Contract No CMMS/480331 Terms & Conditions

Contract No CMMS/480331 Terms & Conditions

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CONTENTS PART A - GENERAL PROVISIONS

A1. Definitions And Interpretations

A2 Initial Contract Period

A3 Contractor’s Status

A4 The Authority’s Obligations

A5 Notices

A6 Mistakes in Information

A7 Conflicts of Interest

A8 Non Exclusivity

A9 Rejection

A10 Acceptance

PART B – SUPPLY OF SERVICES B1 The Services

B2 Provision and Removal of Equipment

B3 Manner of Carrying Out the Services

B4 Key Personnel

B5 Contractor’s Staff

B6 Licence to occupy Premises

B7 Offers of Employment

B8 Requirements

B9 Scope of this contract

B10 Call Centre

B11 Marketing, Publicity and ICS Catalogue Pages

B12 Corporate Identity / Marketing Material

B13 Availability Of Spares

B14 Software Support And Maintenance

B15 Technical Support

B16 Standards And Regulations

B17 Authority Satisfaction Monitoring

B18 Legislative Change

B19 Further Assurances

B20 Business Continuity Disaster Recovery (BCDR) Plan

B21 Complaints Handling

B22 Specifications

B23 Quality Assurance (Without Deliverable Quality Plan)

B24 Performance, Monitoring And Reporting – Supplier & Authority Performance Measurement Process

B25 Marking Of Articles


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B26 Accounting For Property Of The Authority

B27 Supply Of Hazardous Data For Articles, Materials And Substances

B28 Contract And Service Management

B29 Sustainability and Environmental Requirements

PART C – PAYMENT, ORDERING PROCESS AND DELIVERY C1 Contract Price

C2 Payment and VAT

C3 Recovery of Sums Due

C4 Price Adjustment on Extension of the Initial Contract Period

C5 Euro

C6 Services Rendered By The Authority

C7 Open Book Accounting

C8 Compliance With The Electronic Transactions Agreement

C9 Unique Identifiers

C10 Payment Process (Non P2P) (Purchase to Payment will be the preferred payment option for all MoD Authorities)

C11 Payment Under P2P (This also applies to Public Sector Organisations (PSO’s) where the MoD is making payments on the PSO’s behalf)

C12 Business Service Charge

C13 Overseas Expenditure And Import Licences

C14 Customs Duty Drawback

C15 Government Procurement Card

C16 Ordering Process (This process also applies to Public Sector Organisations (PSO’s) except where explicitly stated)

C17 Order Acknowledgement / Acceptance

C18 The Use Of The Electronic Business Delivery Form - Form Usage

C19 Implementation Plans & Payment Profiles

C20 Delivery and Acceptance

C21 Title And Risk

C22 Contractor's Personnel At Government Establishments

C23 Contractors On Deployed Operations

C24 Packaging Requirements For This Contract. (Mainly Referenced for Transporting of Replacements and Spares) Refer to Annex I

C25 Issued Property

C26 Placing Of Orders By Contractor

C27 Annual Maintenance Charge (AMC) Changes (Refer to Paragraph 1 Annex 1 to Defcon110 Schedule of Requirements)

PART D – STATUTORY OBLIGATIONS AND REGULATIONS D1 Prevention of Corruption

D2 Prevention of Fraud


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D3 Discrimination

D4 Rights Of Third Parties

D5 Health and Safety

D6 Use Of Asbestos

D7 Statutory Invalidity

D8 Statutory Requirements

PART E –PROTECTION OF INFORMATION E1 Data Protection Act

E2 Official Secrets Acts 1911 to 1989 and S182 of the Finance Act 1989

E3 Freedom of Information

E4 Disclosure Of Information

E5 Transparency

E6 Publicity, Media and Official Enquiries

E7 Audit

E8 Disposal Of Procurement Documents

E9 Authority Data

E10 Security

E11 Security Requirements And Staff Vetting

E12 Security Measures

E13 Intellectual Property Rights

E14 Intellectual Property Rights In Software

E15 Third Party Intellectual Property - Rights And Restrictions Notifications

PART F - CONTROL OF THE CONTRACT F1 Transfer and Sub-Contracting

F2 Severability

F3 Remedies in the event of inadequate performance

F4 Remedies Cumulative

F5 Extension of Initial Contract Period

F6 Entire Agreement

F7 Changes

F8 Waiver And Cumulative Remedies And Default

F9 Change And Configuration Control Procedure

F10 Enabling Contracts – Standing Offer

F11 Exit Plan and Co-Operation On Expiry Of Contract

F12 Contract Change

PART G - LIABILITIES G1 Liability, Indemnity and Insurance

G2 Professional Indemnity


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G3 Warranties and Representations

G4 Defect Investigation And Liability

PART H - DEFAULT, DISRUPTION AND TERMINATION H1 Termination On Insolvency And Change Of Control

H2 Termination on Default

H3 Break

H4 Consequences of Expiry or Termination

H5 Disruption

H6 Recovery upon Termination

H7 Force Majeure

H8 Financial Standing Of The Contractor

H9 Change Of Control Of Contractor

H10 Suspension And Termination

H11 Transfer Of Undertakings (Protection Of Employment) (TUPE) – at Contract Expirey Excludes Ex-Authority Staff

PART I - DISPUTES AND LAW I1 Law (English)

I2 Dispute Resolution (English Law)

Annexes to Terms & Conditions

A Public Sector Organisations (Including Local Authorities And Wider Government Bodies). B Buildings In The Sovereign Base Area’s C Technical Specification for Submissions to the ICS Catalogue D Supplier & Customer Performance Assessment (PI’s) E Accounting for Property of the Authority – Data & Format Requirements for Public Stores Account

(PSA) Records Format F Hazardous Articles, Materials or Substances Statement by the Contractor (Form 68) G Blank Tasking Notice H Electronic Catalogue Order Form I Packaging (For Articles Other Than Ammunition And Explosives Appendix 1: Coding Sheet For Procurement Documentation Appendix 2: Application For Packaging Designs And Authorisation For Package Design Work Appendix 3: Special Jigs, Tooling & Test Equipment Appendix 4: The Use Of Electronic Business Delivery Form

J Standing Orders For The British Forces In Germany K Security Measures (Provisions to be included in relevant Subcontracts) L Sub-Contractors M Security Aspects Letter (Start Date Of Contract: 1st April 2012) N Defform 43 (Memorandum To Contractor On The Disposal Of Materials, Etc. Made Surplus By The

Termination, Amendment Or Reduction Of Ministry Of Defence Contracts) Appendix 1: Defform 44a (Schedule of Surpluses with Main Contractor or SubContractors)

O Contractor Personnel-Related Information to be Released Upon Re-Tendering Where TUPE Applies P Entitlement of the Contractor Deployed To The British Forces South Atlantic Islands (BFSAI)


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Appendix 1: Annex A - Medical Appendix 2: Annex B – Dental Appendix 3: Annex C - Compassionate

Q Contractors on Deployed Operations (CONDO) To Be Included In Relevant Subcontracts R Contractors Commercially Sensitive Information Form


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PART A - GENERAL PROVISIONS A1. DEFINITIONS AND INTERPRETATIONS

A1.1 In the Contract (as defined below) the following words and expressions shall have the meanings given to them, except where the context requires a different meaning:

(a) the masculine includes the feminine and vice versa and words importing the neuter include the masculine and the feminine;

(b) the singular includes the plural and vice versa; (c) the words “include”, “includes”, “including” “for example”, “in particular” and words of

similar effect are to be construed as if they were immediately followed by the words “without limitation”

(d) A reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof.

(e) A reference to any document other than as specified in sub-Clause A1.1(d) shall be construed as a reference to the document as at the Effective Date.

(f) Headings are included in this Contract for ease of reference only and shall not affect the interpretation or construction of this Contract.

(g) References to “Clauses” are, unless otherwise provided, references to the Clauses of this Contract. References to “paragraphs” are, unless otherwise provided, references to paragraphs of the Clauses in which the references are made.

(h) Terms or expressions contained in this Contract which are capitalised but which do not have an interpretation in Clause A1.5 shall be interpreted in accordance with the common interpretation within the relevant market sector/industry where appropriate. Otherwise they shall be interpreted in accordance with the dictionary meaning

A1.2 Where BS/EN/ISO 9000 or documents in the AQAP 100 series form part of the Contract either by reference in the special conditions or as invoked by such Defence Standards (DEF-STANS) in the 05-90 series as are called up as part of the Contract, the following provisions shall also have effect:

(a) 'the Purchaser' means 'the Authority '; (b) 'the Purchaser's Representative' means 'the Representative of the Authority'; (c) 'the Project Management Authority' or 'Progress Authority' means the authorities so

designated in the Contract.

A1.3 Any decision, act, or thing which the Authority is required or authorised to take or do under the Contract may be taken or done only by any person authorised, either generally or specifically, by the Authority to take or do that decision, act, or thing on behalf of the Authority.

A1.4 Unless excluded within the terms of the Contract or where required by law: (a) references to submission of documents in writing shall include electronic submission;

and (b) any requirement for a document to be signed or references to signatures shall be

construed to include electronic signature, provided that a formal method of authentication as agreed between the parties is employed and the agreed method recorded in the Contract.

A1.5 Definitions

Acceptance, Accept, Accepted

refer to the process by which the Authority shall indicate its acceptance for use or implementation of any Articles/Services, process or plan supplied by the Authority in the course of providing the Services;

Acceptance Button means the electronic method of acceptance of an ICS Catalogue Electronic Order Acceptance Procedures means the procedure of that name as specified in Clauses C20 and C21. Acceptance Test means a test to be conducted in accordance with the provisions of Clauses C20

and C21 and “Acceptance Tests” shall be construed accordingly. Acceptance Test Criteria means the test criteria specified in Clauses C20 and C21. Acceptance Test Period means the period during which the Acceptance Procedures shall be performed,


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pursuant to the provisions of Clauses C20 and C21. Affected Party means the party seeking to claim relief in respect of a Force Majeure Event. Affiliate means any person, partnership, joint venture, corporation or other form of

enterprise, domestic or foreign, including subsidiaries that directly or indirectly are controlled by, or are under common control with the Authority or its Parent Company.

Approval, Approve, Approved,

refer to the Authority’s prior written approval or consent, as the case may be, which shall in no way indicate, or be construed as indicating, the Authority’s Acceptance or endorsement of any Articles/Services, process or plan to which the particular Approval may refer;

Article(s) shall include goods and/or Services which the Contractor is required to supply under the Contract.

The Authority means the Secretary of State for Defence and shall be deemed to include all units and establishments of the UK Ministry of Defence, including overseas locations.

Authority Confidential Information

means all Personal Data, Authority Data and any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel, and Contractors of the Authority, including all Intellectual Property Rights, together with all information derived from any of the above, and any other information clearly designated as being confidential (whether or not it is marked “confidential”) or which ought reasonably be considered to be confidential.means (a) the data, text, drawings, diagrams, images or sounds (together with any

database made up of any of these) which are embodied in any electronic, magnetic, optical or tangible media, and which are:

(i) supplied to the Contractor by or on behalf of the Authority; or (ii) which the Contractor is required to generate, process, store or transmit

pursuant to this Contract; or

Authority Data

(b) any Personal Data for which the Authority is the Data Controller. Authority Premises means premises owned, controlled or occupied by the Authority or any Crown

Body which are made available for use by the Contractor or its Sub-Contractors for provision of Services (or any of them) on the terms set out in this Contract or any separate agreement or licence.

Authority System means the Authority’s computing environment (consisting of hardware, software and/or telecommunications networks or equipment) used by the Authority or the Contractor in connection with this Contract which is owned by or licensed to the Authority by a third party and which interfaces with the Contractor System or which is necessary for the Authority to receive the Articles.

BACS means the Banks Automated Clearing System. BCDR Plan means the plan consisting of general business continuity and disaster recovery

principles, the Business Continuity Plan and Disaster Recovery Plan as further described in Clause B20 of this Contract.

Book Time means industry recognised labour time to install a piece of material and the recognised charge that is associated with the labour time to install this material.

Breach Of Security means in accordance with the security requirements in Clauses Security Requirements & Staff Vetting, Security Measures, and JSP 440, the occurrence of: any unauthorised access to or use of the Articles, the Authority Premises, the Sites, the Contractor System and/or any ICT, information or data (including the Confidential Information and the Authority Data) used by the Authority and/or the Authority in connection with this Contract; and/or the loss and/or unauthorised disclosure of any information or data (including the Confidential Information and the Authority Data), including any copies of such information or data, used by the Authority and/or the Contractor in connection with this Contract.

Business Day means any day excluding: (a)

(b)

Saturdays, Sundays and public and statutory holidays in the jurisdiction of either party; privilege days notified in writing by the Authority to the Contractor at least 10


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(c)

business days in advance; and such periods of holiday closure of the Contractor’s premises of which the Authority is given written notice by the Contractor at least 10 business days in advance;

Business Service Charge

means the 1% service charge of the total net values of payments made by the Authority or a Customer to the Contractor for the duration of the Contract and beyond where any orders / contracts continue beyond the term of the agreement and including any extensions.

Business Continuity Plan has the meaning set out in Clause B20. Call Centre means the support facility utilised by the supplier to receive fault calls, log these

calls and route to an appropriate resolver group. Change means any amendment or variation of the Contract, effected in accordance with

the Change Control Procedure; Charges means the charges which are payable by the Authority to the Contractor in

respect of the Services as detailed in Clause C2 of this Contract. Code has the meaning ascribed to it in Clause E3 of this Contract. Commencement Date means 1st April 2012 when the Contract shall come into effect. Commercially Sensitive Information

means information of a commercially sensitive nature relating to the Contractor, its Intellectual Property Rights or its business or which the Contractor has indicated to the Authority that, if disclosed by the Authority, would cause the Contractor significant commercial disadvantage or material financial loss.

Complaint means any formal expression of discontent or dissatisfaction by the Authority’s Customers or their representatives listed at Annex A to the terms and conditions.

Confidential Information means the Authority Confidential Information and/or the Contractor Confidential Information.

the Contract / Enabling Contract

(a)

(b)

means the clauses of this contract together with the Schedules and annexes to it and any documents referred to in it or attached to it. means the agreement concluded between the Contractor and the Authority containing the terms and conditions subject to which the Authority may place orders for Services, including all specifications, plans, drawings, schedules and other documentation, expressly made part of the agreement.

Contract Change means any required addition or deletion to the Contract Contract Change Note means request from the Contractor for the Authority to consider an increase in

costs which includes evidence of those costs and details the steps the supplier has taken to mitigate the costs.

Contract Period means the period commencing on the Effective Date and ending on expiry of the Contract or any extension period as agreed by Contract amendment, calculated from the Service Commencement Date or on earlier termination of the agreement.

Contract Price means the price exclusive of Value Added Tax, payable to the Contractor by the Authority under the Contract for the full and proper performance by the Contractor of his part of the Contract as determined under the provisions of the Contract;

Contracting Authority As defined in Regulation 3(1) of the Public Services Contracts Regulations 1993. Contractor means the person who, by the Contract, undertakes to supply the Services, or

perform the Service, or both for the Authority as is provided by the Contract. Where the Contractor is an individual or a partnership, the expression shall include the personal representatives of the individual or of the partners, as the case may be, and the expression shall also include any person to whom the benefit of the Contract may be assigned by the Contractor with the consent of the Authority.

Contractor Confidential Information

means any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel and Contractor’s of the Contractor, including Intellectual Property Rights, together with all information derived from the above, and any other information clearly designated as being confidential (whether or not it is marked as “confidential”) or which ought reasonably to be considered to be confidential, including the Commercially Sensitive Information.

Contractor Equipment means the hardware, computer and telecoms devices and equipment supplied by


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the Contractor or its Sub-Contractors (but not hired, leased or loaned from the Authority) for the provision of the Services.

Contractor Personnel means all employees, agents, consultants and Contractors of the Contractor and/or of any Sub-Contractor.

Contractor Proposals has the meaning ascribed to it in Clause B20.16(c) Contractor Software means the proprietary software of the Contractor. Contractor Solution means the Contractor’s solution to the Authority’s requirements as set out in any

Order or Implementation Plan. Contractor System means the information and communications technology system used by the

Contractor in providing the Services including the Software, the Contractor Equipment and related cabling (but excluding the Authority System).

Crown Body means any department, office or agency of the Crown and “Crown Bodies” shall be construed accordingly.

Customer means a representative of the Secretary of State for Defence and the PSO organisations listed at Annex A to the Contract who utilise / express a desire to utilise the services provided under the Contract

Data Controller has the same meaning as set out in the Data Protection Act 1998. Data Processor has the same meaning as set out in the Data Protection Act 1998. Data Protection Legislation

means the Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.

Data Subject has the same meaning as set out in the Data Protection Act 1998. Days means calendar days. Default means any breach of the obligations of any party (including but not limited to

fundamental breach or breach of a fundamental term) or any default, act, omission, negligence or statement of any party, it’s employees, agents or Sub-Contractor’s in connection with or in relation to the subject matter of this Contract and in respect of which such party is liable to the other.

Def Stan means UK Defence Standardization and copies can be found at http://www.dstan.dii.r.mil.uk

Deliverable means the services and items detailed and agreed under the Contract Demander will be the authorised MOD employee as detailed on P2P Order or alternative

ordering process and authorised Employees of Public Sector Organisations as defined in Annex A.

Disaster means the occurrence of one or more events which, either separately or cumulatively, mean that the Article(s), or a material part of it will be unavailable for a period of time, or which is reasonably anticipated will mean that the Articles or a material part will be unavailable for a period of time.

Disaster Recovery means the process of restoration of the Articles by the provision of the Disaster Recovery Services.

Disaster Recovery Plan has the meaning set out in the Clause B20. Disaster Recovery Services

means the disaster recovery and/or business continuity services (as the context may require) to be provided by the Contractor pursuant to Clause B20

Disaster Recovery Systems

means the system identified by the Contractor in the Contractor Solution which shall be used for the purpose of delivering the Disaster Recovery Service.

Documentation; means any document, record or other material, in whatever format and media, relating to the Contract, which is held by or under the control of the Contractor

Effective Date means the date on which this Contract is signed by both parties. Environmental Information Regulations

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

Equipment means the services or items provided under or in support of the provision of


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services under the Contract Exit Period means period following expiry or termination (of any or part) of the Contract to

enable a transition of services from the Contractor to a replacement Contractor or the Authority.

FOIA means 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 issued by the Information Commissioner or relevant Government Department in relation to such legislation.

Force Majeure Event has the meaning ascribed to it in Clause H7 of this Contract. Fraud means deliberate deception, trickery or cheating with the intention to gain an

advantage General Principles has the meaning ascribed to it in Clause B20 Good Industry Practice means the exercise of that degree of skill, care, prudence, efficiency, foresight

and timeliness as would be expected from a leading company within the relevant industry or business sector, acting in good faith and with the sufficient financial resources to perform its obligations under this Contract.

Government Furnished Equipment (GFE)

means MOD owned assets supplied in support of the Contract

Government Procurement Card

means the UK Government’s VISA purchasing card.

Guidance Notes means the notes detailed at Annex C to the terms and conditions for the Technical Specification for submissions to the ICS Catalogue

ICS Catalogue means the catalogue of Services available for Order under the provisions of the Contract.

ICS Catalogue Electronic Order

Means an electronic order for services served by the Authority or its Customers on the Contractor

ICS Catalogue Ordering Process

means the ordering process of that name, as set out in the Ordering Process (and as may be updated from time to time by the Authority).

ICT Environment means the Authority System and the Contractor System. Intellectual Property Rights And IPR

means patents, trade marks, service marks, design rights (whether capable of registration or not); applications for any of the above rights, copyright, trade or business names or other similar rights whether capable of registration or not in any country including but not limited to England and Wales;

Implementation Plan means the plan (if any) specified in the Authority’s Order, necessary to implement provision of the Services within their organisation.

Information has the meaning given under section 84 of the Freedom of Information Act 2000. Intellectual Property Rights

means patents, patent applications, trade marks, service marks, design rights (whether registered or otherwise), applications for any of the foregoing, copyright, database rights, trade or business names and other similar rights or obligations whether registered or not in any country (including the United Kingdom).

Invoicing Procedure means the procedure by which the Contractor invoices the Authority, as set out in the relevant Contract Clauses.

Issued Property means any item of Government Furnished Equipment (GFE), including any Articles in connection with which the Contractor is required under the Contract to carry out any Service, issued or otherwise furnished to the Contractor in connection with the Contract by or on behalf of the Authority.

Key Personnel means those personnel essential to the proper provision of the Services to the Authority and its Customers under the Contract

Law means any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of Court or directives or requirements of any Regulatory Body, delegated or subordinate legislation or notice of any Regulatory Body including the Security Policy Framework and the Code.

“Legislation” means any Act of Parliament or subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978 and any enforceable community right within the meaning of the European Communities Act 1972, and in each case, includes the interpretation, administration or application thereof;


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Loss includes damage or destruction; Malicious Software means any software program or code intended to destroy, interfere with, corrupt,

or cause undesired effects on program files, data or other information, executable code or application software macros, whether or not its operation is immediate or delayed, and whether the malicious software is introduced wilfully, negligently or without knowledge of its existence.

“Man-Day” shall be seven and a half hours duration, exclusive of meal breaks and travel time to/from the place of duty;

Management Information means data to be provided by the Contractor on its performance in the provision of Services under the Contract for the purposes of performance monitoring and management

Materiel Is a generic term meaning equipment (including fixed assets), stores, supplies and spares.

Month means calendar month. Notice Of Arbitration means the formal notice from the Contractor or the Authority to the other party

referring a dispute to arbitration in accordance with the provisions of Clause I2 Operating Environment means the Authority System and the Sites. Open Book Accounting means the Contractor’s accounting system which shall enable the calculation of

the value of the cost of components and profit margins of items listed on the Schedule of Requirements. It shall enable all cost components to be traced back to source documentation and will allow a review of the allocation basis by the Contractor of any cost element.

Order means an order for Services served by the Authority on the Contractor in accordance with the Ordering Process.

Ordered Articles means goods and / or services which are supplied in support of the services to be provided under the Contract

Ordered IT Products see Articles Ordering Process means the ordering process detailed in Clause C16 Ordering Process which the

Contractor and the Authority must comply with when placing an Order. Other Contracting Authorities

means all Customers who have placed an order for articles under the Contract

Person includes any legal or natural person or persons. Public Sector Organisations (PSOs)

shall have the meaning ascribed to Other Contracting Authorities by Part 1, Regulation 3 of The Public Contracts Regulations 2006. (see Annex A to these Terms & Conditions for listing)

P2P Purchase to Payment – MOD Electronic Purchasing Tool Pan Government Accreditor

means the organisation who approve the Accreditation Document Set on behalf of the Authority

Parent Company means any company which is the ultimate Holding Company of the Contractor or any other company of which the ultimate Holding Company of the Contractor is also the ultimate Holding Company and which is either responsible directly or indirectly for the business activities of the Contractor or which is engaged in the same or similar business to the Contractor. The term “Holding Company” shall have the meaning ascribed by the Companies Act 2006 or any statutory re-enactment or amendment thereto.

Parties means the Authority and the Contractor, and “Party” shall mean either of them; Paying Authority means method of payment for articles under the Contract Payment Profile means the profile of payments to be made by the Authority to the Contractor

under the terms of this Contract as set out in Clause C19 of this Contract. Performance Indicators means the measures the Authority will use to measure the performance of the

Contract Performance Monitoring means the method used to measure the performance of the Contract Persistent Breach means the Contractor is in any breach of this Contract or any part thereof

continuously for twenty (20) Working Days or more. Personal Data has the same meaning as set out in the Data Protection Act 1998.

means any Intellectual Property Rights vested in or licensed to: Pre-Existing Intellectual Property Rights (a) the Contractor prior to or independently of the performance by the


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Contractor of its obligations under this Contract; and (b) the Authority prior to or independently of the performance by the Authority

of its obligations under this Contract. Premises means the location where the Services are to be supplied, as set out in the

Specification. Pricing Schedule refers to the Defcon 110 Schedule of Requirements Private Authority means a commercial organisation to whom service provision has been

outsourced by a Contracting Authority, which assumes the role and responsibilities of the Authority under a Contract.

Processing has the same meaning as set out in the Data Protection Act 1998. Product shall have the same meaning as “Article(s)”. Project Review Board means the team responsible for the review of the exit plan Property means the property, other than real property, issued or made available to the

Contractor by the Authority or a Customer in connection with the Contract. Protectively Marked has the meaning as set out in the Security Policy Framework. Quality Standards means the standards required relating to the quality of the Services provided by

the Contractor under the Contract as set out in clause B16 Standards and Regulations.

Quarter means a three (3) month period beginning on 1st January, 1st April, 1st July or 1st October. The term “Quarterly” shall be similarly construed.

Receipt means the received physical or electronic invoice submitted in accordance with clause C10 (Payment Process (Non P2P) and C11 (Payment under P2P) or at any other address given by the Authority to the Contractor for the submission of invoices.

Records the documents and data providing evidence of implementation and compliance with processes required by the Authority in performance of the Contract

Regulation A rule, principle or condition that governs procedure or behaviour Regulatory Bodies means those government departments and regulatory, statutory and other

entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in this Contract or any other affairs of the Authority and “Regulatory Body” shall be construed accordingly.

Related Service Provider means any person who provides services to the Authority in relation to the Authority’s project from time to time which persons include without limit as at the Effective Date.

Relevant Conviction Any conviction which is not “spent” as defined by the Rehabilitation Of Offenders Act 1974.

Replacement Contractor means a new contractor appointed by the Authority to supply services which are substantially similar to any of the Services and which the Authority receives in substitution for any of the Services on exit / transition.

Requirement means any standard or specification referred to or set out in this Contract as varied in accordance with the Contract.

Reports means reports submitted by the Contractor to the Authority. Representatives means the Parties’ respective representatives; Representative Of The Authority

in any provision of the Contract means the person duly authorised by the Authority to act for the purposes of the provision and identified in the Contract or in any subsequent notice to act for the purposes of the provision.

Requests For Information

means a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the Environmental Information Regulations.

Resident Engineers means those employed by the Contractor to provide engineering services under the Contract who live on or close to Government Establishments for the purposes of providing services under the Contract

Review Report has the meaning ascribed to it in Clause B20. Schedule Of Requirements

means that part of the Contract which identifies, either directly or by reference, the Services to be supplied or carried out, the quantities involved and the price or pricing terms in relation to each Service;


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Security means all aspects of physical, documentary, personnel and other security; Security Policy means JSP 440, the Security Measures Clause, and, for PSO’s, any equivalent

Security policy, as updated from time to time. Security Policy Framework

means the Cabinet Office Security Policy Framework (available from the Cabinet Office Security Policy Division).

Self Audit Certificate Means certification provided by the Contractor to confirm compliance with all elements in clause E7.

Services means the services that are directly associated with the supply of the Articles and is limited to those services specified in the Contract.

Service Charge means the charges for the provision of the Services as detailed in the Contract Service Commencement Date

means the date of commencement of the provision of the Services by the Contractor in accordance with the Order.

Sites means any premises from which Articles are provided or from which the Contractor manages, organises or otherwise directs the provision or the use of Articles or where any part of the Contractor System is situated or where any physical interface with the Authority System takes place.

