow Agent
NCC Escrow International Limited, a wholly owned subsidiary of NCC
Group plc, or such other escrow agent as the Authority may nominate;
Exit Period
the period during which the Operator is required to comply with
obligations pursuant to the Exit Plan and/or
Schedule 8 (Exit Plan);
Exit Plan
the exit plan set out in and/or developed in accordance with
Schedule 8 (Exit Plan), as updated by the agreement of the Parties from time to
time;
Final Preparations
means the date one month before the Target Service Commencement
Commitment Date
Date;
Financial Model
the Baseline Financial Model or Re-baselined Financial Model (as the
case may be);
FOIA
the Freedom of Information Act 2000 and any subordinate legislation
made under this Act from time to time together with any guidance
and/or codes of practice;
Force Majeure Event
the meaning ascribed to it in Clause
41;
Good Industry Practice using standards, practices, methods and procedures conforming to
Law and exercising that degree of skill, care, diligence, prudence and
foresight which would reasonably and ordinarily be expected from a
skilled and experienced operator engaged in providing a similar type of
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service under the same or similar circumstances;
Government
the duly elected government for the time being during the reign of the
Crown and/or any department, committee, office, servant or officer of
such Government;
Hardware Order Date
means the date (to be agreed by the parties as soon as possible
following the Effective Date) referred to in paragraph
4.2 of
Schedule 7;
Impact Assessment
an assessment carried out by the Operator of the impact on the
Services following the submission of an RFC in accordance with the
Change Control Procedure;
Implementation Phase
the phase during which the Operator will deliver Implementation, being
the period from the Effective Date until the Service Commencement
Date;
Implementation Plan
the plan for the implementation of the Services to be provided by the
Operator as follows:
(a) Part A of the Implementation Plan (which covers the
implementation of the Services from 6 April 2008 to 31 October
2008) to be provided prior to the Effective Date; and
(b) Part B of the Implementation Plan (which covers the
implementation of the Services from 1 November 2008
onwards (the full solution)) to be provided two (2) months after
the Effective Date.
Implementation
the Services to be performed during the Implementation Phase as set
Services
out in the Implementation Plan;
Income
shall have the meaning ascribed to it in
Schedule 6 (Finance);
Indexed
the proportion by which the index published in Table 4.4 (excluding
mortgage interest payments) of Focus on Consumer Price Indices
published monthly by the Office of National Statistics (or, failing such
publication, or in the event of a fundamental change to the index, such
other index as is agreed or determined pursuant to the Dispute
Resolution Procedure) has increased over the most recent 12 month
period for which such index is available when the indexation is
performed;
Industry Stakeholders
means those industry stakeholders as advised by the Authority to the
Operator from time to time;
Information
the meaning ascribed to it in section 84 of FOIA;
Insolvency Event
the meaning ascribed to it in Clause
38.1.5;
Intellectual Property,
(a)
copyright, rights related to or affording protection similar to
Intellectual Property
copyright, rights in databases, patents and rights in inventions,
Rights or IPRs
semi-conductor topography rights, trade marks, rights in
Internet domain names and website addresses and other rights
in trade names, designs, Know-How, trade secrets and other
rights in Confidential Information;
(b)
applications for registration, and the right to apply for
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registration, for any of the rights listed at (a) that are capable of
being registered in any country or jurisdiction; and
(c) all other rights having equivalent or similar effect in any country
or jurisdiction;
IPR Claim
any claim of infringement or alleged infringement (including the
defence of such infringement or alleged infringement) of any IPR used
to provide the Services or as otherwise provided by the Operator (or to
which the Operator has provided access) to the Authority in the
fulfilment of its obligations;
Key Personnel
those people listed in the Annex to
Schedule 11 (Key Personnel);
Know How
all ideas, concepts, schemes, information, knowledge, techniques,
methodology, and anything else in the nature of know how relating to
the Services but excluding know how already in the Operator’s or the
Authority’s possession before this Agreement;
Law
•
any statute, enactment, order, regulation and other similar
instrument, by-law, obligation of the European Community,
ordinance or subordinate legislation in force from time to time to
which a Party is subject;
•
the common law and the law of equity as applicable to the Parties
from time to time;
•
any binding court order, judgment, decree or requirement;
•
any applicable industry code, policy or standard enforceable by
law; or
•
any applicable direction, guidance, policy, rule or order that is
binding on a Party and that is made or given by any regulatory
body (including without limitation the Financial Services Authority)
having jurisdiction over a Party or any of that Party’s assets,
resources or business, including but not limited to any local or
supranational agency, inspectorate, minister, ministry, official or
public or statutory person of the government of the United
Kingdom or of the National Assembly of Wales,
in any jurisdiction that is applicable to this Agreement;
Lodgement Fee
means the fees chargeable by the Operator to Accreditation Schemes
in respect of the successful lodging of a NDEPC or a Display Energy
Certificate;
Long-stop Date
in respect of a Milestone, the date falling one month after the relevant
Milestone Date;
Losses
any reasonably foreseeable loss, harm, damage, claims, demands,
costs, charges and liabilities of every description reasonably incurred
including legal expenses, disbursements and interest and for the
avoidance of doubt shall include:-
• additional operational and administrative costs and expenses
and the costs of engaging third parties);
• (in relation to the Authority) payment of compensation to a
third party and the Authority's expenses in settling such third
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party claim;
Management
the information to be provided to the Authority by the Operator in
Information
respect of the Services including in particular pursuant to
Schedule 5 (Management Information);
Material Sub-
a Sub-Contractor whose obligations under a contract with the Operator
Contractor
are valued in excess of
per annum or
which include the Processing of Personal Data or whose services
would be required in the event of a Disaster;
Milestone
an event or task described in the Implementation Plan which, if
applicable, must be completed by the relevant Milestone Date;
Milestone Achievement the meaning ascribed to it
in Schedule 3 (Implementation);
Certificate
Milestone Date
the date set against the relevant Milestone in the Implementation Plan;
Non Domestic Energy
a certificate relating to a building used for non-domestic purposes
Performance
which complies with-
Certificate or NDEPC
(a) regulation 11(1) of the Energy Performance of Buildings
(Certificates and Inspections) (England and Wales) Regulations 2007;
or
(b) regulation 17E of the Building Regulations 2000;
NDEPC Register
the central archive and associated services as set out in the Regulatory
Framework for Energy Documents and data that was collected to
produce them;
NDPB Non-Departmental
Public
Body;
New Operator
any service provider that the Authority appoints for any reason to
undertake services that replace the Services (or any part of them)
when they are no longer provided under the terms of this Agreement;
Non-conformance
a report including detail of the reasons of any non-conformities in
Report
respect of any Milestone;
Operational Day
any day in an Operational Week;
Operational Hours
0600-2200 on an Operational Day;
Operational Phase
the phase in which the Operator will deliver the Operational Services
and commencing from the Service Commencement Date;
Operational Services
the Services to be provided during the Operational Phase by the
Operator to meet the Service Requirement Specification;
Operational Week
Monday to Saturday (inclusive);
Operational Year
a period of twelve (12) months commencing on the Service
Commencement Date or any anniversary thereof and ending on the
day immediately preceding the following anniversary of the Service
Commencement Date;
Operator's Background (a) Intellectual Property owned by the Operator before the Effective
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IPRs
Date, for example those subsisting in the Operator 's standard
development tools, program components or standard code used in
computer programming or in physical or electronic media
containing the Operator's Know-How or generic business
methodologies; and/or
(b) Intellectual Property created by the Operator independently of this
Agreement,
but excluding Intellectual Property owned by the Operator subsisting in
the Operator Software;
Operator Software
software which is proprietary to the Operator, including software which
is or will be used by the Operator for the purposes of providing the
Services;
Original Expiry Date
the meaning ascribed to it in Clause
2.1.1;
Other Services
the Services set out in Section 8 o
f Schedule 2 (Service Requirement
Specification);
Parties
the parties to this Agreement which as at the Effective Date shall mean
the Authority and the Operator and
"Party" shall be construed
accordingly;
Personal Data
Authority Data which is personal data that falls within the definition of
"data" in section 1(1) of the DPA;
Processing
the meaning set out in section 1(1) of the DPA and "
Process" and
"
Processes" shall be construed accordingly;
Projected Revenues
means the revenues projected by the Baseline Financial Model or Re-
baselined Financial Model (as the case may be);
Project Specific IPRs
(a)
Intellectual Property Rights in items created by the Operator (or
by a third party on behalf of the Operator) specifically for the
purposes of this Agreement, and updates and amendments of
these items;
(b)
Intellectual Property Rights arising as a result of the
performance of the Operator's obligations under this
Agreement; and/or
(c)
any branding and Domain Names used in connection with the
Services and/or Scheme both now and in the future
but which shall not include the Operator's Background IPRs or the
Specially Written Software;
Re-baselined Financial the Operator's approved financial model following Review which shall
Model
take place every third anniversary of the Service Commencement
Date;
Recommendation
The recommendation report required by regulation 10 of the Energy
Report
Performance of Buildings (Certificates and Inspections)(England and
Wales) Regulation 2007 and includes a report issued by an energy
assessor for the purposes of regulation 17E(4) of the Building
Regulations 2000 or regulation 12(4) of the Building (Approved
Inspectors etc) Regulations 2000;
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Registered Users
users who are pre-registered and authenticated by Non Domestic
Energy Certificate Register;
Regular Report
a report compiled by the Operator in a form specified by the Authority
but as a minimum containing the information specified i
n Schedule 5 (Performance Management) and
Schedule 6 (Finance);
Remediation Plan
a plan to be provided by the Operator in accordance with paragraph
4.1 of Schedule 5 (Performance Management) to address failure to
achieve a Service Level;
Replacement Services
services provided by the Authority and/or a New Operator which
replace all or part of the Services upon expiry or termination of this
Agreement and/or any Services;
Request for
a request for information or an apparent request for information under
Information
FOIA and/or the Environmental Information Regulations;
Review
the review conducted pursuant to the Review Process;
Review Panel
the panel appointed to carry out the Review;
Review Process
the process set out in Schedule 16 (Review Process);
Revised Milestone Date any revised date which is set for the Achievement of a Milestone;
RFC
a request for a Change served by either Party in accordance with
Schedule 7 (Change Control Procedure);
Scheme
the meaning ascribed to it in Recital A;
Secretary of State
the Secretary of State for Communities and Local Government acting
on behalf of the Department for Communities and Local Government;
Service
the date upon which the Operator successfully achieves all Milestones
Commencement Date
set out in
Schedule 3 (Implementation) appropriate to the relevant
Service(s);
Service Credits
the service credits set out in the Annex to
Schedule 4 (Performance
Management);
Service Levels
the service levels required by the Authority and agreed by the Operator
as set out in
Schedule 4 (Performance Management) or as otherwise
agreed in accordance with the Change Control Procedure;
Service Rectification
the meaning ascribed to it in paragraph
4.7 of Schedule 4
Plan
(Performance Management);
Service Supervisor
the Operator's service supervisor appointed in accordance with Clause
10.3.2(a);
Services
the Implementation Services and the Operational Services;
Service Requirement the specification set
out in Schedule 2 (Service Requirement
Specification
Specification);
Software
Specially Written Software, Operator Software and Third Party
Software as listed in Part 1 of
Schedule 17 (Software);
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Source Code
computer programs and/or data in eye-readable form and in such form
that it can be compiled or interpreted into equivalent binary code
together with all technical information and documentation necessary to
enable a person reasonably skilled in the art to use, reproduce, modify
and enhance such software;
Staff
all persons employed by the Operator for the purpose of this
Agreement, including without limitation, its employees (including any
Key Personnel), agents, consultants, representatives and Sub-
Contractors and any and all of the Sub-Contractor's employees, agents
and representatives engaged under this Agreement;
Standard
any protocol, standard, policy, code, direction, order or principle to be
complied with by the Operator under this Agreement including those
set out in Schedule 12 (Policies and Standards);
Standard Licence
the licence terms set out in Part 2 of
Schedule 17 (Software);
Terms
Sub-Contract
means any contract or agreement or proposed contract or agreement
between the Operator and any third party whereby that third party
agrees to provide to the Operator the Services or any part thereof or
facilities or services necessary for the provision of the Services or any
part thereof or necessary for the management, direction or control of
the Services or any part thereof. For the avoidance of doubt the term
"Sub-Contract" shall not be regarded as including any contract or
agreement between the Operator and any third party for the provision
of equipment, facilities or services necessary for the general discharge
of the Operator's business otherwise unrelated to the provision of the
Services;
Sub-Contractor
a third party directly or indirectly contracted to Operator (including any
Material Sub-Contractor) whose services and/or goods are used by the
Operator within the Services;
Subject Access
a request by a Data Subject under section 7 of the DPA;
Request
Target Service
(a) for Non Domestic Energy Performance Certificates, 6 April 2008;
Commencement Date
and
(b) for Display Energy Performance Certificates, 6 April 2008;
Technical Specification has the meaning set out in Clause
5.2.1(b);
for Delivery
Term
the period from the Effective Date to the date on which this Agreement
(as such may be extended) expires or terminates for any reason;
Termination Payment
the payment made in the event of termination for convenience by the
Authority pursuant to Clause 38.2 and calculated in accordance with
Schedule 19 (Payment on Termination);
Third Party Software
software which is proprietary to any third party other than an Affiliate of
the Operator, including the software specified as such in Part 1 of
Schedule 17 (Software);
Transactions
means the number of transactions in respect of any Critical Service set
out in
Schedule 2 (Service Requirement Specification);
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Unauthorised User
any user who is not registered to access the Non Domestic Energy
Certificate Register;
Unrecovered Costs
shall have the meaning ascribed to it in
Schedule 19 (Payment on
Termination);
Use
(a)
with respect to the Standard Licence Terms, the right to load,
execute, store, transmit, display and copy (for the purposes of
loading, execution, storage, transmission or display) that
Software;
(b)
with respect to the Enhanced Licence Terms for Software, the
right to load, execute, store, transmit, display, copy (for the
purposes of loading, execution, storage, transmission or
display), modify, adapt, enhance, reverse compile, decode,
translate, or otherwise utilise that Software; and
(c)
with respect to the Enhanced Licence Terms for Project
Specific IPR other than Software, the right to copy, adapt,
publish (including on the ICT Environment), distribute or
otherwise use any other Project Specific IPR;
Value for Money
the optimum combination of whole-life cost and quality (or fitness for
purpose) to deliver the Services and to meet the Service Requirement
Specification;
Working Day
Monday-Friday inclusive but excluding public and bank holidays in
England and Wales;
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Schedule 2
SERVICE REQUIREMENT SPECIFICATION
•
NON DOMESTIC REGISTER & ASSOCIATED SERVICES
(Procurement Reference:
)
Services Requirements Specification
Table of Contents
Glossary & Acronyms
PART A – SETTING THE SCENE
1. Introduction
2. Background
3. Organisational
View
4. Summary
of
the
Requirement
4.1
Goals
4.2
Objectives
4.3
Success
factors
4.4
Benefits
4.5
Scope
4.5.1
In
Scope
4.5.2
Assumptions
PART B – REQUIREMENTS
5. Core
Requirements
6. NON-FUNCTIONAL
Requirements
7. Constraints
8.
Possible Additions and Variations to Core Requirements
CECR ISOP
Page
i i
Services Requirement Specification
Version 1.1 7 February 2008
Glossary & Acronyms
The Glossary contains the terms and acronyms used within this document whose definitions and
meanings are defined elsewhere.
Term
Meaning
Accreditation
An organisation responsible for accrediting that an Energy Assessor is qualified, “fit
Scheme (AS)
& proper” and insured to carry out an energy assessment and generate Energy
Documents.
Advisory Report
Produced by the Energy Assessor and provides recommendations for improvement
(AR)
of the energy performance of larger public buildings. It is associated with the
Display Energy Certificate. However, whereas the Display Energy Certificate is
produced annually, the Advisory Report has a validity of seven years.
Non Domestic
Central Archive of all registered (i.e. authentic) NDEPCs, DECs, Recommendation
Register (NDR)
Reports, Advisory Reports and Model Data.
Non Domestic
The organisation managing the Non Domestic Energy Certificate Register and
Register Operator providing associated services on behalf of CLG. The subject of this document.
(NDR Operator)
Non Domestic
The Energy Performance of Buildings Regulations requires that a valid Non
Energy Performance Domestic Energy Performance Certificate be produced for all non-dwellings on
Certificate
construction, sale or rent. It provides a rating of the energy performance of the
building. It has a lifetime of 10 years unless a new Non Domestic Energy
(NDEPC)
Performance Certificate is obtained.
Database of Record In a distributed and replicated environment the Database of Record is the
repository designated as the definitive copy of data that is regarded as authoritative
in the case where any doubt is expressed over the authenticity of the data. It is also
the point from which any replicated copies can be restored from.
Display Energy
The Energy Performance of Buildings Regulations requires that a valid Display
Certificate (DEC)
Energy Performance Certificate be displayed in larger public buildings which
highlight the energy performance of the building. The Certificate has a validity
period of 12 months and a new Certificate needs to be produced and lodged
annually.
Energy Assessor
A person that has been accredited by an Accreditation Scheme as being able to
(EA)
carry out an energy assessment.
Energy Documents
Energy Documents are made up of the Domestic Energy Performance Certificate,
Display Energy Certificate, Recommendation Report and Advisory Report.
Functional Role
A named group of users that perform a set role within a given environment with
responsibility for carrying out a pre-defined set of operations.
Lodgement
For DECs a lodgement is either:
a. A certificate and Advisory Report and associated data, or
b. A certificate and associated data.
For EPCs a lodgement is the certificate, Recommendation Report and all
associated data.
Model Data
Covers both the input data to the calculation tools and the output data used to
prepare the Energy Documents.
Recommendation
Produced by the Energy Assessor and provides recommendations for improvement
Report (RR)
of the energy performance of buildings. It always accompanies a Non Domestic
Energy Performance Certificate and has a lifetime of 10 years unless a new Non
Domestic Energy Performance Certificate is obtained.
Registered User
A known user that needs to be pre-registered to perform a particular Functional
Role and can invoke the restricted services authorised for that role.
Report Reference
Every document that is lodged should have a unique report reference number. The
Number (RRN)
same number should be used for NDEPCs and RRs issued together. DECs and
ARs should have separate reference numbers. The Report reference number
generated by the NDR should be unique and distinct from that used by the HCR
Register operated by Landmark to avoid the risk of any duplication of RRN’s across
the NDR and the HCR Register.
Unique Property
Unique Property Reference Number that uniquely identifies every usable property
Reference Number that is not a dwelling in England & Wales. This includes floors within a building,
(UPRN)
multiple buildings on shared land etc. The UPRN is generated by the NDR.
Unregistered User
Any anonymous consumer such as the Property Seller, Landlords, potential
Property Buyer who can access Energy Documents through providing the Report
Reference Number and without have to pre-register their identity or be
authenticated. They can also access any document of the same kind relating to the
same UPRN as the requested document, which was registered at any time during
the period of 10 years ending on the date of the request
Acronym
Meaning
AR Advisory
Report
AS Accreditation
Scheme
NDR Non
Domestic
Register
NDEPC
Non Domestic Energy Performance Certificate
CIP
Central Information Point
CLG Communities
and
Local
Government
DEC Display
Energy
Certificate
EA Energy
Assessor
HCR
Home Condition Report
PDF
Portable Document Format
RR Recommendation
Report
RRN
Report Reference Number
UPRN
Unique Property Reference Number
URL
Universal Resource Locator
XML
Extensible Mark-up Language
XSD
XML Schema Definition
PART A – SETTING THE SCENE
1. Introduction
The purpose of the Output based specification for the NDR system is:
1. To identify and document the high level business requirements that will enable
Communities and Local Government (CLG) to meet its objectives and fulfil the key
requirements of the Energy Performance of Buildings (England and Wales) Regulations
2007. These requirements have been split into a set of core requirements and those that
are possible additions or opportunities.