Software means any Contractor Software and Third Party Software. Specification means has the meaning ascribed to it in Clause B22 of this Contract. Staff means the suitably qualified employees of the Contractor used to perform its

obligations under the Contract together with the Contractor’s servants, agents, suppliers and sub-contractors used in the performance of its obligations under the Contract.

Staff Vetting Procedures means the Authority’s procedures and departmental policies for the vetting of personnel whose role will involve the handling of information of a sensitive or confidential nature or the handling of information which is subject to any relevant security measures, including, but not limited to, the provisions of the Official Secrets Act 1911 to 1989.

Standards means the required level to be reached in the performance of the Contract Sub-Contractor means any Supplier selected, appointed and managed by the Contractor. The

terms “Sub-Contract” and “Sub-Contracting” shall be similarly construed. Supplier shall have the same meaning as “Sub-Contractor” Technical Specification means any technical standard or specification referred to or set out in this

Contract as varied in accordance with the Contract Technical Support means a requirement for the Contractor to provide technical support to the

Authority or a Customer in accordance with the Schedule of Requirements, a Tasking Notice or an Order

Term means the term of this Contract as set out in Clause A2 of this Contract., subject to early termination (howsoever arising).

Termination Date means one minute before midnight on the date on which this Contract would terminate;

Termination Events means each of the events specified in Clause H10 of this Contract. Third Party Software means software which is proprietary to any third party which is or will be used by

the Contractor for the purposes of satisfying on Order. Transfer Date means the earliest of a) date of termination b) the agreed date for transfer of

Services provided under the Contract to a new contractor or the Authority Transition Manager means the suitably skilled employee of the Contractor who is responsible for the

transition of Services to another contractor or the Authority Value Added Tax means value added tax as provided for in the Value Added Tax Act 1994 and any

supplemental legislation, or replacing, modifying or consolidating such legislation, and any reference to VAT shall be construed accordingly;

Working Days means Monday to Friday inclusive, excluding English public and bank holidays. Workers means the principals, employees, and agents of the Contractor or any Sub-

Contractor employed or engaged directly in provision of the Services. Year means a period of twelve (12) months. A1.6 Construction Of Certain References


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In this Contract unless the context otherwise requires: (a) Words and phrases the definitions of which are contained or referred to in The

Companies Act 2006 shall be construed as having the meanings so attributed to them; (b) References to “this Contract” or to any other agreement or document referred to in this

Contract mean this contract or such other agreement or document as amended, varied, supplemented, modified or novated from time to time;

(c) References to the Parties include their respective permitted assignees.

Should there be any conflict between the above provisions, Annex’s, Appendices and those contained elsewhere within this Contract, the Terms and Conditions shall take precedence.

A2 INITIAL CONTRACT PERIOD

The Contract shall take effect on 1 April 2012 (the Commencement Date) and shall expire automatically on 31 March 2015, unless it is otherwise terminated in accordance with the provisions of the Contract, or otherwise lawfully terminated, or extended under Clause F5 (Extension of Initial Contract Period). For the purposes of this Contract, the initial period and any extension thereof shall be referred to as the “Term”.

A3 CONTRACTOR’S STATUS

At all times during the Contract Period the Contractor shall be an independent Contractor and nothing in the Contract shall create a contract of employment, a relationship of agency or partnership or a joint venture between the Parties and accordingly neither Party shall be authorised to act in the name of, or on behalf of, or otherwise bind the other Party save as expressly permitted by the terms of the Contract.

A4 THE AUTHORITY’S OBLIGATIONS

Save as otherwise expressly provided, the obligations of the Authority under the Contract are obligations of the Authority in its capacity as a contracting counterparty and nothing in the Contract shall operate as an obligation upon, or in any other way fetter or constrain the Authority in any other capacity, nor shall the exercise by the Authority of its duties and powers in any other capacity lead to any liability under the Contract (howsoever arising) on the part of the Authority to the Contractor.

A5 NOTICES

A5.1 Except as otherwise expressly provided within the Contract, no notice or other communication from one Party to the other shall have any validity under the Contract unless made in writing by or on behalf of the Party concerned.

A5.2 Any notice or other communication which is to be given by either Party to the other shall be given by letter (sent by hand, first class post, recorded delivery or special delivery), or by facsimile transmission or electronic mail (confirmed in either case by letter). Such letters shall be addressed to the other Party in the manner referred to in Clause A5.3. Provided the relevant communication is not returned as undelivered, the notice or communication shall be deemed to have been given [2] Working Days after the day on which the letter was posted, or [4] hours, in the case of electronic mail or facsimile transmission or sooner where the other Party acknowledges receipt of such letters, facsimile transmission or item of electronic mail.

A5.3 For the purposes of Clause A5.2, the address of each Party shall be: (a) For the Authority: DE&S ISS Commercial

Level B3,Building 405 MOD Corsham Westwells Road SN13 9NR

For the attention of: Vanessa Croker

Tel: 030 67701621 Fax: 01225 847023

Email: [email protected]


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(b) For the Contractor Commercial Director, Defence & Security

1-3 Bartley Wood Business Park, Bartley Way, HOOK, Hants. RG27 9XA

For the attention of: Mr Mandesh Patel

Tel: 01256 742000 Fax: 01256 742 724

Email: [email protected]

A5.4 Either Party may change its address for service by serving a notice in accordance with this Clause.

A6 MISTAKES IN INFORMATION

The Contractor shall be responsible for the accuracy of all drawings, documentation and information supplied to the Authority by the Contractor in connection with the supply of the Services and shall pay the Authority any extra costs occasioned by any discrepancies, errors or omissions therein.

A7 CONFLICTS OF INTEREST

A7.1 The Contractor shall take appropriate steps to ensure that neither the Contractor nor any Staff is placed in a position where, in the reasonable opinion of the Authority, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Contractor and the duties owed to the Authority under the provisions of the Contract. The Contractor will disclose to the Authority full particulars of any such conflict of interest which may arise.

A7.2 The Authority reserves the right to terminate the Contract immediately by notice in writing and/or to take such other steps it deems necessary where, in the reasonable opinion of the Authority, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Contractor and the duties owed to the Authority under the provisions of the Contract. The actions of the Authority pursuant to this Clause shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to the Authority.

A8 NON EXCLUSIVITY

A8.1 For the purposes of this Contract, the Authority shall: (a) At all times be entitled to enter into separate contracts with separate Contractor’s for the

provision of any or all services the same as or similar to the Services; (b) not be deemed, unless expressly stated to the contrary by the Authority, to make any

representation or warranty to the Contractor in respect of any Authority other than where the Authority is itself the Authority and enters into any Contract as principal; and

(c) not be deemed to be an agent of any Authority unless expressly stated to the contrary by the Authority in an Order

A8.2 No guarantee or representation shall be deemed to have been made by the Authority in respect of the total quantities or values of the Services to be ordered from this Contract. Further, the Authority acknowledges and agrees that it has not entered into this Contract on the basis of any such guarantee or representation.

A8.3 Nothing in this Contract shall create an exclusive relationship between the Contractor and the Authority for the provision of any or all Services.

A9 REJECTION

A9.1 Prior to acceptance by the Authority in accordance with Clause A10, the Authority may reject any Article (whether or not after inspection) which does not conform to the requirements of the Contract.

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Articles if: (a) such proportion or percentage of the Articles in that consignment as the Contract may

specify as being appropriate for the purposes of this Condition, do not conform with the requirements of the Contract; or

(b) samples, whether of Articles or of the material in the Articles, taken randomly from that consignment do not conform with the requirements of the Contract.

A9.3 For the purposes of this Condition, an item of Issued Property in connection with which the Contractor is required under the Contract to carry out any Service, shall, following completion of the Service, be subject to rejection under Clauses A9.1 and A9.2 as if it was an Article, but without prejudice to the Authority's proprietary and other rights in that item of Issued Property. The provisions of Clauses A9.4, A9.5, A9.6 and A9.7 shall similarly apply to such items.

A9.4 Subject to Clause A9.7 the Contractor shall at his own expense and within fourteen days of being notified of the rejection, or within any other period specified in the Contract, remove any Article or consignment which the Authority has rejected.

A9.5 If the Contractor fails to remove the rejected Article or consignment in accordance with Clause A9.4 of this Condition, the Authority may return it to the Contractor at the Contractor's risk and expense.

A9.6 The Contractor shall at his own expense and within the contractual period for delivery, or within such further reasonable period as the Authority may allow, supply Articles that conform to the requirements of the Contract.

A9.7 The Contractor may object in writing to a notification of rejection by the Authority within the period specified at Clause A9.4. If the objection is not resolved within a reasonable time, it shall be treated as a dispute within the meaning of Part I (Disputes and Law), as applicable. Unless otherwise agreed the Contractor shall not remove the Articles which are the subject of the rejection notice unless and until the objection or dispute has been resolved in favour of the Authority

A10 ACCEPTANCE

A10.1 Subject to Clause A10.2 of this Condition, acceptance of an Article occurs at the time and in accordance with the procedure specified in the Contract or, if none is so specified:

(a) where the Contract specifies a time limit within which to reject, that time has elapsed; (b) where the Contract specifies no time limit within which to reject, a reasonable time has

elapsed since delivery has occurred; or (c) when it has been delivered and the Authority does any act in relation to it which is

inconsistent with the Contractor's ownership.

A10.2 The Authority shall not have accepted an Article: (a) merely because the Authority asks for, or agrees to, its repair by or under an

arrangement with the Contractor; or (b) unless otherwise specified in the Contract, merely because the Article has been

delivered to a third party.

A10.3 Unless otherwise specified in the Contract, the Authority shall not be deemed to have accepted an Article unless it has had a reasonable opportunity to examine it after delivery for the purpose of ascertaining whether it is in conformity with the Contract.

A10.4 Acceptance shall be governed by this Condition to the exclusion of any common law or Statutory provision relating to acceptance of articles.

A10.5 Where software is to be supplied as a requirement of the Contract it will be subject to the provisions of this Condition as if it were an Article.


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PART B – SUPPLY OF SERVICES B1 THE SERVICES

B1.1 The Contractor shall supply the Services during the Contract Period in accordance with the Authority’s requirements as set out in the Specification and the provisions of the Contract in consideration of the payment of the Contract Price. The Authority may inspect and examine the manner in which the Contractor supplies the Services at the Premises during normal business hours on reasonable notice.

B1.2 If the Authority informs the Contractor in writing that the Authority reasonably believes that any part of the Services does not meet the requirements of the Contract or differ in any way from those requirements, and this is other than as a result of a Default by the Authority, the Contractor shall at its own expense re-schedule and carry out the Services in accordance with the requirements of the Contract within such reasonable time as may be specified by the Authority.

B1.3 Subject to the Authority providing written consent in accordance with Clause B2.2 (Provision and Removal of Equipment), timely supply of the Services shall be of the essence of the Contract, including in relation to commencing the supply of the Services within the time agreed or on a specified date. For the avoidance of doubt, notwithstanding the Authority or a Customer’s rights to terminate the Contract for material Default in accordance with Clause H2 or Clause H10.9, where the Authority or a Customer has requested a Service Level Agreement in relation to a work package or an Order the remedies available to the Authority or a Customer in the work package or an Order shall apply in lieu of any other remedies available to the Authority or Customer;

B2 PROVISION AND REMOVAL OF EQUIPMENT

B2.1 The Contractor shall provide all the Equipment necessary for the supply of the Services.

B2.2 The Contractor shall not deliver any Equipment nor begin any work on the Premises without obtaining prior Approval.

B2.3 All Equipment brought onto the Premises shall be at the Contractor’s own risk and the Authority shall have no liability for any loss of or damage to any Equipment unless the Contractor is able to demonstrate that such loss or damage was caused or contributed to by the Authority’s Default. The Contractor shall provide for the haulage or carriage thereof to the Premises and the removal of Equipment when no longer required at its sole cost. Unless otherwise agreed, Equipment brought onto the Premises will remain the property of the Contractor.

B2.4 The Contractor shall maintain all items of Equipment within the Premises in a safe, serviceable and clean condition.

B2.5 The Contractor shall, at the Authority’s written request, at its own expense and as soon as reasonably practicable:

(a) remove from the Premises any Equipment which in the reasonable opinion of the Authority is either hazardous, noxious or not in accordance with the Contract; and

(b) replace such item with a suitable substitute item of Equipment.

B2.6 On completion of the Services the Contractor shall remove the Equipment together with any other materials used by the Contractor to supply the Services and shall leave the Premises in a clean, safe and tidy condition. The Contractor is solely responsible for making good any damage to the Premises or any objects contained thereon, other than fair wear and tear, which is caused by the Contractor or any Staff.

B3 MANNER OF CARRYING OUT THE SERVICES

B3.1 The Contractor shall at all times comply with the Quality Standards, and where applicable shall maintain accreditation with the relevant Quality Standards authorisation body. To the extent that the standard of Services has not been specified in the Contract, the Contractor shall agree the relevant standard of the Services with the Authority prior to the supply of the


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Services and, in any event, the Contractor shall perform its obligations under the Contract in accordance with the Law and Good Industry Practice.

B3.2 The Contractor shall ensure that all Staff supplying the Services shall do so with all due skill, care and diligence and shall possess such qualifications, skills and experience as are necessary for the proper supply of the Services.

B4 KEY PERSONNEL

B4.1 The Contractor acknowledges that the Key Personnel are essential to the proper provision of the Services to the Authority.

B4.2 The Key Personnel shall not be released from supplying the Services without the agreement of the Authority, except by reason of long-term sickness, maternity leave, paternity leave or termination of employment and other extenuating circumstances.

B4.3 Any replacements to the Key Personnel shall be subject to the agreement of the Authority. Such replacements shall be of at least equal status or of equivalent experience and skills to the Key Personnel being replaced and be suitable for the responsibilities of that person in relation to the Services.

B4.4 The Authority shall not unreasonably withhold its agreement under Clauses B4.2 or B4.3. Such agreement shall be conditional on appropriate arrangements being made by the Contractor to minimise any adverse impact on the Contract which could be caused by a change in Key Personnel.

B5 CONTRACTOR’S STAFF

B5.1 The Authority may, by written notice to the Contractor, refuse to admit onto, or withdraw permission to remain on, the Premises:

(a) any member of the Staff; or (b) any person employed or engaged by any member of the Staff,

whose admission or continued presence would, in the reasonable opinion of the Authority, be undesirable.

B5.2 At the Authority’s written request, the Contractor shall provide a list of the names and addresses of all persons who may require admission in connection with the Contract to the Premises, specifying the capacities in which they are concerned with the Contract and giving such other particulars as the Authority may reasonably request.

B5.3 The Contractor’s Staff, engaged within the boundaries of the Premises, shall comply with such rules, regulations and requirements (including those relating to security arrangements) as may be in force from time to time for the conduct of personnel when at or outside the Premises

B5.4 The Contractor shall comply with Staff Vetting Procedures in respect of all persons employed or engaged in the provision of the Services. The Contractor confirms that all persons employed or engaged by the Contractor were vetted and recruited on a basis that is equivalent to and no less strict than the Staff Vetting Procedures.

B5.5 The Authority may require the Contractor to ensure that any person employed in the provision of the Services has undertaken a Criminal Records Bureau check as per the Staff Vetting Procedures. The Contractor shall ensure that no person who discloses that he/she has a Relevant Conviction, or is found by the Contractor to have a Relevant Conviction (whether as a result of a police check or through the Criminal Records Bureau check or otherwise) is employed or engaged in the provision of any part of the Services.

B5.6 If the Contractor fails to comply with Clause B5.2 within [2] Months of the date of the request and in the reasonable opinion of the Authority, such failure may be prejudicial to the interests of the Crown, then the Authority may terminate the Contract, 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.


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B5.7 The decision of the Authority as to whether any person is to be refused access to the Premises and as to whether the Contractor has failed to comply with Clause B5.2 shall be final and conclusive.

B6 LICENCE TO OCCUPY PREMISES

B6.1 Any land or Premises made available from time to time to the Contractor by the Authority in connection with the Contract shall be made available to the Contractor on a non-exclusive licence basis free of charge and shall be used by the Contractor solely for the purpose of performing its obligations under the Contract. The Contractor shall have the use of such land or Premises as licensee and shall vacate the same on completion, termination or abandonment of the Contract.

B6.2 The Contractor shall limit access to the land or Premises to such Staff as is necessary to enable it to perform its obligations under the Contract and the Contractor shall co-operate (and ensure that its Staff co-operate) with such other persons working concurrently on such land or Premises as the Authority may reasonably request.

B6.3 Should the Contractor require modifications to the Premises, such modifications shall be subject to prior Approval and shall be carried out by the Authority at the Contractor’s expense. The Authority shall undertake approved modification work without undue delay. Ownership of such modifications shall rest with the Authority.

B6.4 The Contractor shall (and shall ensure that its Staff shall) observe and comply with such rules and regulations as may be in force at any time for the use of such Premises as determined by the Authority, and the Contractor shall pay for the cost of making good any damage caused by the Contractor or its Staff other than fair wear and tear. For the avoidance of doubt, damage includes damage to the fabric of the buildings, plant, fixed equipment or fittings therein.

B6.5 The Parties agree that there is no intention on the part of the Authority to create a tenancy of any nature whatsoever in favour of the Contractor or its Staff and that no such tenancy has or shall come into being and, notwithstanding any rights granted pursuant to the Contract, the Authority retains the right at any time to use any premises owned or occupied by it in any manner it sees fit.

B6.6 The Defence Infrastructure Organisation may request agreement of a leasing arrangement (an example of which is at Annex B) for certain sites. Such agreements will be negotiated on a case by case basis.

B7 OFFERS OF EMPLOYMENT

For the duration of the Contract and for a period of 12 months thereafter neither the Authority nor the Contractor shall employ or offer employment to any of the other Party’s staff who have been associated with the procurement and/or the contract management of the Services without that other Party’s prior written consent.

B8 REQUIREMENTS

B8.1 The Contractor shall support the articles and associated equipment, accessories and services as detailed on the Schedule of Requirement and shall also supply and support any additional articles added to the Contract under Clause F12 (Contract Change). The Articles supplied shall fit within the scope as detailed below:

Repair, maintenance and associated services related to personal computers, office equipment, telecommunications and audio-visual equipment. The Requirement is to provide a 24/7 maintenance and repair service to a wide range of non DII computing, network and audio visual systems which will be carried out in the UK and overseas at various pan government units and establishments. Also included will be HM naval vessels, royal fleet auxiliary vessels, mobile units operating in the UK, overseas and other UK Public Sector Organisations (PSOs) across the world. The systems are used in numerous tasks ranging from PC based applications through network server, mainframe configurations and audio visual including video teleconferencing to ship based and mobile units. There is also a requirement to provide a service catalogue of additional services which include, but is not


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limited to, the following examples: • software support (excluding supply) • helpdesk (on customer site if required) • equipment moves • equipment rollouts & installations (excluding networks and cabling) • IT system & environment management • management of manufacturer warranties • fax equipment (overseas locations only) • equipment disposal / recondition & redeployment • asset inventory maintenance • hardware asset audits • electrical safety testing.

B8.2 The Contractor shall also undertake to supply any Articles new to the markets applicable as they become available and are required by the Authority in accordance with Clause F12 (Contract Change).

B8.3 The Contractor shall fulfil any installation requirements in accordance with JSP 480, where applicable.

B8.4 Articles supplied shall be new and fit for purpose in accordance with the technical specification and shall be supplied to the Authority under the terms and conditions of this Contract and in accordance with the Technical Specification. For Ships it will be necessary to provide like for like replacements due to size constraints. For other Customers unless there are size constraints, in the context of the support and maintenance activities, it is acceptable to provide like-for-like form fit and function replacements

B8.5 The Contractor shall provide and maintain an organisation having the necessary facilities and qualifications to undertake the requirement specified. These requirements shall be carried out to the satisfaction of the Authority.

B8.6 On all matters connected with the Contractor’s responsibilities under the Contract, the Contractor will appoint a representative with whom the Authority will deal in matters concerning the discharge of the Contractor’s responsibility. The Contractor will delegate to his representatives, Authority to deal with such matters on his behalf.

B9 SCOPE OF THIS CONTRACT

B9.1 This Contract governs the overall relationship of the Authority with the Contractor with respect to the provision of the Services to the Authority. The Authority is entitled (but not required) at any time during the Term to order Services from the ICS Catalogue in accordance with the Ordering Procedures. Unless the Contractor in its acknowledgement of the Authority’s Order states that it is unable to fulfil the Order in accordance with Clauses C16 (Ordering Process), the Contractor shall provide to that Authority such Services in accordance with all applicable provisions of the relevant contract.

B9.2 The Contractor shall not commit any act, nor forbear to commit any act, that shall compromise the Authority’s compliance with the Law or the Guidance Notes.

B9.3 Any Contract entered into under this Contract shall commence on the date of the execution of that Contract and shall expire no later than four (4) Years after such execution.

B9.4 In the event that any Contracting Authority approaches the Contractor with a view to ordering Service(s) within the scope of:

(a) this Contract; or (b) any other agreement which the Contractor may have with the Authority,

the Contractor shall inform the Contracting Authority of the existence of this Contract or such other agreement and afford the Contracting Authority the opportunity to purchase any or all of its requirements pursuant to this Contract or such other agreement.

B9.5 The Contractor is not processing any data (including Personal Data) of the Authority’s under this Contract. If this changes during the Term, the Contractor acknowledges and


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agrees that any data handling guidance issued by the Cabinet Office (or its nominated replacement) (including the Security Policy Framework) shall be followed and this Contract shall be amended to incorporate any and all Clauses including data protection, security and staff vetting.

B9.6 If directed by the Authority, the Contractor shall advertise the Services on the ICS Catalogue (or any replacement thereto) for such period as required by the Authority. The Contractor shall be responsible for any costs incurred in advertising the Services on (or any replacement thereto) and shall not be entitled to seek reimbursement of such costs from the Authority.

B9.7 Notwithstanding anything to the contrary in this Contract, the Authority shall be entitled to amend the Guidance Notes without the prior written consent of the Contractor. The Contractor shall not be entitled to make or request any amendments to the Guidance Notes either under this Contract or otherwise.

B10 CALL CENTRE

All requests for call-outs shall be made through a Call Centre. The operating requirements for such a centre shall be as described in Annex 3 (Work Package 3 Call Centre) to Defcon110 Schedule of Requirements

B11 MARKETING, PUBLICITY AND ICS CATALOGUE PAGES

Marketing

B11.1 The Contractor shall undertake marketing of the Contract and Services throughout the Term of the Contract

Publicity

B11.2 The Contractor shall not: (a) make any press announcements or publicise this Contract in any way; or (b) use the Authority’s name or brand in any promotion or marketing or announcement of

Orders, without the Authority’s prior written consent.

B11.3 The Contractor shall ensure the observance of the provisions of Clause B11.2 by all Contractor Personnel.

B11.4 Subject to the Transparency provisions in clause E5, the Authority shall be entitled to publicise this Contract in accordance with any legal obligation upon the Authority, including any examination of this Contract by the National Audit Office pursuant to the National Audit Act 1983 or otherwise.

B11.5 The Contractor acknowledges to the Authority that nothing in this Contract either expressly or by implication constitutes an endorsement of any services of the Contractor (including the Services) and the Contractor agrees not to conduct itself in such a way as to imply or express any such approval or endorsement.

Catalogue Pages

B11.6 The Contractor shall: (a) provide electronic details of the Services supplied on this Contract in order to feature

in the ICS Catalogue website www.icscat.mod.uk. (b) submissions shall be in accordance with Annex C.( Technical Specification for

Submissions to the ICS Catalogue).

B12 CORPORATE IDENTITY / MARKETING MATERIAL

The corporate representation of the ISS identity by contractors must be consistent with DE&S / ISS guidelines. Guidance will be provided by the authority upon request. During the period of the Contract the Contractor may be required at his own expense to provide publicity material to support the ICS Catalogue’s marketing activities linked to the increasing of Public Sector sales through the ICS Catalogue. Such material is likely to be limited to simple sheet flyers or leaflet booklets setting out the services and articles available in a specific commodity range via the ICS Catalogue. No more than 3


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such requests would be made on the Contractor in any one year.

B13 AVAILABILITY OF SPARES

Requirements here shall be met in accordance with Paragraph 10 (Spares and Stock Holdings) of Annex 1 (Work Package 1 Annual Maintenance Charge) to Defcon110 Schedule of Requirements.

B14 SOFTWARE SUPPORT AND MAINTENANCE

B14.1 In the case of software which the Contractor has the Authority to grant the licence, the appropriate support and maintenance agreement shall be agreed between the Authority and the Contractor subject to any amendments agreed between the Authority and the Contractor.

B14.2 In the case of third party software the Contractor shall provide, and the Authority will sign, the appropriate support and maintenance agreement with the third party licensor, subject to any amendments agreed between or on behalf of the Authority and such licensor.

B15 TECHNICAL SUPPORT

B15.1 Any Technical Support that is required as part of this Contract will be agreed through the Contract Change process detailed at Clause F12 (Contract Change). The following conditions shall apply to any Technical Support offered:

(a) The Contractor must offer a firm man day rate inclusive of all task deliverables, all travel and subsistence costs and expenses to the designated site but exclusive of VAT;

(b) “Man-day” shall be seven and a half hours duration, exclusive of meal breaks and travel time to / from the place of duty.

B15.2 Any extraneous expenses incurred e.g. as a result of previously unscheduled visits to other MoD establishments during the conduct of a particular task, will be strictly limited to current Civil Service practice in regard to Travel and Subsistence rates.

B16 STANDARDS AND REGULATIONS

B16.1 The Contractor shall provide the Services and meet its responsibilities and obligations hereunder in accordance with the Standards and Regulation detailed below.

B16.2 The Contractor shall discuss with the Authority any conflict that the Contractor reasonably believes that there is or will be between any of the Standards and Regulations or between any of the Standards and Regulations and any other obligation under this Contract, and shall comply with the Authority’s decision on the resolution of that conflict.

B16.3 General Standards

Quality Management System

(a) The Contractor shall undertake its obligations arising hereunder and in all contracts in accordance with the BS EN ISO 9001 Quality Management System standard.

(b) The Contractor shall ensure that its Sub-Contractor’s undertake their obligations arising under contracts in accordance with the BS EN ISO 9001 Quality Management System standard.

B16.4 Technical

ITIL Guidelines

(a) The Contractor shall follow the guidelines contained in the Office of Government Commerce’s IT Infrastructure Library (“ITIL guidelines”) for delivering the Articles or may propose alternatives that are broadly functionally consistent with the ITIL guidelines.

(b) The Contractor shall ensure that its service support processes include: Configuration Management; Service Desk/Help Desk; Incident Management; Problem Management; Change Management; and


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Release Management, (c) The Contractor shall ensure that its service delivery processes include:

Service Level Management; ICT Financial Management; Capacity Management; Availability Management; ICT Service Continuity Management; and Security Management.

B16.5 The Contractor shall on reasonable request provide the Authority with documents showing how ITIL guidelines have been followed in the provision of the Articles.

B16.6 The Contractor shall on request allow the Authority or its representatives to audit any or all of its ICT service management functions to ensure that ITIL guidelines are being followed in the delivery of the Articles.