2. To provide potential IT software suppliers/operators with sufficient information for tendering
process with respect to the IT system specifications and technical standards.
The NDR will maintain one or more electronic registers (‘archives’) of Energy Documents for non-
dwellings and larger public buildings.
2. Background
The Energy Performance of Buildings Regulations 2007 has been introduced in England and
Wales to help implement the EC Energy Performance of Buildings Directive.
Two key requirements in these Regulations are as follows.
- From
6th April 2008, all non-dwellings on construction, sale and rent will require a Non
Domestic Energy Performance Certificate (NDEPC) and a Recommendation Report (RR).
This information will help owners and occupiers make their building more energy efficient
and allow potential buyers and tenants to compare the energy performance of different
buildings.
- By
30th September 2008 all larger public buildings will require an annual Display Energy
Certificate (DEC) highlighting their energy performance. This is to be displayed prominently
in a place visible to the public. These buildings will also require an Advisory Report (AR)
providing recommendations for energy improvements each seven years.
All energy assessments will be undertaken by EAs. These EAs will need to be members of an
approved Accreditation Scheme.
A copy of all the Energy Documents will be maintained on one or more central registers. Whenever
an EA issues any of these documents, they must ensure that it, and the data that was entered into
the energy model to produce it, is entered onto the relevant register. This will be done either
through the Accreditation Scheme or directly into the central registers by the EA.
The central registers have a number of key uses, including:
(i)
ensure the authenticity of the Energy Certificate, so that it can and will be trusted by
those entitled to rely on it, i.e. buyers and tenants as well as the owner or landlord who
procures it,
(ii)
generate energy benchmarks for future Energy Documents
(iii)
aid enforcement agencies in carrying out their duties
(iv)
help monitor implementation of the Regulations, and
(v)
inform development of Government policy.
The Department is following a procurement process to appoint a contractor to provide an IT
system’
1
Maintaining one or more electronic registers (‘archives’) of Energy Documents which
comprise: (i) NDEPCs and Recommendation Reports for non-dwellings, (ii) DECs for
larger public buildings, and (iii) advisory reports for larger public buildings. The register(s)
will also include the Model Data input to the calculation tools that prepare these Energy
Documents and the output that the model produces.
2
Providing services to enable the identification of EAs and acquisition and downloading of
the Energy Documents and Model Data to and from the Register(s).
3. Organisational
View
Numerous organisations will be involved, either directly or indirectly, in providing the key
functionality described required for the Non Domestic Energy Performance Scheme. Below is a
pictorial representation of the organisation level view:
The following five bodies who are involved are:
Communities and Local Government
The Secretary of State will approve Accreditation Scheme(s) against the Criteria and Standards
documentation. These standards govern EAs, Accreditation Schemes and Energy Documentation.
CLG will review and approve any operational changes to the system. CLG are also responsible for
setting the lodgement fee to be charged.
Accreditation Schemes
Accreditation Schemes will be required to comply with all the conditions attached to their approval,
including the Criteria and the Standards.
Accreditation Schemes will be required to carry out certain primary functions in accordance with the
Standards which define minimum acceptable levels of operation, performance data and associated
quality management that is required by CLG together with those areas of required co-operation
with other Accreditation Schemes.
NDR Operator
The NDR Operator will be procured by CLG. The Register will deal with non-domestic and public
buildings initially. It will be responsible for providing and maintaining a central ‘archive’ for all EA
generated Energy Documents and Model Data. The NDR will also hold EA accreditation data for
search purposes and financial information in respect of lodgement fees and possibly subscription
fees.
Industry Working Group
The role of this body would solely be to provide independent expert advice to CLG and it has no
executive powers. Its purpose would be to advise CLG on the ongoing suitability of the Standards,
recommending changes where necessary, and also advising on issues relating to performance of
Accreditation Schemes and technical issues.
Technical Working Group
The Technical Working group would feed into the Industry Working Body to provide independent
expert advice on technical standards, software and methodologies.
4.
Summary of the Requirement
This section summarises the expected benefits expected and defines the procurement scope
including the core elements (What must be provided), optional extensions or opportunities (What
we would consider in addition to the above) and any exclusions (What we will not consider).
4.1 Goals
The goal is to support the implementation of the Energy Performance of Buildings Regulations
2007 by an automated register to provide a way of effectively managing the Energy Documents
and associated energy Model Data and provides a basis for the analysis of this data for purposes
including establishing benchmarks, aiding and monitoring implementation of the Regulations and
informing Government policy.
4.2 Objectives:
There are two key objectives:
1. Ensure that an effective NDR operation is a fully functional component of the
implementation of the mandatory Non Domestic Energy Performance Certificate scheme
by the 6th April 2008
2. Ensure that an effective NDR operation is a fully functional component of the
implementation of the mandatory Display Energy Certificate scheme by the 30th September
2008
4.3 Success
factors
1. Implementation of system according to delivery schedule specified
2. Reliability, continuity of service offered to the Accreditation Schemes and other parties
3. The successful integration of CLG approved energy software with the NDR
4. Consumers are able to trust the NDR i.e. have integrity and authenticity of the data and
services it provides.
5. The NDR can be used to uphold the Energy Performance of Buildings Regulations.
6. The NDR can be amended or extended in the future
4.4 Benefits
Establishing a NDR will achieve the following:
1. Ease of management and associated low cost – Electronically lodged documents are
simpler to administer, audit, and are lower cost than paper based alternatives. Any paper
based alternative will be more expensive, complex to administer and more open to fraud.
2. Verification – Each document is to be lodged in a secure register by the Accreditation
Scheme to which the EA who produced it accredited by. It also provides a simple method
of verification at a later stage if any concerns about it authenticity of an Energy Document
was raised.
3. Energy Assessors – Aid the assessors in carrying out their duties by providing details from
previous assessments to use in current assessment
4. Accreditation Schemes – Aid the schemes in carrying out their duties. This may include
quality control of their members
5. Enforcement bodies – Aid the bodies in carrying out their duties. This includes reviewing
whether Energy Documents have been produced and lodged for buildings on construction,
sale and rent.
6. Benchmarking – the energy ratings on the NDEPCs and DECs can be used to provide
better benchmarks in future NDEPCs and DECs. Given the volumes, only a system
supporting electronic storage would allow subsequent data analysis by CLG (or a
contracted third-party) to determine benchmarks.
7. Government implementation of regulations and informing policy – CLG analysis of energy
information within the electronically stored documents can enable it to monitor the
application and enforcement of, and compliance with, the duties imposed by the Energy
Performance of Buildings Regulations. CLG can also use this information for research and
statistical purposes, for example to develop Government policy on energy issues.
4.5 Scope
4.5.1 In
Scope
In scope for the NDR are the following:
• Lodgement of Energy Documents and Model Data by Accreditation Scheme
• Retrieval of current and historical Energy Documents by unregistered users
• Retrieval of Energy Documents and Model Data by registered users
• The invoicing of financial charges i.e. subscription (for data extracts, reporting and
lodgement fees (for energy assessments)
• Lookup of active EAs
• Infrastructure e.g. secure communications network providing access to database and
system facilities
• Provision of a security model to protect the integrity of data and access to valid users
• Disaster recovery and business continuity
• All aspects of delivery and services which include development, testing, implementation &
maintenance
• Multi language capability to support Welsh & English
• Data Requirements required to support functionality:
• EA
Registration
data
• Energy Documents – in PDF format
• Energy Assessment data (non domestic and public buildings), including model
input and output data.
• Financial Information in respect of lodgement fees & subscription fees (possible
future requirement)
• Accreditation Scheme data used to verify any Energy Documents lodgement made
by an Accreditation Scheme
• Interfaces to third parties, i.e. CLG approved Non Domestic energy software
• Non Domestic energy software testing facility - to allow providers of Non Domestic energy
software to test and apply for software approval.
• Transitional NDR to store DECs, ARs and Model Data before delivery of the final NDR.
The transitional NDR data will be migrated to the final NDR by the NDR Operator.
4.5.2 Assumptions
• No charge will need to be collected for use of EA lookups or retrieval of current or historical
Energy Documents or energy assessment data.
• Any functionality that is only to be provided to the EA for them to interact with the
Accreditation Scheme and support their processes is out of scope.
• No changes can be made to a report once lodged. However the status of a
certificate/report may change throughout its lifetime.
• The HCR Register operated by Landmark and the NDR will have separate UPRN, property
and address databases
PART B – REQUIREMENTS
This section contains functional and non-functional requirements (not specifications) of the main business services and responsibilities that the CECR
Operator is expected to provide on behalf of the CLG to the marketplace.
5. Core
Requirements
The following is a list of mandatory functional requirements. Any tender should reflect understanding and demonstrate wherever appropriate how any
proposed solutions will fulfil these requirements:
Ref
Requirement
Requirement Outline
Non-Functional Requirements
Type
R01 Functional
Request Unique Property Reference Number
Availability: Very High (99.99%)
Response: < 30 seconds (24 hours
The EA must request a UPRN directly from the NDR through the Accreditation Scheme or directly from for new UPRNs)
the NDR before any Energy Documents and Model Data can be lodged. The UPRN can be obtained
on a complete or partial address to identify the Property that the Energy Documents relate to.
See also transactional volumes &
The facilities available for searching are dependent on the underlying data-set that is licensed. From a data consistency no-functional
successful search the UPRN that uniquely identifies the Property of interest is returned or a request to requirements
add a “Missing” Address is raised.
The UPRN is a unique identifier that identifies every usable property in England and Wales including
sub-buildings and sublets within a building. The UPRN generated by the NDR should be unique and
distinct from that used by the HCR Register operated by Landmark to avoid the risk of any duplication
Security: CLG approved Non
of UPRNs across the NDR and the HCR Register. The UPRN generated by the NDR is not in anyway
Domestic energy software or EA
related to that used by the Royal Mail or Ordnance Survey.
A building subdivided in several parts will have separate UPRNs. This division will depend on several
criteria, which as still being finalised, but are likely to include criteria such as the functional use of the
space (e.g. if a building has both office and retail space, separate NDEPCs will be required for each
space) and whether the energy supplied to the space is under the direct control of the occupier (e.g. if
retail shops each had individually heating, ventilation and air-conditioning (HVAC) systems they would
each require a separate EPC whereas if there was a common HVAC system they would require a
single EPC). The energy assessor and accreditation scheme will know whether a separate part
requires its own UPRN and energy certificate.
A property in Wales has both an English and Welsh Address and when producing a certificate or
report in those languages the EA should consistently use the correct address in the relevant language.
The NDR will be responsible for:
(a)
providing a facility to authorised users to search for an existing UPRN and request a new one
if necessary;
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(b)
creating a new UPRN (if necessary) and returning the new UPRN to the requesting user.
R02 Functional
Submit and lodge Energy Documents and Model Data
Availability: Very High (99.99%)
The EA will be able to lodge Energy Documents and the Model Data via the Accreditation Schemes
Response: < 1 minute during
operational window or before the
Only EAs who are registered with an Accreditation Scheme will be able to submit and lodge Energy
start of business the next day if
Documents via an Accreditation Scheme. The NDR must authenticate that the EA is indeed an active
invoked outside the operational
Member at the time of submission. There should also be data integrity checks made before any
window e.g. overnight batch
lodgement is made.
process. This is to allow for
Once a lodgement takes place it cannot be modified in anyway except for a change of status. Any
overnight maintenance outages for
lodgement process must not obstruct or delay the work of the EA.
housekeeping tasks.
Security: CLG approved Non
Accreditation Schemes will lodge Energy Certificates and Reports in PDF as well as the
Domestic energy software or EA
accompanying Input and Output Model data into the NDR. It can be assumed that these PDFs are
correct therefore no validation need take place. The onus will be on the Accreditation Scheme to
See also transactional volumes &
correctly lodge the Energy Documents against the correct UPRN that was requested.
data consistency no-functional
requirements
The Model Data will be received in XML and will also be stored in the NDR.
NDEPC and RR reports are normally submitted together. However the DEC may be submitted
An internal technical problem such
separately from the Advisory Report. The NDR will allow flexibility in what order and combinations of
as transaction failure must not be a
documents and Model Data can be sent.
reason to fail a lodgement of data.
The NDR will also be able to collect record & process a lodgement fee, payable by the Accreditation
Scheme.
The NDR will therefore be responsible for receiving, authenticating, initial validation, collection of the
lodgement fee and the lodgement of the Energy Documents and Model Data and finally the response
back to the Accreditation Scheme.
R03 Functional
Change in status of Energy Documents and Model Data
Availability: Very High (99.99%)
The Accreditation Scheme will be able to change the status of any of the earlier lodgements of Energy
Response: < 1 minute
Documents made by an EA. An EA cannot request a change of status direct to the NDR.
Transaction Volumes: 0.1% of Total
Energy Assessments will need to
The status of an Energy Document and Model Data may change during its lifecycle to indicate the
go through a change of status.
usability and reliability of the Energy Documents in certain scenarios. In all of these cases it is
Security: CLG approved Non
necessary to update the status of an Energy Document recorded in the NDR. Any document must
Domestic energy software.
never be removed from the NDR once it is lodged but can be archived as historical data.
Once lodged, the status of the Energy Documents and Model Data can only be altered with the
approval from the Accreditation Scheme. Consequently all requests, whether made directly to the
See also transactional volumes &
Accreditation Scheme or via its Complaints & Disciplinary Body, will be sent to the NDR Operator by
data consistency no-functional
the Accreditation Scheme that accredited the EA who undertook the original energy assessment and
requirements
lodged the document.
The NDR will therefore be responsible receiving the change request, authenticating, initial validation,
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changing the status and sending the response back to the Accreditation Scheme.
R04 Functional
Retrieve and view Energy Documents & Model Data
Response: < 30 seconds
Unregistered users with the RRN can request the Energy Documents directly from the NDR. They are
Availability: 99.99% , Very High
also entitled to any document of the same kind relating to the same UPRN as the requested
document, which was registered at any time during the period of 10 years ending on the date of the
Security: Unregistered and
request.
registered users to functionality as
described.
EAs or Accreditation Schemes should be able to access information (by RRN or UPRN) from the
previous years Energy Documents for use in current energy assessments for example automatic pre-
See also transactional volumes &
fill basic building data in an assessment which can then be changed if necessary or use previous
data consistency no-functional
years’ energy readings. There is no time limit i.e. if the document is on the register it should be
requirements
accessible.
Registered users such as Enforcement bodies should also be able to search by address (street name,
postcode etc) and EA as well as the RRN. There is no time limit i.e. if the document is on the register it
should be accessible.
It is expected that a majority of the requests will come directly from unregistered users i.e. potential
purchasers or tenants and therefore an online web portal must be made available to service these
transaction requests.
Any retrieval request must be subject to acceptance of the terms and conditions before the request
can be satisfied.
The NDR will authenticate and service any request to retrieve and display the appropriate NDEPC,
DEC, RR, AR.
R05 Functional
Lookup of Energy Assessor
Response: < 15 seconds (incl.
Anybody who needs to find and/or authenticate an EA must be able to lookup an EA in the NDR using
Internet requests) assuming 1 Mb
one or more of the following search criteria Accreditation Number, Name (Full or partial) and Assessor
Internet connection
Type. In the search results the NDR should then show the EA’s Accreditation Number, Full Name and
Availability: Very High (99.99%)
Assessor type. Only active EA’s will be returned in the results.
Security: No restrictions
It is expected that a majority of the requests will come directly from potential landlords or owners and
therefore an online web portal must be made available to service these transaction requests as well as
those originating from the Accreditation Scheme.
The data in the lookup facility will also be used to validate a lodgement request i.e. any lodgement
request must have been submitted by an active accredited EA
The NDR will be responsible for keeping an up to date index of EAs which will be supplied by each of
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the Accreditation Schemes and providing this lookup facility which will return the Assessor details and
additional information including status.
R06 Functional
Update Energy Assessor Index
Response: Changes effected by
The Accreditation Schemes will be responsible for supplying the central NDR with an updated list of
before next day
EAs within their Scheme on a frequent basis.
Availability: Very High (99.99%)
The content of the EA Index needs to be accurate and complete and reflect the state of all EAs Updates to index time to
provided by the Accreditation Schemes as at the close of business the previous day. The assumption time…small percentage subject to
is that a newly accredited EA would not be performing inspections on the day that they become change 1- 3% of reports lodged.
accredited because the details of their accreditation would be in the post (or whatever delivery
mechanism is used to courier it to them).
Security: Accreditation Schemes
only
All changes to EAs will be effective by the next day.
The NDR will be responsible for keeping an up to date index of EAs which will be supplied by each of
the Accreditation Schemes and providing this lookup facility.
R07 Transitional
Accept DECs, ARs and Model data before delivery of the NDR
10,000 – 20,000 DECs and ARs to
NDR
be collected in the period 1st Feb
Some Accreditation Schemes and EAs will wish to submit DECs, ARs and Model Data before the
2008 to 7th March 2008
delivery of the final NDR. A transitional NDR of accepting DECs, ARs and the Model Data must be in
place by
6th April 2008.
The data collated must be received from an Accreditation Scheme or EA and stored in a suitable
repository so that it can be migrated to the final NDR. Once the data migration has been successful
the transitional NDR can be disabled.
Minimum requirements for a transitional NDR are listed in the BaFO documentation.
R08 Reporting
/
Produce regular data extracts and reporting to CLG
Any data extract or report should be
Data Extract
CLG will require regular and periodic updates to a CLG data repository so that management reporting
implemented as a backend batch
and data analysis can be carried out.
process outside the NDR
operational window to allow off
The data extract should extract all NDR data contents and there may be some selection,
peak processing. Therefore the
summarisation, sorting, and grouping of the data that needs to be applied. Any data must also be
data extract or report should
depersonalised.
successfully complete its
Regular reports will be required to monitor and aid the implementation of the Energy Performance of
processing before the start of the
Buildings Regulations and help reporting to the EC.
operational window.
Typical MI Requirements for the 6th April 08 are to answer the following queries:
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• how many EAs are registered as "active" for each Scheme and for each strand (Non Domestic
3, 4, 5 and DEC)
• how many EAs are registered as status other than "active" for each scheme and for each
strand (Non Domestic 3, 4, 5 and DEC)
• what has been lodged by Assessor, Scheme and strand (including details on assessment
software used, which is a field in the output data - e.g. SBEM)
• what lodgment failures have occurred by Assessor, Scheme and strand (including details on
assessment software used, which is a field in the output data - e.g. SBEM)
R09 Central
Provision of CIBSE & Degree Day data from a Central Information Point
Response is <30 seconds
Information
Availability: Very High (99.99%)
Point
CLG may require the NDR Operator to design, host, run and on a monthly basis update a DEC and
AR Central Information Point (CIP).
Security: Registered users only.
The CIP will hold information used by the Operational Rating calculation software and the AR
generation software. The CIP will allow real time, automatic access to the information held by multiple
software as well as providing a web-based interface for conventional website type access
The information to be held on the CIP will include:
• The CIBSE benchmarks tables. The benchmarks tables hold basic benchmark data. Five
years historical CIBSE data will be required to be kept as a minimum. This is required to
produce a DEC. As a guide there will be approximately 10Mb of raw data. On go live up to two
yrs CIBSE data will be available with a rolling five years worth of data, when available,
thereafter
• The degree days data. Note that this will be an expanding database of information as data will
be added regularly (monthly). Five years historical Degree data will be required to be kept as a
minimum. This is required to produce a DEC. As a guide there will be approximately 10Mb of
raw data. On go live two yrs degree data will be available with a rolling five years worth of
data, when available, thereafter
• The CO2 emission factors
• The approved area conversion factors
• The database of energy improvement measures to be used for the generation of Advisory
Reports
• Any other information as specified by CLG
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The NDR Operator will be require:
• To obtain standard degree day data. This may require entering into contract with a service
provider.