B16.7 Environment

The Contractor undertakes to follow a sound environmental management policy so that its activities comply with all applicable environmental legislation and regulations and that its products or services are procured, produced, packaged, delivered and are capable of being used and ultimately disposed of, in ways that are appropriate from an environmental protection perspective.

B16.8 The Contractor warrants that it has obtained ISO 14000/14001 certification for its environmental management and shall comply with and maintain such certification requirements.

B16.9 The Contractor shall comply with relevant obligations under the Waste Electrical and Electronic Equipment Regulations 2002/96/EC.

B16.10 In its supply of the Articles, the Contractor shall (at its own cost) comply with DEFRA’s “Buy Sustainable – Quick Wins” mandatory minimum specifications to the extent applicable (including in relation to Category 3 goods (Office Machinery)), as updated from time to time. This document can currently be found at http://www.defra.gov.uk/sustainable/government/what/priority/consumption-production/quickWins/

B16.11 Data Standards

The Contractor shall develop, document, operate and maintain standards and procedures for ensuring the quality and integrity of all key data. These standards and procedures must be made available to the Authority at their reasonable request.

B16.12 Information Security and Information Standards

The Contractor will have in place systems and procedures which will be subject to external audit as required.

B16.13 The Contractor shall undertake its obligations arising hereunder and in all contracts in accordance with the ISO 27001 Information Security Management standard.

B16.14 The Contractor shall ensure that all Articles intended for the transmission of protectively marked material or for the protection of systems accredited to store or process protectively marked material shall be protected and delivered to the standards set out in the Security Policy Framework.

B16.15 All other Articles shall comply with the Information Age Government Security Framework.

B16.16 The Contractor shall prepare and provide information and advice to the System/Platform/Equipment Design Authority (DA) throughout the term to allow the DA to prepare an Accreditation Document Set (ADS) (as defined in HMG Infosec Standard 2). Information and advice to be provided shall cover the scope of the Articles and include the identification of changes to equipment resulting from obsolescence, replacement or form, fit, function changes and arising during the performance of the Service where such changes


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may have an impact on the security and operation of the equipment within the overaall System/ Platform. . It shall be the responsibility of the DA to maintain said ADS throughout the Term. The ADS shall be subject to the approval of the Pan-Government Accreditor, such approval to be obtained by the DA.

B16.17 Version Control

The Contractor shall develop procedures which ensure that only the correct release or version of a Deliverable can be delivered to the Authority. The Contractor shall provide a copy of the draft procedures to the Authority for its approval, if requested. On receipt of such approval, the Contractor shall then operate those procedures.

B17 AUTHORITY SATISFACTION MONITORING

B17.1 The Authority may undertake monitoring of Authority satisfaction with the Services.

B17.2 The Authority shall adopt such mechanisms as it may deem appropriate for monitoring Authority satisfaction.

B17.3 The Authority reserves the right to advise PSO’s of the findings of its Authority satisfaction monitoring, which shall include the right to make available, in paper or electronic form, statistical information derived from any Authority satisfaction questionnaires issued by the Authority to PSO’s.

B18 LEGISLATIVE CHANGE

B18.1 The Contractor shall bear the cost of ensuring that the Services comply with all Laws and any amendments thereto, except where any such amendment could not reasonably have been foreseen by the Contractor at the Effective Date.

B18.2 Where such reasonably unforeseeable amendments are necessary, the Authority and the Contractor shall use all reasonable endeavours to agree upon reasonable adjustments to the Charges as may be necessary to compensate the Contractor for such additional costs as are both reasonably and necessarily incurred by the Contractor in accommodating such amendments.

B19 FURTHER ASSURANCES

At its own expense, each party shall and shall use all reasonable endeavours to procure that any necessary third party shall promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this Contract.

B20 BUSINESS CONTINUITY DISASTER RECOVERY (BCDR) PLAN

B20.1 Purpose of This Clause

This Clause sets out the Authority’s requirements for ensuring continuity of the business processes and operations in circumstances of service disruption or failure and for restoring the Services through business continuity and as necessary disaster recovery procedures. It also includes the requirement on the Contractor to develop, review, test, change, and maintains a BCDR Plan in respect of the Services. The BCDR is required to cover the overall Contract requirement. Any subsequent plans for individual customers will be produced on a case by case basis in collaboration with the Authority through the Contract term.

B20.2 The BCDR Plan shall be divided into three parts: (a) Part A which shall set out general principles applicable to the BCDR Plan ("General

Principles"); (b) Part B which shall relate to business continuity ("Business Continuity Plan"); and (c) Part C which shall relate to disaster recovery ("Disaster Recovery Plan").

B20.3 The BCDR Plan shall detail the processes and arrangements which the Contractor shall follow to ensure continuity of the business processes and operations supported by the Services following any failure or disruption of any element of the Services and the recovery of the Services in the event of a Disaster.


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B20.4 Development of BCDR Plan

The BCDR Plan shall unless otherwise required by the Authority in writing, be based upon and be consistent with the provisions of Clauses B20.6, B20.10 and B20.12.

B20.5 The Contractor shall ensure that its Sub-Contractors disaster recovery and business continuity plans are integrated with the BCDR Plan.

B20.6 Part A – General Principles and Requirements

The BCDR Plan shall: (a) set out how the business continuity and disaster recovery elements of the BCDR Plan

link to each other; (b) provide details of how the invocation of any element of the BCDR Plan may impact

upon the operation of the Services and any services provided to the Authority by a Related Service Provider;

(c) contain an obligation upon the Contractor to liaise with the Authority and (at the Authority’s request) any Related Service Provider with respect to issues concerning business continuity and disaster recovery where applicable;

(d) detail how the BCDR Plan links and interoperates with any overarching and/or connected disaster recovery or business continuity plan of the Authority and any of its other Related Service Providers as notified to the Contractor by the Authority from time to time;

(e) contain a communication strategy including details of an incident and problem management service;

(f) contain a risk analysis, including: (i) failure or disruption scenarios and assessments and estimates of frequency of

occurrence; (ii) identification of any single points of failure within the Services and processes for

managing the risks arising there from; (iii) identification of risks arising from the interaction of the Services with the

services provided by a Related Service Provider; and; (iv) a business impact analysis (detailing the impact on business processes and

operations) of different anticipated failures or disruptions; (g) provide for documentation of processes, including business processes, and

procedures; (h) set out key contact details (including roles and responsibilities) for the Contractor (and

any Sub-Contractor’s) and for the Authority; (i) identify the procedures for reverting to "normal service"; (j) set out method(s) of recovering or updating data collected (or which ought to have

been collected) during a failure or disruption to ensure that there is minimal data loss and to preserve data integrity;

(k) identify the responsibilities (if any) that the Authority has agreed it will assume in the event of the invocation of the BCDR Plan; and

(l) provide for the provision of technical advice and assistance to key contacts at the Authority as notified by the Authority from time to time to inform decisions in support of the Authority’s business continuity plans.

B20.7 The BCDR Plan shall be designed so as to ensure that: (a) the Services are provided in accordance with this Contract at all times during and after

the invocation of the BCDR Plan; (b) the adverse impact of any Disaster, service failure, or disruption on the operations of

the Authority is minimal as far as reasonably possible; (c) it complies with the relevant provisions of ISO 27002:2005, ISO 20000 (as amended)

and all other industry standards from time to time in force; and (d) there is a process for the management of disaster recovery testing detailed in the

BCDR Plan.

B20.8 The BCDR Plan must be upgradeable and sufficiently flexible to support any changes to the Services or to the business processes facilitated by and the business operations supported


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by the Services.

B20.9 The Contractor shall not be entitled to any relief from its obligations under the Service Levels or to any increase in the Charges to the extent that a Disaster occurs as a consequence of any breach by the Contractor of this Contract.

B20.10 Part B – Business Continuity Element – Principles and Contents

The Business Continuity Plan shall set out the arrangements that are to be invoked to ensure that the business processes and operations facilitated by the Services remain supported and to ensure continuity of the business operations supported by the Services including and unless the Authority expressly states otherwise in writing:

(a) the alternative processes, (including business processes), options and responsibilities that may be adopted in the event of a failure in or disruption to the Services; and

(b) the steps to be taken by the Contractor upon resumption of the Services in order to address any prevailing effect of the failure or disruption including a root cause analysis of the failure or disruption.

B20.11 The Business Continuity Plan shall address the various possible levels of failures of or disruptions to the Services and the services to be provided and the steps to be taken to remedy to the different levels of failure and disruption. The Business Continuity Plan shall also clearly set out the conditions and/or circumstances under which the Disaster Recovery Plan is invoked.

B20.12 Part C – Disaster Recovery Element – Principles and Contents

The Disaster Recovery Plan shall be designed so as to ensure that upon the occurrence of a Disaster the Contractor ensures continuity of the business operations of the Authority supported by the Services following any Disaster or during any period of service failure or disruption with, as far as reasonably possible, minimal adverse impact.

B20.13 The Disaster Recovery Plan shall only be invoked upon the occurrence of a Disaster.

B20.14 The Disaster Recovery Plan shall include the following:

(a) the technical design and build specification of the Disaster Recovery System; (b) details of the procedures and processes to be put in place by the Contractor and any

Sub-Contractor in relation to the Disaster Recovery System and the provision of the Disaster Recovery Services and any testing of the same including but not limited to the following:

(i) data centre and disaster recovery site audits; (ii) backup methodology and details of the Contractor’s approach to data back-up

and data verification; (iii) identification of all potential disaster scenarios; (iv) risk analysis; (v) documentation of processes and procedures; (vi) hardware configuration details; (vii) network planning including details of all relevant data networks and

communication links; (viii) invocation rules; (ix) service recovery procedures; and (x) steps to be taken upon Service resumption to address any prevailing effect of

the Service failure or disruption;

(c) any applicable service levels with respect to the provision of Disaster Recovery Services and details of any agreed relaxation upon the Service Levels during any period of invocation of the Disaster Recovery Plan;

(d) details of how the Contractor shall ensure compliance with security standards ensuring that compliance is maintained for any period during which the Disaster Recovery Plan is invoked;

(e) access controls to any disaster recovery sites used by the Contractor or any Sub-Contractor in relation to its obligations pursuant to this Clause B20; and


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(f) testing and management arrangements.

B20.15 Review and Amendment of the BCDR Plan

The Contractor shall review part or all of the BCDR Plan and the risk analysis on which it is based:

(a) on a regular basis and as a minimum once every six (6) calendar months; (b) within three (3) months of the BCDR Plan (or any part) having been invoked pursuant

to Clause B20.27 of this Clause B20; and (c) where the Authority requests any additional reviews (over and above those provided

for in sub-Clauses B20.15(a) and (b) of this Clause) by notifying the Contractor to such effect in writing, whereupon the Contractor shall conduct such reviews in accordance with the Authority’s written requirements. The costs of both parties for any such additional reviews will be met by the Authority.

B20.16 Each review of the BCDR Plan pursuant to this Clause shall be a review of the procedures and methodologies set out in the BCDR Plan and shall assess their suitability having regard to any change to the Services or any underlying business processes and operations facilitated by or supported by the Services which have taken place since the later of the original approval of the BCDR Plan or the last review of the BCDR Plan and shall also have regard to any occurrence of any event since that date (or the likelihood of any such event taking place in the foreseeable future) which may increase the likelihood of the need to invoke the BCDR Plan. The review shall be completed by the Contractor within the period required by the BCDR Plan or if no such period is required within such period as the Authority shall reasonably require. The Contractor shall, within twenty (20) Working Days of the conclusion of each such review of the BCDR Plan, provide to the Authority a report ("Review Report") setting out:

(a) the findings of the review; (b) any changes in the risk profile associated with the Services; and (c) The Contractor’s proposals ("Contractor Proposals") for addressing any changes in

the risk profile and its proposals for amendments to the BCDR Plan following the review detailing the impact (if any and to the extent that the Contractor can reasonably be expected to be aware of the same) that the implementation of such proposals may have on any services or systems provided by a third party.

B20.17 The Contractor shall as soon as is reasonably practicable after receiving the Authority’s approval of the Contractor Proposals (having regard to the significance of any risks highlighted in the Review Report) effect any change in its practices or procedures necessary so as to give effect to the Contractor Proposals. Any such change shall be at the Contractor’s expense unless it can be reasonably shown that the changes are required because of a material change to the Project’s risk profile.

B20.18 Testing of the BCDR Plan

The Contractor shall test the BCDR Plan on a regular basis (and in any event not less than once in every Year). Subject to this Clause, the Authority may require the Contractor to conduct additional tests of some or all aspects of the BCDR Plan at any time where the Authority considers it necessary, including where there has been any change to the Services or any underlying business processes, or on the occurrence of any event which may increase the likelihood of the need to implement the BCDR Plan.

B20.19 If the Authority requires an additional test of the BCDR Plan it shall give the Contractor written notice and the Contractor shall conduct the test in accordance with the Authority’s requirements and the relevant provisions of the BCDR Plan. The Contractor’s costs of the additional test shall be borne by the Authority unless the BCDR Plan fails the additional test in which case the Contractor’s costs of that failed test shall be borne by the Contractor.

B20.20 Following each test, the Contractor shall send to the Authority a written report summarising the results of the test and shall promptly implement any actions or remedial measures which the Authority considers to be necessary as a result of those tests.

B20.21 The Contractor shall undertake and manage testing of the BCDR Plan in full consultation


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with the Authority and shall liaise with the Authority in respect of the planning, performance, and review, of each test, and shall comply with the reasonable requirements of the Authority in this regard. Each test shall be carried out under the supervision of the Authority or its nominee.

B20.22 The Contractor shall ensure that any use by it or any Sub-Contractor of "live" data in such testing is first approved with the Authority. Copies of live test data used in any such testing shall be (if so required by the Authority) destroyed or returned to the Authority on completion of the test.

B20.23 The Contractor shall, within twenty (20) Working Days of the conclusion of each test, provide to the Authority a report setting out:

(a) the outcome of the test; (b) any failures in the BCDR Plan (including the BCDR Plan's procedures) revealed by

the test; and (c) the Contractor’s proposals for remedying any such failures.

B20.24 Following each test, the Contractor shall take all measures requested by the Authority, (including requests for the re-testing of the BCDR Plan) to remedy any failures in the BCDR Plan and such remedial activity and re-testing shall be completed by the Contractor, at no additional cost to the Authority, by the date reasonably required by the Authority and set out in such notice.

B20.25 For the avoidance of doubt, the carrying out of a test of the BCDR Plan (including a test of the BCDR Plan’s procedures) shall not relieve the Contractor of any of its obligations under this Clause B20 or otherwise.

B20.26 The Contractor shall also perform a test of the BCDR Plan as part of the commissioning of any new project.

B20.27 Invocation of the Business Continuity and Disaster Recovery Plan

In the event of a complete loss of service or in the event of a Disaster, the Contractor shall immediately invoke the BCDR Plan (and shall inform the Authority promptly of such invocation). In all other instances the Contractor shall only invoke or test the BCDR Plan with the prior consent of the Authority.

B21 COMPLAINTS HANDLING

B21.1 The Contractor shall inform the Authority of any Complaint within five (5) Working Days of becoming aware of that Complaint.

B21.2 Without prejudice to any rights and remedies that a complainant may have at Law, including under this Contract or a contract, and without prejudice to any obligation of the Contractor to take remedial action under the provisions of this Contract or a contract, the Contractor shall use all reasonable endeavours to resolve the Complaint and in so doing, shall deal with the Complaint fully, expeditiously and fairly.

B21.3 Within three (3) Working Days of a request by the Authority, the Contractor shall provide full details of a Complaint to the Authority, including details of steps taken to its resolution.

B22 SPECIFICATIONS

B22.1 For the purposes of the Contract “the Specification” shall include any sample, pattern, specification, plan, drawing or statement of work which, individually or collectively, forms part of the Contract, as referenced in the Schedule of Requirements.

B22.2 All Services to be supplied under the Contract shall conform in all respects with the Specification.

B22.3 A Representative of the Authority may, by notice, after consultation with the Contractor as necessary, alter from time to time the Specification as from a date and to the extent specified by the Authority. Such alterations shall be limited to the extent that they do not alter significantly the nature of the Services or Services to be supplied under the Contract. The Services shall be in accordance with the Specification so altered. Such alterations shall


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not constitute amendment of the Contract and shall be implemented immediately unless otherwise specified.

B22.4 Where any such alteration causes a change in the cost, or in the period required for the production or completion, of any Services or any other part of the work under the Contract affected by the alteration, such revision to the Contract Price or the time for delivery, or both, for those Services or other work attributable to the alteration and its consequences shall be made as may be appropriate. Any such revision under this Clause shall be the subject of an amendment to the Contract.

B22.5 In the event that either party considers that there may be any conflict within the Specification it shall notify the other party.

B22.6 Any acceptance, authorisation, consent, comment, suggestion, requirement, proposal, consideration, audit, inspection, or approval of designs, drawings, specifications, plans, schedules, or the issue of any other technical and administrative documents by the Authority which is not done or given in accordance with the Contract shall not alter the Specification.

B23 QUALITY ASSURANCE (WITHOUT DELIVERABLE QUALITY PLAN)

B23.1 A Deliverable Quality Plan is not required for the purposes of this Contract.

B23.2 The Contractor shall ensure that the Contract is carried out in accordance with the quality requirements specified in the Contract.

B24 PERFORMANCE, MONITORING AND REPORTING – SUPPLIER & AUTHORITY PERFORMANCE MEASUREMENT PROCESS

B24.1 The Contractor shall, taking into account all the requirements contained within this Contract, issue appropriate operating and procedural instructions in writing to all staff connected with this Contract.

B24.2 The Contractor shall deliver the Management Information against agreed Performance Indicators for the purposes of Performance Monitoring / Management as defined by the Authority.

B24.3 Liaison meetings between the Authority and the Contractor will be held as required by the Authority. The Authority shall make the necessary arrangements for these meetings and shall advise the Contractor in advance of the date and venue of the meeting. The Authority or the Contractor may call additional meetings as and when required. The Authority will make a record of the discussion, if appropriate, and provided to the Contractor.

B24.4 The Contractor shall keep the Authority informed of any industrial relations problems likely to affect the performance of the Contract.

B24.5 The Contractor and the Authority agree to monitor performance under the Contract in accordance with the Supplier & Authority Performance Measurement Process using the Performance Indicator’s listed at Annex D.

These measures will be developed with the Contractor prior to the Contract commencement.

B25 MARKING OF ARTICLES

This clause relates specifically to shipped goods / spares.

B25.1 Each Article shall be marked in accordance with the procedure laid out in the Contract Specification. Where no procedure is stated, the Contractor shall mark each Article clearly and indelibly in accordance with the requirements of the relevant DEF-STAN or Specification. In the absence of such requirements, the Articles shall be marked with the MOD stock reference or alternative reference number shown in the Contract Schedule. Any marking method used shall not have a deleterious effect upon the strength, serviceability or corrosion resistance of the Articles.

B25.2 The marking shall include any serial numbers allocated to the Article and, if the Article has a limited shelf life, the cure date/date of manufacture expressed as required by the DEF-


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STAN, Specification, or, in the absence of such requirement, as month (letters) and year (last two figures).

B25.3 Where because of its size or nature it is not possible to mark an Article with the required particulars, these should be included on the package or carton in which the Article is packed.

B25.4 General guidance on the marking of Articles is contained in DEF-STAN 05-34.

B26 ACCOUNTING FOR PROPERTY OF THE AUTHORITY

B26.1 The Contractor shall: (a) maintain a Public Store Account (PSA), as defined in DEFSTAN 05-99, which shall

include a complete list of all property of the Authority, as defined in Clause B26.2, and record for that property all transactions or other accounting information specified at Annex E.

(b) supply to the Authority quarterly reports on the current PSA holdings. At least one report in any twelve-month accounting period or part thereof shall be a reconciled report. This shall be submitted with the Annual Certificate Form AAC 32 as required in DEFSTAN 05-99. The other three reports submitted in the period may be un-reconciled advisory reports. The submission by the Contractor and receipt by the Authority of these reports shall not prejudice any rights or obligations of the Authority or the Contractor under the Contract;

(c) ensure that the PSA is available for inspection by the Authority at any reasonable time;

(d) on being given two months notice or any other period as has been stated in the Contract permit, and co-operate with, the Authority to conduct audits of the PSA in a manner to be determined by the Authority; where the Authority has reasonable grounds to doubt the integrity of the PSA to the extent that the Authority is not satisfied of the proper use of property of the Authority, an audit may be conducted without notice;

(e) retain the PSA for a period of three years after disposal of the last item of the property of the Authority, or for any other period as may be specified in the Contract;

(f) if the Authority agrees that a Sub-Contractor at whatever level of subcontracting shall have responsibility for property of the Authority issued in aid of the Contract, the Contractor shall include in any subcontract with those Sub-Contractor’s only the provisions corresponding to those set out in this Clause that apply to property of the Authority issued in aid of the subcontract, in particular Clauses B26.1, B26.2, B26.4 and B26.7; and

(g) manage any Government Furnished Assets (GFA) in accordance with the provisions of DEFSTAN 05-99; and implement any new edition of or amendment to DEFSTAN 05-99 subject to Clause B22 (Specifications) within three months of the publication date of the new edition. These amendments shall not have retrospective effect.

B26.2 For the purposes of this Clause 'property of the Authority' means GFA and fixed assets, including property issued under Clause C25 (Issued Property) and property of the Authority issued to the Contractor under any other authorising document.

B26.3 For the avoidance of doubt, it is a condition of this Contract that this Clause shall apply to all property issued to the Contractor from the date of this Contract, whether in aid of the Contract, any other contract or other agreement with the Authority. Property of the Authority issued prior to the date of this Contract may be subject to separate contractual arrangements.

B26.4 The obligations of the Contractor arising under this Clause in respect of property of the Authority issued in aid of the Contract shall survive completion of the Contract and shall not be completed until all such obligations are fulfilled including the provisions of sub-Clause B26.1(e).

B26.5 The obligations of the Contractor arising under this Clause in respect of property of the Authority unconnected with the Contract shall survive completion of the Contract and shall not be completed until all those obligations are fulfilled including the provisions of sub-


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Clause B26.1(e) unless and until a subsequent contract containing “Accounting For Property Of The Authority” Clause is placed with the Contractor at which time obligations in respect of any remaining property of the Authority unconnected with the Contract shall be subsumed in the subsequent contract.

B26.6 If, after completion of the Contract, no subsequent contract is placed containing “Accounting For Property Of The Authority” Clause within the period detailed at sub-Clause B26.1(e), then the obligations of the Contractor arising under this Clause in respect of property of the Authority unconnected with the Contract shall cease on expiry of the period detailed at sub-Clause B26.1(e).

B26.7 The Authority reserves the right to amend Annex E without further consultation where the amendments arise from the Department’s proper and reasonable accounting requirements. For the purposes of this Clause, Annex E shall be regarded as a Specification and subject to the terms of Clause B22 (Specifications). If the Authority exercises this right:

(a) the Contractor shall implement the amendment to Annex E at the commencement of the Department’s next accounting year provided that a notice of six months or such other period as may expressly be agreed between the Authority and Contractor is given to the Contractor. These amendments shall not have retrospective effect; and

(b) the Contractor shall inform the Authority as soon as practicable, but in any event within three months of notice having been given, if the Contractor cannot comply with the amendment to Annex E.

B27 SUPPLY OF HAZARDOUS DATA FOR ARTICLES, MATERIALS AND SUBSTANCES

B27.1 The Contractor shall provide to the Authority: (a) for each hazardous material or substance supplied, a Safety Data Sheet (SDS) in

accordance with the extant Chemicals (Hazard Information and Packaging for Supply) Regulations (CHIP), and

(b) for each hazardous Article, safety information as required by the Health and Safety at Work, etc Act 1974, at the time of supply.

Nothing in this Clause shall reduce or limit any statutory duty or legal obligation of the Authority or the Contractor.

B27.2 If the item of supply contains or is a substance falling within the scope of the REACH Regulation (EC) No 1907/2006:

(a) the Contractor shall provide to the Authority an SDS for the substance in accordance with the Regulation. If the Contractor becomes aware of new information which may affect the risk management measures or new information on the hazard, the Contractor shall update the SDS and forward it to the Authority and to the address listed in Clause B27.8 below, and

(b) the Authority, if it becomes aware of new information regarding the hazardous properties of the substance, or any other information that might call into question the appropriateness of the risk management measures identified in the safety data sheet supplied, shall report this information in writing to the Contractor.

B27.3 If the Contractor is required, under, or in connection with the Contract, to supply Articles or components of Articles that, in the course of their use, maintenance, disposal, or in the event of an accident, may release hazardous materials or substances, he shall provide to the Authority a list of those hazardous materials or substances, and for each hazardous material or substance listed, provide an SDS.

B27.4 If the Articles, materials or substances are ordnance, munitions or explosives, in addition to the requirements of CHIP and REACH the Contractor shall comply with hazard reporting requirements of DEF STAN 07-85 Design Requirements for Weapons and Associated Systems.

B27.5 If the Articles, materials or substances are or contain or embody a radioactive substance as defined in the Ionising Radiation Regulations SI 1999/3232, the Contractor shall additionally provide details of:

(a) activity;


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(b) the substance and form (including any isotope);

B27.6 If the Articles, materials or substances have magnetic properties, the Contractor shall additionally provide details of the magnetic flux density at a defined distance, for the condition in which it is packed.

B27.7 Any SDS to be provided in accordance with this Clause, including any related information to be supplied in compliance with the Contractor’s statutory duties under sub-Clauses B27.1(a) and (b), any information arising from the provisions of Clauses B27.4, B27.5 and B27.6 and the completed Annex F, shall be sent directly to the Commercial Officer defined in the Contract as soon as practicable, and not less than one month prior to the Contract delivery date, unless otherwise stated in the Contract. In addition, so that the safety information can reach users without delay, a copy shall be sent preferably as an email with attachment(s) in Adobe PDF or MS WORD format, or, if only hardcopy is available, to the addresses below :

(a) Hard copies to be sent to: Hazardous Stores Information System (HSIS) Supply Chain Management (SCM) Defence Movements and Transport Policy (DMTP) Defence Dangerous Goods and Hazardous Stores Group (DDGHSG) HQ DE&S NH3 Cedar 2B, # 3246 MOD Abbey Wood (South) Bristol, BS34 8JH

(b) Emails to be sent to: [email protected]

B27.8 Failure by the Contractor to comply with the requirements of this Clause shall be grounds for rejecting the affected Articles. Any withholding of information concerning hazardous Articles, materials or substances shall be regarded as a breach of contract for which the Authority reserves the right to require the Contractor to rectify the breach immediately at no additional cost to the Authority or to terminate the Contract without compensation.

B27.9 In exercising its rights or remedies under this Clause, the Authority shall act in a reasonable and proportionate manner having regard to the gravity of the failure.

B28 CONTRACT AND SERVICE MANAGEMENT

B28.1 This Clause specifies the requirements in respect of contract and service management issues.

(a) If required by the Authority’s Order, both parties shall perform all their obligations under this Contract in accordance with the Contract procedures.

(b) In the event that the Contractor fails (or is likely to fail), due to its Default, to fulfil an obligation by the date specified in the Contract procedures for such fulfilment, the Contractor shall notify the Authority in writing of such failure (including full details of the reasons for and consequences of the delay) and, at the request of the Authority and without prejudice to the Authority’s other rights and remedies:

(c) arrange all such additional resources as are necessary to fulfil the said obligation as early as practicable thereafter at no additional charge to the Authority; and

(d) take all reasonable steps necessary to eliminate or mitigate the consequences of the delay, including issuing a correction plan (covering those aspects for which the Contractor is responsible) for approval not later than ten (10) Working Days after the initial notification under sub-Clause B28.2(b), which once approval has been secured from the Authority, shall be followed by the Contractor.

B28.2 In the event that any obligation of the Contractor specified in the Contract procedures is (or is likely to become) delayed as a result of a Default by the Authority then:

(a) the Contractor shall immediately notify the Authority of the fact of the delay (including full details of the consequences of the delay);

(b) the date associated with the relevant obligation(s) as specified in the Contract


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procedures (and the dates similarly associated with any subsequent obligation(s) specified in the Contract procedures) shall be amended by a period of time equal to the period of such Authority’s Default (or other such period as the parties agree);

(c) both parties shall use all reasonable endeavours to mitigate the impact of such delay and to recover any resultant delay to the performance of the Ordered IT Products; and

(i) the Authority shall reimburse those reasonable costs of the Contractor which are both reasonably and necessarily incurred by the Contractor as a direct result of such delay.

B28.3 Where a delay is attributable in part to the Contractor’s Default and in part to the Authority’s Default, the parties shall negotiate in good faith with a view to agreeing a fair and reasonable apportionment of responsibility for the delay. If necessary, the parties may escalate the matter in accordance with Clause I2 (Dispute Resolution (English Law)) of this Contract.

B28.4 Review Meetings (a) When requested by the Authority, the Contractor shall attend review meetings at a

location and frequency to be agreed between the Parties.

B29 SUSTAINABILITY AND ENVIRONMENTAL REQUIREMENTS

B29.1 The Contractor shall, when working on the Premises, perform its obligations under the Contract in accordance with the Authority’s environmental policy, which is to conserve energy, water, wood, paper and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the release of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment.

B29.2 The Contractor shall comply in all material respects with all applicable environmental Laws in force from time to time in relation to the Services. Without prejudice to the generality of the foregoing, the Contractor shall promptly provide all such information regarding the environmental impact of the Services as may reasonably be requested by the Authority.

B29.3 The Contractor shall meet all reasonable requests by the Authority for information evidencing compliance with the provisions of Clause B29.2 by the Contractor.


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PART C – PAYMENT, ORDERING PROCESS AND DELIVERY C1 CONTRACT PRICE

C1.1 In consideration of the Contractor’s performance of its obligations under the Contract, the Authority shall pay the Contract Price in accordance with Clause C2 (Payment and VAT).

C1.2 The Authority shall, in addition to the Contract Price and following Receipt of a valid VAT invoice, pay the Contractor a sum equal to the VAT chargeable on the value of the Services supplied in accordance with the Contract

C2 PAYMENT AND VAT

C2.1 The Authority shall pay all sums due to the Contractor within 30 days of Receipt of a valid invoice, submitted monthly in arrears

C2.2 The Contractor shall ensure that each invoice contains all appropriate references and a detailed breakdown of the Services supplied and that it is supported by any other documentation reasonably required by the Authority to substantiate the invoice.

C2.3 Where the Contractor enters into a sub-contract with a supplier or contractor for the purpose of performing its obligations under the Contract, it shall ensure that a provision is included in such a sub-contract which requires payment to be made of all sums due by the Contractor to the Sub-Contractor within a specified period not exceeding 30 days from the receipt of a valid invoice.

C2.4 The Contractor shall add VAT to the Contract Price at the prevailing rate as applicable.

C2.5 The Contractor shall indemnify the Authority on a continuing basis against any liability, including any interest, penalties or costs incurred, which is levied, demanded or assessed on the Authority at any time in respect of the Contractor’s failure to account for or to pay any VAT relating to payments made to the Contractor under the Contract. Any amounts due under this Clause C2.5 shall be paid by the Contractor to the Authority not less than 5 Working Days before the date upon which the tax or other liability is payable by the Authority.

C2.6 The Contractor shall not suspend the supply of the Services unless the Contractor is entitled to terminate the Contract under Clause H2.2 (Termination on Default) for failure to pay undisputed sums of money. Interest shall be payable by the Authority on the late payment of any undisputed sums of money properly invoiced in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.

C3 RECOVERY OF SUMS DUE

C3.1 The Authority shall be permitted to deduct and withhold from any sum due to the Contractor under this Contract any sum of money due from the Contractor under this Contract;

(a) any other agreement between the Contractor and the Authority;

(b) any other agreement between the Contractor and any other Crown Body,

C3.2 provided that the terms of such other agreement provide for sums of money due from the Contractor under that agreement to be recovered by way of a deduction from sums of money due to the Contractor under this Contract (albeit that this Contract may not be referenced specifically under that agreement).

C4 PRICE ADJUSTMENT ON EXTENSION OF THE INITIAL CONTRACT PERIOD

C4.1 The Contract Price shall apply for the Initial Contract Period. In the event that the Authority agrees to extend the Initial Contract Period pursuant to Clause F5 (Extension of Initial Contract Period) the Authority shall, in the 6 month period prior to the expiry of the Initial Contract Period, enter into good faith negotiations with the Contractor (for a period of not more than 30 Working Days) to agree a variation in the Contract Price.

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Clause C4.1, the Contract shall terminate at the end of the Initial Contract Period.

C4.3 If a variation in the Contract Price is agreed between the Authority and the Contractor, the revised Contract Price will take effect from the first day of any period of extension and shall apply during such period of extension.

C4.4 Any increase in the Contract Price pursuant to Clause C4.1 shall not exceed the percentage change in the Office of National Statistics’ Consumer Prices Index (CPI) (or another such index specified in the Pricing Schedule) between the Commencement Date and the date 6 Months before the end of the Initial Contract Period.

C5 EURO

C5.1 Any requirement of Law to account for the Services in Euro, (or to prepare for such accounting) instead of and/or in addition to sterling, shall be implemented by the Contractor free of charge to the Authority.

C5.2 The Authority shall provide all reasonable assistance to facilitate compliance with Clause C5.1 by the Contractor.

C6 SERVICES RENDERED BY THE AUTHORITY

If the Authority shall accept delivery of any articles, materials or stores in connection with the work on behalf of the Contractor and shall pay any charges upon such articles, materials, and stores, either for demurrage, handling, storage, cartage or carriage, or for the price of such materials or stores, or if the Authority shall at the express or implied request of the Contractor perform any other services for the Contractor any expenses so incurred by the Authority shall be recoverable from the Contractor.

C7 OPEN BOOK ACCOUNTING

The Contractor shall operate Open Book Accounting in relation to the Contract. This information shall be made available to the Authority during the period of the Contract. The Contractor’s ‘open book’ accounting system shall enable the calculation of the value of the cost of components and profit margins of items listed on the Schedule of Requirements. It shall enable all cost components to be traced back to source documentation and will allow a review of the allocation basis by the Contractor of any cost element.

C8 COMPLIANCE WITH THE ELECTRONIC TRANSACTIONS AGREEMENT

The Authority and the Contractor shall comply with the Electronic Transactions Agreement as detailed in Defform 30 and previously agreed against your Corporate Reference DE&S ISS /CM/HP Enterprise Services Defence & Security UK Ltd. The sending by the Contractor of an “Acknowledgement of Receipt” Message is to be regarded as acceptance of the Purchase Order Message to which it refers, unless the Purchase Order Message itself constitutes acceptance in accordance with the terms and conditions of the Contract. Messages under the Electronic Transactions Agreement received by the Contractor shall be regarded as having been authorised by the Authority.

C9 UNIQUE IDENTIFIERS

C9.1 For the purposes of this Clause, Unique Identifiers comprise the following: (a) Unique Order Identifier (UOI) generated by P2P for non inventory purchase orders; (b) Unique Receipt Reference Identifier (URRI), generated by P2P for inventory

purchase orders; or (c) Electronic Business Capability (EBC) Unique Package Identifier (EUPI) generated for

EBC Contractor logistic support contracts. EUPIs comprise two parts, the first part being the identifier allocated by the Authority and the second part being the identifier generated by the Contractor.

Use

C9.2 For P2P purchase orders, the Contract or an order issued under an Enabling Contract will reference UOIs or URRIs, or both. The application of UOIs and URRIs is at the line item level. The Contractor must quote the applicable Unique Identifier in any communication concerning a line item.


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C9.3 For EBC Contractor logistic support contracts, the Contractor will generate EUPIs in fulfilling demands raised under a contractor logistic support contract. A EUPI applies for each package and the Contractor must quote it in any communication concerning a package. Where a delivery includes more than one package, each package must have a separate EUPI.

Confirmation of Receipt

C9.4 Confirmation of receipt of deliveries by Unique Identifiers shall not be construed as an acceptance of the Articles for the purposes of Clause C20.2 (Acceptance Test Criteria) or any other term of the Contract relating to acceptance by the Authority.

C10 PAYMENT PROCESS (NON P2P) Purchase to Payment will be the preferred payment option for all MoD Authorities

C10.1 This method applies to TN’s and ICS Catalogue orders only. AMC cannot be paid via this process.

C10.2 For those MoD Authorities who are unable to access P2P, the payment method will be: (a) via Lodged GPC / GPC as detailed in Clause C15 (Government Procurement Card) or

(b) Form AG 173 (i) The Contractor shall submit all certified bills on form AG 173 to the following

address: Financial Management Shared Service Centre (FMSSC)

Walker House

Exchange Flags

Liverpool L2 3YL (ii) The AG 173 shall specify the charge description which must be one of the

following: the Authority’s Contract reference; Unit Identification Number (UIN); the line value, total value excluding Value Added Tax (VAT), the VAT percentage and the total value including VAT and the tax point relating to the rate of VAT shown.

(iii) The form AG 173 shall be forwarded to the FMSSC undercover of a “Form DAB 10 - Summary of Contractors Claims.”

(iv) Within 30 days of receipt by the FMSSC of a valid claim form AG 173, they shall make payment to the Contractor of all invoices submitted for payment in accordance with the terms and conditions of the Contract by means of the Bankers Automated Clearing System (BACS)

C10.3 To facilitate payment by means of BACS , the Contractor shall be required to advise the Bill Paying Branch in advance of the submission of valid invoices, if he had not already done so, details of the names and address of his bank, sort code and account number. The Contractor shall be required to revalidate this information with the Bill Paying Branch on an annual basis.

C10.4 PSO’s may make payment via (a) GPC or (b) Their standard payment mechanism for contractors invoice.

C11 PAYMENT UNDER P2P (This also applies to Public Sector Organisations (PSO’s) where the MoD is making payments on the PSO’s behalf)

Purchase to Payment will be the preferred payment option for all MoD Authorities. Where P2P is not possible then payment will be as described in Clause C10 (Payment Process (Non P2P))

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For equipment in this category all payments will be made quarterly in arrears at the calculated pre-agreed rate as described in Clause C27 (AMC Changes). Each quarter, the Authority will raise, approve and receipt a P2P order for the agreed amount. The Contractor will raise and submit an appropriate matching invoice to initiate the payment.

C11.2 Tasking Notices (TN’s) Unless previously agreed between the Authority and the Contractor all payments will be in

arrears. For each agreed TN the process will be: (a) the Authority will raise and approve a P2P order; (b) the Contractor will perform the task; (c) the Authority will receipt the order; (d) the Contractor will raise and submit an appropriate matching invoice to initiate the

payment.

For those TN’s where service is required over a period i.e. 12 months the Authority and the Contractor may agree to stage payments and in those instances more than one (1) item line shall be incorporated into the order detailing the amount due at each stage. At the due time of each line payment action shall be followed in accordance with Clause C11.2(c) and C11.2(d).

C11.3 ICS Catalogue Payments will follow a similar process to that shown in C11.2 (Tasking Notices) (a) the Authority will raise a P2P order in line with Clause C16 (Ordering Process); (b) upon receipt of an order the Contractor will carry out the prescribed work; (c) upon completion of the work the Authority will receipt the order; (d) upon completion of the work the Contractor will raise and submit an appropriate

matching invoice to initiate the payment.

C12 BUSINESS SERVICE CHARGE

C12.1 Ministry of Defence Service Charge

The Contractor shall pay to the Authority a Service Charge of 1.0% of the total net value of all payments made by the Authority to the Contractor under all contracts placed under and during the period of the Contract, (Including those made using the GPC), whether such contracts continue beyond the Term of the Contract or not, for the duration of each such contract, including any extension(s) thereof.

C12.2 Public Sector Organisation’s (PSO’s) Service Charge

The Contractor shall pay to the Authority a Service Charge of 1.0% of the total net value of all payments made by each Public Sector Organisation through the Paying Authority of each such PSO to the Contractor under all contracts placed under and during the period of the Contract, whether such contracts continue beyond the Term of the Contract or not, for the duration of each such contract, including any extension(s) thereof.

C12.3 Payments of the Service Charge shall become due at the end of each calendar quarter commencing at the start date of the Contract.

C12.4 The Authority shall submit a summary of the Service Charges payable in respect of payments made by the Authority in the previous calendar quarter to the Contractor within one month of the end of each calendar quarter. Financial Management Shared Service Centre (FMSSC) Liverpool will invoice the Contractor for that amount and the Contractor shall make payment as indicated on the invoice (s) within 30 days of receipt

C12.5 The Authority shall submit a summary of the Service Charges payable in respect of payments made by Other Contracting Authorities in the previous calendar quarter to the Contractor when such information is available. FMSSC will invoice the Contractor for that amount and the Contractor shall make payment as indicated on the invoice(s) within 30 days of receipt.

C12.6 Calculation of Service Charge


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A hypothetical example to show method of calculation for the Service Charge is specified below:

Period Calculation & Amount Due From Contractor Contract Value Period 1 = £250,000.00

1.0% of £250,000.00 = £2,500.001

April-June Payable in July = £2,500.00

Total Contract Value Periods 1 + 2 = £600,000.00Less Contract Value Period 1 (£250,000) = £350,000.00

1.0% of £350,000.00 = £3,500.00

2 July to Sept’

Payable in Oct’ = £3,500.00

Total Contract Value Periods 1, 2 + 3 = £800,000.00Less Contract Value Periods 1+2 (£600,000) = £200,000.00

1.0% of £200,000.00 = £2,000.00

3 Oct’ to Dec’

Payable in Jan’ = £2,000.00

Total Contract Value Periods 1, 2, 3 + 4 = £1,000,000.00Less Contract Value Periods 1,2+3 (£800,000) = £200,000.00

1.0% of £200,000.00 = £2,000.00

4 Jan’ to Mar’

Payable in April = £2,000.00

C12.7 If the Contract is extended under Clause F5 the total value of the Contract shall be the cumulative value of all payments made during the initial term of the Contract plus any made during such extension(s) and the same Service Charge calculation shall apply.

C13 OVERSEAS EXPENDITURE AND IMPORT LICENCES

C13.1 Overseas Expenditure

The Contractor shall report to the Authority details of any direct overseas expenditure likely to be incurred in the execution of the Contract immediately the possibility is known if such details are not furnished at the time of tendering. The details to be provided are as follows:

(a) Contract No; (b) Country in which subcontract placed/to be placed; (c) Name, Division and full postal address of Sub-Contractor; (d) Value of subcontract as applicable to main contract; (e) Date placed/to be placed.

C13.2 If no overseas orders are to be placed or are placed, the Contractor shall advise the Authority to this effect.

C13.3 For the purpose of this Clause overseas expenditure comprises only those direct payments made by the Contractor to overseas firms and to UK firms, including UK branches or subsidiaries of overseas firms, for the supply of finished or semi-finished manufactured products imported directly by the Contractor or by such UK firms.

C13.4 Import Licence

If, in the execution of the Contract, the Contractor needs to import materiel for which a licence is required, the responsibility for applying for the licence shall rest with the Contractor.

C14 CUSTOMS DUTY DRAWBACK

The Contract Price shall be inclusive of any UK Customs and Excise or other duty payable. The Contractor shall not make any claim for drawback of UK import duty on any portion of the Articles supplied which may be for shipment overseas.

C15 GOVERNMENT PROCUREMENT CARD

C15.1 Government Procurement Card (GPC) - a VISA badged procurement card that is supplied to the Authority by Barclaycard Business. This may either be a GPC held by the Authorised Demander, or a GPC which has been lodged with the Contractor.


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C15.2 Definitions

VISA Merchant Acquiring Bank (VMAB) – The Contractor’s bank that is responsible for making payment to the Contractor.

C15.3 Order – A communication to the Contractor containing the information detailed in Clauses C15.10. or C15.17 below.

C15.4 Authorised Demander – Any one of the persons authorised by the Authority to place Orders, being the persons listed in the Statement of Requirement.

C15.5 Authority Reference Number – A unique number allocated by the Authorised Demander which will include the MOD Contract Number.

C15.6 Delivery Point – The location specified in the Order for the delivery of Articles, as listed in the Statement of Requirement.

C15.7 Location Point – The location specified in the Order where the performance of the Service will commence and/or be completed, as listed in the Statement of Requirement.

C15.8 Product Code Number – A reference number allocated by the Contractor to identify a Line Item.

C15.9 Order Procedures

If a GPC is to be lodged with the Contractor, the Authorised Demander’s GPC card number, card expiry date and, if previously agreed with the Contractor, the card security number, must be provided by the Authority before the first order is placed under the Contract.

C15.10 For the supply of Articles

If the Order is for the delivery of Articles each order is to be issued by an Authorised Demander and will comprise one or more Articles and as a minimum will contain the following information:

(a) the date of the Order; (b) the Authority Reference Number; (c) the Authorised Demander’s GPC card number, card expiry date and if previously

agreed with the Contractor, the card security number. (If using a GPC lodged with the Contractor, this information must be provided at the outset of the Contract.);

(d) the Delivery Point (including the full postal address); (e) if different from the delivery point, the final destination (including the full postal

address); (f) in respect of each Article comprised in the Order:

(i) a Product Code Number; (ii) a short description; (iii) the quantity ordered; (iv) the denomination of the quantity; and (v) a specific date for delivery (or a range of dates within which delivery is required

(optional).

C15.11 The Contractor shall, as soon as practicable on or after the Business Day on which he receives an order from the Authority and providing the Order satisfies the above requirements, check availability of the Articles.

C15.12 If the Contractor is able to satisfy the requirements of the Order, then, on the date that the Articles are available for selection and despatch, but not before, he shall process the transaction by recording the following details, as Card Holder Not Present (CNP), on the Electronic Point of Sale (EPOS) equipment which shall have either VISA Global Invoice Specification (VGIS) capability, or, as a minimum requirement, VISA Level 3 Line Item Detail (LID) capability:

(a) in respect of each Article available for dispatch: (i) the Product Code Number; (ii) a short description consistent with sub-Clause C15.10(f)(ii);


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(iii) the quantity being dispatched; (iv) the denomination of the quantity; (v) the price for the quantity being dispatched (ex VAT); (vi) the VAT payable; and (vii) the gross price payable; (b) the Contractor’s name; (c) the transaction process date; (d) the Contract number against which the Article is being ordered in the Authority

Reference Number Field; and (e) the Authorised Demander’s GPC details.

C15.13 If the EPOS returns an authorisation acceptance code, the Contractor shall dispatch the Articles in accordance with the Contract. Payment to the Contractor will be made as described in Clause C15.23 of this Clause. If the EPOS rejects the Authorised Demander’s GPC details, the Contractor shall notify the Authorised Demander immediately and take no further action in response to the Order, until a resolution to the payment failure has been agreed or otherwise agreed.

C15.14 Where the Contractor does not have available any, or an adequate quantity, of an Article required under an Order, the Contractor shall notify the Authorised Demander accordingly and, upon instruction from the Authorised Demander, either

(a) cancel that part of the Order that cannot be fulfilled in the required delivery timescale; or

(b) agrees with the Authorised Demander a revised delivery timescale and when the Articles are available for dispatch, proceed to process the transaction in accordance with Clause C15.12.

C15.15 The Contractor shall provide the Authorised Demander with a dispatch note with each delivery that shall include, as a minimum:

(a) the Contract Number; (b) the date of the Order; (c) the Delivery Point (including the full postal address); (d) if different from the delivery point, the final destination (including the full postal

address); and (e) in respect of each Article in the Order: (i) the Product Code Number; (ii) the short description; (iii) the quantity delivered (iv) the denomination of quantity; (v) the price for the quantity delivered (ex VAT); (vi) VAT; (VII) the gross price payable; and (viii) the date of dispatch.

NOTE: The dispatch note may be a copy of the invoice clearly marked “Paid by VISA” and invalidated as a tax document with the legend “This is not a VAT invoice”, or a delivery note that includes pricing details described at sub-Clauses C15.15(f)(v), (vi), (vii) and (viii).

C15.16 If the Contractor obtains confirmation of receipt, e.g. by signature, from the Authorised Demander or his representative for the Articles delivered, that confirmation shall not be treated as acceptance. Acceptance of the Articles shall be in accordance with Clause C20.2 (Acceptance Test Criteria)

C15.17 For The Performance of Services Each Order is to be issued by an Authorised Demander and will comprise one or more Services and as a minimum will contain the following information:

(a) the date of the Order; (b) the Authority Reference Number; (c) the Authorised Demander’s GPC card number, card expiry date and if previously

agreed with the Contractor, the card security number. (d) a clear and concise description of the Service required;


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(e) the Location Point for the commencement of the Service (including the full postal address);

(f) the Location point for the satisfactory completion of the Service (including the full postal address), if different from sub-Clause C15.17(e);

(g) a specific date on which the Service will be required to be completed.

C15.18 The Contractor shall, as soon as practicable on or after the Business Day on which he receives an Order from the Authority and providing the Order satisfies the above requirements, check availability of the Services.

C15.19 If the Contractor is able to satisfy the requirements of the Order, then, he shall proceed to provide the Services in accordance with the Contract requirements.

C15.20 Where the Contractor does not have available any or adequate resources to perform the Services required under an Order, the Contractor shall notify the Authorised Demander accordingly and, upon agreement the Authorised Demander shall, either:

(a) cancel that part of the Order that cannot be fulfilled in the required performance timescale; or

(b) agree with the Contractor a revised performance timescale and when the Services have been performed as provided in the Contract, the Contractor shall process the transaction in accordance with Clause C15.21.

C15.21 The Contractor shall provide the Authorised Demander with a statement of completion of Service with each service provided that shall include, as a minimum:

(a) the Contract Number; (b) the date of the Order; (c) a clear and concise description of the Service required; (d) the location Point where the Service commenced (including the full postal address); (e) the Location where the Service was completed (including the full postal address), if

different from sub-Clause C15.21(d); (f) the date on which the Service was completed; (g) the price for the completed Service (ex VAT); (h) VAT; and (i) the gross price payable.

NOTE: The statement of completion of Service may take the form of an invoice clearly marked “Paid by VISA” and invalidated as a tax document with the legend “This is not a VAT invoice”.

C15.22 On performance of each Service as required under the Contract, or as otherwise provided in the Contract, but not before, the Contractor shall process the transaction by recording the following details, as Card Holder Not Present (CNP), on the Electronic Point Of Sale (EPOS) equipment which shall have either VISA Global Invoice Specification (VGIS) capability, or, as a minimum requirement, VISA Level 3 Line Item Detail (LID) capability:

(a) in respect of each Service completed: (i) the full invoice data at LID level; (ii) the price for the completed Service (ex VAT); (iii) the VAT payable; and (iv) the gross price payable; (b) the Contractor’s name; (c) the transaction process date; (d) the Contract number against which the Service is being ordered in the Authority

Reference Number Field; and (e) the Authorised Demander’s GPC details as specified in sub-Clause C15.17(c).

C15.23 In exceptional circumstances, only if expressly agreed between the Authorised demander and the Contractor, the Contractor shall process the transaction as described in Clause C15.20 prior to the Service being provided.

C15.24 If the EPOS returns an authorisation acceptance code, payment to the Contractor will be made as described in Clause C15.25. If the EPOS rejects the Authorised Demander’s GPC details, the Contractor shall notify the Authorised Demander immediately and take no


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further action in response to the Order until a resolution to the payment failure is agreed.

C15.25 Payment To The Contractor Where the transaction arrangements described in Clauses C15.12, C15.13, C15.22, and C15.24 have been followed and the EPOS returns an authorisation acceptance code, the Contractor’s VMAB will make payment within the period agreed between the Contractor and his VMAB.

C15.26 For avoidance of doubt the Contractor shall not, in any circumstances whatsoever, submit to the Authority an invoice for payment or MOD Form 640 when an Order has been issued with an Authorised Demander’s GPC details as a method of payment for the Order under the Contract unless by agreement where the EPOS system rejects a valid transaction.

C15.27 Refunds If a payment has been made by the Contractor’s VMAB as a result of a transaction that used an Authorised Demander’s GPC details, any refund due in respect of that transaction shall be made by a direct credit on that Authorised Demander’s GPC.

C16 ORDERING PROCESS (This process also applies to Public Sector Organisations (PSO’s) except where explicitly stated)

There are three (3) methods to obtain the Services under this Contract and prior to any order being placed the Support Solutions and Maintenance Management Team (SSM MT) and the Customer/Demander will discuss the best option to meet the requirement. Ordering options are:

(a) amounts of equipment being subject to an Annual Maintenance Charge (AMC) as per Annex 1 (Work Package 1) to Defcon110 Schedule of Requirements;

(b) by means of a Tasking Notice where the Requirement covers more than a break fix solution which cannot be covered by (a) above; and

(c) for one off service(s) as advertised in the ICS Catalogue.

Where C16(a) or C16(b) is the preferred method a request will be made to the Contractor for a quote which the Customer/Demander can accept or reject. Upon acceptance the process will follow either C16.1 for AMC or C16.2 for a Tasking Notice. If the decision is for method C16(c) then C16.3 shall apply.

In all instances purchase to payment (P2P) will be the preferred ordering/purchasing route for all MoD Authorities. P2P will not apply to PSO’s unless the Services are to be paid by the Authority on behalf of the PSO.

C16.1 Annual Maintenance Charge (AMC)

Equipment selected for this option will be added to the Asset Register (see Annex 1 (Work Package 1) to Defcon110 Schedule of Requirements) and covered for the Term of the Contract or by removal from the Asset Register whichever is the sooner

An order shall be raised by the SSM MT at the end of every quarter and payment made in arrears by the SSM MT. This will also include PSO’s who are subject to AMC.

C16.2 Tasking Notice (see Annex G blank form)

This will be raised by the SSM MT with the Customer/Demander completing all the relevant information. Upon completion commercial approval shall be sought from the Authority and once this has been given the SSM MT shall raise the order accordingly.

Payment shall be made directly by the Customer/Demander via: (a) P2P for MOD users; (b) P2P for PSO’s where the Authority is paying on their behalf; or (c) contractor’s invoice if payment is made by the PSO directly.

C16.3 ICS Catalogue

ICS Catalogue orders shall be raised by authorised demanders on an as and when basis.