The provision of Degree and CIBSE data is required by the Accreditation Schemes to enable their
Software to operate. The Accreditation Scheme will be able to request this data directly from the CIP
on an ad hoc basis.
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6. NON-FUNCTIONAL
Requirements
This section covers the mandatory non-functional requirements for the NDR. Any tender should reflect an understanding and demonstrate wherever
appropriate how any proposed solutions will fulfil these requirements.
Ref
Requirement
Requirements Outline
type
N01 Integrity
The consumer must be able to trust the Register and have confidence in its integrity & authenticity.
The Register will be the Database of Record for all Energy Assessments and in the event of dispute provides the definitive statement
regarding the actual Energy Document that was produced and lodged along with the Model Data that was used to produce that Energy
Document.
Therefore the Operator must ensure that the Register:
• maintains its internal integrity
• be safeguarded from any unauthorised tampering.
• protected from both internal and external threats.
• reduce any risks of fraud and abuse that may take place across the end to end process.
N02 Data
Due to the highly distributed nature of the marketplace there is a significant issue with enforcing consistency across the entire marketplace. A
Consistency
particular area where consistency is essential is in the identification and addressing of each Property being reported on. A shared central
database of Property & Address details is the most obvious way of achieving consistency both cost effectively and in the required timescales.
Some scenarios where consistency is required are:
•
A Property may have a number of different addresses associated with it in addition to the primary or “official” address for
example the street may have more than one name or the owner decided to give the house a name or a building has been
sublet by units or floors. In order to maintain consistency it is essential that all Energy Documents relating to a property
consistently have the same correct address shown
•
Over time the identifying characteristics of a Property can change e.g. a Royal Mail Postcode reorganization may result in a
postcode change for the Property therefore the address of the Property is not sufficient
•
A Property in Wales has both an English and a Welsh Address and when producing Energy Documents in one of those
languages the EA should consistently use the correct address in the relevant language.
It is the up to NDR Operator to select appropriate data-sets or service providers – such as Ordnance Survey Addresspoint, Royal Mail Postal
Address File (PAF), National Land & Property Gazetteer (NLPG) or National Land Information Service (NLIS) – that could be used either to
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directly satisfy these requirements or form a significant foundation to meeting the requirements.
The primary data requirements are:
• Provision of a Unique Property Reference Number (UPRN) that uniquely identifies every assessed non-dwelling property in
England & Wales. This includes units, floors within buildings etc.
• The minimum data requirements for each Property are as per the common 5 line address format which includes Unique
Property Reference Number, Primary Address, Secondary and Alternative Addresses e.g. English / Welsh equivalents of
same property, local aliases etc. However an optional Address line 0 will be required to describe the Building-Part within the
building.
The primary functional requirements are:
• Address Searching - to be able to find a Property and its Unique Property Reference Number based on an address or partial address
or postcode. Fuzzy and Soundex searching should be used where appropriate.
• Get Primary Address for the Property referenced by the Unique Property Reference Number.
Other key requirements:
• The "master" copy of the data is to be maintained by the NDR Operator to enforce consistency in the NDR and can ensure
uniqueness of Unique Property Reference Number over the life of the Energy Documents. This may require daily maintenance
updates.
N03 Usability
The process of using the NDR should not unnecessarily delay or obstruct the process of energy assessing a building. The NDR and its
processes should be available in a way that any organisation or individual that relies upon it for their own processes to take place is able to
conduct their business without delay or obstruction.
N04 Transactional These Transaction Volumes are indicative of expected activity for the full operational system and are provided to assist prospective
Volumes
Operators in their calculations. The key transaction volumes are:
• 216,000 NDEPCs and associated reports per annum (2.08 million over 13 years). Growth rates dependant on external market
activity.
• 42,000 Display Energy Certificates annually with associated Advisory Reports which are updated every seven years
• Active EAs able to produce DECs : 1,500
• Active EAs able to produce NDEPCs: 2,500
• Size of each PDF certificate / report: DEC or NDEPC (up to 300k). AR or RR: 2-5 pages of text with no high-quality figures
• Size of XML data:
• DEC & AR (up to 0.5Mb) and NDEPC & RR (up to 2Mb): the files include: XML of input data to software, XML of output data
and appropriate headers.
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• Lifetime access to Energy Documents: Approximately 7 to 10 accesses will be performed per NDEPC, RR during the course of its
lifetime.
• Number of Non Domestic & Public Properties in England & Wales: 1,526,877
Transitional Lodgement volumes over the year should be calculated from the Regulatory Impact Assessment (RIA) figures on the CLG
website. Regarding initial volumes expected volumes of approximately 1000/month on the non-discretionary buildings (EPC’s for
construction, sale or rent > 10000 m2). There are expected to be discretionary volumes, anecdotally from large building portfolio managers.
N05 Backup,
Operating as a “no-loss” data environment it is essential to ensure that all the Certificate & Reports in the NDR are regularly backed-up to
Recovery
secondary storage to protect the data from loss or corruption.
There are no special considerations for backup & recoverability of the NDR database over and above the normally expected requirements for
protecting the data. It is expected that the NDR Operator will define reasonable procedures for agreement by CLG.
It is essential that the backup process does not unnecessarily impact NDR service connectivity, availability or responsiveness.
Recoverability of the application in the event of a system failure should be minimised as much as is feasible within the economic constraints.
Standard Operating Procedures (SOPs) should be in place clearly stating the step-by-step procedures to follow should the recovery operation
be invoked.
Risk assessments should take place periodically especially when there has been changes affected to the register or the system environment.
Operational training is an often-ignored aspect that should receive a high priority. The recovery operation should not be jeopardised due to a
lack of properly trained alternative staff members being available when a recovery is required.
This backup procedure should be synchronised with other affected parties.
Recovering data from the backup copies should be regularly tested to ensure integrity of the recovered data.
The Accreditation Scheme is able to monitor and audit work of their members but may be a source of data too in case of the partial or full
failure of the Register. However this should not be relied upon as a critical part of the recovery process.
N06 Disaster
In the event of a wholesale system outage a mirror/standby site should be available and should capable of being operational within one
Recovery &
working day from the point the primary system outage has occurred.
Business
The Operator must be able to provide the same functionality at a different site with alternative communications, with as close a replication of
Continuity
the system data as possible to the point in time of failure. The scope of any Recovery plan should include personnel and location as well as
functionality.
It is the responsibility of the NDR Operator to develop and agree acceptable and cost effective procedures for disaster recovery that
minimises the impact of any major system outage on the market.
N07 Archiving
Maintain archive of Energy Documents and Model Data used to collect it for at least 20 years.
Historical Degree and CIBSE date will be archived indefinitely subject to any licencing constraints.
N08 Security
This is closely related to the Integrity & network requirements in this document.
To ensure unauthorised tampering of stored data the supplier must consider at least the following set of security access controls:
• Limit access to valid users and protect integrity of data.
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• Data must have appropriate protection and access control so to avoid unlawful disclosure of info from any artefact.
• Any data maintenance activity must take place in a secure environment
• All user transactional service and user requests to the register can only be carried out by registered users and any operations are
authenticated when the service is invoked.
• Ensure any message that purports to be from a particular registered user or source is in fact from that registered user or source.
• A User (either Registered or Unregistered) may only invoke services according to their role. They must be restricted from invoking
unauthorised services.
The nature of the data and infrastructure that makes up the NDR would, on an initial assessment, accord it a level 2 – PROTECT
classification. A standard password and log on would be sufficient from an authentication security view - there is no need for encrypted data.
The NDR Operator must adhere to the security guidelines laid down by CLG IT Security. ISO 27001 would go a long way in meeting CLG
security standards.
A ‘Good Practice Guide’ for telecommunications resilience and ‘Fast Track Accreditation for Standalone & Networked IT Systems’ should be
considered by any prospective supplier during their design.
There are also recommendations from the e-Government Unit surroundings web-site accessibility that should be applied.
In considering authentication methods there must be an allowance for mass deployment of client applications such as SBEM, DSM energy
software models approved by CLG for EAs. As an example the NDR Operator may want to consider a certificate or token based approach
rather than just username / password.
Procedures for registering and managing Authorised Users will need to be defined by the NDR and made available as a set of standard
interfaces to industry stakeholders.
N09 Availability
There must be controlled access to system 24/7 and is met at least 80 percent of the time unless indicated specifically in each transaction.
The overall availability requirements for the NDR and related services are dependent on the operational requirements of the significant user
groups. The following are the expected availability profiles for each of our significant groups of Registered Users:
EAs will produce Energy Documents during the normal professional working day over a 6-day working week with possibly occasional access
– e.g. to meet a heavy work load - later in the evening.
Accreditation Schemes would only require access to modify details of EAs as part of their standard business operations. It is expected that
the Energy Document lodgements will be submitted as a mixture of overnight bulk submission files and single ad-hoc registrations taking
place during the day.
Hence estimated minimum availability required for both sets of users is 06:00
24:00; Monday
Saturday. However the suggested method
of updating the NDR by Accreditation Schemes would require overnight access to bulk process the changes made during the day.
The supplier must also demonstrate how they intend to minimise the impact of a failure in the Register across all the transactional services.
N10 Scalability
The NDR must be scaleable to accommodate any fluctuations in the transactional and volumes stated and increase in demand.
N11 Extensibility
There is a requirement to be able to extend the NDR Business Information Model.
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For example the solution may be improved during contract lifetime to
• Expand register to include other elements of Energy Performance of Building Regulations e.g. air-conditioning or boiler inspection
reports.
• Extend to incorporate additional data that can be lodged
The data model will be extended to integrate new information and it should be assumed that all Business Entities may be extended at any
time and that the optional extensions may or may not be pre-notified to support staff.
Hence a significant design criterion is that the data model must be easily extensible without incurring significant impact or unnecessary
changes to any existing software.
N12 Data
The NDR holds commercial data. The data that is considered of a personal nature is that of the EA and building owner which includes name
Protection
& contact details. It is expected that the NDR Operator will investigate and adhere to any data protection legislation as required.
N13 IT
It will be the NDR Operators’ responsibility to govern the published NDR Technical Standards on behalf of CLG and monitor industry
Governance
adherence to them. The EA accreditation requirements are the responsibility of the Accreditation Scheme to enforce.
As part of the IT Governance responsibility the NDR Operator will:
• Publish, circulate and manage the implementation of the Technical Standards on behalf of CLG.
• Provide advice on the correct implementation or interpretation of the published Technical Standards.
• Monitor activity against the NDR to ensure adherence to the published standards and consistency of use across the industry. This is
separate to any EA Quality Assurance activity carried out on behalf of an Accreditation Scheme.
All changes to the standards will be drafted by the NDR Operator. CLG remains the owner and final Design Authority on changes to all
standards, specifications and service requirements and will have ultimate responsibility for sign-off and publication.
N14 Change
A change management mechanism must be established to allow for future amendments to the transfer interface standard between the CLG
Management
approved energy software and the NDR.
There may be points in the future where the NDR Technical Standards have to be changed. E.g. there may be changes from further energy
performance legislation in the future although it is not expected that this will impact the structural definition of the Energy Documents. But any
future changes need to be managed.
It is expected that the NDR Operator should act as the CLG agent to manage any changes to the NDR Standards including the Data Model,
all XML Message Specifications, the Mandatory & Preferred Text and all documentation relating to definition of the Energy Documents.
The decision-making point of whether a requested change will be implemented or not remains with CLG as the owner of the standards, but it
is expected that all other aspects of the Change Management process will be carried out by the NDR Operator which will include:
• Liaison with key industry stakeholders, such as Accreditation Schemes, for impact analysis of proposed changes.
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• Coordinating implementation of agreed changes.
• Setting timescales for changes and the implementation of those changes
It is expected that the NDR Operator will define and publish a Change Management process as part of their submission. The Operator may
wish to take into account the following:
• Process should not be resource heavy - Due to the extremely low volatility of the Energy Documents & Model Data it is expected that
this proposed process should not be resource heavy to the extent that it cannot operate reasonably
• Must be robust enough to minimise the risk relating to the implementation of a change.
N15 Test
A separate software testing facility to allow providers of non domestic energy software to test and apply for CLG approval must be made
Environment
available and maintained. There should not be any dependency on the NDR Live environment.
The NDR Operator is also expected to develop the test messages. These will be approved by CLG.
N16 Network
Communications network providing access to database and system facilities which is secure. It must meet government standards and
guidelines for security. After a CLG assessment of the level of data protection required the NDR Operator must adhere to the security
guidelines laid down by CLG IT Security.
A ‘Good Practice Guide’ for telecommunications resilience and ‘Fast Track Accreditation for Standalone & Networked IT Systems’ should be
considered by any prospective supplier during their design.
ISO 27001 would go a long way in meeting CLG security standards.
The nature of the data and infrastructure that makes up the NDR would, on an initial assessment, accord it a level 2 – PROTECT
classification. A standard password and log on would be sufficient from an authentication security view - there is no need for encrypted data.
N17 Multi-
The NDR front end functionality must be available in English and Welsh
Language
N18 Technologies
The public front end will be web-based - although other software providers could have downloadable software etc
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7. Constraints
This section covers the constraints that should be taken into account when considering any proposed solutions:
Ref
Requirement
Requirements Outline
type
C01 Delivery
Minimum NDR Requirements (as stated in BaFO) to be operational by 6th April 08
The fully functional NDR must be fully operational by the 30th September 2008
C02 Messaging & As the environment surrounding the NDR is distributed with many different commercial organisations providing services that may be invoked,
Interface
it should be assumed that the environment is a low-trust environment and the onus is on the recipient of any message or data to ensure that
standards
what they receive is both valid and correct. This specifically applies to the messages between the CLG approved energy software and the
NDR.
Data validation should consist of:
• Ensuring that the message conforms to the structural definition constraints declared in the appropriate XML Schema Definition file.
That is:
• All mandatory fields are populated
• Cardinality constraints are enforced
• Only known data-item “tag names” are present – proprietary extensions to the messages are not allowed.
• Checking that all “enumerated” fields only contain values from the appropriate domain.
• Ensuring that any data-items containing references (or foreign keys) are valid e.g. the NDEPC contains a reference to the EA that
prepared the report so need to check that the EA is a currently practicing and valid EA by checking against the EA Index.
A list of messages (including model inputs and outputs), appropriate structures, and error exception handling to support the development of
the Accreditation Scheme Software whilst a NDR Operator is being chosen will be created by CLG and will be available to the selected NDR
Operator to enable them to successfully integrate the Scheme software into the NDR.
The NDR Operator will be responsible for managing the Accreditation Schemes and /or software providers interfacing of the energy models
with the register. However to enable the software suppliers to develop their software in parallel whilst the NDR Operator is being sought the
initial technical standards will be produced by CLG.
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8.
Possible Additions and Variations to Core Requirements
This section covers the possible future requirements for the NDR. It is expected that any tender should reflect understanding and demonstrate wherever
appropriate how any proposed solutions may fulfil these requirements in the future:
Ref
Requirement
Requirements Outline
type
P01 Data
Extract The Energy Industry may be approved to use the NDR data in the future for marketing purposes e.g. target landlords for energy improvement
(Subscription
products. This is not currently allowed for in the Regulations.
basis)
This data must be aggregated over a number of buildings to protect privacy and could be provided on a subscription basis.
An aggregate data extract facility should therefore be available to supply this data to them. This data may be sold on a cost or licence basis
therefore any subscription costs should also be collected and recorded for internal reporting purposes.
P02 Bulk
Data
With all long-term data storage capabilities there are many scenarios where the data may need to be bulk extracted from the repository for
Extraction
transferring to another repository. For example:
•
The technical platform becomes obsolete – for example due to changing business requirements – and a non-transparent upgrade
path requires the existing NDR data to be extracted and transferred into the new NDR.
•
Continual non-conformance to the Service Level Agreement results in the contract being terminated and awarded to another
supplier. The new NDR Operator may choose a different Operational Platform that requires the NDR data to be extracted and
transferred during hand-over period.
•
Other government departments or agencies may be granted access to the data for specific purposes and need to perform bulk
extracts of data from the NDR for populating another repository.
As part of any solution the NDR Operator will need to demonstrate:
• The data can be extracted from the NDR in a platform neutral format – ideally by reconstructing the original messages – in order to
migrate the data to another Non Domestic Report Register possibly on a different operational platform.
• Any proprietary or licensable software required for this extraction is identified with the expected cost of any licensing payment.
Wherever possible at least one viable alternative should also be identified.
• The solution allows for selective extraction of data – e.g. All Energy Performance Reports registered between two dates – so that
staged transference can occur during any handover period.
The data to be included in the handover includes the contents of the:
• Energy Documents and Model Data
• Property & Address details dataset
• User Registration and Authentication dataset
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• Accreditation
Scheme
dataset
P03
EA lodgement
The EA may be permitted to lodge Energy Documents and the Model Data directly into the NDR, this is a possible future requirement beyond
October 2008.
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Schedule 3
IMPLEMENTATION
1.
INTRODUCTION
1.1
This Schedule sets out the respective responsibilities of Operator and the Authority in respect of
the Implementation Phase.
1.2
This Schedule sets out, for each of the Services:
1.2.1
the implementation acceptance procedures associated with the Implementation Phase
(paragraph
2 below);
1.2.2
the Deliverables associated with the Implementation Phase (as detailed in Table 1 below);
1.2.3
details of Service Credits applicable during the Implementation Phase (paragraph 4
below);
1.2.4
the generic and specific responsibilities of the Operator in respect of the Implementation
Phase (paragraph
5.1 below)
1.2.5
the generic and specific responsibilities of the Authority in respect of the Implementation
Phase (paragraph
5.2 below)
1.2.6
Any required amendments to the Implementation Plan will be undertaken by the parties
under the Change Control Procedure.
2.
IMPLEMENTATION ACCEPTANCE PROCEDURES
2.1
The acceptance procedure in respect of each of the Milestones is as follows:
2.1.1
Type A – documentation from the Operator formally reviewed against Schedule 18
(Documentation Deliverables) and accepted by the Authority;
2.1.2
Type B – witnessing of successful testing of component of a proposed Implementation
Service has been completed; and/or
2.1.3
Type C – documentation formally published by the Operator to the Accreditation Schemes
which complies with an agreed product description.
2.2
The Authority shall provide written confirmation to signify formal acceptance of a Milestone.
3.
MILESTONES
Unless noted in Table 1, the Implementation Service to be implemented is the Operational Service as set out
in
Schedule 2 (Service Requirement Specification).
Table 1
Implementation
Applicable
Milestone Date
Definition
of
Milestone
Acceptance
Deliverable
Procedure
End to end pilot
Type B
3rd – 21st March Pilot Report
2008
Go live Minimum Non Type B
6th April 2008
High-Level Business
Domestic Register
Process Model for
Non-Dwellings and
Interim NDEPC
Register Solution
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Go live Full
Type B
30th
September As per Schedule 2
implementation of
2008
(Service
Non Domestic
Requirement
Register
Specification)
Table 2
Milestone Applicable
Sign Off By:
Definition Of Deliverable
Acceptance
Procedure
Documentation
Transition Strategy
Type A
One month from
Schedule 18 -Documentation Deliverables
the Service
Commencement
Date
Part A of the
Type C
Prior to the
Schedule 18 -Documentation Deliverables
Implementation Plan
Effective Date
Part B of the
Type C
Two
months
Schedule 18 -Documentation Deliverables
Implementation Plan
from the
Effective Date
Business Continuity Type C
One month from
Schedule 18 -Documentation Deliverables
Strategy
the Service
Commencement
Date
Business Continuity Type C
Two months
Schedule 18 -Documentation Deliverables
Design
from the Service
Commencement
Date
Commercial Design
Type C
One month from
Schedule 18 -Documentation Deliverables
the Service
Commencement
Date
Operator Test Plan Type C
One month from
Schedule 18 -Documentation Deliverables
and Logs
the Service
Commencement
Date
Stakeholder
Type A
One month from
Schedule 18 -Documentation Deliverables
Management
the Service
Strategy and
Commencement
Communications
Date
Plan
4.