For more information regarding ICS Catalogue please refer to: (a) www.d2btrade.com (‘DECS SERVICES’ ‘P2P & E-Cats’) for overall guidance to the


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system. (b) Annex C (Technical Specification for Submissions to the ICS Catalogue)

C16.4 MoD Authorities and PSO’s who are unable to access P2P for ICS Catalogue orders the following will apply

(a) Following the approval of demander status via the www.icscat.mod.uk, the Customer/Demander will initiate an order using the ICS Catalogue Electronic Order Form at Annex H;

(b) The Customer/Demander, after selection of the Article(s) from the ICS Catalogue will initiate an order by completion of the ICS Catalogue Electronic ordering Form. The Customer/Demander will provide the following details: Contractor’s Name and Enabling Contract Reference Number ICS Catalogue Item Information Name and Address / Contact Details, Delivery Address / Contact Details, Confirmation of Budget Approval and reference detailsMethod of payment Unit Identification Number (UIN), (Not applicable to PSO’s). Any Special Instruction e.g. Delivery Date;

(c) The Customer/Demander will submit the order to the system; the system will automatically e-mail the completed order to the Contractor;

(d) On receipt of the order the Contractor will confirm/validate the following information:

Contractor’s Name and Enabling Contract Reference Number

ICS Catalogue Item Information

Name and Address / Contact Details,

Delivery Address / Contact Details,

Confirmation of Budget Approval and reference details

Method of payment

Unit Identification Number (UIN), (Not applicable to PSO’s).

Any Special Instruction e.g. Delivery Date; and

(e) Providing the submitted Order meets the validation criteria, the Contractor will accept it as a valid ICS Catalogue Order.

C16.5 Any Order failing to meet all the criteria in Clause C16.4 shall not be accepted but returned to the Customer/Demander annotated with the reason for its return. The order may be re-submitted after clarification and/or revision if required.

C17 ORDER ACKNOWLEDGEMENT / ACCEPTANCE

C17.1 The acknowledgement / acceptance of any ICS Catalogue Electronic Order requires the Contractor to click an Acceptance Button accessed via a hyperlink provided to them with the order.

C17.2 Acknowledgement / Acceptance of an ICS Catalogue Electronic Order must be completed within 3 working days of receipt of the said order.

C17.3 In the event that the Contractor is unable to acknowledge / accept an ICS Catalogue Electronic Order, he shall click the non-acceptance button and return the order to the Demander annotated with the reason for its return.

C18 THE USE OF THE ELECTRONIC BUSINESS DELIVERY FORM - FORM USAGE

C18.1 The Contractor must use the electronic business delivery form for all deliveries of Articles and performance of Services where the Authority raises the original purchase order or demand under the scope of Clause C8 (Compliance with the Electronic Transaction Agreement). Failure to provide this form will lead to greater resource effort, more input


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errors and delays in payment processes

C18.2 The electronic business delivery form, Annex I Appendix 4, must accompany the package or consignment to which it applies. The Contractor must either:

(a) attach the form as a label, directly to the package surface, or (b) forward the form in a document envelope as provided in Clauses C18.3 and C18.4

of this Clause.

C18.3 Form Structure

For the provision of Articles Where delivery is for a physical Article, the following criteria apply (a) The nominal label size is A6 (102 mm x 152 mm) but A5 (148 mm x 210 mm) is

acceptable. If required by package size, the Contractor may use other label sizes, but only if no degradation to the text, bar code legibility and quality occurs, see Clause C18.6.

(b) The Contractor must use the bar coded Unique Identifier as defined in Clause C9 (Unique Identifiers), unless specified otherwise in the Contract.

(c) The Contractor must attach two labels to each package or consignment delivered. One label must be detachable for use in processing the information through the appropriate MOD receipting system.

C18.4 For the provision of Services

Where performance is for a Service, the following criteria apply: (a) Standard size is A4 (210 mm x 297 mm). (b) The Contractor must use the bar coded Unique Identifier as defined in Clause C9

(Unique Identifiers), unless specified otherwise in the Contract. (c) The Contractor must provide one form either on completion of the Service or on

completion of each agreed stage of the Service.

C18.5 Bar Code Symbology

The bar code symbology used shall meet the requirements of STANAG 4329, "NATO Standard Bar Code Symbologies", specifically Code 39 (ISO/IEC 16388), unless otherwise specified

C18.6 Bar Code Print Quality

The barcode print quality shall be as defined in ISO/IEC 16388 (Information technology – Automatic identification and data capture techniques – Code 39 bar code symbology specification). The Overall Grade shall be at least Grade B at point of printing and not less than Grade C at final point of receipt.

C18.7 Methods of Printing

For method of printing the Annex I Appendix 4 electronic business delivery form, see DefStan 81-41 (Part 6). Laser printing is preferred.

C19 IMPLEMENTATION PLANS & PAYMENT PROFILES

Any Implementation Plan and associated Payment Profiles required as part of an Order will be as agreed in writing between the Authority and the Contractor for each relevant Order.

C20 DELIVERY AND ACCEPTANCE

C20.1 Delivery of Articles (a) The Contractor shall deliver the Articles and provide the Articles at the location(s) at

the time(s) and date(s) and to the Authority’s delivery requirements as specified in the Order.

(b) The point of delivery of the Articles shall be when an authorised agent of the Authority gives written acknowledgement that the Articles have been removed from the transporting vehicle and deposited at the Authority’s delivery address as specified in the Order. Except where otherwise specified in the Order, delivery shall include the unloading, stacking and/or installation of the Articles by the Contractor


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Personnel, Sub-Contractors, suppliers or carriers at such place as the Authority or duly authorised person shall reasonably direct, and they shall at all times comply with the reasonable requirements of the Authority’s security procedures.

(c) Access to the Authority Premises and any labour and equipment that may be provided by the Authority in connection with delivery of the Articles shall be provided without acceptance by the Authority of any liability whatsoever and the Contractor shall indemnify the Authority against each and every action, proceeding, liability, cost, claim loss expense (including reasonable legal fees and disbursements on a solicitor and Authority basis) and demands which the Authority may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any act or omission of the Contractor Personnel, Sub-Contractors, suppliers or carriers.

(d) The Authority shall be under no obligation to accept or pay for any Articles delivered until the date of delivery specified in the Order.

C20.2 Acceptance Test Criteria

Any Acceptance Test Criteria pertaining to each Article shall be as specified and agreed in the Order

C21 TITLE AND RISK

C21.1 These Clauses specify the ownership and passing of title and risk from one party to another under certain circumstances during and following the Term of this Contract.

C21.2 Contract Commencement Products to be used in the provision of the Articles may (as applicable) be provided by the Contractor or a third party (e.g., lessor). Subject always to the provisions of Clauses C21.6 – C21.8, title and risk in those Ordered Articles shall be as specified in Clauses C21.3 – C21.4.

C21.3 Where any Articles are provided by the Contractor. (a) title and risk remains with the Contractor and such Articles (if required) shall be

licensed to the Authority or its authorised agents; and (b) if the Articles are licensed in accordance with sub-Clause C21.3(a) and are in the

Authority’s sole possession and control, the Authority: (i) undertakes the safe custody and the due return of those Articles; and (ii) shall be responsible for any deterioration in those Articles, fair wear and tear

excepted

C21.4 Where any Articles are leased, loaned or hired from a third party either directly to the Authority or via the Contractor (in which case the identity of the third party shall be disclosed to the Authority), title to those Articles shall remain with the lessor and risk shall be determined in accordance with the relevant third party terms and conditions.

C21.5 During the Term Where ownership of any Ordered Articles to be used in the provision of the Articles changes during the Term, the passing of title and risk in those Ordered Articles shall be as specified in Clauses C21.6 – C21.8..

C21.6 Title in all Ordered Articles provided by the Contractor shall pass to the Authority upon full payment for such Ordered Articles:

C21.7 Notwithstanding sub-Clause C21.6(a), risk in Ordered Articles provided by the Contractor shall pass to the Authority when such Ordered Articles are delivered to the consignment address stated in the DEFCON 111 or an Order, unless otherwise stated in the Contract. If the Authority has paid for the Ordered Articles prior to conclusion of the Acceptance Tests, the Contractor shall promptly repay the amounts paid by the Authority if the Ordered Articles (or any part thereof) do not successfully pass the Acceptance Tests.

C21.8 Notwithstanding Clause C21.6, at anytime prior to the transfer of such Ordered Articles to the Authority in accordance with Clause C21.6, the Authority may request that the


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Contractor transfer to a lessor nominated by the Authority certain Ordered Articles specified in the Authority’s request. The title and risk in such Ordered Articles during the Term shall be determined in accordance with the relevant lease agreement. Where any terms in the lease agreement conflict or are inconsistent with any terms contained in this Contract, the Contractor agrees not to enforce such conflicting or inconsistent terms against the Authority.

C22 CONTRACTOR'S PERSONNEL AT GOVERNMENT ESTABLISHMENTS

C22.1 Definitions

Reference in this Clause to: (a) 'Government Establishment' or 'site' shall be deemed to include any of Her Majesty's

Ships or Vessels and Service Stations; (b) 'Officer in Charge' shall be deemed to include Officers Commanding Service Stations,

Ships' Masters or Senior Officers, and Heads of Government Establishments; and (c) 'Contractor's Representative(s)' shall be deemed to include the Contractor's

employees, agents and Sub-Contractors.

C22.2 General

The following general provisions apply:

(a) The Officer in Charge shall provide such available administrative and technical facilities for the Contractor's Representatives employed at Government Establishments for the purpose of the Contract as may be necessary for the effective and economical discharge of work under the Contract. These facilities will be provided free of charge unless otherwise stated in the Contract. The status to be accorded to the Contractor's Representatives for messing purposes will be at the discretion of the Officer in Charge.

(b) Any land or premises (including temporary buildings) made available to the Contractor by the Authority in connection with the Contract shall be made available to the Contractor free of charge, unless otherwise stated in the Contract, and shall be used by the Contractor solely for the purposes of performing the Contract. The Contractor shall have the use of such land or premises as licensee and shall vacate the same upon completion of the Contract. Any utilities required by the Contractor shall be subject to the charges set out in the Contract.

(c) The Contractor shall have no claim against the Authority for any additional cost or delay occasioned by the closure for holidays of Government Establishments, where this is made known to him prior to entering into the Contract.

(d) Whilst on site the SSM MT shall arrange with the Officer in Charge for the Contractor’s Representative to have access to:

• Toilet facilities. • Heating. • Lighting. • First Aid.

These facilities shall be at no charge to the Contractor

C22.3 Liability In Respect Of Damage To Government Property (a) Without prejudice to the provisions of Clause C25 (Issued Property), where those

conditions from part of the Contract, the Contractor shall, except as otherwise provided for in the Contract, make good or, at the option of the Authority, pay compensation for all damage occurring to any Government Property, which includes land or buildings, occasioned by the Contractor, or by any of his Representatives, arising from his or their presence on a Government Establishment in connection with the Contract, provided that this Clause shall not apply to the extent that the Contractor is able to show that any such damage was not caused or contributed to by any circumstances within his or their reasonable control.


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C22.4 The total liability of the Contractor under Clause C22.3 ||||||||||| |||||||| ||||| |||||||||||| ||| |||||| ||||||||||| ||||||||||||| |||||||||||||||||||||| |||||| |||||||||||||| |||| ||||||||||| ||| |||||||||||||||||| |||||||||||||||||

C22.5 Contractor's Property All property of the Contractor and his Representatives shall be at the risk of the Contractor whilst it is on any Government Establishment, and the Authority shall accept no liability for any loss or damage howsoever occurring thereto or caused thereby, except as follows:

(a) where any such loss or damage was caused or contributed to by any act, neglect or default of any Government Servant, agent or contractor then the Authority shall accept liability therefor to the extent to which such loss or damage is so caused or contributed to as aforesaid; and

(b) where any property of the Contractor has been taken on charge by the Officer in Charge, and a proper receipt has been given therefore, then the Authority shall be liable for any loss or damage occurring to that property while held on such charge as aforesaid.

C22.6 Contractor's Representatives The Contractor shall submit in writing to the Authority for approval, initially and as necessary from time to time, a list of those of his Representatives who may need to enter a Government Establishment for the purpose of, or in connection with, work under the Contract, giving such particulars as the Authority may require, including full details of birthplace and parentage of any such Representative who:

(a) was not born in the United Kingdom; or (b) if he was born in the United Kingdom, was born of parents either or both of whom

were not born in the United Kingdom.

C22.7 The Authority shall issue passes for those Representatives who are approved by it in accordance with Clause C22.6 herein for admission to a Government Establishment and a Representative shall not be admitted unless in possession of such a pass. Passes shall remain the property of the Authority and shall be surrendered on demand or on completion of the work.

C22.8 Notwithstanding the provisions of Clauses C22.6 and C22.7 hereof if, in the opinion of the Authority, any Representative of the Contractor shall misconduct himself, or it shall not be in the public interest for any person to be employed or engaged by the Contractor, the Contractor shall remove such person without delay on being required to do so and shall cause the work to be performed by such other person as may be necessary.

C22.9 The decision of the Authority upon any matter arising under Clauses C22.6 to C22.8 inclusive shall be final and conclusive.

C22.10 Observance of Regulations

The following provisions apply: (a) The Contractor shall ensure that his Representatives have the necessary probity (by

undertaking the Government’s Baseline Personnel Security Standard) and, where applicable, are cleared to the appropriate level of security when employed within the boundaries of a Government Establishment.

(b) Where the Contractor requires information on the Government’s Baseline Personnel Security Standard (the Standard) or security clearance for his Representatives or is not in possession of the relevant rules, regulations or requires guidance on them, he shall apply in the first instance to the Project Manager/Equipment Support Manager.

(c) On request, the Contractor shall be able to demonstrate to the Authority that the Contractor’s processes to assure compliance with the standard have been carried out satisfactorily. Where that assurance is not already in place, the Contractor shall permit the Authority to inspect the processes being applied by the Contractor to comply with the Standard.

(d) The Contractor shall comply and shall ensure that his Representatives comply with the rules, regulations and requirements that are in force whilst at that Establishment


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which shall be provided by the Authority on request. (e) When on board ship, compliance with the rules, regulations, and requirements shall

be in accordance with the Ship's Regulations as interpreted by the Officer in Charge. Details of those rules, regulations and requirements shall be provided on request by the Officer in Charge.

C22.11 Transport Overseas Where the Contractor's Representatives are required by the Contract to join or visit a Government Establishment overseas, transport between the United Kingdom and the place of duty (but excluding transport within the United Kingdom) shall be provided free of charge by the Authority whenever possible, normally by Royal Air Force or by MOD chartered aircraft. The Contractor shall make such arrangements through the Project Manager / Equipment Support Manager named for this purpose in the Contract. When such transport is not available within a reasonable time, or in circumstances where the Contractor wishes his Representatives to accompany materiel for installation which he is to arrange to be delivered, the Contractor shall make his own transport arrangements. The Authority shall reimburse the Contractor's costs for such transport of his Representatives on presentation of evidence supporting the use of alternative transport and of the costs involved. Transport of the Contractor's Representatives locally overseas which is necessary for the purposes of the Contract shall be provided wherever possible by the Authority and, where so provided, will be free of charge.

C22.12 Medical Treatment Overseas Out-patient medical treatment given to the Contractor's Representatives by a Service Medical Officer or other Government Medical Officer at a Government Establishment overseas shall be free of charge. Treatment in a Service hospital or medical centre, dental treatment, the provision of dentures or spectacles, conveyance to and from a hospital, medical centre or surgery not within the Establishment, and transportation of the Contractor's Representatives back to the United Kingdom, or elsewhere, for medical reasons, shall be charged to the Contractor at the appropriate local rate.

C22.13 Injuries, Disease And Dangerous Occurrences The Contractor shall report any injury, disease or dangerous occurrence at any Government Establishment arising out of the performance of this Contract, which is required to be reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) to the Officer in Charge of the relevant Government Establishment. This would be in addition to any report, which the Contractor may be required to submit under RIDDOR to the relevant enforcing Authority (e.g. Health and Safety Executive or Local Authority).

C22.14 Dependants of Contractor's Representatives No assistance from public funds, and no messing facilities, accommodation or transport overseas shall be provided for dependants or members of the families of the Contractor's Representatives. Medical or necessary dental treatment may, however, be provided for dependants or members of families on repayment at current MOD rates.

C22.15 Provision of Funds Overseas The Contractor shall, wherever possible, arrange for funds to be provided to his Representatives overseas through normal banking channels (e.g. by travellers cheques). If banking or other suitable facilities are not available, the Authority shall, upon request by the Contractor and subject to any reasonable limitation required by the Contractor, make arrangements for payments, converted at the prevailing rate of exchange (where applicable), to be made by the Establishment to which the Contractor's Representatives are attached. All such advances made by the Authority shall be recovered from the


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Contractor.

C22.16 Health and Safety Hazard Control

Where the Contractor enters a Government Establishment for the purpose of performing work under the Contract:

(a) The Contractor shall notify the Officer in Charge or the site project liaison officer or overseeing officer nominated in the Contract of:

(i) any health and safety hazards associated with the work to be performed by him or any of his Representatives;

(ii) any foreseeable risks to the health and safety of all persons associated with such hazards; and

(iii) any precautions to be taken by him as well as any precautions which, in his opinion, ought to be taken by the Authority, in order to control such risks.

(b) The Authority shall notify the Contractor of: (i) any health and safety hazards which may be encountered by the Contractor or

any of his Representatives on the Government Establishment; (ii) any foreseeable risks to the health and safety of the Contractor or any of his

Representatives, associated with such hazards; and (iii) any precautions to be taken by the Authority as well as any precautions which,

in its opinion, ought to be taken by the Contractor, in order to control such risks.

(c) The Contractor shall notify his Representatives of and, where appropriate, provide adequate instruction in relation to:

(i) the hazards, risks and precautions notified by him to the Authority under sub-Clause C22.16(a);

(ii) the hazards, risks and precautions notified by the Authority to the Contractor under sub-Clause C22.16(b); and

(iii) the precautions which, in his opinion, ought to be taken by his Representatives in order to control those risks.

(d) The Contractor shall provide the Officer in Charge or the site project liaison officer or overseeing officer nominated in the Contract with:

(i) copies of those sections of his own and, where appropriate, his Representatives' Safety Policies which are relevant to the risks notified under sub-Clause C22.16(a);

(ii) copies of any related risk assessments; and

(iii) copies of any notifications and instructions issued by him to his Representatives under sub-Clause C22.16(c).

(e) The Authority shall provide the Contractor with: (i) copies of those sections of its own Safety Policies which are relevant to the

risks notified under sub-Clause C22.16(b); (ii) copies of any related risk assessments;

and (iii) copies of any notifications and instructions issued by it to its employees similar

to those called for from the Contractor under sub-Clause C22.16(c). (f) Accidents to the Contractor’s representatives which ordinarily require to be reported

in accordance with Health and Safety at Work etc Act 1974, shall be reported to the Officer in charge so that the Inspector of Factories may be informed.

C22.17 The Authority shall be responsible for maintaining the internal and external structure of the Authority Premises and the security of the Authority Premises in accordance with its security procedures. The Contractor shall comply with all health and safety and reasonable security requirements of the Authority while on the Authority Premises and shall procure that all of its Sub-Contractors and the Contractor Personnel shall likewise comply with such requirements. The Authority shall provide the Contractor with copies of its security procedures upon request and shall afford the Contractor an opportunity to inspect its physical security arrangements.


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C22.18 The Contractor shall be responsible for the living accommodation and maintenance of its representatives while they are employed at a Site. Sleeping accommodation and messing facilities, if required, may be provided by the Authority wherever possible, at the discretion of the Officer in charge, at a cost fixed in accordance with current Ministry of Defence regulations. At Sites overseas, accommodation and messing facilities, if required, shall be provided wherever possible. The status to be accorded to the Contractor’s personnel for messing purposes shall be at the discretion of the Officer in charge who shall, wherever possible give his decision before the commencement of this Contract where so asked by the Contractor. When sleeping accommodation and messing facilities are not available, a certificate to this effect may be required by the Authority and shall be obtained by the Contractor from the Officer in charge. Such certificate shall be presented to the Authority with other evidence relating to the costs of this Contract.

The use of ‘Resident Engineers’ is by agreement between the Authority and the Contractor based on operational / service needs. Periodic reviews of these needs shall be made over the Contract period and changes made when required. The sites below show the current operational / service need:

Ensleigh Blandford Culdrose Devonport Yeovilton Portsmouth RAF Wyton RAF Cranwell

Wethersfield Chicksands Cheadle Hulme Liverpool Faslane Rosyth St Athan Hereford

Taunton Hydrographics Andover Bielefeld Germany JHQ Germany Gibraltar Cyprus Episkopi Falklands

C22.19 Contractors based in Germany are subject to: (a) Security Clearance:

All engineering and management staff located in BFG must be a minimum of SC cleared. Clerical support staff must be a minimum of BC cleared. Nominated engineers supporting the maintenance and repair of TOP SECRET equipment are to be DV cleared. Additional Nationality rules apply to the DV posts. Additionally, access to NATO installations under the Contract requires (MOD provided) NATO security clearances. LANDSO 2214 requirements and Annex J (Standing Order British Forces (GERMANY) SOBF(G) 2115) requirements are also to be met in full.

(b) Article 73 Status: In accordance with Article 73 of the Supplementary Agreement to the NATO Status of Forces Agreement (SA/SOFA), the Contractor’s personnel may be eligible for status as technical experts under Article 73 of the SA and as such would be treated as members of the civilian component (as defined in the SOFA) of British Forces Germany (BFG). In order that the MOD may consider eligibility, full details of the relevant job specifications and personnel (including their skills and experience) must be provided to the Authority. This provision, however, shall not apply to personnel in the following categories.

(i) Stateless Persons (ii) Nationals of any state that is not party to the NATO SOFA (iii) German Nationals (iv) Persons who are ordinarily resident in Germany (c) The granting of Article 73 status to an individual will mean that he has the same rights

in his relationship with the Federal Republic of Germany as a member of the civilian component by virtue of the SOFA and its SA. These include:

(i) Access to certain tax/duty free purchases, including alcohol, tobacco products, petrol and cars (in prescribed circumstances and within prescribed limits)

(ii) Exemption from German tax in circumstances as defined at Article X of the NATO SOFA

(d) The granting of Article 73 status does not entitle an individual to free support services. MOD policy is that such services may be provided by the Authority on a repayment basis. Such services may include:


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(i) Access, by virtue of issue of appropriate documents, to NAAFI and PSI. (ii) Rent free accommodation (including maintenance) and free fuel and light

within prescribed limits. The standard varies by grade and marital status. (iii) Medical and dental treatment from BFG sources within the limits normally

available to other members of the civilian component. Currently, NHS criteria and charging levels apply only to dental treatment provided. Provision of such facilities will be subject to the Contractor’s employee obtaining the necessary health clearances from the Authority.

(iv) Free tuition for children up to and including post GCSE courses and A level. However, in respect of Special Educational Needs, this service will be subject to the level of need and provision available. A boarding school facility is available in certain locations and this will be provided free of charge subject to a home service contribution.

The Authority’s decision on all matters relating to the above shall be final. (e) The application of the Armed Forces Act 2006 (and specifically section 370 and

Schedule 15) means that persons in the employment of the Contractor while engaged on work under the Contract in the Federal Republic of Germany will be subject to service discipline (as defined in the Act).

(f) The Contractor shall ensure that his employees attend any Service Inquiry or similar proceedings to which they are invited, as witnesses or otherwise, by the Authority.

(g) Liability for direct taxation will remain the responsibility of the Contractor and/or his employee in accordance with the appropriate legislation.

C22.20 Contractors based in South Atlantic Islands (SAI) are subject to this Clause and Annex P (SAI) as follows:

(a) provision of two engineers; (i) the Engineers shall work 08:00-17:00 from Monday to Friday and 08:00-12:00

on Saturday. This shall total 44 hours per week per engineer. If there is a requirement to work outside these hours as approved by OC ISS SAI (or delegated authority) the Engineer can either claim overtime (paid for by the Contractor) or Time Off in Lieu (TOIL) as agreed by OC ISS SAI;

(ii) the Engineers must be available at all times unless given permission by OC ISS SAI (or delegated authority);

(iii) the Engineer may take leave of a maximum of one working week in a single time period. A minimum of one engineer shall be available at all times including any leave entitlement periods. Any leave shall only be taken with the written authority of OC ISS SAI. Any leave granted by OC ISS SAI shall only be taken locally and insurance shall be covered by the Contractor; and

(iv) no Bank Holiday entitlement in the SAI theatre but engineers shall comply with BFSAI policy in all cases, such as a stand-down period.

Work permits shall be arranged through the Contractor with the Falkland Island Government (FIG) and a copy shall be sent to OC ISS SAI and BFSAI J8 Contracts.

(b) the Contractor shall be responsible to OC ISS SAI via Comms Sys Tp OC and undertake any daily tasking from SNCO Workshops, IT Cell, and ISS SAI;

(c) additional engineering tasks (e.g. HM Ships, Met Office) shall be completed on an ad hoc basis and shall not to conflict with any tasked work. Additional taskings must be received and authorised through official tasking chains.

The SAI theatre is not a maintenance base for HM Ships (except for HMS Clyde).

(d) the SNCO as directed by OC ISS SAI shall effectively act as the line manager for the Engineer(s) and shall follow all BFSAI Standing Orders (SO) accessible via the BFSAI Web (Operational Area) and the HP Falkland Island Code of Practice (FICOP). Any breach of either policy shall be viewed as a serious violation and could result in immediate removal from Falkland Island theatre. In the event that an engineer is proven to have contravened BFSAI policy the Contractor shall take responsibility for the cost of the flight or pass this to their Engineer.


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C23 CONTRACTORS ON DEPLOYED OPERATIONS

Although highly unusual there may be occasion where it operationally essential for a service requirement to be carried out in a deployed situation. Prior discussion and agreement shall be undertaken by the Authority and the Contractor before deployment is made.

General

C23.1 This Clause 23 shall become effective when a requirement under the Contract requires the Contractor or its Subcontractors or both, to Deploy to undertake tasks at Expected Work Locations in an Operations Area.

C23.2 If there is any conflict between the terms of this Clause and Def Stan 05-129, the terms of this Clause shall prevail.

C23.3 The terms of Clauses C23.13, C23.14 and C23.15 shall take precedence over Clause C22.2. The terms of Clauses C23.19, C23.20 and C23.21 shall take precedence over Clause C22.12. The terms of Clauses C23.22, C23.23 and C23.40 shall take precedence over Clause C22.11.