NOT USED
5.
RESPONSIBILITIES DURING ACCEPTANCE PROCEDURES
5.1 Operator’s
Responsibilities
5.1.1 Type
A:
(a)
Submission of draft documentation 4 weeks prior to milestone deadline with an
invitation for the Authority to formally comment
(b)
Submission of final draft of documentation 1 week prior to the relevant
Milestone Date with the list of the Authority’s comments and what actions were
taken to clear them, and a request for sign-off
5.1.2
Type B:
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(a)
At least 4 weeks in advance of witnessed acceptance tests, to invite the
Authority and the Accreditation Schemes to be present at witnessed acceptance
tests and to provide the test scripts that are to be witnessed and a précis of the
test data
(b)
To demonstrate the test scripts being run against the system using the test data
5.1.3
Type C: Documentation formally published to the Accreditation Schemes which complies
with an agreed Product Description
(a)
To publish the draft documentation 4 weeks prior to the relevant Milestone Date
with an invitation for the Accreditation Schemes to formally comment;
(b)
Submission of final draft of documentation 1 week prior to the relevant
Milestone Date with the list of the Accreditation Schemes comments and what
actions were taken to clear them, and a request for sign-off
(c)
To address any major issues raised by the Authority before publication
(d)
Publication on the relevant Milestone Date
5.2
The Authority’s Responsibilities
5.2.1 Type
A:
(a)
To comment on draft documentation within 2 weeks of receipt
(b)
To approve a document if all these comments have been satisfactorily actioned
in the final draft received
5.2.2
Type B:
(a)
To accept an invitation to the witnessed acceptance tests and provide
comments on the test scripts the précis of the test data to be used at least 2
weeks in advance.
(b)
To attend the witnessed tests
5.2.3 Type
C:
(a)
To liaise with the Accreditation Schemes to ensure that they are satisfied with
progress on the draft document
(b)
To inform the Operator if there are any major issues arising at least 2 weeks in
advance of the relevant Milestone Date
6.
IMPLEMENTATION DELAYS - GENERAL PROVISIONS
6.1
If, at any time, the Operator becomes aware that it will not (or is unlikely to) Achieve any Milestone
by the Milestone Date it shall immediately notify the Authority of the fact of the Delay and
summarise the reasons for it.
6.2
The Operator shall, as soon as possible and in any event not later than 10 days from and including
the date of the initial notification under Paragraph
6.1, give the Authority full details in writing of:
6.2.1
the reasons for the Delay;
6.2.2
the consequences of the Delay; and
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6.2.3
if the Operator claims that the Delay is due to an Authority Cause, the reason for making
that claim.
6.3
Whether the Delay is due to an Authority Cause or not, the Operator shall deploy all additional
resources, and take all reasonable steps to eliminate or mitigate the consequences of the Delay.
6.4
Where the Operator considers that a Delay is being caused or contributed to by an Authority Cause
the Authority shall not be liable to compensate the Operator for Delays to which Paragraphs
8 or 9 apply unless the Operator has fulfilled its obligations set out in, and in accordance with, Paragraph
6.2.
6.5
Any disputes about or arising out of Delays shall be resolved through the Dispute Resolution
Procedure. Pending the resolution of the Dispute both parties shall continue to work to resolve the
causes of, and mitigate the effects of, the Delay.
Correction Plan
6.6
The Operator shall submit a draft Correction Plan where:
6.6.1
it becomes aware that it will not Achieve a Milestone by the Milestone Date; or
6.6.2
it has failed to Achieve a Milestone by its Milestone Date, whether that failure arises
because of:
(a)
a failure to submit any or all Deliverables in respect of that Milestone;
(b)
a failure to successfully to complete the Milestone; or
(c)
any non-conformance in respect of that Milestone.
6.7
The draft Correction Plan shall identify the issues arising out of the Delay and the steps that the
Operator proposes to take to Achieve the Milestone in accordance with this Agreement.
6.8
The draft Correction Plan shall be submitted to the Authority for its approval as soon as possible
and in any event not later than 10 days (or such other period as the Authority may permit and notify
to the Operator in writing) from and including the date of the initial notification under Paragraph
6.1 or the issue of a Non-conformance Report.
6.9
The Authority shall not withhold its approval of a draft Correction Plan unreasonably. If the
Authority does not approve the draft Correction Plan it shall inform the Operator of its reasons and
the Operator shall take those reasons into account in the preparation of a further draft Correction
Plan, which shall be resubmitted to the Authority within 5 Working Days from and including the date
of the rejection of the first draft.
6.10
The Parties shall comply with its Correction Plan following its approval by the Authority.
7.
DELAYS DUE TO OPERATOR DEFAULT
7.1
If a Milestone is not Achieved due to an Operator Default, the Authority shall issue a Non-
conformance Report to the Operator setting out in the reasons for the relevant Milestone not being
Achieved and the consequential impact on any other Milestones. The Authority will then have the
options set out in Paragraph
7.2.
7.2
If a Milestone is not Achieved due to an Operator Default, the Authority may at its discretion
(without waiving any rights in relation to the other options) choose to confirm acceptance of the
Milestone conditional on the remediation of the non-conformities of the Deliverable, in accordance
with an agreed Correction Plan.
7.3
In respect of any delay not covered by Paragraph
7.2, the Authority reserves its rights and nothing
in this Agreement operates to exclude the Authority's rights where:
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7.3.1
the Authority is otherwise entitled to or does terminate this Agreement for the Operator's
Default or for Force Majeure; or
7.3.2
the Milestone is not Achieved by the relevant Long-Stop Date.
8.
DELAYS TO MILESTONES DUE TO AUTHORITY CAUSE
8.1
Without prejudice to Paragraph
6.3 and subject to Paragraph
6.4, if the Operator would have been
able to Achieve the Milestone by its Milestone Date but has failed to do so as a result of an
Authority Cause the Operator will have the rights and relief set out in this Paragraph
8.
8.2
The Operator shall:
8.2.1
following the completion of the steps in Paragraph
8.3, be allowed an extension of time
equal to the Delay
caused by that Authority Cause;
8.2.2
not be in breach of this Agreement as a result of the failure to Achieve the relevant
Milestone by its Milestone Date;
8.2.3
have no liability for the Delay in respect of the relevant Milestone to the extent that the
Delay results directly from the Authority Cause; and
8.2.4
be entitled to have any losses and/or expenses as set out in Paragr
aph 8.4 taken into
account at the next Review in accordance with the Review Process.
8.3
The Authority Contract Manager shall:
8.3.1
consider the duration of the Delay, the nature of the Authority Cause and the effect of the
Delay and the Authority Cause on the Operator's ability to comply with the Implementation
Plan;
8.3.2
consult with the Operator Contract Manager in determining the effect of the Delay;
8.3.3
fix a Revised Milestone Date; and
8.3.4
if appropriate, make any consequential revision to subsequent Milestones in the
Implementation Plan
8.4
If the Operator has incurred any direct loss and/or expense as a result of a Delay due to an
Authority Cause, such loss and/or expense shall be taken into account at the next Review in
accordance with the Review Process. The Operator shall provide the Authority and the Review
Panel with any information they may require in order to assess the validity and extent of loss and/or
expense.
8.5
Any Change that is required to the Implementation Plan pursuant to Paragraph
8.3 or the Charges
pursuant to Paragraph
8.4 shall be implemented in accordance with the Change Control
Procedure. If the Operator's analysis of the effect of the Delay in accordance with Paragraph
6.2 permits a number of options, then the Authority shall have the right to select which option shall
apply.
8.6
The Authority shall not delay unreasonably when considering and determining the effect of a Delay
under this Paragraph
8 or in agreeing a Change pursuant to the Change Control Procedure.
8.7
The Operator shall and shall procure that each Sub-contractor shall take and continue to take all
reasonable steps to eliminate or mitigate any losses and/or expenses that it incurs as a result of an
Authority Cause.
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9.
DELAYS NOT DUE TO ONE PARTY
Without prejudice to Paragraph
6.3 and subject to Paragraph
6.4, where a Delay is attributable in
part to the Operator's Default and in part to an Authority Cause the Parties shall negotiate in good
faith with a view to agreeing a fair and reasonable apportionment of responsibility for the Delay.
The agreed proportion of any costs incurred by the Operator as a result of the Delay shall be taken
into account in the Review Process. If necessary, the parties may escalate the matter in
accordance with the Dispute Resolution Procedure.
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Schedule 4
PERFORMANCE MANAGEMENT
1.
PURPOSE
1.1
This Schedule describes the performance management regime which is to be adopted by the
Parties in relation to this Agreement. The performance management regime is to be used to
measure the Operator's compliance with its obligations under this Agreement, including in the
delivery of the Services.
1.2
In addition to the measurements set out in this Performance Management Schedule, other
processes shall be used by the Authority for measuring the Operator's performance including
exercise of the audit rights set out in this Agreement.
2.
COMPLIANCE WITH SERVICE LEVELS
During the Term, the Operator shall meet or exceed the Service Levels set out in the Annex to this
Schedule and take corrective action in the event of any failure to do so.
3.
RE-PERFORMANCE
If any part of the Services is not performed in accordance with this Agreement then the Operator
shall promptly re-perform or replace the relevant part of the Services without additional charge to
the Authority.
4.
REMEDIATION AND RECTIFICATION
Breach of Individual Service Levels
4.1
Where the Operator incurs Service Credits in respect of any Service Level, the Operator shall,
unless notified otherwise by the Authority, prepare a written rectification plan (“
Remediation Plan”)
in respect of the failure to meet that Service Level. The first Remediation Plan issued to the
Authority by the Operator in any Operational Year shall be signed by the signatory Level 1 set out
in paragraph
5 of this Schedule. If a second Remediation Plan is issued to the Authority by the
Operator in the same Operational Year this shall be signed by the signatory Level 2 set out in
paragraph
5 of this Schedule and so forth. Remediation Plans shall provide the following
information:-
4.1.1
identification of the scale of the problem; and
4.1.2
the steps that the Operator proposes to take to rectify or improve its performance
including all failures to meet Service Levels; and
4.1.3
a statement as to how success in implementing the Remediation Plan will be measured;
and
4.1.4
a statement as to the timescales within which the Remediation Plan will be implemented;
and
4.1.5
such other information as may be reasonably required by the Authority.
4.2
The Remediation Plan(s) shall be submitted as part of the Regular Report. The Operator shall
make such amendments to the Remediation Plan(s) as may reasonably be requested by the
Authority.
4.3
The Authority shall approve the Remediation Plan(s) as soon as reasonably practicable but in any
event within ten (10) Working Days from and including the date of its submission to the Authority.
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4.4
As soon as the Authority has approved the Remediation Plan(s), the Operator shall fully implement
the Remediation Plan(s) in accordance with its terms (including the timescales set out in the
Remediation Plan(s)).
4.5
If the Operator fails fully to implement any Remediation Plan(s) in accordance with its terms
(including timescales) then without prejudice to any other remedy available to the Authority, the
Authority may issue a Default Notice.
Default Notices and Repeated Breaches of Service Levels
4.6
Without prejudice to the generality of Paragraph
3 above, where the Operator is, in the reasonable
opinion of the Authority, in material breach of its obligations under this Agreement (including
Remediation Plan(s)) or that the overall level of performance is materially deficient then, without
prejudice to any other remedy available to the Authority, the Authority may serve upon the Operator
a notice ("
Default Notice") and the provisions of this Paragraph shall apply.
4.7
Where the Authority serves a Default Notice then the Operator shall, unless notified otherwise by
the Authority, prepare a written rectification plan (“
Service Rectification Plan”). The Service
Rectification Plan shall be issued to the Authority by the Operator's Level 5 signatory and shall
provide the following information:-
4.7.1
identification of the scale of the problem; and
4.7.2
the steps that the Operator proposes to take to rectify or improve its performance
including all failures to meet Service Levels; and
4.7.3
a statement as to how success in implementing the Service Rectification Plan will be
measured; and
4.7.4
a statement as to the timescales within which the Service Rectification Plan will be
implemented; and
4.7.5
such other information as may be reasonably required by the Authority.
The Service Rectification Plan shall be part of the Performance Review Report referred to in
paragraph 8.2 below. The Operator shall make such amendments to the Service Rectification Plan
as may reasonably be requested by the Authority.
4.8
The Authority shall approve the Service Rectification Plan as soon as reasonably practicable but in
any event within ten (10) Working Days from and including the date of its submission to the
Authority.
4.9
As soon as the Authority has approved the Service Rectification Plan, the Operator shall fully
implement the Service Rectification Plan in accordance with its terms (including the timescales set
out in the Service Rectification Plan).
4.10
If the Operator fails fully to implement the Service Rectification Plan in accordance with its terms
(including timescales) then without prejudice to any other remedy available to the Authority, the
Authority may:
4.10.1 Invoke its step in rights as set out in Clause
11 of this Agreement; or
4.10.2 terminate this Agreement pursuant to Clause
38.1.3 as a Deemed Material Default by
notice in writing specifying such notice as the Authority considers appropriate in the
circumstances.
5.
ESCALATION
The Operator's signatory levels shall be as follows:-
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Signatory Level
Individual
1 Project
Manager
2
Group Services Manager
3 Contract
Manager
4 Managing
Director
Solutions
5 Group
Managing
Director
6.
CALCULATION OF SERVICE CREDITS
6.1
The value of one Service Credit is calculated as follows:
(In respect of the period up to 31 October 2008) Total 10 year Projected Revenues x 20% ÷
(number of weeks from the Service Commencement Date to Original Expiry Date x 6)
(In respect of the period from and including 1 November 2008) Total 10 year Projected Revenues x
25% ÷ (number of weeks from the Service Commencement Date to Original Expiry Date x 6)
6.2
In the Operational Phase, no more than 6 Service Credits can be charged in any one Operational
Week.
6.3
Service Credits will be calculated 13 times a year, every 4 weeks, (excluding New Year's Day)
(
"Measurement Period").
6.4
Service Credits will be taken into account in accordance with the Financial Model and dealt with on
the basis set out in Schedule 16 (Review Process).
7.
SERIOUS UNDERPERFORMANCE
The Authority shall have the right to terminate the Agreement in accordance with Clause
38.1.3 as a Deemed Material Default if:
7.1.1
the Operator incurs more than 24 Service Credits calculated over any 3 consecutive
Measurement Periods; or
7.1.2
a Critical Service has been unavailable for more than 24 hours; or
7.1.3
the following high availability Critical Services (
"High Availability Critical Services")
have been unavailable twice or more for more than 6 hours in any Operational Week:
(a)
Submit and lodge energy document
(b)
Retrieve and view Energy Documents and Energy Model Input Data
(c)
Lookup of Energy Assessor
(d)
Request Unique Property Reference Number
(e)
Validate Property Unique Property Reference Number
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8.
REPORTING OBLIGATIONS
8.1
The Operator shall ensure that it has appropriate systems and procedures in place to capture and
report on compliance with Service Levels as required by this Schedule.
8.2
No later than four (4) weeks after the end of the relevant Measurement Period, the Operator shall
submit a performance review report for that Measurement Period ("
Performance Review
Report"), reporting achievement versus Service Levels. Each Performance Review Report must
analyse failures and provide a fully costed "Service Rectification Plan" to improve performance.
Future reports must report on the progress of Service Rectification Plans.
8.3
Joint Performance Review meetings will initially be held every four weeks, then quarterly by
agreement. These meetings will agree any necessary Service Rectification Plans, and the
allocation of Service Credits towards the costs of rectification at the Operator's own cost. Any
Service Credits in excess of the costs of rectification will be taken into consideration at the next
Review pursuant to the Review Process.
9.
AUTHORISED USER SATISFACTION SURVEYS
9.1
The Operator shall undertake, throughout the Term, an agreed programme of regular and ad-hoc
Authorised User satisfaction surveys.
9.2
The Operator shall, prior to undertaking each survey, consult with the Authority in relation to the
questions to be asked in any such Authorised User satisfaction surveys and the sample size of
Authorised Users to be surveyed, and incorporate any reasonable suggestions by the Authority in
to the format or questions that it uses.
9.3
The Operator shall provide the results of all Authorised User satisfaction surveys to the Authority
within a reasonable time after the conclusion of survey activity.
9.4
The Authority reserves the right to:-
9.4.1
require the Operator to appoint an independent third party to conduct regular or ad-hoc
Authorised User satisfaction surveys in place of the Operator. In such event the Operator
shall meet the costs of the Authorised User satisfaction surveys conducted by the third
party;
9.4.2
impose a Service Level on the Operator with reference to the results of Authorised User
surveys.
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ANNEX TO SCHEDULE 4
SERVICE LEVELS
Service Levels are calculated as a percentage of both availability and responsiveness across the
Transactions processed.
Table 1
Section Service
Availability
Response time (beginning
from the time that the Non
Domestic Energy Certificate
Register receives a request
for the service and ending
when the Domestic Energy
Certificate Register
responds to the request)
1.1
Request Unique Property Reference Number
Very High
< 30 seconds on-line / 24
hours for new UPRN
1.2
Submit and Lodge Energy Documents
Very High
< 1 minute during
operational window or
before start business if
invoked outside the
operational window
1.3
Change in status of Energy Documents and
Very High
< 1 minute
Model Data
1.4
Retrieve and view Energy Documents & Model
Very High
< 30 secs
Data
1.5
Lookup of Energy Assessor
Very High
< 15 secs
1.6 Update
Energy
Assessor
Index
High
<1 minute per record
AVAILABILITY REQUIRED
If a High Availability Critical Service is in failure as indicated in the first column in Table 2 below, the
corresponding Service Credits which are set out in the second column of Table 2 will be charged:
Table 2
Hours in failure in any one Service Credits
Operational Week:
>½ Hour
1
>1 Hour
2
>1 ½ Hours
3
>2 Hours
4
> 2 ½ Hours
5
>3 Hours
6
RESPONSIVENESS REQUIRED
The level of responsiveness as set out in Table 1 above is required for 95% of Transactions for each type of
Critical Service in any Operational Week. If this is not achieved, then the following Service Credits will be
imposed:
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Table 3
%age of Transactions for each type of Critical Service Credit
Service failing to meet responsiveness
requirement
>5% 1
>10% 2
>15% 3
>20% 4
>25% 5
>30% 6
OTHER SERVICES
Any failure must be notified in writing to the Authority. Each failure must be categorised as follows:
Category One: any failure that compromises a Critical Service to the extent that more than 5% of
Transactions are affected
Category Two: any failure that compromises a Critical Service to the extent that more than 1% of
Transactions are affected
Category Three: any failure that compromises a Critical Service to the extent that less than 1% of
Transactions are affected
Category Four: failure that compromises Other Services but does not immediately affect Critical Services
Service failures must be rectified within the rectification periods set out in Table 4 below. If Service failures
are not rectified within the relevant rectification period, Service Credits will be charged as follows:
Table 4
Category of failure
Rectification Period
Service Credit per
Rectification Period
Category One
3 hours
1
Category Two
6 hours
1
Category Three
24 hours
1
Category Four
30 hours
1
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Schedule 5
MANAGEMENT INFORMATION
1.
STANDARD REPORTS
1.1
Standard management information reports shall:
1.1.1
have consistent definitions- agreed with the Authority - used throughout and included in
each report;
1.1.2
have an extract date;
1.1.3
will consistently produce the same answers when run with the same parameters; and
1.1.4
have data which must be accurate and be verifiable.
1.2
Any apparent contradiction with data in other reports must be explained.
1.3
The Operator will provide to the Authority the standard reports set out in paragraph 1.5 below and
where the Authority varies requirements, the Parties shall use the Change Control Procedure
(where relevant).
1.4
In addition to the data and reports required to monitor the Service Levels described in
Schedule 4 (Performance Management), the Operator shall collect and hold the following information for
analysis in the MI reports:
1.4.1
A full copy of the transaction logs must be kept for the life of the report. The most recent
three months should be kept on-line but the rest can be archived to secondary storage.
1.4.2
Periodic copy of Report Index for each measurement period. This is required both as a full
extract and as an update to a previous extract. The full extract will be by specific request
as a means of recreating or validating the Authority copy of the index.
1.4.3
Transaction monitoring - for each published service we require: Total number of requests
received; Number of successful Requests; Number of failed / rejected Requests. These
are to be analysed by Accreditation Scheme (if applicable) and period.
• For Rejected Requests a sub analysis is required analysing by category of validation
failure:
• Report
Header
• Energy Assessor details (including missing PII details)
• Address
details
• Structural message errors – missing mandatory data-item, unrecognised element names
etc.
• Energy Document data-value error – invalid values, data formats etc.
1.4.4
For each service we require an analysis of response time against SLA requirements. The
reported figures are total number of requests; %age < SLA lower limit, %age within SLA
upper limit, +25%, +50%, +100% of SLA upper limit.
• For example if SLA requirement requires response in less than 2 minutes then the bands
would become <120 seconds, < 150 seconds (25%), 180 seconds (50%), 240 seconds
(100%) of the SLA.
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• It is the intention to provide a skeleton MS-Excel spreadsheet for the reporting of statistical
information
1.4.5
As an additional report we require for each service a list of unscheduled outages within
the period including start time and end time and reason.
1.4.6
Other ad-hoc reporting requirements may be identified as part of the CECR monitoring
procedures.
1.5
The Operator shall provide the following Management Information reports to the Authority:
1.5.1
the Regular Report; and
1.5.2 the
Performance
Review
Report
1.6
The reports are to be provided on the following basis and frequency:
1.6.1
Regular Report on a quarterly basis in each Contract Year; and
1.6.2
the Performance Review Report no later than four (4) weeks of the end of the relevant
Measurement Period;
1.7
The data collected and reported in accordance with Paragraphs 1.6 and 1.7 above shall be
monitored and reviewed from time to time and may be changed by mutual agreement between the
Parties (through the Change Control Procedure where appropriate).
2.
GENERAL
2.1
The Authority shall be entitled, upon giving reasonable notice, to request that the Operator compile
a report in accordance with the Authority's reasonable instructions.
2.2
For the avoidance of doubt, the Operator shall not be in Default of its obligations set out in this
Schedule to the extent that it has not received the information required from a third party in order to
carry out such obligations.
2.3
Additional management information shall be supplied by the Operator on reasonable request by the
Authority and where relevant the Change Control Procedure shall be used. The Authority shall
allow the Operator a reasonable period to test the management information report required and to
adequately prepare to provide the management information requested by the Authority. Such
management information shall not be included in the weekly/monthly management information
report run until the Operator has had a reasonable time to test and prepare.
2.4
Ad hoc management information reports are to be supplied by the Operator on the Authority's
reasonable request (reasonable timescales to be agreed with the Authority upon receipt of the
request) and, where relevant, following the Change Control Procedure.
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Schedule 6
FINANCE
1.
INTRODUCTION
1.1
The Operator shall comply with principles of open book accounting as set out in this Schedule
("
Open Book Accounting Principles").
1.2
The Operator will maintain the Project Account and for the purposes of this Agreement report and
account on the basis of UK generally accepted accounting principles ("
UK GAAP"). Without
prejudice to the foregoing, the Project Account will be maintained on a consistent basis throughout
the term of this Agreement and will follow the Operator's accounting policies where these are
appropriate to the Services provided. In particular, the Project Account shall consistently apply the
assumptions and models referred to in the Baseline Financial Model as amended during any
previous Review Process.
2.
DEFINITIONS
In this Schedule, the following words and phrases shall have the meanings set out below:-
"Eligible Expenditure"
shall bear the meaning set out in paragraph 5 of this Schedule;
"Income"
means the sums received by the Operator in respect of Lodgement
Fees;
"Project Account"
shall mean the account maintained in accordance with paragraph 4
of this Schedule.
"Regular Report"
shall bear the meaning set out Schedule 1;
3.
PURPOSE OF OPEN BOOK ACCOUNTING
Open Book Accounting is required to enable the Authority to independently validate the level of
margin made by the Operator and to ensure that the provision of the Services provides Value for
Money. In this context "Margin" means the extent to which Income exceeds Eligible Expenditure.
4.
PROJECT ACCOUNT
4.1
The Operator will maintain a separate Project Account that records all income and Eligible
Expenditure relating to this Agreement.
4.2
A Project Account for the period to which the Regular Report relates as well as a Project Account
for the Contract Year to date will be compiled and sent to the Authority to accompany the Regular
Report.
4.3
A consolidated Project Account will be compiled for each Contract Year of this Agreement and
delivered to the Authority as part of the Regular Report submitted following the end of the relevant
Contract Year.
5.
ELIGIBLE EXPENDITURE
5.1
Expenditure incurred in the Project Account will be limited to Eligible Expenditure. The categories
of Eligible Expenditure shall be those set out in the Financial Model (as detailed in Annex 1 to this
Schedule 6).
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5.2
For the avoidance of doubt, the following cost items do not constitute Eligible Expenditure:
5.2.1 recoverable
VAT;
5.2.2
Corporation Tax; and
5.2.3
any sum expressed in this Agreement to be "payable by" the Operator, or at "the
Operator's cost" or "at no additional charge to the Authority/Authorised User" or other
similar expression. For example any sums payable by the Operator under any indemnity
in this Agreement shall not be reclaimable as Eligible Expenditure.
6.
PROJECT ACCOUNTING
6.1
The format of the Project Accounts will be as follows:
6.1.1
Balance Sheet – to report on the Non Domestic Energy Certificate Register related assets
and liabilities.
6.1.2
Financial Model (Actuals) – updated financial model with true actuals – i.e. transaction
levels and salaries and the fully completed back up sheets to include variable and fixed
operating expenses.
6.1.3
Financial Model (Forecast) – updated with future projections for the next accounting
period – i.e. projected transaction levels based on market trends.
7.
FAMILIARISATION WITH THE CONTRACTOR'S SYSTEMS
As part of the Open Book Accounting Principles, the Authority should have confidence that the
Operator’s management information systems and financial systems are understood and are
reliable for the intended purpose. As part of these arrangements the Operator shall provide the
Authority with details of how their accounting systems will operate in respect of this Agreement and
will allow this to be verified by the Authority.
8.
AUDIT ACCESS
The Operator shall allow the Authority all reasonable access to its records in order to verify the
accuracy of the Project Accounts and/or Regular Reports, and the Operator is otherwise subject to
the audit requirements set out in this Agreement.
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ANNEX 1 TO SCHEDULE 6
SUMMARY - BASELINE FINANCIAL MODEL
20 8
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Schedule 7
CHANGE CONTROL PROCEDURE
DEFINITIONS USED IN THIS SCHEDULE
In this Schedule, the following words and phrases shall have the meanings set out below:-
Authority RFC
a RFC issued by the Authority;
CCN
a change control notice issued by the Authority to
the Operator confirming acceptance of the Change
Response (as agreed or determined pursuant to the
Dispute Resolution Procedure) or the Operator's
RFC (as modified) as the case may be;
Change Response
the Operator's response to an Authority RFC
prepared in accordance with Paragraph
8.1 below;
Financial Consequence
details of the financial consequences of a proposed
Change produced in accordance with
Paragraph 8.4 below and to be taken into consideration in the
Review Process;
Impact Assessment
an impact assessment produced in accordance with
Paragraph
8.2 below;
Operator RFC
a RFC issued by the Operator;
Transition Plan
a plan for the implementation of a Change produced
in accordance with Paragraph
8.3 below;
1.
PURPOSE
This Schedule sets out the procedures to be used by the Parties in connection with proposed
Changes.
2.
PRINCIPLES
2.1
Implementation of Changes for which there is an agreed mechanism (excluding this Change
Control Procedure) set out or referred to in this Agreement shall not constitute Changes to which
this Change Control Procedure applies. For the avoidance of doubt, the Change Control
Procedure is different from the change management process referred to in Section 8 of
Schedule 2 (Service Requirement Specification).
2.2
The Parties shall conduct discussions relating to proposed Changes in good faith.
2.3
Until such time as a CCN has been signed by the Authority Contract Manager and the Operator
Contract Manager (or their nominated representative), the Operator shall continue to supply the
Services in accordance with the Agreement.
2.4
Any work undertaken by the Operator, its Staff, Sub-Contractors or agents which has not been
authorised in advance by the Authority and which has not been otherwise agreed in accordance
with this Change Control Procedure shall be undertaken entirely at the expense and liability of the
Operator.
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2.5
Any discussions, negotiations or other communications which may take place between the Parties
prior to the issue of a CCN (including the submission of any written communications) shall be
without prejudice to the rights of either Party.
3.
MINOR CHANGES
3.1
The Parties acknowledge that minor variations to this Agreement may be necessary to reflect
operational and administrative procedures during the term of the Agreement. The Parties further
acknowledge that such minor variations shall be agreed in writing between the Parties' respective
Contract Managers.
3.2
The Operator shall use reasonable endeavours to incorporate minor variations requested by the
Authority within the current specification and budget of the Services and shall not serve an
Operator RFC unless the change involves a demonstrable material increase to its costs or requires
a material change to the Agreement.
4.
COSTS OF CHANGES
4.1
The provisions of Schedule 16 (Review Procedure) shall apply PROVIDED THAT the Operator's
costs in responding to RFCs and in preparing Change Responses etc. shall be borne by the
Operator and shall not constitute Eligible Expenditure for the purposes of Schedule 16 (Review
Procedure).
4.2
It is important that implementation costs are planned 'as late as possible' so as to reduce the sunk
costs in case of major changes required (say, from Dry Run Feedback). Therefore, the following
shall apply:
Change
Cost Impact for the purposes of Schedule 16
(Review Procedure)
Changes to system requirements prior to Necessary software redevelopment costs and any
Final Preparations Commitment Date
termination costs from third-party software and
services commitments
Changes to system requirements after
All above costs plus incidental staff costs (e.g.
Final Preparations Commitment Date but
termination or cross-training costs).
before Hardware Order Date
Changes to system requirements after
Costs as agreed through Change Control Procedure
Hardware Order Date
5.
REQUESTS FOR CHANGE (RFC)
5.1
The Authority shall be entitled to:-
5.1.1
request any Change to the Services; and
5.1.2
require a Change to the Services from time to time to reflect any Change in Law.
5.2
The Operator shall be entitled to require a Change to the Services from time to time to reflect any
material Change in Law that has a direct material impact upon the Operator's provision of the
Services.
5.3
Subject to Paragraph
5.2, the Operator shall only be entitled to request a Change to the Services if
such Change:-
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5.3.1
enhances the Operator's operational effectiveness in providing the Services or takes
advantage of technological developments so as to improve the provision of the Services;
and
5.3.2
will not increase the overall cost of providing the Services; and
5.3.3
will not have a detrimental effect on the overall quality of the Services.
5.4
The Authority may at its absolute discretion reject any request for a Change to the Services or to
the Technical Specification for Delivery.
6.
AUTHORITY RFC
6.1
If the Authority wishes to request or requires a Change, it must serve an Authority RFC on the
Operator.
6.2
The Authority RFC shall:
6.2.1
set out the Change required in sufficient detail to enable the Operator to provide the
Change Response; and
6.2.2
specify the deadline by which the Operator shall provide to the Authority a Change
Response (being not less than twenty-one (21) Working Days from and including the date
of receipt of the Authority RFC) ("
Response Deadline").
6.3
As soon as practicable, and in any event by the Response Deadline, the Operator shall deliver to
the Authority the Change Response.
6.4
As soon as practicable after the Authority receives the Change Response, the Parties shall discuss
and agree the issues set out in the Change Response. In such discussions:
6.4.1
the Authority may modify the Authority RFC, in which case the Operator shall, as soon as
practicable and in any event within fourteen (14) Working Days from and including the
date of receipt of such modification, notify the Authority of any consequential changes to
the Change Response; and
6.4.2
where the Authority reasonably requests, the Operator shall provide such additional
information as the Authority reasonably requests in order to evaluate the Change
Response fully.
6.5
The Operator shall not refuse an Authority RFC unless such Change:-
6.5.1
would materially and adversely affect the risks to health and safety of any person;
6.5.2
would require the Services to be performed in any way that infringes a Law; and/or
6.5.3
is demonstrated by the Operator to:
(a)
be technically impossible to implement (where neither the Technical
Specification for Delivery or the Services description states that the Operator
has the technical capacity and flexibility required to implement the proposed
Change); or
(b)
represent a material risk to the Services; or
6.5.4
is predicted to have a material impact on the ability of the Operator to meet any Service
Level where as a result of the Change the Service Level is not modified accordingly.
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6.6
If the Parties cannot agree on the contents of the Change Response then the dispute will be
determined in accordance with the Dispute Resolution Procedure.
6.7
As soon as practicable after the contents of the Change Response have been agreed or otherwise
determined pursuant to the Dispute Resolution Procedure, the Authority shall either:
6.7.1
issue a CCN; or
6.7.2
withdraw the Authority RFC.
6.8
If the Authority does not issue a CCN within thirty (30) Working Days from and including the date of
the contents of the Change Response having been agreed or determined, then the Authority RFC
shall be deemed to have been withdrawn.
6.9
In the event that the Authority issues a CCN then:-
6.9.1
the Operator shall implement the Change in accordance with the Transition Plan
6.9.2
the Parties shall enter into any documents necessary to amend this Agreement or any
relevant related document which are necessary to give effect to the Change
7.
OPERATOR RFC
7.1
If the Operator wishes to request or requires a Change, it must serve a Operator RFC on the
Authority.
7.2
The Operator RFC must:
7.2.1
set out the proposed Change in sufficient detail to enable the Authority to evaluate it in
full;
7.2.2
specify the Operator's reasons for proposing the change in the Services;
7.2.3
include an Impact Assessment, an Transition Plan and a Financial Proposal;
7.2.4
indicate if there are any dates by which a decision by the Authority is critical.
7.3
The Authority shall evaluate the Operator's proposed change in the Services in good faith, taking
into account all relevant issues, including whether:
7.3.1
there would be a change to the financial arrangements;
7.3.2
the change affects the quality of the Services or the likelihood of successful delivery of the
Services;
7.3.3
the change will interfere with the relationship of the Authority or the Operator with third
parties;
7.3.4
the financial strength of the Operator is insufficient to perform the changed Services; or
7.3.5
the change materially affects the risks or costs to which the Authority are exposed; or
7.3.6
the change would, if implemented, result in a change in the nature of the Services.
7.4
As soon as practicable after receiving the Operator RFC, the Parties shall meet and discuss the
matter referred to in it. During their discussions the Authority may propose modifications or accept
or reject the Operator RFC.
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7.5
If the Authority accepts the Operator RFC (with or without modification), the Authority shall issue a
CCN.
7.6
In the event that the Authority issues a CCN then:-
7.6.1
the Operator shall implement the Change in accordance with the Transition Plan
7.6.2
the Parties shall enter into any documents necessary to amend this Agreement or any
relevant related document which are necessary to give effect to the Change.
7.7
If the Authority rejects the Operator RFC, it shall advise the Operator of the criteria set out in
Par
agraph 7.3 upon which its decision for such a rejection is based.
8.
CONTENT OF DOCUMENTS
8.1
Change Response
The Change Response shall consist of:-
8.1.1
the Impact Assessment;
8.1.2
the Transition Plan.
8.1.3
the Financial Consequence.
8.2
Impact Assessment
The Impact Assessment shall include details of:-
8.2.1
any impact on the provision of the Services;
8.2.2
any impact on the Operator’s ability to meet its obligations under this Agreement;
8.2.3
any amendment required to this Agreement and/or any related document as a result of the
Change;
8.2.4
details (where known) of the potential impact on any third parties;
8.2.5
details of how the proposed Change will ensure compliance with any applicable Change in
Law;
8.2.6
such other information as the Authority may reasonably request in (or in response to) a
RFC
8.3
Transition Plan
The Transition Plan shall include:-
8.3.1
details of the activities necessary to implement the proposed Change including any testing
required;
8.3.2
details of appropriate allocations of responsibility;
8.3.3
a project plan including timelines, key dates, milestones and deadlines;
8.3.4
details of the activities required to address issues identified in the Impact Assessment;
and
8.3.5
details of the activities required to implement the Financial Consequence;
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8.4
Financial Consequence
The Financial Consequence shall include details of:-
8.4.1
the estimated capital expenditure (if any), including any capital replacement costs, arising
from or required to implement the Change;
8.4.2
the estimated increase in operating expenditure relating to the provision of the Services,
with an analysis showing the costs of staff, consumables, sub-contracted and bought-in
services, after the Change is implemented;
8.4.3
any interest, expenses or other third party financing costs to be incurred as a result of
implementing the Change;
8.4.4
details of any estimated overhead recoveries and long term cost savings that are
anticipated after the Change is implemented; and
8.4.5
the profit which the Operator seeks to achieve in the provision of the additional parts of
the Services.
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Schedule 8
EXIT PLAN
1.
INTRODUCTION
1.1
This Schedule describes the duties and responsibilities of the Operator and the Authority leading
up to and covering the expiry or termination of this Agreement for whatever reason and the transfer
of the provision of the Services.
1.2
This Schedule defines the Exit Plan and defines how it shall be revised to ensure that it remains
workable at any time. Further details of such plan may be further set out in documents agreed
between the parties or generated through the Change Control Procedure.
1.3
The Operator acknowledges the importance of keeping the Exit Plan up to date during the term of
this Agreement and to reflect the impact of all relevant Changes to the Services and/or the
Technical Specification for Delivery. The Operator shall not make any additional charge for
undertaking its obligations pursuant to this Schedule and/or the Exit Plan and/or any work
undertaken in making changes to the Exit Plan. Where only principles of relating to the Exit Plan
are set out in this Schedule, the parties shall use all reasonable endeavours to agree the relevant
details in accordance with such principles.
1.4
The Authority shall be entitled to disclose the contents of the Exit Plan to any future tenderer for the
Services (or their equivalent) and to the New Operator.
2.
OBJECTIVES
2.1
The objective of this Schedule is to ensure:
2.1.1
an orderly and smooth transition of provision of the Services from the Operator to a New
Operator or to the Authority or to the Operator under a new contract at the expiry or
termination of this Agreement;
2.1.2
that there is continuity of service;
2.1.3
that there is no undue favour to the Operator in any future procurement for the Services
(in whole or in part); and
2.1.4
that the responsibilities of both parties to this Agreement are clearly defined in the event of
expiry or termination
3.
GENERAL
3.1
Where the Authority or a Crown Body or any other Government department intends (and for the
purposes of this Schedule, references to the Authority shall be deemed references to either the
Authority or any other Government body) to continue services broadly equivalent in whole or in part
to the Services after expiry or termination, either by performing them itself or by means of a New
Operator, the Operator shall use all reasonable endeavours to ensure the smooth and orderly
transition of the Services and shall co-operate with the Authority or the New Operator, as the case
may be, in order to achieve such transition.