Definitions and Interpretation

C23.4 In Clause C23 the following words and expressions shall have the meanings set respectively against them:

(a) "Arms" means any weapon, which, for the avoidance of doubt, excludes anything to be used for the purpose of performing the Contract;

(b) "Authority to Deploy" means the Authority’s formal written authority for the Contractor to Deploy;

(c) "Contract Sponsor" means the person(s) designated by the Authority from time to time to act on its behalf in respect of the Contract;

(d) "Contractor’s Employees" means those employees of the Contractor, being UK nationals and TCNs, but excluding LRWs, who are Deployed in connection with the performance of the Contract;

(e) "CONDO" means Contractors on Deployed Operations, being contractors providing Articles or Services or both outside the British Isles within an OA as part of the civilian component supporting UK armed forces;

(f) "Deploy" means bringing the Contractor, the Contractor’s Employees, its Subcontractors and the Subcontractor’s Employees under the administration and control of the Authority, which will take place:

(I) on entering a Government Establishment for transit to the OA; or (II) on entering the OA at the nominated entry point; or (III) on reporting to the Contract Sponsor or his representative when already in the

OA, and “Deployed” shall be construed accordingly; (g) "Deployment" means the period during any act of preparing, moving and initial

setting up of personnel and equipment to enable the delivery of Services within a location identified in CONDO Form 2 issued in accordance with Def Stan 05-129, their presence within that location and their subsequent recovery or redeployment;

(h) “Expected Work Locations” means the locations in the OA specified in the Contract. (i) “Expected Modes of Transport” means the modes of transport to be used in the OA

for the transportation of the Contractor, the Contractor’s Employees, its Subcontractors, the Subcontractor’s Employees and LRWs specified in the Contract.

(j) "Local Military Commander" means the senior UK military person within a specific geographical area who is responsible for discipline, security and administration of that area and who for the purposes of this Clause shall be a Representative of the Authority;

(k) "LRWs" means Locally Recruited Workers, being workers who are engaged either by the Contractor or by its Subcontractors and who normally reside in the country or countries in which the contracted Services are being performed;

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the British Isles but excluding the PJOBs and Germany unless a PJOB is included within an OA due to specific operational circumstances, defined by the Authority and in which a joint UK operational commander (for a joint operations area), or a single service operational commander (for a single service operations area), plans and conducts military operations or exercises to accomplish a specific mission.

(m) "Operations" means any military action or the carrying out of any strategic, operational, tactical, service, training or administrative military mission or the process of carrying on combat including any movement, supply, attack, defence and manoeuvre needed to gain the objectives of any battle or campaign;

(n) “OSI” means Operation Specific Information, being information specific to the OA; (o) “PJOB” means a Permanent Joint Operating Base; (p) "Subcontract" means any subcontract entered into by the Contractor or, where

appropriate, by a Subcontractor, which requires a Subcontractor to Deploy to the OA in connection with the performance of the Contract;

(q) "Subcontractor" means a subcontractor at any level of contracting with a Subcontract;

(r) "Subcontractor’s Employees" means those employees of any Subcontractor, being UK nationals and TCNs, but excluding LRWs, who are Deployed to the OA in connection with the performance of the Contract;

(s) “TCN” means third country national, being an individual who is not a UK national.

C23.5 In Clause C23 .the term "procure" shall be interpreted as requiring the Contractor to use all reasonable efforts to cause the occurrence of the event or outcome concerned, provided that the Contractor shall remain responsible to the Authority to the full extent of its obligation in relation to that event or outcome if that event or occurrence does not occur.

Authority to Deploy

C23.6 The Contractor shall not and shall procure that the Contractor’s Employees, its Subcontractors and the Subcontractor’s Employees do not move into or within the OA in connection with the performance of the Contract until the Contractor has:

(a) provided the Authority with all required information for the completion of Part 3 of CONDO Form 1 and CONDO Form 2, as provided in Def Stan 05-129;

(b) received the Authority’s Authority to Deploy in CONDO Form 2, issued as provided in Def Stan 05-129;

(c) confirmed that the Contractor’s Employees and Subcontractor’s Employees have completed the CONDO related training specified by the Authority;

(d) confirmed that the Contractor’s Employees and Subcontractor’s Employees are medically and dentally fit to Deploy and to undertake the tasks to which they are assigned, including being properly immunised;

(e) provided the Authority with Form T-SL-DES01, completed as provided in Def Stan 05-129, and, on the receipt by the Contractor of a signed Form T-SL-DES01, confirmed that it has notified the Contractor’s Employees and Subcontractor’s Employees of their status as civilians subject to service discipline and their respective nominated Commanding Officer in the OA;

(f) received confirmation that the Contractor’s Employees and Subcontractor’s Employees have been security cleared to the levels stated in the Contract for the particular tasks;

(g) confirmed receipt of an appropriate identity card or TCN card issued by the Authority in respect of each individual listed in CONDO Form 2; and

(h) confirmed that it has undertaken appropriate risk assessments in relation to the Expected Work Locations and the Expected Modes of Transport, which support the Deployment.

The Authority’s Right to Withhold, Withdraw and Remove

C23.7 The Authority may at any time and from time to time for any operational reason which the Authority in its absolute discretion shall determine:

(a) withhold or withdraw Authority to Deploy; (b) move or require the removal of the Contractor or a Subcontractor from its current


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location to a location determined to be appropriate by the Authority in discharging its responsibility under Clause C23.50;

(c) move or require the removal of any of the Contractor’s Employees, Subcontractors’ Employees or LRWs from their current location to a location determined to be appropriate by the Authority in discharging its responsibility under Clause C23.50 or in response to the Contractor’s Employees, Subcontractor’s Employees, or LRWs not acting in accordance with Clause C23.31. The Contractor shall, as soon as reasonably practicable, move or remove any Contractor’s Employee, Subcontractor’s Employee or LRW whom the Authority requires to be moved or removed.

C23.8 Where practicable and subject to operational constraints, the Authority shall inform the Contractor of its intentions prior to moving the Contractor’s Employees, the Subcontractor’s Employees and LRWs in accordance with Clause C23.7. Where the Authority moves the Contractor’s Employees, the Subcontractor’s Employees and LRWs in accordance with Clause C23.7 without informing the Contractor, the Authority shall, as soon as reasonably practicable within operational constraints, notify the Contractor of the location to which the Contractor’s Employees, the Subcontractor’s Employees and LRWs have been moved.

C23.9 The Authority shall not be obliged to give reasons for taking any action in accordance with Clause C23.7 but may, in its sole discretion, indicate its reasons.

C23.10 Notwithstanding the provisions of Clause C23.9, in the event that the Contractor is involved in any employment claim or dispute arising in connection with any action taken by the Authority under Clause C23.7, the Authority shall, where reasonably practicable, provide to the Contractor any relevant information that the Contractor may reasonably request for the purpose of addressing any such claim or dispute, except any such information the provision of which would be contrary to the interests of national security, in breach of a confidentiality or contractual obligation of the Authority, contrary to a statutory requirement or Government policy or as otherwise reasonably specified by the Authority.

The Authority’s right to move between Expected Work Locations

C23.11 The Authority may at any time and from time to time move the Contractor’s Employees, the Subcontractor’s Employees and LRWs between Expected Work Locations using the Expected Modes of Transport to undertake the tasks specified in the Contract. Where the Authority moves the Contractor’s Employees, the

Subcontractor’s Employees and LRWs between Expected Work Locations for periods of longer than 24 hours, the Authority shall, where practicable and where this has been requested by the Contractor, inform the Contractor prior to moving the Contractor’s Employees, the Subcontractor’s Employees and LRWs or, where this is not practicable or has not been requested by the Contractor, as soon as reasonably practicable within operational constraints.

The Authority’s right to move to new work locations which are not Expected Work Locations

C23.12 The Authority may at any time require the movement of the Contractor’s Employees, the Subcontractor’s Employees and LRWs to new work locations which are not Expected Work Locations to undertake the tasks specified in the Contract. Where the Authority requires the Contractor’s Employees, the Subcontractor’s Employees and LRWs to move to undertake tasks at new work locations which are not Expected Work Locations, the Authority shall request the Contractor’s prior written approval of the movement, such approval not to be unreasonably withheld. The Contractor shall provide such approval or the reasons for declining to provide such approval within 72 hours of the Authority’s request or within such other time period as is specified in the Contract. When a new work location is agreed, the Contract shall be amended to add that new work location to the list of Expected Work Locations and to make any associated adjustments to the Contract that may be required.

Provision of Life Support Facilities

C23.13 The Contractor shall provide living accommodation, laundry facilities, feeding, potable water, transport and fuel for the Contractor’s Employees unless otherwise agreed with the


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Authority.

C23.14 The Authority shall provide, where available, access for the Contractor’s Employees and Subcontractor’s Employees to any existing facilities for personal welfare, communications, entertainment and recreation, which are provided for the use of military personnel, unless otherwise agreed with the Contractor.

C23.15 The Contractor shall pay any specified charges for the use of the facilities specified in Clauses C23.13 and C23.14.

C23.16 The Authority may, at its discretion, provide chaplaincy services to the Contractor’s Employees and Subcontractor’s Employees without charge where such services are available.

C23.17 The Authority shall provide an operational specific medical warning notice(s) to the Contractor prior to the Contractor, the Contractor’s Employees, its Subcontractors and the Subcontractor’s Employees being Deployed, providing, where appropriate, information supplementing that provided by the Foreign and Commonwealth Office, on medical issues specific to the OA.

C23.18 The Contractor shall ensure that the Contractor’s Employees, and shall procure that the Subcontractor’s Employees, are medically fit and dentally fit to Deploy and to undertake the tasks to which they are assigned, including, taking into account any notices issued under Clause C23.17, being appropriately immunised.

C23.19 Unless otherwise specified by the Authority in the Contract and where medical facilities exist, the Authority shall provide to the Contractor’s Employees and Subcontractor’s Employees, free of charge, medical treatment and emergency dental treatment, equivalent to that provided to military personnel whilst Deployed.

C23.20 Where the Contractor’s Employees or Sub Contractor’s Employees have been Deployed in breach of Clause C23.18 the Authority reserves the right to:

(a) charge the Contractor reasonable and proper charges for the provision of medical or dental treatment; or

(b) move or require the removal of any such Contractor’s Employees or Subcontractor’s Employees following the exercise of its right under Clause C23.7(a).

C23.21 The Authority shall provide, free of charge, first-aid treatment to LRWs whilst they are at an Expected Work Location or travelling between Expected Work Locations, in support of the Contract.

C23.22 With regard to medical evacuation: (a) the Contractor shall be responsible for the medical evacuation of both the

Contractor’s Employees and Subcontractor’s Employees unless otherwise notified by the Authority;

(b) where it is not safe or practicable for the Contractor to discharge its responsibilities under Clause C23.22 (a), the Authority shall, where reasonably practicable, move Contractor’s Employees and Subcontractor’s Employees to a safe area from which the Contractor is able to take over the medical evacuation of the Contractor’s Employees or Subcontractor’s Employees, on either a repayment basis or, at the Authority’s discretion, free of charge.

C23.23 With regard to repatriation: (a) the Contractor shall be responsible for the repatriation of deceased Contractor’s

Employees and deceased Subcontractor’s Employees unless otherwise notified by the Authority;

(b) where it is not safe or practicable for the Contractor to discharge his responsibilities under Clause C23.23 (a), the Authority shall, where reasonably practicable, move deceased Contractor’s Employees and deceased Subcontractor’s Employees to a safe area from which the Contractor is able to take over the repatriation of deceased Contractor’s Employees and deceased Subcontractor’s Employees, on either a repayment basis or, at the Authority’s discretion, free of charge.


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C23.24 The Authority may provide, at its discretion, subject to compliance with the processes set out in Def Stan 05-129, personal cheque encashment facilities to those of the Contractor’s Employees and Subcontractor’s Employees who are Deployed, but not to LRWs, where such facilities are available to military personnel.

The Contractor’s Obligations

Risk Assessments

C23.25 The Contractor shall carry out risk assessments for all Expected Work Locations in the OA and for the Expected Modes of Transport to and between Expected Work Locations, as set out in the Contract, and, as far as is practicable, shall maintain their currency during the term of any Deployment. The Authority shall provide information in support of such risk assessments as far as it is able.

C23.26 Where: (a) the Contractor's risk assessment demonstrates that the safety environment at an

Expected Work Location within the OA or in respect of the Expected Modes of Transport to and between the Expected Work Locations provides justification either not to Deploy the Contractor’s Employees and Subcontractor’s Employees or to withdraw the Contractor’s Employees, Subcontractor’s Employees and LRWs from an existing Deployment; or

(b) the Contractor does not have sufficient information to undertake a proper risk assessment;

the Contractor may decline to provide personnel for a task or withdraw them from an existing Deployment in accordance with Clause C23.27.

Right to Withdraw

C23.27 If the Contractor’s risk assessment demonstrates the circumstances set out in Clause C23.26.(a), or the Contractor does not have sufficient information to undertake a proper risk assessment in accordance with Clause C23.26.(b):

(a) the Contractor shall inform the Authority at the earliest opportunity; (b) whilst the Contractor is considering whether or not to Deploy the Contractor’s

Employees and Subcontractor’s Employees, or to withdraw the Contractor’s Employees, Subcontractor’s Employees and LRWs, the Contractor shall keep the Authority informed of the Contractor’s intentions by means of regular updates;

(c) the Contractor shall consult with the Authority to ensure that there is an informed exchange of information and to discuss the Contractor’s concerns. The Contractor shall consider as part of its ongoing risk assessment any additional information provided by the Authority which may become available. If the Authority considers that any withdrawal required by the Contractor cannot be carried out safely, the Authority will inform the Contractor at the earliest opportunity;

(d) if, following such consultation, discussion and further consideration, the Contractor decides that the safety environment is such that the Contractor’s Employees and Subcontractor’s Employees will not be Deployed or the Contractor’s Employees, Subcontractor’s Employees and LRWs will be withdrawn, the Contractor shall notify the Authority of its decision without delay.

Personnel

C23.28 The Contractor shall provide to the Authority, through the Contract Sponsor, all information necessary for the completion of Part 3 of CONDO Form 1 and CONDO Form 2 and shall provide to the Authority duly completed CONDO Form 4A, CONDO Form 4B and Form T-SL-DES01 (as provided in Def Stan 05-129) no later than 48 hours prior to the Contractor being Deployed.

C23.29 The Contractor shall provide to the Authority, through the Contract Sponsor, a duly completed CONDO Form 3 (as provided in Def Stan 05-129) by the fifth day of each month once Deployed and shall keep an accurate record of the details provided to the Authority.

C23.30 If the Contractor becomes aware that any of the Contractor’s Employees, Subcontractor’s


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Employees or LRWs has died, suffered a serious accident, suffered injury, become a prisoner of war or been taken hostage, the Contractor shall ensure that the Authority and the next of kin of the Contractor’s Employee or LRW concerned, and procure that the next of kin of the Subcontractor’s Employee or LRW concerned, are informed as quickly as possible.

Conduct

C23.31 The Contractor shall require the Contractor’s Employees, Subcontractor’s Employees and LRWs to act in a responsible manner and shall require the Contractor’s Employees, Subcontractor’s Employees and LRWs to make themselves aware of and comply with the Local Military Commander’s orders, instructions, regulations and procedures.

C23.32 The Contractor shall, as far as it is able and based on the information available to it: (a) inform the Contractor’s Employees and procure that the Subcontractor informs the

Subcontractor’s Employees, prior to them being Deployed, of their status whilst they are Deployed;

(b) inform the Contractor’s LRWs and procure that the Subcontractor informs the Subcontractor’s LRWs of their status whilst they are at an Expected Work Location or travelling between Expected Work Locations in support of the Contract;

(c) provide updates in relation to their respective status as appropriate.

C23.33 The Contractor shall ensure that the Contractor’s Employees, and shall procure that the Subcontractor’s Employees and LRWs are aware that they may at any time be subject to a search of their person, property or vehicles and require their co-operation in relation to any such search.

C23.34 The Contractor shall require the Contractor’s Employees and Subcontractor’s Employees to report to the Authority’s nominated OA entry and exit points respectively on arrival and departure from the OA and, during the Deployment, to any reporting point within the OA nominated by the Authority.

C23.35 The Contractor shall ensure that the Contractor’s Employees and shall procure that the Subcontractor’s Employees and LRWs report to the Authority’s nominated briefing centre as specified by the Authority for operational briefings as required by the Authority.

C23.36 If the Authority, in its absolute discretion, restricts the movement, within the OA, of the Contractor, the Contractor’s Employees, the Subcontractor, the Subcontractor’s Employees and LRWs, the Contractor shall inform the Contractor’s Employees, the Subcontractor, the Subcontractor’s Employees and LRWs as soon as practicable and require the Contractor’s Employees, the Subcontractor, the Subcontractor’s Employees and LRWs to comply with any such restriction.

C23.37 The Contractor shall ensure that the Contractor’s Employees, shall procure that the Subcontractor’s Employees whilst they are Deployed and shall ensure that LRWs at any time whilst they are at an Expected Work Location or travelling between Expected Work Locations, do not carry Arms.

Clothing, Equipment and Transport

C23.38 The Contractor shall, during the Deployment, ensure that the Contractor’s Employees and shall procure that the Subcontractor’s Employees and LRWs have appropriate equipment and clothing for the climate and the tasks which the Contractor is contracted to undertake.

C23.39 The Contractor shall ensure that the Contractor’s Employees and shall procure that the Subcontractor’s Employees and LRWs do not wear clothing, including company livery, which detracts from their civilian status. The Contractor shall ensure that the Contractor’s Employees and shall procure that the Subcontractor’s Employees avoid the use of vehicles, equipment and property that could be confused with military vehicles, equipment and property, other than those issued to the Contractor by the Authority for the purposes of the Contract or as otherwise directed by the Local Military Commander.

C23.40 The Contractor shall be responsible for the provision of transportation for the Contractor’s Employees, Subcontractor’s Employees and LRWs and their equipment to, from and within


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the OA. Where the provision of such transportation by the Contractor is not commercially available or cost effective, the Authority may in its sole discretion, where reasonably practicable, offer assistance at a price to be agreed on a repayment basis, or at the Authority’s discretion, free of charge.

C23.41 Where the Authority has moved the Contractor’s Employees, Subcontractor’s Employees and LRWs:

(a) under Clause C23.7 in discharging its responsibility under Clause C23.50 (but not where it has moved the Contractor’s Employees, Subcontractor’s Employees and LRWs as a result of them not acting in accordance with Clauses C23.18 or C23.31); or

(b) under Clauses C23.11 or C23.12;

the cost and provision of such transportation shall be borne by the Authority.

Health and Safety

C23.42 The Contractor shall ensure that the Contractor’s Employees, and shall procure that the Subcontractor’s Employees and LRWs, as far as reasonably practicable, undertake all work in a manner comparable with the requirements of the UK’s health, safety and environmental legislation, or in accordance with the equivalent requirements of the host nation where these are more stringent.

ID cards

C23.43 The Contractor shall ensure that all information, including that specified in Def Stan 05-129, required for the issue of identity cards or TCN cards to those of the Contractor’s Employees and Subcontractor’s Employees who are authorised to Deploy is provided to the Authority in accordance with the processes set out in Def Stan 05- 129.

C23.44 The Contractor shall inform the Contractor’s Employees and Subcontractor’s Employees that the Authority will issue to the Contractor the appropriate MOD identity card or TCN card for each of them.

C23.45 The Contractor shall ensure that all information, including that specified in the Local Military Commander’s orders, instructions, regulations and procedures, required for the issue of day security passes to the Contractor’s and Subcontractor’s LRWs, is provided to the Authority in accordance with the processes set out in the Local Military Commander’s orders, instructions, regulations and procedures.

C23.46 The Contractor shall identify those of the Contractor’s Employees, Subcontractor’s Employees and LRWs who are to be employed solely on medical, dental or spiritual welfare services to enable the Authority to issue separate identity cards and “Red Cross armlets” for those Contractor’s Employees, Subcontractor’s Employees and LRWs.

C23.47 The Contractor shall be responsible for the safe-keeping of all identity cards, TCN cards and security passes issued to the Contractor’s Employees, Subcontractor’s Employees and LRWs and shall require the Contractor’s Employees to wear and shall procure that the Sub-Contractor’s Employees and LRWs wear those identity cards, TCN cards and security passes as instructed by the Local Military Commander. The Contractor shall inform the Contractor’s Employees, Subcontractor’s Employees and LRWs that any misuse, modification or misappropriation of their identity cards, TCN cards or security passes may result in action being taken by the Authority under Clause C23.7.

Training

C23.48 The Contractor shall ensure that the Contractor’s Employees, and shall procure that the Subcontractor’s Employees and LRWs, are provided with the appropriate level of CONDO related training for each Deployment.

Public Relations

C23.49 The Contractor shall not make any press statement or undertake any publicity, advertising or marketing campaigns, including for recruitment, specifically referring to the Contract


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without the prior written consent of the Authority.

The Authority’s Responsibilities

C23.50 The Authority shall afford appropriate protection commensurate with the threat for the Contractor’s Employees and Subcontractor’s Employees and the Contractor’s and Subcontractor’s property whilst Deployed and for LRWs whilst they are at an Expected Work Location or travelling between Expected Work Locations in support of the Contract and take such steps as are reasonable to ensure their safety, including, if necessary, removing or evacuating them from the area under threat.

C23.51 The Authority shall, where appropriate, issue to the Contractor personal protective equipment of a non-primary work related nature for the use of Contractor’s Employees, Subcontractor’s Employees and LRWs and provide instruction in the use of any such personal protective equipment.

C23.52 The Authority shall, prior to the Contractor being Deployed and during the Deployment, provide the Contractor with appropriate OSI relevant to the Deployment, including the types of information identified within Def Stan 05-129.

C23.53 The Authority shall in accordance with Def Stan 05-129 and prior to the Contractor being Deployed, issue:

(a) MoD Contractors Defence Identity Card for each of the Contractor’s Employees and Subcontractor’s Employees, who are UK nationals, except those identified under Clause C23.53.(b), where an application has been correctly submitted and proof of appropriate security clearance has been provided.

(b) a MoD FIdent 106 identity card and a “Red Cross armlet” for each of the Contractor’s Employees and Subcontractor’s Employees who are identified by the Contractor as being solely employed on medical, dental or spiritual welfare services.

(c) a TCN card – for each of the Contractor’s Employees and Subcontractor’s Employees who are third country nationals where an application has been correctly submitted.

C23.54 The Authority shall, subject to military regulations, issue: (a) an appropriate day security pass to each LRW, except those identified under Clause

C23.54.(b), under the arrangements of the Local Military Commander; (b) a MoD FIdent 107 identity card and a “Red Cross armlet” to each LRW who is

identified by the Contractor as being solely engaged on medical, dental or spiritual welfare services, under the arrangements of the Local Military Commander; c)

(c) an appropriate security pass to each TCN under the arrangements of the Local Military Commander.

C23.55 The Authority shall provide at the Authority’s nominated briefing centre appropriate operational briefings free of charge to the Contractor’s Employees, Subcontractor’s Employees and LRWs as part of the initial reception process and thereafter as necessary.

C23.56 The Authority shall make the Local Military Commander’s orders, instructions, regulations and procedures available to the Contractor’s representative in the OA in such a manner as to facilitate compliance by the Contractor with its obligations in particular under Clauses C23.31, C23.36 and C23.45.

C23.57 If the Authority becomes aware of any of the circumstances mentioned in Clause 23.30, where the Authority believes that the Contractor is not already so aware, the Authority shall advise the Contractor accordingly.

Subcontracts

C23.58 If the Contractor enters into any Subcontract, the Contractor shall incorporate into any such Subcontract the terms set out in the Annex Q to this Contract.

C23.59 The Authority may enforce against a Subcontractor any provision conferring a benefit on the Authority contained in the Annex Q to this Contract as incorporated into any Subcontract and neither the Contractor nor any Subcontractor shall be entitled to exclude


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such right of the Authority.

C23.60 Subject always to the Subcontractor complying with the terms of the Annex Q to this Contract, any Subcontractor having the Annex Q to this Contract incorporated into its Subcontract may enforce against the Authority any provision of this Clause conferring a benefit upon it, and neither the Authority nor the Contractor shall be entitled to exclude such right of any such Subcontractor.

Performance of the Contract

C23.61 The parties acknowledge that, if the Authority exercises its rights under Clauses C23.7 or C23.36 of this Clause, or the Contractor withdraws the Contractor’s Employees, Subcontractor’s Employees and LRWs in accordance with Clauses C23.26 and C23.27, the Contractor may be unable to perform certain or all of its obligations under the Contract in accordance with its terms, either in the manner or at the time intended or at all. Subject to Clause C23.62, to the extent that it can be established that the exercise of the Authority’s rights under Clauses C23.7 or C23.36, or the withdrawal of the Contractor’s Employees, Subcontractor’s Employees and LRWs in accordance with Clauses C23.26 and C23.27 has directly caused:

(a) the Contractor’s non-performance of an obligation under the Contract; or (b) the Contractor’s delay in performing an obligation under the Contract; or (c) a change in the Contractor’s costs of performing its obligations under the Contract

which is attributable to the exercise of those rights by the Authority or the withdrawal of the Contractor’s Employees, Subcontractor’s Employees and LRWs;

the Contractor shall be entitled to submit a claim: (i) for relief from performing that obligation; (ii) to delay its performance of that obligation; (iii) for a corresponding adjustment to the Contract in relation to price or delivery.

C23.62 Notwithstanding the provisions of Clause C23.61, the Contractor shall not be entitled to be granted relief from performing an obligation under the Contract, or to delay its performance of an obligation, or to a corresponding adjustment to the Contract in relation to price or delivery, where and to the extent that the Contractor:

(a) failed to comply with its obligations under Clauses C23.6, C23.18, C23.25, C23.31, C23.33, C23.34, C23.35, C23.36, C23.37, C23.38, C23.39, C23.42, C23.47 and C23.48 of this Clause and such failure gave rise to the exercise by the Authority of its rights under Clauses C23.7 or C23.36; or

(b) invalidly exercised its right to withdraw under Clauses C23.26 and C23.27.

C24 PACKAGING REQUIREMENTS FOR THIS CONTRACT. (Mainly Referenced for Transporting of Replacements and Spares) REFER TO ANNEX I

C25 ISSUED PROPERTY

C25.1 General

All Issued Property shall remain the property of the Authority. It shall be used in the execution of the Contract and for no other purpose, without the prior approval in writing of the Authority.

C25.2 Neither the Contractor, nor any Sub-Contractor, nor any other person, shall have a lien on Issued Property, for any sum due to the Contractor, Sub-Contractor or other person, and the Contractor shall take all such steps as may be necessary to ensure that the title of the Authority, and the exclusion of any such lien, are brought to the notice of all Sub-Contractor’s and other persons dealing with any Issued Property.

C25.3 Receipt

Subject to Clauses C25.4 and C25.7 below, within 14 days of receipt of Issued Property, or such other longer period as may be specified in the Contract, the Contractor shall:

(a) check the Issued Property to verify that it corresponds with the Issued Property specified in the Contract;

(b) conduct a reasonable visual inspection; and


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(c) conduct any additional inspection and testing as may be necessary and practicable to check that the Issued Property is not defective or deficient for the purpose for which it has been provided;

and notify the Authority of any defects, deficiencies or discrepancies discovered.

C25.4 Where Issued Property is packaged it shall not be unpacked earlier than is necessary. The period identified at Clause C25.2 above shall count from the date on which packages are opened.

C25.5 The Authority shall within a reasonable time after receipt of any notice under Clause C25.3 of this Clause replace, re-issue or authorise repair of Issued Property agreed to be defective or deficient and, if appropriate, the Authority shall revise the Contract Issued Property Price, delivery schedule or both. If appropriate, it shall also issue written instructions for the return or disposal of the defective or deficient Issued Property.