3.2
The Operator shall comply with any reasonable request of the Authority for information relating to
Sub-Contracts or prospective sub-contractors and shall be allowed a reasonable period of time in
which to respond to the Authority.
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4.
EXIT PLANNING
4.1
The Operator shall in conjunction with the Authority maintain, and as necessary update, the Exit
Plan throughout the period of this Agreement so that it can be implemented immediately, if
required. From time-to-time either the Authority or the Operator can instigate a review of the Exit
Plan. Any revision following such review shall be implemented via the Change Control Procedure.
4.2
The Operator shall co-operate with all reasonable requests made by either the Authority or a New
Operator relating to exit transition arrangements.
5.
INVOCATION
5.1
The Operator shall co-operate fully with a New Operator or the Authority, as the case may be,
including but not limited to permitting access to its premises where necessary and to relevant Staff
upon reasonable notice in order to prepare for the transfer of responsibility for the Services, and to
achieve familiarisation with the systems delivering the Services and understanding of the business
processes where these are transferring or are relevant to delivery of the Services.
5.2
For the avoidance of doubt, the Operator shall be responsible for providing the Services and
achieving the Service Levels until the date of expiry or termination of this Agreement (as
appropriate). The Operator shall not be liable for failure to meet such Service Levels during the
Exit Period where this is directly due to any materially adverse interference by a New Operator and
provided always that the Operator has notified the Authority of the interference and used its
reasonable endeavours to mitigate the effect of such interference.
5.3
The Operator shall use all reasonable endeavours to ensure that a transition of responsibility for
the Services to a New Operator or the Authority, as the case may be, minimises any detrimental
effect on the Services and the Authority shall use all reasonable endeavours to co-operate in such
transfer.
5.4
The Operator on request shall offer to provide on-going support and other ancillary assistance for
up to six (6) months after transfer of the Services to a New Operator or the Authority, as the case
may be, so as to assist with continuity of the Services. If such offer is accepted, any reasonable
charges associated with providing such on-going support and other ancillary assistance shall be
charged at the Operator's then prevailing market rates.
6.
SUB-CONTRACTORS
The Operator will not restrain or hinder its Sub-Contractors from entering into agreements with
other prospective service providers for the delivery of supplies or services to a New Operator or to
the Authority.
7.
ASSETS REGISTER
7.1
The Operator shall maintain throughout the period of this Agreement an asset register comprising:
7.1.1
a list of all assets required for the provision of the Services which are eligible for transfer
under this Agreement to the Authority (where not already owned by the Authority) or
otherwise owned by the Authority;
7.1.2
a list identifying all other assets, if any, other than human resources, skills and know-how,
that are ineligible for transfer under this Agreement but which are essential to the
provision of the Services. The purpose of each component and the reason for ineligibility
for transfer shall be included in the list.
(an "
Asset Register" and "
Assets")
7.2
For each Asset listed on the Asset Register in accordance with Paragraph 7.1, the Operator shall
ensure that the following details are included on the Asset Register for each Asset:
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7.2.1
a general description of the Asset;
7.2.2
the status of each Asset as agreed by the Authority in terms of its use in the Services (i.e.
predominantly used or non-exclusively used);
7.2.3
the current value of the Asset;
7.2.4
the location of the Asset;
7.2.5
its serial number (or any other unique identifier);
7.2.6
the nature of possession (owned, licensed or leased);
7.2.7
date of purchase, licence or lease; and
7.2.8
details of leasing arrangements (if appropriate) including, but not limited to, the type of
lease, expiry date and any option to purchase after expiry or costs of early termination (if
applicable).
7.3
The Operator shall deliver such Asset Register to the Authority either six months prior to expiry,
and as reasonably requested thereafter up to the expiry date or within one month of service of a
notice of termination (as appropriate).
8.
TRANSFER OF ASSETS
The Operator shall comply with the Authority's directions in relation to the transfer of Assets (if any)
on expiry or termination.
9.
TRANSFER OF THE AUTHORITY'S DATA
In addition to complying with the provisions of Clause
28, the Operator shall, upon reasonable
written request by the Authority or in any event, within one month of service of notice of
termination, deliver to the Authority the Authority's Data and this will include:
9.1
an inventory of the Authority's Data plus any other data available for transfer;
9.2
a data structure definition (where relevant) covering all available Authority Data; and
9.3
a proposed method for testing the integrity and completeness of the Authority's Data transferred.
10.
TRANSFER OF ANY WORK IN PROGRESS
Six months prior to expiry of or within one month of the service of notice of termination the Operator
shall deliver to the Authority a plan detailing when and how the work in progress will be transferred
from the Operator to either the Authority or a New Operator. The Authority's agreement to this plan
shall not be unreasonably withheld or delayed.
11.
DOCUMENTATION AND ACCESS
11.1
The Operator shall provide the Authority on request with information and documentation
reasonably necessary to assist with a transfer of the Services back to the Authority or to a New
Operator, including any documentation reasonably required to support an invitation to tender for
the provision of the Services. This includes full details of:
11.1.1
the Services and Service Levels achieved by the Operator;
11.1.2 any Software (including all Operator Software and Third Party Software) and any
hardware used to provide the Services;
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11.1.3
software and supply agreements used to provide the Services, including the agreements
relating to the Third Party Software identified by name of supplier, term of contract and
charges payable under the contract;
11.1.4
any employees used by the Operator to provide the Services who are employed for the
provision of the Services; this information shall be provided under conditions of
confidentiality and anonymity reasonably acceptable to the Operator.
11.2
The Authority may make the documentation available to suppliers who wish to tender
for the
provision of the services similar to the Services. The Operator shall respond expediently and in full
to any reasonable questions by the Authority or the suppliers and shall co-operate with any
reasonable due diligence activities carried out by suppliers.
12.
TRANSFER SUPPORT ACTIVITIES
12.1
The Operator shall co-operate with all reasonable requests made by either the Authority or a New
Operator relating to transition arrangements. The Authority and the Operator shall discuss the plan
for the transition of the service provision to either the Authority or a New Operator.
12.2
If requested, the Operator shall deliver to the Authority for its approval, by a date agreed by both
parties an Interfaces Document. This shall be a detailed functional specification of the interfaces
between the Services and all other services or systems, either provided by the Operator or any
sub-contractor or a third party. This specification shall accord to Good Industry Practice and be
kept up to date throughout the duration of this Agreement.
12.3
The Operator shall provide the Authority or a New Operator with a full and complete copy of the
incident log book, service records, service reports and all associated documentation recorded by
the Operator during the twelve months prior to the expiry or termination.
13.
COMMUNICATION PROGRAMME
13.1
The Authority and Operator shall jointly agree a strategy for communication with all stakeholders,
the Authority Personnel and the Staff during the Exit Period as a part of the Exit Plan. The strategy
shall set out the most effective vehicles for such communications and the assignment of
responsibility to the party best placed to manage such communications. For the avoidance of
doubt, the Operator shall only be permitted to charge the Authority for effecting such
communications where the Operator can demonstrate that it will incur additional cost, over and
above that deemed by the Authority as reasonable in such circumstance, and that such
communications fall outside its obligations under this agreement and provided always that it does
not relate to communications with the Staff.
13.2
Arrangements for communication with all stakeholders, the Authority Personnel and the Staff shall
be made so as to minimise any detrimental impact upon the parties’ respective business as a result
of undertaking any transfer contemplated by the Exit Plan. The parties shall share the
responsibility for release of information in connection therewith.
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Schedule 9
EMPLOYEES
DEFINITIONS USED IN THIS SCHEDULE
In this Schedule, the following words and phrases shall have the meanings set out below:-
Regulations
the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (2006/246) and/or any other
regulations enacted for the purpose of implementing the
Acquired Rights Directive (Council Directive
23/2001/EEC) into English law;
Relevant Transfer
a relevant transfer of an undertaking for the purposes of
the Regulations;
Transferring Staff
the meaning ascribed in Par
agraph 1.1;
Subsequent Transfer each date on which there is a transfer of responsibility for
Date
the provision of the Services between the Operator and
the Authority and/or a New Operator;
1.
EMPLOYEE PROVISIONS DURING EXIT
1.1
The Parties agree that where the Services or any part of the Services ceases to be provided by the
Operator for any reason and/or where the Services or any part of the Services are to be provided
by the Authority or by a New Operator, it is possible that there will be a transfer of staff to the
Authority or to the New Operator arising as a matter of law. Where the Authority considers that a
transfer will or might arise, or the Parties agree that a transfer is desirable, in respect of those staff
who are assigned to the organised grouping of resources or employees that have the objective of
delivering the Services or that part of the Services which shall cease to be provided by the
Operator immediately before the Subsequent Transfer Date (the “
Transferring Staff”) the terms
set out in this Schedule shall apply.
1.2
The Operator shall not later than six (6) months prior to the expiry of this Agreement (or, if earlier,
within twenty eight (28) Working Days from and including the date of notice being given of
termination of this Agreement), provide the Authority with:
1.2.1
a list of the Transferring Staff, including details of their job titles, age, length of continuous
service, current remuneration, benefits and notice, but not identifying the Transferring
Staff by name;
1.2.2
a list of agency workers, agents and independent contractors engaged by the Operator
and any Sub-Contractor;
1.2.3
the total payroll bill of the Transferring Staff;
1.2.4
the terms and conditions of the Transferring Staff;
1.2.5
details of any current disciplinary or grievance proceedings ongoing or circumstances
likely to give rise to such proceedings in respect of the Transferring Staff;
1.2.6
details of any claims, current or threatened, brought by the Transferring Staff or their
representatives;
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1.2.7
details of all death, disability benefit or permanent health insurance schemes and other
similar arrangements with or in respect of the Transferring Staff including the identities of
any such employees in receipt of benefits under any such scheme;
1.2.8
details of all collective agreements relating to or affecting the Transferring Staff, with a
brief summary of the current state of negotiations with such bodies and with details of any
current industrial disputes or claims for recognition by any trade union.
1.3
The Operator shall and shall procure that any Sub-Contractor shall maintain current adequate and
suitable records regarding the service of each of the Transferring Staff including without limitation
details of terms of employment, payments of statutory sick pay and statutory and non-statutory
maternity pay, disciplinary grievance and health and safety matters, income tax and social security
contributions and any enhanced redundancy entitlement in excess of statutory redundancy pay and
(save to the extent prohibited by law) shall transfer the same or a complete copy of the same to the
Authority or any New Operator within fourteen (14) Working Days from and including the date of
the transfer by operation of the Regulations of each Transferring Staff member to whom the
records refer.
1.4
Save where the Operator reasonably believes that there will be no relevant transfer for the purpose
of the Regulations the Operator shall co-operate in seeking to ensure the orderly transfer of the
Transferring Staff to the Authority and/or the New Operator.
1.5
The Operator undertakes to the Authority that, with effect from the date falling twelve (12) months
prior to the Subsequent Transfer Date or following the date of receipt of notice to terminate this
Agreement or any part of the Services, the Operator shall not and shall procure that Sub-
Contractors shall not without the prior written consent of the Authority (such consent not to be
unreasonably withheld or delayed):
1.5.1
amend or vary (or purport or promise to amend or vary the terms and conditions of
employment or engagement (including, for the avoidance of doubt, pay) of any
Transferring Staff member other than in accordance with any previous legally binding
agreement;
1.5.2
terminate or give notice to terminate the employment or engagement of any Transferring
Staff member (other than in circumstances in which the termination is for reasons of
misconduct or lack of capability);
1.5.3
transfer away, remove, reduce or vary the involvement of any Transferring Staff member
from or in the provision of the Services; and/or
1.5.4
recruit or bring in any new or additional individuals to provide the Services who are not
already involved in providing the Services.
1.6
The Operator shall indemnify the Authority and/or any New Operator against any Losses arising
out of or in connection with:
1.6.1
the termination of employment of any of the Transferring Staff by the Operator or a Sub-
Contractor up to and including the relevant Subsequent Transfer Date but (for the
avoidance of doubt) excluding a termination arising out of the Transfer itself;
1.6.2
all emoluments and other benefits of the Transferring Staff arising in respect of the period
prior to the relevant Subsequent Transfer Date regardless of when they fall due for
payment;
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1.6.3
any act or omission of the Operator or a Sub-Contractor up to and including the relevant
Subsequent Transfer Date in respect of the employment of the Transferring staff (other
than the Transfer); and
1.6.4
any claim by any person other than a Transferring staff member relating to that person’s
employment or its termination by the Operator or a Sub-Contractor whether before, on or
after the relevant Subsequent Transfer Date.
1.7
The Operator shall comply and procure that Sub-Contractors shall comply with Regulation 13 and
14 of the Regulations in relation to any transfer as contemplated in Paragrap
h 1.1 and shall
indemnify the Authority and the New Operator against any Losses caused by any failure by it to so
comply except where such failure is occasioned by the default of the Authority or the New
Operator.
1.8
On the cessation of all or part of the Services, payments of any appropriate redundancy and
relocation compensation are the responsibility of the Operator.
1.9
The Authority may in its discretion assign the benefit of the indemnities set out in this Schedule to
the New Operator.
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Schedule 10
DISASTER RECOVERY
DEFINITIONS USED IN THIS SCHEDULE
In this Schedule, the following words and phrases shall have the meanings set out below:-
Business Continuity
shall have the meaning ascribed in Paragraph
3.1;
Plan
Business As Usual
shall have the meaning ascribed in Paragraph
7.2
Notice
Disaster
means an event having a serious impact on the provision
of the Services and/or the Scheme, which is either:
(a)
agreed to be such by the Parties from time to
time (such agreement not to be unreasonably withheld);
or
(b)
identified as such in the Disaster Recovery
Plan.
Disaster Recovery
the plan prepared and maintained by the Operator in
Plan
accordance with Paragraph 3 setting out its plans for
dealing with and recovering from a Disaster;
1.
PURPOSE
The purpose of this Schedule is to set out the obligations of the Operator in relation to business
continuity and disaster recovery.
2.
PRINCIPLES
The Operator shall be responsible for providing Disaster recovery Services in accordance with this
Schedule and the Disaster Recovery Plan from and including the Service Commencement Date.
3.
PLANNING
3.1
The Operator shall, by no later than the Service Commencement Date, prepare and maintain
throughout the Term plans which describe the arrangements required to:
3.1.1
ensure continuity of the Scheme; and
3.1.2
minimise the adverse impact of a Disaster on the Authority and/or the Authorised Users
and/or the Scheme,
(a "
Business Continuity Plan").
3.2
As part of the Business Continuity Plan, the Operator shall:-
3.2.1
prepare a Disaster Recovery Plan by no later than the Service Commencement Date;
3.2.2
maintain and, as necessary including to comply with any principles or provisions set out in
a Business Continuity Plan, update the Disaster Recovery Plan throughout the Term.
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3.3
The Business Continuity Plan and the Disaster Recovery Plan shall be prepared and maintained in
accordance with Good Industry Practice.
3.4
The Operator shall submit detailed drafts of the Business Continuity Plan and the Disaster
Recovery Plan to the Authority no later than twenty (20) Working Days prior to but excluding the
Service Commencement Date. The Authority may respond with comments on the draft plans
which shall be taken into account by the Operator when finalising the Plans.
3.5
The Disaster Recovery Plan must clearly define:
3.5.1
the type of event to which the plan applies;
3.5.2
a risk and impact assessment for each potential type of Disaster situation set out in the
Disaster Recovery Plan;
3.5.3
detailed technical processes and action plans for managing each potential type of
Disaster situation as set out in the Disaster Recovery Plan and for enabling system and
data recovery as well as subsequent re-instatement of business processes;
3.5.4
provision and maintenance of a disaster recovery site equipped with sufficient hardware,
software and services required to provide the Services in accordance with the Service
Levels specified in
Schedule 4 (Performance Management);
3.5.5
actions required and timeframes for the reinstatement of full normal Services as described
in Paragr
aph 7.1;
3.5.6
details of the human resources required to implement the Disaster recovery Services
including identification of the skills and experience of the relevant Staff;
3.5.7
identification of the key roles, responsibilities and decision-making authority limits
including the names and contact details of relevant individuals and the nominated points
of contact for the Operator and Authority in accordance with Paragr
aph 6.1.3;
3.5.8
identification of third parties who will need to be informed and the events that will trigger
such contact;
3.5.9
identification of third parties (including Sub-Contractors) whose services will be required or
impacted in the event of each potential type of Disaster;
3.5.10
definition of time-related triggers and checkpoint events including the timeframes for the
Operator to investigate the likely scope and duration of the Disaster and begin to migrate
the provision of the Services to the Disaster recovery Services infrastructure;
3.5.11
escalation and decision-making events;
3.5.12
provision for conducting Disaster recovery testing in accordance with Paragraph
10;
3.5.13
provision for periodic review of the Disaster Recovery Plan as required by Paragraph
11.1.1;
3.5.14
all other services to be provided by the Operator in respect of a Disaster; and
3.5.15
the process for demonstrating that the provisions of this Schedule are fully met.
4.
DISASTER RECOVERY SERVICES
4.1
The Operator shall ensure that the Services are available within twenty four (24) hours after the
declaration of a Disaster in accordance with Paragraph
5.
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4.2
The Operator shall provide and maintain (at appropriate levels of standby readiness) such
infrastructure, equipment, hardware, software (including appropriate licences), documents,
personnel and any other goods and services as is necessary to fulfil its obligations under this
Schedule and provide the Disaster recovery Services (including, for the avoidance of doubt, to
ensure it is able to comply with its obligations in the Disaster Recovery Plan in the event of a
Disaster).
4.3
In the event of any change to the Disaster Recovery Plan, the Operator shall ensure that it
implements such changes as may be necessary to ensure it continues to comply with the
requirement in Paragraph
4.2.
4.4
The Operator shall ensure that any third parties whose services would be required in the event of a
Disaster are approved by the Authority as Material Sub-Contractors in accordance with Clause
35 and, unless otherwise agreed by the Authority, are contracted to provide the relevant services
throughout the Term of this Agreement.
5.
DECLARATION OF A DISASTER
Where a Party becomes aware that a Disaster has occurred or that its occurrence can reasonably
be expected to take place imminently, that Party shall declare a Disaster by informing (by the most
rapid method of communication reasonably practicable) the other Party and the Operator shall
formally declare a Disaster and invoke the relevant Disaster Recovery Plan.
6.
OCCURRENCE OF A DISASTER
6.1
In the event of a Disaster being declared the Operator shall:
6.1.1
carry out the activities and procedures described in the Disaster Recovery Plan and
otherwise comply with all obligations in the Disaster Recovery Plan in order to restore
provision of the Services and minimise impact on Authorised Users and the Scheme;
6.1.2
ensure that all relevant disaster recovery reference material is made available to the
appropriate personnel;
6.1.3
ensure that a nominated Operator point of contact is provided as required in the Disaster
Recovery Plan during the period until acceptance of a Business As Usual Notice (served
in accordance with Paragraph 7.2) in respect of the relevant Disaster;
6.1.4
ensure that the Authority Contract Manager as the prime contact receives appropriate
levels of communication regarding the Disaster, actions taken, recovery status and
recovery times through communications channels as agreed in the Disaster Recovery
Plan;
6.1.5
provide reasonable input and assistance in the event that press releases are to be issued
in relation to the Disaster or its consequences;
6.1.6
with the assistance of the Authority, use reasonable endeavours to resolve any Disaster-
related issues not adequately provided for in the Disaster Recovery Plan or which are not
resolved by the implementation of those plans and use reasonable endeavours to achieve
the Authority's mitigation and Service recovery objectives;
6.1.7
take such further steps as may reasonably be expected of the Operator acting in
accordance with Good Industry Practice (including mitigation of and risk minimisation in
respect of all impacts of the Disaster and alerting the Authority in respect of any related
issues or concerns which should reasonably be brought to the Authority's attention);
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6.1.8
be relieved from the application of Service Credits in the event it fails to achieve a Service
Level (other than a Service Level applicable to the Disaster recovery Services), to the
extent that:
(a)
the Operator has not caused or contributed to the Disaster;
(b)
the Operator can demonstrate to the Authority that the Disaster directly caused
the failure to meet the relevant Service Level;
(c)
such failure to achieve the relevant Service Level is not in breach of the
Disaster Recovery Plan; and
(d)
such failure takes place during the period that the Operator is required to
implement the Disaster Recovery Plan in accordance with this Agreement.
7.
RETURN TO BUSINESS AS USUAL
7.1
The Operator shall ensure that all Services are reinstated to normal operation in accordance with
the Disaster Recovery Plan but in any event, as soon as is reasonably practicable in the
circumstances.
7.2
Once all Services affected by the Disaster have returned to normal operation in that the Services
are:
7.2.1
operating in line with the applicable Services Levels (or in the absence of Service Levels
for the particular components of the Services to the standard otherwise required under the
terms of this Agreement presuming the absence of any Disaster); and
7.2.2
being provided in the same manner as the relevant Services were being provided on the
Working Day prior to the declaration of the Disaster,
the Operator shall issue to the Authority a notice indicating that the Services have returned to
normal operation (a "
Business As Usual Notice").
8.
POST-DISASTER REVIEW
8.1
Within a reasonable period (being, in any event, no longer than twenty (20) Working Days from and
including the date of issue of the Business As Usual Notice) after a Business As Usual Notice has
been issued in accordance with Paragraph
7.2, the Operator shall carry out a review (a “
Post-
Disaster Review") of the causes of the Disaster, the operation and effectiveness of Disaster
Recovery Plan and any necessary modifications to the Disaster Recovery Plan. The Operator shall
provide the Authority with a draft copy of its Post-Disaster Review findings and offer the Authority
the opportunity to provide its comments on the findings and any recommendations associated
therewith. The Operator shall have due regard to the Authority's comments and shall issue a Post-
Disaster Review report to the Authority. The Operator shall update the Disaster Recovery Plan by
incorporating such modifications within twenty (20) Working Days from and including the date of
the issue of such Post-Disaster Review report for acceptance by the Authority.
8.2
In the event of long term continuing Disaster the Authority may require that an initial review takes
place no later than twenty (20) Working Days from and including the date of the occurrence of the
Disaster with a further Post-Disaster Review taking place within a reasonable period (being, in any
event, no longer than twenty (20) Working Days from and including the date of issue of the
Business As Usual Notice) after the Business As Usual Notice has been issued in accordance with
Paragr
aph 7.2.
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9.
FAILURE TO IMPLEMENT THE DISASTER RECOVERY PLAN
9.1
In the event that the Operator fails to successfully effect recovery from the Disaster by
implementing the Disaster Recovery Plan or otherwise:
9.1.1
the Authority may claim payment for, or set off against future invoices, all costs and
expenses incurred by the Authority that relate to such failure; and
9.1.2
such failure shall constitute a Deemed Material Default for which the Authority may
terminate this Agreement and/or part of the Services in accordance with Clause
30.1 (provided always that such termination shall not prejudice or affect any right of action or
remedy which shall have accrued or shall thereafter accrue to the Authority).
10.
DISASTER RECOVERY TESTING
10.1
The Operator shall execute a Disaster Recovery test as soon as reasonably practical within nine
(9) months of the Effective Date and annually thereafter to assess and demonstrate the proper
operation and effectiveness of the Disaster Recovery Plan and the Disaster recovery Services
through such combination of desk reviews, simulation and live testing
as set out in the Disaster
Recovery Plan.
10.2
Disaster Recovery tests shall be planned and executed as a planned withdrawal of service in
accordance with the Authority's requirements.
10.3
The Authority shall be entitled to witness and attend such testing and the Operator shall give the
Authority all relevant information relating to the tests in order to assist the Authority to arrange
attendance by Authority personnel.
10.4
The Operator shall provide a report on the results of the Disaster Recovery testing conducted in
accordance with this Paragraph
10 within two (2) Working Days from and including the date of
completion of any such testing.
10.5
The Operator shall update the Disaster Recovery Plan to incorporate any modifications
demonstrated to be necessary by the Disaster Recovery testing within twenty (20) Working Days of
the completion of Disaster Recovery testing for Acceptance by the Authority.
11.
CHANGES TO THE DISASTER RECOVERY PLAN
11.1
The Operator shall review the Disaster Recovery Plan:
11.1.1
on a periodic basis as set out in the Disaster Recovery Plan; and
11.1.2
as required by Paragraph
11.3.
11.2
The Authority shall use reasonable endeavours to advise the Operator of any changes which are
made or proposed to be made to a Business Continuity Plan.
11.3
In the event that changes are made or proposed to be made:
11.3.1
to any Business Continuity Plan; and/or
11.3.2
to the Agreement and/or to the Services (including a Change agreed or to be agreed in
accordance with the Change Control Procedure);
and such changes impact or may impact on the operation of the Disaster Recovery Plan or
otherwise reasonably require the extension, variation or review of the Disaster Recovery Plan, this
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shall be notified to the Authority by the Operator. As soon as reasonably practicable following such
notification, the Operator shall issue an updated Disaster Recovery Plan for Acceptance by the
Authority.
11.4
The Operator shall provide copies of the Disaster Recovery Plans to the Authority on request.
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Schedule 11
NOT USED
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Schedule 12
POLICIES AND STANDARDS
1.
PURPOSE
1.1
This Schedule details the policies, Standards and regulations, (international, European, British, HM
Government, Authority or otherwise) which the Operator is required to observe in delivering the
Services pursuant to this Agreement. The provisions of this Schedule are without prejudice to the
general obligations of the Operator, as set out in this Agreement, to comply with Laws and
Standards.
1.2
Any exceptions or extensions to the standards set out in this Schedule shall be agreed in writing
between the Parties (acting reasonably).
1.3
Throughout the Term, the Parties shall notify each other of any new or emergent Standards which
could affect the Operator’s provision, or the Authority’s receipt, of the Services.
1.4
Where this Schedule makes reference to a specific standard, that reference shall be deemed to
include reference to any equivalent UK or internationally recognised standard unless indicated to
the contrary.
2.
GENERAL STANDARDS
2.1
The Operator shall (and shall procure that Material Sub-Contractors shall) comply with:-
2.1.1
EN 45000 standards;
2.1.2 ISO/IEC2000,
ISO9000:2000
standards.
2.2
Further the Operator shall by no later than twelve (12) months of the Service Commencement
Date, obtain ISO90001:2000 certification in respect of the Services and shall thereafter renew such
certification annually.
2.3
The Operator shall operate within the project and programme management philosophies and
methodologies which are consistent with the HM Government standards and methodologies (for
example, PRINCE 2).
2.4
The Operator shall (and shall procure that Material Sub-Contractors shall) be accredited by UKAS
or another appropriate national accreditation body in relation to the above standards.
3.
DATA STANDARDS
The Operator shall (and shall procure that Material Sub-Contractors shall) comply with the following
data standards:
3.1
Data standards should follow the UK Government Data Standards Catalogue within the eGIF
Interoperability framework (http://www.govtalk.gov.uk/). In particular:
3.1.1 Property
data:
http://www.govtalk.gov.uk/gdsc/html/frames/default.htm
3.1.2
For property data that has not yet been defined and published, the Authority is a member
of PISCES (see www.pisces.co.uk) which is in the process of developing the eCommerce
standard for real estate. In order to enable the electronic transfer of information directly
from one system to another, the Authority will be working towards defining and publishing
data standards that the Operator will be expected to use.
3.1.3
Any business conducted through the internet should follow the ebXML standard.
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4.
INFORMATION TECHNOLOGY STANDARDS AND REGULATIONS
4.1 Information
Technology:
4.1.1
The Operator shall manage the environmental conditions for computer systems and
hardware in manner that is consistent with ISO 14001.
4.1.2
Any new hardware for the delivery of the services shall conform to one of the following
safety standards: EN 60950, IEC 950
4.1.3
Any new domestic mains powered electronic equipment required for the delivery of the
Services shall conform to the following safety standard: BS EN 60065
4.1.4
Any new apparatus connecting to any telecommunications network, and required for the
delivery of the service shall conform to the following safety standard: BS EN 41 003
4.1.5
All data processing equipment and other electrical equipment shall conform to EN 60950
4.1.6
Local area networks shall conform to EMI/EMC EN 55022 or EN50082 Standards.
4.1.7 Please refer to BSI Standards Catalogue (http://www.bsonline.bsi-
global.com/server/index.jsp) for relevant and appropriate standards that we have not
outlined above.
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Schedule 13
SECURITY
1.
PRINCIPLES
1.1
The Operator shall be responsible for ensuring the physical and technological security of:
1.1.1 the
Operator
systems;
1.1.2
Authority Data and the Database; and
and shall implement all appropriate security measures, investigate all actual or suspected security
weaknesses, breaches and/or incidents and take any remedial action found to be necessary.
2.
SECURITY STANDARDS
2.1
Throughout the Term and in relation to all security issues, the Operator shall (and shall procure that
all Material Sub-Contractors shall) comply with ISO27001 for Information Security Management
and guidance in initiating, implementing or maintaining security within an organisation.
2.2
Any failure by the Operator to comply with the provisions of this Schedule shall be a Deemed
Material Default whereupon the Authority may terminate this Agreement in accordance with Clause
30.1.
2.3
Upon request by the Authority and on reasonable notice at any time during the Term, the Operator
shall demonstrate to the Authority that the technical and non-technical security controls are
implemented and operating in accordance with this Agreement.
2.4
The Authority shall retain the right to inspect and examine at any time the implementation of
security measures proposed or put in place by the Operator and, at the Authority's absolute
discretion, to require the Operator to amend, suspend or remove any such security measures.
2.5
In all matters of security, the Operator shall provide the Authority with full details of any products,
systems or processes proposed by the Operator in connection with the Services.
3.
SECURITY MANAGEMENT
3.1
The Operator shall operate a security management function in relation to the Operator Systems.
This shall include having:
3.1.1
a single named point of contact within the Operator organisation for security management;
3.1.2
board-level responsibility for security within the Operator organisation;
3.1.3
an appropriate process within the Operator for escalation and resolution of security
issues;
3.1.4
security specialists with the necessary skills and experience (including risk assessment,
technical design, security testing, vulnerability assessment and contingency planning) to
fulfil the requirements of this Agreement;
3.1.5
administrators with the necessary skills and experience to perform required security
administration activities (including setting up new users, Malicious Software clean-up, data
back-up, system monitoring, the investigation of security incidents); and
3.1.6
a person or team responsible for assessing the security implications of new technology or
evaluating the opportunities presented by new security products and services.
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3.2
The Operator shall implement and maintain a detailed security management process for the
Operator systems, which shall be agreed with the Authority during the Implementation Phase.
3.3
The Authority may, on the provision of notice which is reasonable in the circumstances, convene
such meetings as it considers necessary to deal with any security-related issues. The Operator
shall ensure that the Staff nominated by the Authority are available to attend any such meeting.
3.4
Without prejudice to any obligations of the Operator under the Agreement, the Operator shall
provide the Staff with appropriate training on security functions and procedures.
4.
SECURITY TEST PLANS AND THEIR IMPLEMENTATION
4.1
During the Implementation Phase, the Operator shall ensure that its Testing includes Tests of the
security of its systems.
4.2
Upon request by the Authority, the Operator shall document the findings of any security testing and
provide a security test report for Acceptance by the Authority.
4.3
The Operator shall not use live Authority Data for test purposes (unless otherwise agreed by the
Authority).
5.
ACCESS TO THE SYSTEM
5.1
The Operator shall:
5.1.1
implement the system on dedicated hardware and have dedicated hardware for system
standby.
5.1.2
restrict physical access to the dedicated Non Domestic Energy Certificate Register
Operations Systems staff only and shall control physical access via a physical access
system (e.g. swipe and/or key-code door access). The Non Domestic Energy Certificate
Register Systems Team will comprise of named authorised individuals;
5.1.3
ensure that external logical access to all systems is controlled and restricted via industry,
standard packet inspection firewalls, again managed by the Non Domestic Energy
Certificate Register Operations Systems staff;
5.1.4
ensure test and production networks are physically segmented;
5.1.5
ensure data held within test will be sample in nature and has no relations to ‘real-world’
data unless the Authority authorises the extraction of data via an agreed ‘scrambling’
process;
5.1.6
ensure levels of access are restricted to those permission levels which are appropriate to
the relevant business needs, e.g. Development staff, do not have access to Production
Data and Infrastructure;
5.1.7
ensure data backups will be securely held both on-site and off-site at a secure data
storage facility. Only authorised access to backup media shall be available;
5.1.8
The Energy Performance of Buildings Regulations 2007 (SI 991/2007) state that all
operational data held by the Operator belongs to the Secretary of State and cannot be
passed to any other party without express consent of the Authority. To avoid any doubt
this includes but is not limited to the electronic and physical copies of Energy Documents
and the data that was collected and entered into the models to be used to produce these
Energy Documents;
5.1.9
ensure Energy Documents are in Portable Document Format (PDF) representing the
human-readable, printed copy of the Energy Documents;
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5.1.10
ensure Energy Documents are in 'raw data' format (XML);
5.1.11
ensure the Energy Model Input Data are in ‘raw data’ format (XML);
5.1.12
ensure security of address and property data including the Energy Assessor Confirmed
Unique Property Reference Numbers and the associated Address data for each Property;
5.1.13
ensure the security of data on Energy Assessors as contained in the Energy Assessor
Index;
5.1.14
ensure the security of all authentication data (User Identifiers, security information such as
passwords or digital certificates, and contact details) for Registered Users; and
5.1.15
ensure the security of any indexes on the above.
6.
AUDIT
6.1
The Operator shall implement, operate and maintain records of the security of its systems and/or
the Authority Data and/or the Database and any security related incident.
6.2
The Operator shall document the findings of audit control testing to confirm the effectiveness of the
security controls and provide an audit control security test report for acceptance by the Authority.
6.3
The Operator shall ensure that all data, logs, documents and other relevant information relating to
any security incident are kept securely. Such data, logs, documents and information shall not be
destroyed unless the Operator has first obtained the written approval of the Authority.
6.4
The Operator shall produce, maintain and implement an agreed strategy for protection against,
detection of and removal of Malicious Software.
6.5
The Operator shall have in place appropriate monitoring systems to detect security-related issues.
The Operator shall notify the Authority immediately upon detection of any such issue.
7.
CHANGE CONTROL
7.1
Each Impact Assessment conducted in accordance with the Change Control Procedure shall also
include details of the impact of any proposed Change upon security including an assessment of the
impact of the change on:
7.1.1 existing
technical
security
arrangements;
7.1.2
the then current versions of the security policies and documentation referred to in this
Security Schedule; and
7.1.3
physical/administrative/personnel security arrangements required.
7.2
The Operator shall ensure that no Change is implemented unless a security risk assessment has
been performed as part of the Change Control Procedure.
8.
LEGAL AND REGULATORY
8.1
The provisions of this Paragraph are without prejudice to the requirements elsewhere in this
Agreement for the Operator to comply with all applicable Laws and Standards in providing the
Services.
8.2
The Operator shall ensure that:
8.2.1
it does not contravene the provisions of the Computer Misuse Act 1990; and
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8.2.2
that it applies suitable controls in the provision of the Services so that the Authority
(should it wish to do so) shall be able to seek appropriate redress under the Computer
Misuse Act 1990 in the event of a detected or suspected misuse of the Services or the
Authority Systems.
9.
DOCUMENTATION
9.1
The Operator shall maintain security documentation including:
9.1.1
an overall security strategy (defining the Operator’s approach to maintaining a secure
environment); and
9.1.2
the technical security strategy (outlining the technical measures implemented by the
Operator to maintain a secure environment).
9.2
In respect of the documents described in Paragraph 9.1, the Operator shall implement and
maintain a document management / version control system which enables clear identification of
each document's history and revision trail.
9.3
The Operator shall implement and maintain a security strategy and a technical security strategy for
the Operator system.
9.4
The Operator shall comply with its established security operating procedures and ensure that those
security operating procedures are distributed to relevant Staff.
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Schedule 14
SUB-CONTRACTS AND SUB-CONTRACTORS
1.
PURPOSE
This Schedule contains provisions relating to the engagement and management of Sub-
Contractors.
2.
COMPLIANCE WITH POLICIES AND PROCEDURES
2.1
The Operator shall ensure that all Sub-Contractors comply with:
2.1.1
the security policies, Standards, regulations and requirements referred to in
Schedule 13 (Security) a
nd Schedule 12 (Policies and Standards) as they apply to the Operator; and
2.1.2
the Authority's rules, guidelines, policies and procedures (including IT policies) that are
relevant to the provision of the Services or the Sub-Contractor’s access to or use of
Confidential Information, Authority Data or resources or facilities provided by the Authority
from time to time.
2.2
The Operator shall ensure that when seeking to appoint or in awarding a contract to a proposed
Sub-Contractor it does not discriminate on the grounds of:
2.2.1
nationality; or
2.2.2
that the goods to be supplied under the contract originate in another state.
3.
IDENTITY OF SUB-CONTRACTORS
3.1
Notwithstanding the criteria for qualification as a Material Sub-Contractor, the Operator shall not
enter into any arrangement with a Sub-Contractor which is likely, in the opinion of the Authority:
3.1.1
to bring the Authority into disrepute or otherwise to affect adversely the reputation or
commercial standing of the Authority, the Crown, any Crown Body or the Government; or
3.1.2
to be a threat to the health, safety and/or security of any of the bodies referred to in
Paragrap
h 3.1.1 or any of their personnel.
3.2
In the event that the Operator, in accordance with the terms of this Agreement, enters into a Sub-
Contract, the Operator shall ensure that a term is included in the Sub-Contract which requires the
Operator to pay all sums due to the Sub-Contractor within a specified period, not to exceed thirty
(30) days, from the date of receipt of a valid and undisputed invoice, as defined by the terms of the
Sub-Contract.
4.
PERFORMANCE OF SUB-CONTRACTORS
4.1
If the Authority has concerns about the performance of any Sub-Contractor:
4.1.1
the Authority shall notify the Operator of such concerns;
4.1.2
the Operator shall take appropriate action to address the Authority's concerns within five
(5) Working Days from and including the date of notification by the Authority of its
concerns (or such other timeframe as the Authority may specify); and
4.1.3
if the Authority is not satisfied with the action taken by the Operator, the Authority may
require replacement of the Sub-Contractor.
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4.2
If the Authority requires replacement of the Sub-Contractor under Paragraph
4.1.3, the Operator
shall (in accordance with a plan and reasonable timetable agreed between the Parties) cease using
such Sub-Contractor to provide the relevant goods and/or services and make alternative
arrangements to ensure that the Services continue to be provided (other than by such Sub-
Contractor) without any disruption or interruption to the Authority or any Authorised User.
5.