C25.6 In the event that the Authority fails to provide, replace, or authorise repair of defective or deficient Issued Property within a reasonable time of receipt of a notice in accordance with Clause C25.2, fair and reasonable revisions of the Contract Price, delivery schedule or both shall be made as may be appropriate provided that the Contractor has taken all reasonable measures to mitigate the consequences of any such delay.

C25.7 Clauses C25.2 – C25.6 do not apply in the following circumstances: (a) where Issued Property is issued for the purpose of repair, overhaul, conversion or

other work to be performed on the Issued Property, inspection of such property shall be as specified in the Contract;

(b) where the Contractor can show that the Issued Property cannot be fully tested until it has been integrated with other items, inspection of such property shall be as specified in the Contract;

(c) where Special Jigs and Tools etc. become Issued Property under Annex I Appendix 3.

C25.8 Custody

Subject to Clause C25.11 below and any limitation or exclusion of liability as may be specified in the Contract, the Contractor shall be responsible for the safe custody and due return of Issued Property, whether or not incorporated into the Articles, and shall be responsible for all loss or damage thereto, until re-delivered in accordance with the Authority’s instructions or until the expiry of the period specified in Clause C25.13.

C25.9 The Contractor shall be responsible for such calibration and maintenance of the Issued Property as is specified in the Contract.

C25.10 If requested, the Authority, within a reasonable time, and where practicable before delivery of the Issued Property, shall notify the Contractor of the value of the Issued Property.

C25.11 The Contractor shall not be liable in respect of: (a) defects or deficiencies notified to the Authority in accordance with Clause C25.2 of

this Clause or latent Issued Property defects which the Contractor can show could not reasonably have been discovered by means of the activities described at Clause C25.2 of this Clause;

(b) fair wear and tear in Issued Property resulting from its normal and proper use in the execution of the Contract (except insofar as the deterioration is contributed to by any misuse, lack of care or want of maintenance by the Contractor);

(c) Issued Property rendered unserviceable as a direct result of ordinary performance of the Contract;

(d) any loss or damage to Issued Property arising from: (i) aircraft or other aerial devices or objects dropped from them, including

pressure waves caused by aircraft or such devices whether travelling at sonic or supersonic speeds;

(ii) ionising radiation or contamination by radioactivity from any nuclear fuel or from nuclear waste from the combustion of nuclear fuel;

(iii) the radioactive, toxic, explosive or other hazardous properties of any nuclear


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assembly or nuclear component thereof; (iv) riot, civil commotion, civil war, rebellion, revolution, insurrection, military or

usurped power or acts of the Queen's enemies.

C25.12 Accounting and Return of Issued Property

The Contractor shall: (a) open and maintain a Public Store Account (PSA) in accordance with DEFSTAN 05-

99. (b) ensure that all property of the Authority recorded in the PSA, including but not limited

to Issued Property, is available for inspection by the Authority at any reasonable time; (c) on being given two months notice or such other period as has been stated in the

Contract permit, and co-operate with, the Authority to conduct audits of the property of the Authority recorded in the PSA in a manner to be determined by the Authority; where the Authority has reasonable grounds to believe that the property of the Authority has not been used in accordance with the terms of issue then these audits may be conducted without notice.

C25.13 Once title in Special Jigs, Tools etc has passed to the Authority in accordance with Clause 4 of Annex I Appendix 3 the Contractor shall record that equipment in the PSA in accordance with DEFSTAN 05-99.

C25.14 At Contract completion the Contractor shall forward a list of Issued Property still held to the Authority’s Commercial Officer named in the Contract. Return or disposal of such Issued Property will be as specified in the Contract, or as instructed by the Authority at Contract completion. If no disposal instructions are specified in the Contract the Authority shall provide such instructions within two months of the Contractor’s written request to do so.

C26 PLACING OF ORDERS BY CONTRACTOR

The Contractor shall not place or cause to be placed any orders with suppliers, or otherwise incur liabilities, in the name of the Authority or any representatives of the Authority.

C27 ANNUAL MAINTENANCE CHARGE (AMC) CHANGES

(Refer to Paragraph 1 Annex 1 to Defcon110 Schedule of Requirements)


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PART D – STATUTORY OBLIGATIONS AND REGULATIONS D1 PREVENTION OF CORRUPTION

D1.1 The Contractor shall not offer or give, or agree to give, to the Authority or any other public body or any person employed by or on behalf of the Authority or any other public body any gift or consideration of any kind as an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of the Contract or any other contract with the Authority or any other public body, or for showing or refraining from showing favour or disfavour to any person in relation to the Contract or any such contract.

D1.2 The Contractor warrants that it has not paid commission or agreed to pay commission to the Authority or any other public body or any person employed by or on behalf of the Authority or any other public body in connection with the Contract.

D1.3 If the Contractor, its Staff or anyone acting on the Contractor’s behalf, engages in conduct prohibited by Clauses D1.1 or D1.2, the Authority may:

(a) terminate the Contract and recover from the Contractor the amount of any loss suffered by the Authority resulting from the termination, including the cost reasonably incurred by the Authority of making other arrangements for the supply of the Services and any additional expenditure incurred by the Authority throughout the remainder of the Contract Period; or

(b) recover in full from the Contractor any other loss sustained by the Authority in consequence of any breach of those Clauses.

D2 PREVENTION OF FRAUD

D2.1 The Contractor shall take all reasonable steps, in accordance with Good Industry Practice, to prevent Fraud by Staff and the Contractor (including its shareholders, members, directors) in connection with the receipt of monies from the Authority.

D2.2 The Contractor shall notify the Authority immediately if it has reason to suspect that any Fraud has occurred or is occurring or is likely to occur.

D2.3 If the Contractor or its Staff commits Fraud in relation to this or any other contract with the Crown (including the Authority) the Authority may:

(a) terminate the Contract and recover from the Contractor the amount of any loss suffered by the Authority resulting from the termination, including the cost reasonably incurred by the Authority of making other arrangements for the supply of the Services and any additional expenditure incurred by the Authority throughout the remainder of the Contract Period; or

(b) recover in full from the Contractor any other loss sustained by the Authority in consequence of any breach of this Clause

D3 DISCRIMINATION

D3.1 The Contractor shall not unlawfully discriminate either directly or indirectly on such grounds as race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief, or age and without prejudice to the generality of the foregoing the Contractor shall not unlawfully discriminate within the meaning and scope of the Sex Discrimination Act 1975, the Race Relations Act 1976, the Equal Pay Act 1970, the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Age) Regulations 2006, the Equality Act 2006, the Human Rights Act 1998 or other relevant or equivalent legislation, or any statutory modification or re-enactment thereof

D3.2 The Contractor shall take all reasonable steps to secure the observance of Clause D3.1 by all Staff.

D4 RIGHTS OF THIRD PARTIES

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a party to this Contract, that party shall by virtue of the Contracts (Rights of Third Parties) Act 1999, be entitled to enforce those rights as if it was a party to this Contract. The consent of any person other than the Authority (or the Contractor, as the case may be) is not required to vary or terminate this Contract or alter or extinguish any rights created under this Clause D4.1.

D4.2 Except as provided in Clause D4.1, a person who is not a party to this Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This Clause D4.2 does not affect any right or remedy of any person that exists or is available otherwise than pursuant to that Act.

D4.3 This Contract shall not create any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise for any Sub-Contractor’s.

D5 HEALTH AND SAFETY

D5.1 The Contractor shall promptly notify the Authority of any health and safety hazards which may arise in connection with the performance of its obligations under the Contract. The Authority shall promptly notify the Contractor of any health and safety hazards which may exist or arise at the Premises and which may affect the Contractor in the performance of its obligations under the Contract.

D5.2 While on the Premises, the Contractor shall comply with any health and safety measures implemented by the Authority in respect of Staff and other persons working there.

D5.3 The Contractor shall notify the Authority immediately in the event of any incident occurring in the performance of its obligations under the Contract on the Premises where that incident causes any personal injury or damage to property which could give rise to personal injury.

D5.4 The Contractor shall comply with the requirements of the Health and Safety at Work etc. Act 1974 and any other acts, orders, regulations and codes of practice relating to health and safety, which may apply to Staff and other persons working on the Premises in the performance of its obligations under the Contract.

D5.5 The Contractor shall ensure that its health and safety policy statement (as required by the Health and Safety at Work etc Act 1974) is made available to the Authority on request.

D6 USE OF ASBESTOS

D6.1 Subject to Clauses D6.2, D6.3 and D6.4 below, no asbestos of any type shall be incorporated into any of the Articles to be supplied under the Contract.

D6.2 The Contractor may incorporate asbestos into such Articles where there is no suitable alternative which would meet the requirements of HM Forces, as specified by the Authority in the Contract, provided the Authority has given its prior consent in writing.

D6.3 The Contractor shall notify the Authority in writing as soon as he becomes aware that the use of asbestos may be required to meet the requirements of the Contract. In such cases the Authority shall consider giving its consent to the use of asbestos in accordance with Clause D6.2 above, and the Contractor shall not incorporate any asbestos into any of the Articles until such consent has been given by the Authority in writing.

D6.4 If at any stage during the lifetime of the Contract, an alternative substance becomes available, the Contractor shall bring this to the attention of the Authority immediately, by notice in writing, so that it may determine, in consultation with the Contractor where appropriate, whether the substance would be suitable for incorporation into any Articles which have yet to be supplied under the Contract. The Authority may require the Contractor to suspend any further production of such Articles etc., pending such determination, thereby relieving the Contractor (for the time being) of any contractual obligations to provide such Articles etc. In the event that the Authority determines that the alternative substance would be suitable for incorporation into such Articles etc., in lieu of asbestos, it shall withdraw its consent, by notice in writing, to any further incorporation of asbestos into those Articles etc. The Authority reserves the right to vary its requirements in the light of any such determination.


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D6.5 If, at any stage during the lifetime of the Contract, the Secretary of State for Defence varies or revokes any exemption he has granted in accordance with the Asbestos (Prohibitions) (Amendment) Regulations 1999 ('the Regulations'), such that any further supply of the Articles etc. under the Contract would be prohibited by the Regulations, the Contractor shall immediately refrain from incorporating asbestos into any such Articles etc. and shall provide the Authority with written confirmation of this within forty-eight hours. The Authority reserves the right to vary its requirements in the light of any such decision on the part of the Secretary of State for Defence.

D7 STATUTORY INVALIDITY

The Authority and the Contractor expressly agree that should any limitation or provision contained in this Contract be held to be invalid under any particular Law, it shall to that extent be deemed to be omitted but, if either the Authority or the Contractor thereby becomes liable for loss or damage which would have otherwise been excluded, such liability shall be subject to the other limitations and provisions set out herein.

D8 STATUTORY REQUIREMENTS

The Contractor shall notify the Authority of all statutory provisions and approved safety standards applicable to the Services and their provision and shall be responsible for obtaining all licences, consents or permits required for the performance of this Contract.


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PART E –PROTECTION OF INFORMATION E1 DATA PROTECTION ACT

E1.1 For the purposes of this Clause E1, the terms “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data”, “Process” and “Processing shall have the meaning prescribed under the DPA.

E1.2 The Contractor shall (and shall ensure that all of its Staff) comply with any notification requirements under the DPA and both Parties will duly observe all their obligations under the DPA which arise in connection with the Contract.

E1.3 Notwithstanding the general obligation in Clause E1.2, where the Contractor is processing Personal Data (as defined by the DPA) as a Data Processor for the Authority the Contractor shall:

(a) Process the Personnel Data only in accordance with instructions from the Authority (which may be specific instructions or instructions of a general nature) as set out in this Contract or as otherwise notified by the Contracting Authority;

(b) comply with all applicable laws; (c) Process the Personal Data only to the extent; and in such manner as is necessary for

the provision of the Provider’s obligations under this Contract or as is required by Law or any Regulatory Body;

(d) implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;

(e) take reasonable steps to ensure the reliability of its staff and agents who may have access to the Personal Data;

(f) obtain prior written consent from the Contracting Authority in order to transfer the Personal Data to any Sub-Contractor for the provision of the Services;

(g) not cause or permit the Personal Data to be transferred outside of the European Economic Area without the prior consent of the Authority;

(h) ensure that all staff and agents required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this Clause E1;

(i) ensure that none of the staff and agents publish disclose or divulge any of the Personal Data to any third parties unless directed in writing to do so by the Authority

(j) not disclose Personnel Data to any third parties in any circumstances other than with the written consent of the Authority or in compliance with a legal obligation imposed upon the Authority; and

(k) notify the Authority (within 5 [five] Working Days) if it receives: (I) a request from a Data Subject to have access to that person’s Personal Data; or (II) a complaint or request relating to the Authority’s obligations under the DPA;

E1.4 The provision of this Clause E1 shall apply during the Contract Period and indefinitely after its expiry.

E2 OFFICIAL SECRETS ACTS 1911 TO 1989 AND S182 OF THE FINANCE ACT 1989

E2.1 The Contractor shall take all reasonable steps to ensure that all people employed by the Contractor and its Sub-Contractor’s in connection with this Contract are aware of

(a) the Official Secrets Acts 1911 to 1989 and where appropriate, with the provisions of the Atomic Energy Act 1946, and

(b) Section 182 of the Finance Act 1989.

and also bring to their attention that these Acts apply to them during the execution of this Contract and after the expiry or termination (howsoever arising) of this Contract.


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E2.2 In the event that the Contractor or its Staff fail to comply with this Clause, the Authority reserves the right to terminate the Contract by giving notice in writing to the Contractor.

E3 FREEDOM OF INFORMATION

E3.1 The Contractor acknowledges that the Authority is subject to the requirements of the 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.

E3.2 The Contractor shall and shall procure that any Sub-Contractors shall transfer to the Authority all Requests for Information that it receives as soon as practicable and in any event within [two] Working Days of receiving a Request for Information;

(a) provide the Authority with a copy of all Information in its possession, or power in the form that the Authority requires within [five] Working Days (or such other period as the Authority may specify) of the Authority’s request; and

(b) provide all necessary assistance as reasonably requested by the Authority to enable the Authority to respond to the Request for Information within the time for compliance set out in section 10 of the FOIA or Regulation 5 of the Environmental Information Regulations.

E3.3 The Authority shall be responsible for determining in its absolute discretion and notwithstanding any other provision in this Contract or any other agreement whether the Commercially Sensitive Information and/or any other Information is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations

E3.4 In no event shall the Contractor respond directly to a Request for Information unless expressly authorised to do so by the Authority.

E3.5 The Contractor acknowledges that (notwithstanding the provisions of Clause E3) the Authority may, acting in accordance with the Secretary of State for Constitutional Affairs Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000 (“the Code”), be obliged under the FOIA, or the Environmental Information Regulations to disclose information concerning the Contractor or the Services in certain circumstances:

(a) without consulting the Contractor; or (b) following consultation with the Contractor and having taken their views into account;

provided always that where sub-Clause E3.5(a) applies the Authority shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Contractor advanced notice, or failing that, to draw the disclosure to the Contractor’s attention after any such disclosure.

E3.6 The Contractor shall ensure that all Information is retained for disclosure and shall permit the Authority to inspect such records as requested from time to time.

E3.7 The Contractor acknowledges that the Commercially Sensitive Information listed in the Commercially Sensitive Information Schedule is of indicative value only and that the Authority may be obliged to disclose it in accordance with this Clause E3.

E4 DISCLOSURE OF INFORMATION

E4.1 'Information' means any information in any written or other tangible form disclosed to one party by or on behalf of the other party under or in connection with the Contract.

E4.2 Subject to Clauses E4.5, E4.6 and E4.7 each party: (a) shall treat in confidence all Information it receives from the other; (b) shall not disclose any of that Information to any third party without the prior written

consent of the other party, which consent shall not unreasonably be withheld, except that the Contractor may disclose Information in confidence, without prior consent, to such persons and to such extent as may be necessary for the performance of the Contract;

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(d) shall not copy any of that Information except to the extent necessary for the purpose of exercising its rights of use and disclosure under the Contract.

E4.3 The Contractor shall take all reasonable precautions necessary to ensure that all Information disclosed to the Contractor by or on behalf of the Authority under or in connection with the Contract:

(a) is disclosed to its employees and sub-contractors, only to the extent necessary for the performance of the Contract; and

(b) is treated in confidence by them and not disclosed except with prior written consent or used otherwise than for the purpose of performing work or having work performed for the Authority under the Contract or any sub-contract under it.

E4.4 The Contractor shall ensure that his employees are aware of his arrangements for discharging the obligations at Clauses E4.2 and E4.3 before they receive Information and take such steps as may be reasonably practical to enforce such arrangements.

E4.5 Clauses E4.2 and E4.3 shall not apply to any Information to the extent that either party: (a) exercises rights of use or disclosure granted otherwise than in consequence of, or

under, the Contract; (b) has the right to use or disclose the Information in accordance with other conditions of

the Contract; or (c) can show: (i) that the Information was or has become published or publicly available for use

otherwise than in breach of any provision of the Contract or any other agreement between the parties;

(ii) that the Information was already known to it (without restrictions on disclosure or use) prior to it receiving it under or in connection with the Contract;

(iii) that the Information was received without restriction on further disclosure from a third party who lawfully acquired it and who is himself under no obligation restricting its disclosure; or

(iv) from its records that the same information was derived independently of that received under or in connection with the Contract; provided the relationship to any other Information is not revealed.

E4.6 Neither party shall be in breach of this Condition where it can show that any disclosure of Information was made solely and to the extent necessary to comply with a statutory, judicial or parliamentary obligation. Where such a disclosure is made, the party making the disclosure shall ensure that the recipient of the Information is made aware of and asked to respect its confidentiality. Such disclosure shall in no way diminish the obligations of the parties under this Condition.

E4.7 The Authority shall not be in breach of the Contract where it can show that any disclosure of Information is made solely and to the extent necessary to comply with the Freedom of Information Act 2000 (“the Act”) or the Environmental Information Regulations 2004 (“the Regulations”). To the extent permitted by the time for compliance under the Act or the Regulations, the Authority shall consult the Contractor where the Authority is considering the disclosure of Information under the Act or the Regulations and, in any event, shall provide prior notification to the Contractor of any decision to disclose the Information. The Contractor acknowledges and accepts that its representations on disclosure during consultation may not be determinative and that the decision whether to disclose Information in order to comply with the Act or the Regulations is a matter in which the Authority shall exercise its own discretion, subject always to the provisions of the Act or the Regulations. For the avoidance of doubt, nothing in this Condition shall affect the Contractor’s rights at law.

E4.8 Nothing in this Condition shall affect the parties' obligations of confidentiality where information is disclosed orally in confidence.

E5 TRANSPARENCY

E5.1 For the purpose of this Condition the expressions: (a) “Transparency Information” shall mean the content of this Contract in its entirety,

including from time to time agreed changes to the Contract, and details of any


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payments made by the Authority to the Contractor under the Contract; (b) Contractor Commercially Sensitive Information” shall mean the information listed in the

Contractor Commercial Sensitive Information Annex to the Contract being information notified by the Contractor to the Authority which is acknowledged by the Authority as being commercially sensitive information.

E5.2 Notwithstanding any other term of this Contract, the Contractor understands that the Authority may publish the Transparency Information to the general public. The Contractor shall assist and cooperate with the Authority to enable the Authority to publish the Transparency Information.

E5.3 Before publishing the Transparency Information to the general public in accordance with clause E5.2 above, the Authority shall, subject to Clause E5.4, redact any information that would be exempt from disclosure if it was the subject of a request for information under the Freedom of Information Act 2000 (“the Act”) or the Environmental Information Regulations 2004 (“the Regulations”), including the Contractor Commercially Sensitive Information.

E5.4 The Authority shall where reasonably practicable consult with the Contractor before redacting any Contractor Commercially Sensitive Information from the Transparency Information in accordance with clause E5.3 above. The Contractor acknowledges and accepts that its representations on redactions during consultation may not be determinative and that the decision whether to redact information is a matter in which the Authority shall exercise its own discretion, subject always to the provisions of the Act or the Regulations.

E5.5 For the avoidance of doubt, nothing in this Condition shall affect the Contractor’s rights at law.

E6 PUBLICITY, MEDIA AND OFFICIAL ENQUIRIES

E6.1 Without prejudice to the Authority’s obligations under the FOIA, neither Party shall make any press announcement or publicise the Contract or any part thereof in any way, except with the written consent of the other Party

E6.2 Both Parties shall take reasonable steps to ensure that their servants, employees, agents, Sub-Contractors, suppliers, professional advisors and consultants comply with Clause E4.1.

E7 AUDIT

The Contractor shall keep and maintain until 6 years after the end of the Contract Period, or as long a period as may be agreed between the Parties, full and accurate records of the Contract including the Services supplied under it, all expenditure reimbursed by the Authority, and all payments made by the Authority. The Contractor shall on request afford the Authority or the Authority’s representatives such access to those records as may be requested by the Authority in connection with the Contract.

E7.1 The Contractor shall document, implement and comply with processes, and keep or cause to be kept full and accurate Records, such that the Authority (or its statutory auditors or nominated agents) may verify that the Contractor has complied and is complying with its obligations under this Contract and any Contracts.

E7.2 The Contractor shall provide the Authority with a completed Self Audit Certificate in respect of each financial year of this Contract. The Self Audit Certificate shall be completed by the Contractor’s auditor and provided to the Authority no later than two (2) months after the end of the relevant financial year.

E7.3 Without prejudice to the generality of the foregoing, the Contractor shall document, implement and comply with processes, and keep or cause to be kept full and accurate Records, such that (and such that the Authority or its statutory auditors or nominated agents may verify that):

(a) all Contracts made under this Contract are ascribed hereto and included in the Management Information, thus enabling the Authority to verify the Business Service Charge;

(b) Management Information is checked and signed off by a senior officer who understands the obligations and requirements of this Contract;

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Charges and content of the Catalogue; (d) records are kept of all Contracts entered into; (e) Orders are promptly and systematically actioned; (f) sales invoices are correct and issued in a timely manner; (g) Complaints are recorded, investigated and resolved; (h) Management Information is accurate and provided promptly to the Authority; (i) quality procedures are complied with; and (j) external security, quality, environmental management and similar accreditations are

maintained.

E7.4 If an audit reveals that any or all of the provisions in sub-Clauses E7.3(a) to (j) (inclusive) are not being complied with by the Contractor, the Contractor shall (at its sole cost) do all things necessary to bring itself into compliance as soon as possible but in any event within thirty (30) Days (or such longer period as may be specified by the Authority) of receiving notice to do so from the Authority.

E7.5 The Contractor shall grant to the Authority, any statutory auditors of the Authority and any nominated agents of the Authority or of its statutory auditors, the right of reasonable access to any premises of the Contractor and/or Sub-Contractor’s which are used in connection with the performance of the Contractor’s responsibilities and obligations under this Contract and in relation to any Contract, together with a right to reasonable access to all Records. The Authority shall be entitled to carry out audits to determine whether the Contractor has performed its obligations under any Contract.

E7.6 Further to the provisions of Clause E7.5, the Contractor shall provide, or procure the provision of, all reasonable assistance at all times for the purposes of carrying out an audit of the Contractor’s compliance with this Contract or any Contract as well as an audit of all activities, performance, security and integrity in connection therewith.

E7.7 Without prejudice to the foregoing, in the event of an investigation into suspected fraudulent activity or other impropriety by the Contractor or any third party, the Authority reserves for itself, any statutory auditor of the Authority or of its statutory auditors, or any other Crown Body, the right of immediate access to the premises and documents described in this Clause E7 and the Contractor agrees to render all necessary assistance to the conduct of such investigation.

E7.8 The Authority shall use all reasonable endeavours to ensure that its auditors cause the minimum amount of disruption to the business of the Contractor, and shall comply with the building regulations and security requirements of the Contractor while on the Contractor’s premises provided such have been notified in writing in advance to the Authority and do not conflict with this Clause E7.

E7.9 The Authority reserves the right to publish to Authority’s the results of any audit exercise undertaken pursuant to this Clause E7. The Authority will invite the Contractor to comment on the results of the audit exercise and the proposed publicity material and will take account of those comments to the extent that it deems fit in any publication. In this respect, the Contractor shall provide comments to the Authority within five (5) Working Days.

E8 DISPOSAL OF PROCUREMENT DOCUMENTS

The records pertaining to this Contract which are provided by the Authority for the purposes of tendering for this Contract and relating to the procurement of services under the Contract shall remain the property of the Authority and shall not be released published or disposed of without the prior written approval of the Authority.

E9 AUTHORITY DATA

E9.1 The Contractor shall not delete or remove any proprietary notices contained within or relating to the Authority Data.

E9.2 The Contractor shall not store, copy, disclose, or use the Authority Data except as necessary for the performance by the Contractor of its obligations under this Contract or as otherwise expressly authorised in writing by the Authority.


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E9.3 To the extent that Authority Data is held and/or processed by the Contractor, the Contractor shall supply that Authority Data to the Authority as requested by the Authority.

E9.4 The Contractor shall take responsibility for preserving the integrity of Authority Data and preventing the corruption or loss of Authority Data.

E9.5 The Contractor shall perform secure back-ups of all Authority Data and shall ensure that up-to-date back-ups are stored off-site in accordance with the BCDR Plan. The Contractor shall ensure that such back-ups are available to the Authority at all times upon request.

E9.6 The Contractor shall ensure that any system on which the Contractor holds any Authority Data, including back-up data, is a secure system that complies with the Security Policy.

E9.7 If the Authority Data is corrupted, lost or sufficiently degraded as a result of the Contractor’s Default so as to be unusable, the Authority may:

(a) require the Contractor (at the Contractor’s expense) to restore or procure the restoration of Authority Data to the extent and in accordance with the requirements specified the BCDR Plan and the Contractor shall do so as soon as practicable; and/or

(b) itself restore or procure the restoration of Authority Data, and shall be repaid by the Contractor any reasonable expenses incurred in doing so to the extent and in accordance with the requirements specified in the BCDR Plan.

E9.8 If at any time the Contractor suspects or has reason to believe that Authority Data has or may become corrupted, lost or sufficiently degraded in any way for any reason, then the Contractor shall notify the Authority immediately and inform the Authority of the remedial action the Contractor proposes to take.

E10 SECURITY

E10.1 The Authority shall be responsible for maintaining the security of the Premises in accordance with its standard security requirements. The Contractor shall comply with all security requirements of the Authority while on the Authority’s Premises, and shall ensure that all Staff comply with such requirements.

E10.2 The Authority shall provide the Contractor upon request copies of its written security procedures and shall afford the Contractor upon request with an opportunity to inspect its physical security arrangements.

E11 SECURITY REQUIREMENTS AND STAFF VETTING

E11.1 The Contractor shall comply, and shall procure the compliance of the Contractor Personnel, with JSP 440, the Security Measures Clause of this Contract and, for PSO’s, any equivalent Security Policy (the “Security Policy”), and the Contractor shall ensure that any Security Management Plan produced by the Contractor fully complies with the Security Policy.

E11.2 The Authority shall notify the Contractor of any changes or proposed changes to the Security Policy.

E11.3 If the Contractor believes that a change or proposed change to the Security Policy will have a material and unavoidable cost implication to the Services it may submit a Contract Change Note. In doing so, the Contractor must support its request by providing evidence of the cause of any increased costs and the steps that it has taken to mitigate those costs. Any change to the Charges shall then be agreed in accordance with Clause F12 (Contract Change).