TERMS OF SUB-CONTRACTS
5.1
The Operator shall use its reasonable endeavours to procure that its arrangements with Sub-
Contractors are appropriately documented and contain the following terms:
5.1.1
rights enforceable under the Contracts (Rights of Third Parties) Act 1999 for the Authority,
a New Operator or a third party of the Authority's choice to take an assignment or novation
of the sub-contract (or part of the sub-contract where relevant), during the period when the
Operator is implementing the Exit Plan;
5.1.2
commercial terms which allow for the smooth transfer of services to the Authority or a
New Operator during the during the period when the Operator is implementing the Exit
Plan so as to facilitate the Operator's and its Sub-Contractors' compliance with the
obligations in Schedule 8 (Exit Plan);
5.1.3
payment terms that will not unfairly prejudice the Authority after expiry or termination;
5.1.4
appropriate obligations in respect of Confidential Information, the protection of Authority
Data and security, policies, Standards and regulations;
5.1.5
to the extent that a Deliverable is or comprises bespoke Intellectual Property, an
assignment to the Authority of all title to, and Intellectual Property Rights in, any
Deliverable created by the Sub-Contractor (or its employees, contractors or agents) in the
course of supplying services under the relevant sub-contract;
5.1.6
no prohibition or restriction on the Sub-Contractor entering into any contract directly with
the Authority; and
5.1.7
an indemnity in favour of the Authority in respect of any claim or demand by any
employee, worker or agent of the Sub-Contractor that he or she has an employment
relationship with the Authority.
6.
MATERIAL SUB-CONTRACTORS
6.1
An existing Sub-Contractor who, at the time that it entered into an agreement with the Operator
during the Term did not qualify as a Material Sub-Contractor shall be treated as such when the
value attributable to its obligations under such sub-contract (or related sub-contracts) with the
Operator is in excess of
per annum or its obligations include the Processing of Personal
Data or whose services would be required in the event of a Disaster.
6.2
In relation to Material Sub-Contractors, the Operator shall notify the Authority of any change
affecting a Material Sub-Contractor which may have a material impact on the provision of the
Services, together with all reasonable information to enable the Authority to consider the likely
impact of the change, and the Parties shall discuss and seek to agree ways in which any adverse
impact may be minimised.
6.3
For the purposes of Claus
e 15, the list of approved Material Sub-Contractors is set out in the
Annex to this Schedule.
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6.4
The Operator shall maintain and, at the commencement of the relevant Exit Period, make available
to the Authority, on request and at no cost, full and accurate copies of the terms of all sub-contracts
separately entered into with Material Sub-Contractors.
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ANNEX TO SCHEDULE 14
APPROVED MATERIAL SUB-CONTRACTORS
None
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Schedule 15
DELIVERY SCHEDULE
Deliverable
Target Date
NDEPC Release 1. Implement Pilot/Transitional System to meet minimum
specifications as set out in High Level Business Requirements and Contract
25th February 2008
Schedule 3.
Implementation of DEC and AR functionality / Central Information Point
To be confirmed by
(CIP)
CLG
End-to end piloting with all stakeholders – this allows the necessary lead time
for all stakeholders to build systems and business processes to allow them to
29th February – 5th
undertake their NDEPC responsibilities in time for the 6th April legislative
April 2008
deadline.
NDEPC Release 2. Go live with an Initial Operational Release as set out in
High Level Business Requirements and Contract Schedule 3 in a live
5th April 2008
operational environment
Initial period of operations
6th April – 1st
Releases required for CIF dates of 1st July and 30th September with
October 2008
intermediate pilot and test releases to be mutually agreed between CLG and
LIG.
NDEPC Release 3. Go live of full Non Domestic Register requirements (as per
High Level Business Requirements and Contract Schedule 3). This represents
1st October 2008
the switch from the Implementation Phase to the Business as Usual Phase
Business as Usual Operations
2nd October
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Schedule 16
REVIEW PROCESS
1.
INTRODUCTION
1.1
A summary page of the Baseline Financial Model for the Review Process is attached at Annex 1 to
this
Schedule 16 (Review Process). The Baseline Working Model is held by the Authority and
Operator and will form the basis for agreeing any changes to the Lodgement Fee in accordance
with this Schedule 16 (Review Process).
1.2
The Baseline Financial Model shows the cash flows of income versus expenses for the
Implementation Phase and a further ten years of the Operational Phase. Derived from those cash
flows will be an Agreed Rate of Return (ARR) expressed as a percentage. This will include the
cash expense of purchase of capital assets since all reusable capital assets are handed over to the
Authority or a New Operator on termination or expiry of this Agreement.
1.3
The costs for the Review Panel will be allowable costs for the Operator and appear as such in the
Financial Model.
2.
DEFINITIONS
2.1
In this Schedule, the following words shall have the following meanings:
"IRR"
the internal rate of return of the project on a cash
flow basis. Calculated on a 12 monthly period basis
(i.e. not on the basis of monthly cash flows);
"ARR" or "Agreed Rate of Return"
this is the IRR agreed between the parties and set
out in the Baseline Financial Model;
"NPV"
the net present value at any point of review. Actual
cash flows will, of course, deviate from those agreed
at the outset and there may be agreed changes
implemented (see below). Future transaction
volumes might also need revision in the light of
actual volumes to date. Therefore at any review
point there will be a deviation in IRR from the ARR.
The net present value of the Scheme is defined as
an amount of cash flow in the present year, which, if
it existed, would set the IRR equal to the ARR;
"Expenses"
Includes items in the Financial Model and includes
necessary capital expenditures which are expensed
for future review purposes in the Contract Year of
payment.
3.
REVIEW PERIOD AND APPROACH
3.1
A Review shall commence:
3.1.1
on the first anniversary of the Service Commencement Date;
3.1.2
two and a half years after the Service Commencement Date;
3.1.3
five and a half years after the Service Commencement Date;
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3.1.4
eight and a half years after the Service Commencement Date (the "
Final Review"); and
3.1.5
at the election of the Authority, if the Authority considers a situation has arisen which is
outside the scope of the Agreement and/or the reasonable contemplation of the Parties.
3.2
The Authority will agree with the Operator the identity of the Review Panel to conduct the Review.
If the Parties are unable to agree on the identity of the Review Panel then the Review Panel shall
be nominated by the Industry Working Group on the application of either Party at any time.
3.3
The costs of such a Review will be borne by the Operator. The Review Panel will act as expert and
not as arbitrator. The Operator shall afford such access to the Operator's books and records and
personnel as shall be requested to enable the Review to be conducted expeditiously.
3.4 The
Review
Panel
will:
3.4.1
assess actual Income and Eligible Expenditure from the Service Commencement Date
against the previously agreed Financial Model;
3.4.2
determine whether the actual rate of return achieved was higher or lower than the Agreed
Rate of Return; and
3.4.3
ascertain the level of the Lodgement Fee to be recommended to achieve the Agreed Rate
of Return.
3.5
Without prejudice to the above, the Review will consider the following (without limitation):
3.5.1
volumes and associated revenues received over the Term to date;
3.5.2
the Project Account for preceding years and the year to date;
3.5.3
the Operator's returns when compared to expected ARR;
3.5.4
additional or reduced costs as a result of Changes;
3.5.5
additional or reduced costs as a result of Authority Specific Changes in Law and Authority
Specific Changes in Standards;
3.5.6
review of Operator's underlying costs, costs model and service levels including by
reference to comparable schemes;
3.5.7
(as necessary) review of the pro forma project account (and the Eligible Expenditure for
inclusion therein);
3.5.8
direct losses and / or expenses incurred by the Operator as referred to in paragraph 8.4
of Schedule 3 (Implementation); and
3.5.9
direct losses and/or expenses incurred by the Operator as a result of its compliance with
the provisions of Schedule 8 (Exit Plan) pursuant to Clause 40.1 where this Agreement is
subsequently extended by the Authority pursuant to Clause 2 or by mutual agreement.
3.6
Any changes in costs as a result of Changes, Authority Specific Changes in Law and Authority
Specific Changes in Standards shall be adjusted to take into account the obligation of the Operator
to mitigate the effects of such Changes, Authority Specific Changes in Law or Authority Specific
Changes in Standards (as the case may be) and shall be further reduced by any savings in costs
achieved by the Operator as a result of the Change, Authority Specific Change in Law or Authority
Specific Change in Standards (as the case may be).
3.7
Any alteration to the Lodgement Fee will be subject to decision by the Secretary of State and
implementation of an appropriate statutory instrument in accordance with and subject to the usual
parliamentary process.
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3.8
Disputes under the review process will be governed by the Dispute Resolution Process (with any
amendments that the Authority considers appropriate).
4.
DEFINITION OF ‘EXPECTED PROFIT’ AND RE-BASING FINANCIAL MODEL
4.1
Actual expenses and revenues will be analysed against those submitted in the previous Financial
Model. The Review Panel will assess the reasons for the variations, taking into account agreed
Changes and other factors outside the control of the Operator.
4.2
These factors will be used to re-baseline the Financial Model as per the agreed ARR.
4.3
If the NPV is positive, then the Operator will be deemed to have made excess positive net
cashflows over those expected. If the NPV is negative, then the Operator will be deemed to have
made less profit than that expected.
5.
TREATMENT OF INCOME
The profile of actual versus expected transaction volumes (and therefore income) will be entered
into the Financial Model as part of the assessment.
6.
TREATMENT OF SERVICE CREDITS
6.1
Service Credits incurred by the Operator in each Measurement Period will be calculated and
accumulated in a separate account to the Project Account ("
Service Credit Fund").
6.2
The value of the Service Credit Fund will be retained and not form part of Eligible Expenditure.
6.3
The Service Credit Fund will be used by the Operator to implement any Authority RFC (to the
extent that the value of the Service Credit Fund is greater or the same as the estimated cost of
implementing the Authority RFC).
6.4
The Service Rectification Plans will be implemented at the Operator's cost.
6.5
The spend against these Service Rectification Plans must be auditable as any other CECR project
related costs.
7.
TIME VALUE
All values in the previous period taken into account in the NPV calculation will be compounded by
the annual ARR.
8.
IMPACT OF VOLUMES ON OPERATING EXPENSES
8.1
The impact of transaction volumes may be taken into account at the Review in relation to Variable
Operating Expenses (as set out in the Financial Model) for the purposes of agreeing a Re-
baselined Financial Model.
8.2
‘Fixed Operating Expenses’ (as set out in the Financial Model) will not be varied according to
variations in transaction volumes.
9.
DIRECT AND INDIRECT COSTS
9.1
The Review will take into account the actual outcomes in 'direct costs' such as salaries of full-time
staff (as set out in the Financial Model).
9.2
Actual outcomes in 'indirect costs' such as office support or corporate overheads (as set out in the
Financial Model) will not be taken into account by the Review.
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9.3
The Operator agrees with the Authority at the outset what fixed percentages should be used during
the Term to determine ‘indirect costs’.
10.
THE PROJECT OPERATING RESERVE
10.1
This is a budget agreed with the Authority at the outset which can be used to cater for unforeseen
expenditure on direct costs ("
Operating Reserve").
10.2
The actual direct costs will be compared to the expense budget in the Re-baselined Financial
Model, and any excess expenditure will be allowed to be taken up to the limit of the Operating
Reserve in calculation of NPV. The actual expenses posted against the Operating Reserve will be
taken into account in the NPV calculation up to the limit of the Operating Reserve. Excess
expenditure due to changes in general law and other unforeseen changes can be charged to the
project operating reserve up to its budget limit. Any actual expenses over the limit of the Operating
Reserve will not be taken into account at review.
11.
INCENTIVE FOR CONTINUOUS IMPROVEMENT AND OTHER COST SAVINGS
Any unused Operating Reserve for each year will be discounted to %, and set off against net
cash flow for that year in calculating the NPV.
12.
THE OUTCOME OF THE REVIEW
12.1
The Review Panel will recommend a new Lodgement Fee that sets the IRR to the end of the
project equal to that agreed in the contract (the ARR) by use of the Re-baselined Financial Model
for the remainder of the Term, taking into account the carried forward NPV from operations to date
calculated as above.
12.2
The Review Panel may recommend also that forecasts of transaction volumes and other
unforeseen factors be changed.
12.3
The Final Review will consider (in addition to those points in Paragr
aphs 3.4 and 3.5 above) the
expected exit costs to be reasonably incurred by the Operator on expiry of the Agreement in
accordance with Clause 2 as a result of its compliance with the provisions of Clause 40.1 and/or
Schedule 8 (Exit Plan) and the Review Panel will take any such costs into account when
recommending the level of the Lodgement Fee.
12.4
Subject to Paragraph
12.3 above, the Final Review will not take into account any fluctuations in
revenues and expenses in the period up to the (then expected) expiry date of this Agreement.
13.
LIMITS
13.1
To ensure that costs are specified and transparent wherever possible, the following limits are put
on Indirect Costs and Operating Reserves:
13.1.1
13.1.2
13.1.3
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Schedule 17
SOFTWARE
PART 1 – Software
THIRD PARTY SOFTWARE – SOLUTION
THIRD PARTY SOFTWARE – DEVELOPMENT AND MANAGEMENT
PART 2 – Standard Licence Terms
1.
SCOPE OF THE STANDARD LICENCE TERMS
This Schedule sets out the Standard Licence Terms granted by the Operator to the Authority in
respect of the circumstances set out in the Agreement.
(VI) STANDARD
LICENCE
TERMS
1.
A licence granted under the Standard Licence Terms pursuant to Clause
s 21.1, 21.2,
21.3 and
21.4 shall:
i.
be perpetual, irrevocable, worldwide, non-exclusive, assignable and royalty free;
ii.
allow the Authority to Use the Operator Software and Third Party Software;
iii.
allow the Authority to Use the Documentation and any Operator Background IPRs;
iv.
where source code relating to the Operator Software and / or Third Party Software is
released from escrow, the Authority shall in addition to the rights specified above, have
the right to modify, amend, adapt and enhance the Operator Software and Third Party
Software.
2.
The Authority may sub-licence its rights granted pursuant to paragraph 2.1 to a third party on the
same terms set out in this Schedule subject to the third party entering into a confidentiality
undertaking with the Authority on the terms that are substantially the same as those set out in the
Agreement.
3.
Any change in the legal status of the Authority which means that it ceases to be a Contracting
Authority shall not affect the validity of any licence granted under the Standard Licence Terms. If
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the Authority ceases to be Contracting Authority, the Standard Licence Terms shall be binding on
any successor body to the Authority.
PART 3 – Enhanced Licence Terms
3.
ENHANCED LICENCE TERMS
2.
A licence granted under the Enhanced Licence Terms pursuant to
Clause 24.6 shall:
i.
be perpetual, irrevocable, worldwide, exclusive, assignable and royalty free;
ii.
allow the Authority to Use the Specially Written Software;
iii.
allow the Authority to Use the Project Specific IPRs; and
iv.
allow the Authority to integrate with other software the Specially Written Software.
2.1
The Authority may sub-licence its rights granted pursuant to paragraph 1.1 to a third party on the
same terms set out in this Schedule subject to the third party entering into a confidentiality
undertaking with the Authority on the terms that are substantially the same as those set out in the
Agreement.
2.2
Any change in the legal status of the Authority which means that it ceases to be a Contracting
Authority shall not affect the validity of any licence granted under the Enhanced Licence Terms. If
the Authority ceases to be Contracting Authority, the Enhanced Licence Terms shall be binding on
any successor body to the Authority.
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Schedule 18
DOCUMENTATION DELIVERABLES
Technical Deliverables – Document Breakdown Structure
The diagram below outlines some of the key documents that the Operator shall produce to support implementation:
Figure 1: Document Breakdown Structure: Suggested Technical Documents For Implementation Stage
CECR Operator Products
Implementation Plan
Commercial Design
Stakeholder Management
Test Plan and Logs
Business Continuity Strategy
Transition Strategy
Formatted: Font: 8.5 pt
Strategy & Communications
Plan
Formatted: Font: 8.5 pt
Business Continuity Design
Formatted: Font: 8.5 pt
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Appendix – Document Descriptions
This appendix describes of some of the major technical documents that the CECR Operator shall deliver and
for each one gives details of:
(a) Document
reference
number
(b) Document
Title
(c) Owner
(d) Format
(e) Purpose
(f) Quality
Criteria
(g) Review
Process
(h) Reviewers
(i) Sign-off
Process
(j) Sign-off
Authority
(k) Dependencies
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Schedule 19
PAYMENT ON TERMINATION
In this Schedule, the following words and phrases shall have the meanings set out below:-
"Breakage Costs"
any costs (such as the Operator's own redundancy costs, and
costs payable for early termination of contracts entered into
by the Operator prior to receipt of the termination notice)
incurred by the Operator directly as a result of the termination
of this Agreement which:
(a)
would not have been incurred had this Agreement
continued until its natural expiry; and
(b)
relate directly to the termination of the Services; and
(c)
are unavoidable, proven, reasonable, and not
capable of recovery; and
(d)
are incurred under arrangements or agreements that
are consistent with terms that have been entered into
in the ordinary course of business and on reasonable
commercial terms; and
(e)
do not relate to contracts or subcontracts with
Affiliates of the Operator;
"Transferring Assets"
such assets as transfer to the Authority on Termination and as
specified in the Exit Plan;
"Unrecovered Costs"
the costs incurred by the Operator in the performance of this
Agreement and detailed in Financial Model from time to time, to the
extent that the same remain to be recovered through the Charges at
the rate at which they fall to be amortised as detailed in the Financial
Model. Such costs will exclude internal costs of financing, working
capital or overheads associated with these costs but include profit
earned but not received accruing to these costs.
1.
PURPOSE OF SCHEDULE
1.1
This Schedule sets out the calculation of the Termination Payment that may be paid by the
Authority to the Operator pursuant to Clause
38.4 (Payments Made on Termination).
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1.2
If the Agreement is terminated for any reason other than pursuant to Clause
38.2
(Termination for Convenience by the Authority) no compensation shall be due to the
Operator and the remainder of this Schedule shall not be applicable.
2. TERMINATION
PAYMENT
The Termination Payment payable pursuant to Clause
38.4 (Payments made on Termination) shall
be calculated as the sum of:
2.1
the Unrecovered Costs; and
2.2 Breakage
Costs,
but subject to the caps set out in Annex 1 to this Schedule.
3.
FULL AND FINAL SETTLEMENT
Any Termination Payment paid in accordance with this schedule shall be in full and final settlement
of any claim, demand and/or proceedings of the Operator in relation to any termination by the
Authority pursuant to Clau
se 38.2 (Termination for Convenience by the Authority) and the Operator
shall be excluded from all other rights and remedies it would otherwise have been in respect of any
such termination.
4.
MITIGATION OF BREAKAGE AND UNRECOVERED COSTS
The Operator agrees to take all reasonable steps to minimise and mitigate Breakage Costs and
Unrecovered Costs by:
4.1
the appropriation of Assets, employees and resources for other purposes. If such Assets,
employees and resources can be used for other purposes then there shall be an equitable
reduction in the Breakage Costs and Unrecovered Costs payable by the Authority or a third
party to the Operator; and
4.2
in relation to contracts entered into with third parties, termination by the Operator of those
contracts at the earliest possible date without breach or where contractually permitted, and,
where required by the Authority, assigning such contracts to the Authority or a third party
acting on behalf of the Authority.
5. SET
OFF
For the avoidance of doubt, the Authority shall be entitled to set off any outstanding liabilities of the
Operator against any amount it pays in compensation pursuant to this Schedule and in accordance
with its rights set out in this Agreement.
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6. NO
DOUBLE
RECOVERY
6.1
If any payment pursuant to this Schedule relates to or arises in relation from (in whole or in
part) any Transferring Asset then to the extent that the Authority makes any payments
pursuant to
Schedule 8 (Exit Plan) in respect of such Transferring Assets then such amounts
shall be deducted from the amount of compensation payable pursuant to this schedule.
6.2
The value of the Termination Payment shall be reduced or extinguished to the extent that
the Operator has already received the Charges or the financial benefit of any other remedy
given under this Agreement so that there is no double counting in calculating the relevant
payment.
6.3
Any payments that are due in respect of the Transferring Assets shall be calculated in
accordance with the provisions of the Exit Plan.
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ANNEX 1 TO SCHEDULE 19
TERMINATION FOR CONVENIENCE CAPS
TERMINATION FOR CONVENIENCE CAPS
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Document Outline