E11.4 Until and/or unless a change to the Charges is agreed by the Authority pursuant to Clause E11.3 the Contractor shall continue to provide the Services in accordance with its existing obligations.

E11.5 The Contractor shall, as an enduring obligation throughout the Term, use the latest versions of anti-virus definitions and software available from an industry accepted anti-virus software vendor to check for, contain the spread of, and minimise the impact of Malicious Software in the ICT Environment (or as otherwise agreed by the parties).


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E11.6 Notwithstanding Clause E11.5, if Malicious Software is found, the parties shall co-operate to reduce the effect of the Malicious Software and, particularly if Malicious Software causes loss of operational efficiency or loss or corruption of Authority Data, assist each other to mitigate any losses and to restore the Articles to their desired operating efficiency.

E11.7 Any cost arising out of the actions of the parties taken in compliance with the provisions of Clause E11.6 shall be borne by the parties as follows:

(a) by the Contractor where the Malicious Software originates from the Contractor Software, the Third Party Software supplied by the Contractor (except where the Authority has waived the obligation set out in Clause E11.5) or the Authority Data (whilst the Authority Data was under the control of the Contractor) unless the Contractor can demonstrate that such Malicious Software was present and not quarantined or otherwise identified by the Authority when provided to the Contractor; and

(b) by the Authority if the Malicious Software originates from the Authority Software (in respect of which the Authority has waived its obligation set out in Clause E11.5) or the Authority Data (whilst the Authority Data was under the control of the Authority).

E11.8 The Contractor shall comply with the Staff Vetting Procedures in respect of all Contractor Personnel employed or engaged in the provision of the Services. The Contractor confirms that all Contractor Personnel employed or engaged by the Contractor at the Effective Date were vetted and recruited on a basis that is equivalent to and no less strict than the Staff Vetting Procedures.

E11.9 The Contractor shall provide training on a continuing basis for all Contractor Personnel employed or engaged in the provision of the Services in compliance with the Security Policy.

E12 SECURITY MEASURES

E12.1 Definition:

In this Clause 'Secret Matter' means any matter connected with the Contract, or its performance which is

designated in writing by the Authority as 'Top Secret', 'Secret', or 'Confidential', and shall include any information concerning the content of such matter and anything which contains or may reveal that matter;

'Employee' shall include any person who is an employee or director of the Contractor or who occupies the position of a director of the Contractor, by whatever title given.

E12.2 The Official Secrets Acts

The Contractor shall: (a) take all reasonable steps to ensure that all Employees engaged on any work in

connection with the Contract have notice that the Official Secrets Acts 1911-1989 apply to them and will continue so to apply after the completion or termination of the Contract; and

(b) if directed by the Authority, ensure that any Employee shall sign a statement acknowledging that, both during the Term of the Contract and after its completion or termination, he is bound by the Official Secrets Acts 1911-1989 (and where applicable by any other legislation).

E12.3 Security Measures (see Annex M (Security Aspects Letter)) (a) Unless he has the written authorisation of the Authority to do otherwise, neither the

Contractor nor any of his Employees shall, either before or after the completion or termination of the Contract, do or permit to be done anything which they know or ought reasonably to know may result in Secret Matter being disclosed to or acquired by a person in any of the following categories:

(i) who is not a British citizen; (ii) who does not hold the appropriate Authority for access to the protected matter;


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(iii) in respect of whom the Authority has notified the Contractor in writing that the Secret Matter shall not be disclosed to or acquired by that person;

(iv) who is not an Employee of the Contractor; (v) who is an Employee of the Contractor and has no need to know the

information for the proper performance of the Contract. (b) Unless he has the written permission of the Authority to do otherwise, the Contractor

and his Employees shall, both before and after the completion or termination of the Contract, take all reasonable steps to ensure that:

(i) no photograph of, or pertaining to, any Secret Matter shall be taken and no copy of or extract from any Secret Matter shall be made except to the extent necessary for the proper performance of the Contract;

(ii) any Secret Matter is at all times strictly safeguarded in accordance with the Security Policy Framework and upon request, is delivered up to the Authority who shall be entitled to retain it.

(c) A decision of the Authority on the question of whether the Contractor has taken or is taking reasonable steps as required by this Clause, shall be final and conclusive.

(d) The Contractor shall provide to the Authority: (i) upon request, such records giving particulars of those Employees who have

had at any time, access to any Secret Matter that is required to be kept in accordance with sub-Clause E12.3(b)(ii); upon request, such information as the Authority may from time to time require so as to be satisfied that the Contractor and his Employees are complying with his obligations under this Clause, including the measures taken or proposed by the Contractor so as to comply with his obligations and to prevent any breach of them; full particulars of any failure by the Contractor and his Employees to comply with any obligations relating to Secret Matter arising under this Clause immediately upon such failure becoming apparent;

(ii) ensure that, for the purpose of checking the Contractor's compliance with the obligation in sub-Clause E12.3(b)(ii); a representative of the Authority shall be entitled at any time to enter and inspect any premises used by the Contractor which are in any way connected with the Contract and inspect any document or thing in any such premises, which is being used or made for the purposes of the Contract. Such representative shall be entitled to all such information as he may reasonably require.

(e) If at any time either before or after the completion or termination of the Contract, the Contractor or any of his Employees discovers or suspects that an unauthorised person is seeking or has sought to obtain information directly or indirectly concerning any Secret Matter, the Contractor shall forthwith inform the Authority of the matter with full particulars thereof.

E12.4 Sub-Contracts (a) If the Contractor proposes to make a subcontract which will involve the disclosure of

Secret Matter to the Sub-Contractor, the Contractor shall:

(i) submit for approval of the Authority the name of the proposed Sub-Contractor, a statement of the work to be carried out and any other details known to the Contractor which the Authority shall reasonably require;

(ii) incorporate into the subcontract the terms of Annex K to this Clause and such secrecy and security obligations as the Authority shall direct. In Annex K 'Agreement' shall mean the 'Subcontract', 'First Party' shall mean the 'Contractor' and 'Second Party' shall mean the Sub-Contractor';

(iii) inform the Authority immediately he becomes aware of any breach by the Sub-Contractor of any secrecy or security obligation and, if requested to do so by the Authority, terminate the subcontract.

E12.5 Termination (a) The Authority shall be entitled to terminate the Contract immediately if: (i) the Contractor is in breach of any obligation under this Clause; or (ii) the Contractor is in breach of any secrecy or security obligation imposed by


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any other contract with the Crown; where the Authority considers the circumstances of the breach jeopardise the secrecy or security of the Secret Matter.

E13 INTELLECTUAL PROPERTY RIGHTS

E13.1 All Intellectual Property Rights in any guidance, specifications, instructions, toolkits, plans, data, drawings, databases, patents, patterns, models, designs or other material (the “IP Materials”):

(a) furnished to or made available to the Contractor by or on behalf of the Authority shall remain the property of the Authority; and

(b) which is pre-existing IPR of the Contractor and furnished to or made available to the Authority or a Customer under the Contract shall remain the property of the Contractor.

(c) prepared exclusively by or for the Contractor on behalf of the Authority for use, or intended use, in relation to the performance by the Contractor of its obligations under the Contract shall subject to E13.1.(b), belong to the Authority and shall not operate to transfer pre-existing IPR of the Contractor to the Authority or a Customer; and

(d) the Contractor shall not, and shall ensure that the Staff shall not, (except when necessary for the performance of the Contract) without prior Approval, use or disclose any Intellectual Property Rights in the IP Materials.

E13.2 The Contractor hereby assigns to the Authority, with full title guarantee, all Intellectual Property Rights which may subsist in the IP Materials prepared in accordance with sub-Clause E13.1(c). This assignment shall take effect on the date of the Contract or as a present assignment of future rights that will take effect immediately on the coming into existence of the Intellectual Property Rights produced by the Contractor. The Contractor shall execute all documentation necessary to execute this assignment.

E13.3 The Contractor shall waive or procure a waiver of any moral rights subsisting in copyright produced by the Contract or the performance of the Contract.

E13.4 The Contractor shall ensure that the third party owner of any Intellectual Property Rights that are or which may be used to perform the Contract grants to the Authority a non-exclusive licence or, if itself a licensee of those rights, shall grant to the Authority an authorised sub-licence, to use, reproduce, modify, develop and maintain the Intellectual Property Rights in the same. Such licence or sub-licence shall be non-exclusive, perpetual, royalty free and irrevocable and shall include the right for the Authority to sub-license, transfer, novate or assign to other Contracting Authorities, the Replacement Contractor or to any other third party supplying services to the Authority.

E13.5 The Contractor shall not infringe any Intellectual Property Rights of any third party in supplying the Services and the Contractor shall, during and after the Contract Period, indemnify and keep indemnified and hold the Authority and the Crown harmless from and against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and other liabilities which the Authority or the Crown may suffer or incur as a result of or in connection with any breach of this Clause, except where any such claim arises from:

(a) items or materials based upon designs supplied by the Authority; or

(b) the use of data supplied by the Authority which is not required to be verified by the Contractor under any provision of the Contract.

E13.6 The Authority shall notify the Contractor in writing of any claim or demand brought against the Authority for infringement or alleged infringement of any Intellectual Property Right in materials supplied or licensed by the Contractor.

E13.7 The Contractor shall at its own expense conduct all negotiations and any litigation arising in connection with any claim for breach of Intellectual Property Rights in materials supplied or licensed by the Contractor, provided always that the Contractor:

(a) shall consult the Authority on all substantive issues which arise during the conduct of such litigation and negotiations;


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(b) shall take due and proper account of the interests of the Authority; and (c) shall not settle or compromise any claim without the Authority’s prior written consent

(not to be unreasonably withheld or delayed).

E13.8 The Authority shall at the request of the Contractor afford to the Contractor all reasonable assistance for the purpose of contesting any claim or demand made or action brought against the Authority or the Contractor by a third party for infringement or alleged infringement of any third party Intellectual Property Rights in connection with the performance of the Contractor’s obligations under the Contract and the Contractor shall indemnify the Authority for all costs and expenses (including, but not limited to, legal costs and disbursements) incurred in doing so. The Contractor shall not, however, be required to indemnify the Authority in relation to any costs and expenses incurred in relation to or arising out of a claim, demand or action which relates to the matters in sub-Clause E13.5(a) or (b).

E13.9 The Authority shall not make any admissions which may be prejudicial to the defence or settlement of any claim, demand or action for infringement or alleged infringement of any Intellectual Property Right by the Authority or the Contractor in connection with the performance of its obligations under the Contract.

E13.10 If a claim, demand or action for infringement or alleged infringement of any Intellectual Property Right is made in connection with the Contract or in the reasonable opinion of the Contractor is likely to be made, the Contractor shall notify the Authority and, at its own expense and subject to the consent of the Authority (not to be unreasonably withheld or delayed), use its best endeavours to:

(a) modify any or all of the Services without reducing the performance or functionality of the same, or substitute alternative Services of equivalent performance and functionality, so as to avoid the infringement or the alleged infringement, provided that the provisions herein shall apply mutates mutandis to such modified Services or to the substitute Services; or

(b) procure a licence to use and supply the Services, which are the subject of the alleged infringement, on terms which are acceptable to the Authority,

and in the event that the Contractor is unable to comply with sub-Clauses E13.7(a) or (b) within [20] Working Days of receipt of the Contractor’s notification the Authority may terminate the Contract with immediate effect by notice in writing.

E13.11 The Contractor grants to the Authority a royalty-free, irrevocable and non-exclusive licence (with a right to sub-licence) to use any Intellectual Property Rights that the Contractor owned or developed prior to the Commencement Date and which the Authority reasonably requires in order exercise its rights and take the benefit of this Contract including the Services provided.

E14 INTELLECTUAL PROPERTY RIGHTS IN SOFTWARE

E14.1 Definition And Interpretation

For the purposes of this Condition (a) 'Software' shall mean all or any part of any (i) Object Code (as defined at sub-Clause E14.1(c)); (ii) Source Material (as defined at sub-Clause E14.1(d)); (iii) . associated user documentation; (iv) anything further specified as Software in the Schedule of Requirements; (b) 'Deliverable Software' shall mean the Software delivered or to be delivered or which

forms an integral part of any Article delivered or to be delivered by the Contractor to the Authority in accordance with the requirements of the Contract;

(c) 'Object Code' shall mean machine code executable by a data processing system; (d) 'Source Material' shall mean that material, taken individually or in any combination

thereof, which is: (i) Source Code, that is to say, a representation of Object Code in or readily


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translatable into a form suitable for human understanding and transformable into the Object Code;

(ii) a representation or identification of the data processing system configuration, computer programs, procedures, rules and associated documentation generated by or for the Contractor under the Contract;

(iii) a representation or identification of the data processing system configuration, computer programs, procedures, rules and associated documentation used to generate the Object Code, but not generated by or for the Contractor under the Contract, when in sufficient detail and suitable form, subject to sub-Clause E14.3(b), to permit replication of such data processing system configuration, computer programs, procedures, rules and associated documentation independently of the Contractor;

(iv) subject to sub-Clause E14.3(b), and to the extent necessary to enable modification and testing of the Object Code independently of the Contractor, documentation on the specification, design rules, design, testing, analysis, function, usage and capabilities of the Object Code and of the material at sub-Clauses E14.1(d) (i), (ii) and (iii);

(e) 'to modify' shall mean to change or alter whether by means of adaptation, translation, extension, reduction by means of merging with other material, or by any other means, and the words 'modified' and 'modification' shall be construed accordingly;

(f) (i) 'the Relevant Period' shall mean the currency of the Contract plus a period of six years from the completion of the Contract or such other period as may be specified in the Contract. Completion of the Contract shall be deemed to occur on the date when all work under the Contract is completed;

(ii) the Contractor shall endeavour to ensure that the relevant period in any subcontract shall expire on the same date as that applicable under sub-Clause E14.1(f)(i). above, but shall consult the Authority if that is not achievable;

(g) 'IPR' means Intellectual Property Rights; (h) 'Non risk contract' shall mean a contract placed on a cost reimbursement basis

(whether with a fixed fee element or a percentage profit) which insulates the contractor against loss;

(i) 'Risk contract' shall mean all contracts with a pricing arrangement which does not insulate the contractor against loss.

(j) The paragraph headings contained in this Condition shall not affect the interpretation thereof.

E14.2 Ownership

The Contractor shall use all reasonable endeavours to ensure that all IPR in any Software generated under the Contract shall be the property of and vest in the Contractor, subject to any pre-existing rights of the Crown or of third parties.

E14.3 User Rights And Related Payments

The following user rights and related terms apply: (a) The Contractor grants to the Authority and all other United Kingdom Government

Departments to the extent that he has the right to do so, the right, exercisable without payment to the Contractor

(i) to copy, modify and use any Deliverable Software for the services of the United Kingdom Government, whether by themselves, their agents or their contractors;

(ii) to issue any Deliverable Software or copies of any Deliverable Software to any contractor or potential contractor to the United Kingdom Government for the purpose of use only in connection with a contract or the tendering for a proposed contract for a United Kingdom Government purpose.

(b) The Contractor shall notify the Authority as soon as he becomes aware of any limitations as to the use of any Deliverable Software the IPR in which are owned by the Contractor or a third party. The Contractor shall also give to the Authority full details of the provisions of such limitations and any associated cost as soon as he becomes aware of them.


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(c) Except as provided for by sub-Clause E14.5(a)(ii), the Authority shall have a right to exercise any of the rights referred to at sub-Clause E14.3(a) in respect of Deliverable Software notified to the Authority in accordance with sub-Clause E14.3(b) the IPR in which are owned by the Contractor, subject to fair and reasonable terms. The exercising of any such right shall not be conditional upon prior agreement on the need for, the amount of or the making of any payment therefor.

(d) The Contractor shall, if requested to do so by the Authority, endeavour to secure for the Authority those rights listed at sub-Clause E14.3(a) in Deliverable Software notifiable to the Authority in accordance with sub-Clause E14.3(b) the IPR in which are owned by a third party on terms and conditions to be agreed with or approved by the Authority.

(e) Subject to the provisions of sub-Clause E14.3(b) but notwithstanding the provisions of sub-Clause E14.6(b), the Contractor grants to the Authority the right to issue the Deliverable Software, in whole or in part, or a copy thereof, only to the government(s) of the nation(s) prescribed in the Contract, for information only, in pursuance of information exchange arrangements for defence purposes, provided that the recipient government is placed under an obligation not to use Deliverable Software so released for other than information purposes or to disclose it to a third party. Provided that, where the supply of Source Code is contemplated, and subject to any pre-existing rights of the Authority, this sub-Clause E14.3(e) shall only apply to the work or any part of the work or any copy of the work or any part thereof if such work or part thereof is generated under the Contract.

E14.4 Other Software Generated Under The Contract

In respect of other Software generated under the Contract: (a) Should, during the Relevant Period, the Authority require the Contractor to deliver

any Software generated under the Contract but which is not Deliverable Software: (i) where the Contract has yet to be priced or has been or is to be priced on a non

risk basis, then such Software as is required by the Authority shall be delivered by the Contractor to the Authority within a reasonable period as a minimum as it exists at the date on which the Authority makes its requirement known in writing to the Contractor and from that date such Software shall be deemed to be Deliverable Software;

(ii) where the Contract has been priced on a risk basis, whether by negotiation or under competition, then such Software as is required by the Authority shall be delivered by the Contractor to the Authority within a reasonable period and on fair and reasonable terms as a minimum as it exists at the date on which the Authority makes its requirements known in writing to the Contractor and from that date such Software shall be deemed to be Deliverable Software (except for the purposes of Clause E14.9) provided always that the Authority shall not be liable to pay more than once for the supply of Software required by the Authority. Delivery to the Authority shall not be conditional upon prior agreement on the need for, the amount of, or the making of any payment therefor.

(b) Notwithstanding anything to the contrary herein, other than in respect of any actual or alleged infringement of copyright, breach of confidence or IPR-related breach of contract, the Contractor shall have no liability whatsoever in respect of any consequence arising from the possession or use by or on behalf of the Authority of any such Software which is deemed to be Deliverable Software pursuant to sub-Clause E14.4(a) above.

E14.5 Subsequent Deliveries Of Software

In respect of subsequent deliveries of Software: (a) During the Relevant Period, the Contractor shall at the request and to the

requirements of the Authority and to the extent he is able to do so in relation to third party software:

(i) deliver further copies of the Deliverable Software to the Authority at a reasonable charge based on the cost of providing such copies;


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(ii) where the Contractor is unable or unwilling to support, maintain or modify the Deliverable Software, deliver all Software, including such records as are specified in sub-Clause E14.5(c), necessary for the Authority, its contractors or agents to independently support, maintain or modify the Deliverable Software for the services of the United Kingdom Government. All such Software shall be supplied on fair and reasonable terms, but delivery shall not be conditional upon prior agreement on the need for, the amount of or the making of any payment therefor.

(b) The Contractor shall retain for the Relevant Period a copy of such Software as is required for the performance of his obligations under sub-Clause E14.5(a).

(c) If the Software generated under the Contract is subsequently modified by or on behalf of the Contractor for the Authority, the Software to be retained under sub-Clause E14.5(b) shall be the latest modified version and any other version that may be specified by the Authority no later than the time of delivery of the succeeding modified version. The Contractor shall additionally maintain sufficient records to enable the changes introduced by each such modification to be identified so as to provide traceability back to the version originally accepted by or for the Authority.

E14.6 Confidentiality

In respect of confidentiality (a) The Authority undertakes to: (i) receive and hold in confidence all Deliverable Software; (ii) enforce all reasonable regulations and precautions upon the officers, agents,

contractors and employees of the Authority and of all other United Kingdom Government Departments in order to preserve the confidential nature of the Deliverable Software;

(iii) not disclose the Deliverable Software outside United Kingdom Government Departments and Establishments, except as expressly permitted by any other provision of this Condition or otherwise expressly agreed in writing by the Contractor.

(b) The Authority shall, subject to sub-Clauses E14.6(c) and (d), before disclosing any Deliverable Software outside United Kingdom Government Departments and Establishments make it a pre-requisite of the disclosure, unless otherwise agreed in writing by the Contractor, that the recipient shall enter into a confidentiality agreement with the Contractor whereby the recipient's use of the Deliverable Software is limited to use for the services of the United Kingdom Government. A confidentiality agreement shall be concluded within 30 days, or whatever other period as may be mutually agreed by the Authority and the Contractor, of the Authority giving written notice to the Contractor of his intention to make the disclosure. If a confidentiality agreement is not concluded within that period then, notwithstanding the absence of a confidentiality agreement, the Authority shall have the right to make the disclosure on condition that in making the disclosure, the Authority shall place upon the recipient an obligation of confidence and a limitation of use as aforesaid. In these circumstances the Authority shall:

(i) consult with the Contractor on the measures to be employed to protect any trade secrets, know-how or other information in the Deliverable Software;

(ii) have regard to any representation made by the Contractor at any time before disclosure takes place as to the protection of any trade secrets, know-how or other information in the Deliverable Software;

(iii) give consideration to any proposals the Contractor may make for: (1) the preparation of a special version of the Deliverable Software; (2) the disclosure of the Deliverable Software in parts or stages; (3) restrictions on the circulation, copying or use of the Deliverable Software

to be disclosed. (c) The obligations imposed by sub-Clauses E14.6(a) and (b) of this Condition shall not

apply to such of the Deliverable Software that: (i) is, or becomes, rightfully in the possession of the Authority without relevant

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(ii) is in or enters the public domain without breach of the Contract and is available for unrestricted use;

(iii) is received by the Authority from a third party who himself has the right to disclose without relevant restrictions;

(iv) is or was independently developed by the Authority; (v) is approved by the Contractor, in writing, for unrestricted release by the

Authority. (d) Notwithstanding the provisions of this Condition relating to the disclosure of the

Deliverable Software, the Authority shall be entitled to disclose the Deliverable Software after notification in writing to the Contractor by a Director of Contracts in person that he considers it to be in the national interest to do so. Save where the Authority considers the immediate disclosure is in the national interest, the Authority will endeavour to give the Contractor a reasonable opportunity to make representations about such disclosure. However, the Authority's decision shall be final and conclusive. In making the disclosure in this circumstance the Authority shall place upon the recipient an obligation of confidence and a limitation of use as set out in sub-Clauses E14.6(a) and (b).

E14.7 Output

In respect of output from the Deliverable Software: (a) Subject to the rights of the Contractor and third parties, the Authority shall have the

right, free of charge, to use in any manner and for any purpose anything which has been produced by or for the Authority with the aid of any Deliverable Software PROVIDED THAT if the result so produced reproduces or discloses the whole or a significant part of any of the Software used or generated in the performance of this Contract then such shall be deemed to be Deliverable Software and subject to the provisions of the Contract. If, however, the material produced contains other information, the IPR in which are owned by the Contractor or a third party and in which the Authority has no user rights, then the conditions under which that information has been made available to the Authority shall prevail in respect of such other information.

(b) If Deliverable Software is required by the Authority under the Contract for the purpose of producing an output for incorporation in a data processing system, then, notwithstanding sub-Clause E14.7(a) of this Condition or any other provision of the Contract, the Authority shall have the right to use to have used, free of charge, such output for the services of the United Kingdom Government.

E14.8 Marking

The Contractor may make or include in any Deliverable Software to which this Condition applies a copyright notice provided that such copyright notice acknowledges the Authority's rights under this Condition. Any such notice shall be perpetuated in any copies of the Deliverable Software made by the Authority or any other United Kingdom Government Department or its agents or contractors.

E14.9 Commercial Exploitation Levy

The Contractor shall agree with the Authority the sum or sums (if any) which shall be paid to the Authority in respect of Software generated under the Contract having regard to the amounts paid or payable to the Contractor by the Authority under the Contract before:

(a) assigning, selling or otherwise disposing of any IPR subsisting in such Software; (b) disclosing, licensing or selling any material reproducing such Software; (c) using any such Software for the purpose of generating any Software for disclosure,

licensing or sale to a third party.

E14.10 Modified Software

Should Software generated under the Contract be modified at any time, then each party shall enjoy the same rights and be bound by the same obligations provided by this Condition in respect of any of those parts of the modified Software which were present in


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the Software prior to modification.

E14.11 Liability And Indemnities

In respect of liabilities and indemnities: (a) The Contractor shall at all times indemnify and keep indemnified the Authority or any

other United Kingdom Government Department in respect of all costs, claims, demands, damages, liabilities and expenses made against or incurred by the Authority or any other United Kingdom Government Department:

(i) arising directly from any actual or alleged infringement of copyright or breach of confidence or IPR-related breach of contract;

(ii) arising indirectly from any actual or alleged infringement of copyright or breach of confidence or IPR-related breach of contract; by the Contractor as a result of the copying, modification, use or possession of the Deliverable Software by or on behalf of the Authority or any other United Kingdom Government Department or their respective agents or contractors.

(b) In the event that any claim is made against the Authority in respect of which the Authority is entitled to be indemnified in accordance with the provisions of sub-Clause E14.11(a) above then:

(i) the Authority shall promptly notify the Contractor in writing of such costs, claims, demands, damages, liabilities and expenses of which it shall have notice and shall provide the Contractor with such information regarding the claim as the Contractor shall reasonably require PROVIDED THAT the Authority shall not be obliged to disclose any information the disclosure of which would prejudice any right or interest of the Crown;

(ii) unless there is a statutory obligation to do so, the Authority shall not make any statement which may be prejudicial to the settlement or defence of such claim without the prior written consent of the Contractor;

(iii) when requested by the Contractor the Authority shall allow the Contractor at the Contractor's expense to conduct all negotiations and litigation and shall give the Contractor all reasonable assistance in connection therewith PROVIDED THAT:

(1) the Contractor shall have first given to the Authority an unconditional written admission of his liability to indemnify the Authority in accordance with the provisions of sub-Clause E14.11(a);

(2) at the request of the Authority the Contractor shall keep the Authority fully informed about the conduct and progress of such negotiations and proceedings;

(3) the Authority shall have the right to intervene or assume responsibility for the conduct of such proceedings or any consequent settlement thereof at any time PROVIDED THAT the Contractor shall not be liable to indemnify the Authority under this Clause E14.11 against any liability or any part of any damages costs or expenses to the extent that such liability or part is incurred by the Authority by reason of any breach by the Authority or sub-Clause E14.11(b)(ii) or by the Authority acting unreasonably either in the conduct of any negotiations or legal proceedings or in the making of any settlement in relation to any claim or demand.

(c) If at any time an allegation of infringement of copyright or breach of confidence or breach of contract is made as a result of the copying, modification, use or possession of the Deliverable Software or any part thereof, the Contractor may, with the agreement of the Authority and at the Contractor's own expense, modify the Deliverable Software or any part thereof or replace the same with an item of equivalent functionality and performance so as to avoid infringement or breach.

(d) Except as may be otherwise agreed, the foregoing provisions shall not apply in so far as any costs, claims, demands, damages, liabilities and expenses are in respect of:

(i) any use of Deliverable Software not reasonably to be inferred from the specification requirements of the Authority;

(ii) the refusal by the Authority or such other United Kingdom Government


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Department to use to have used a modified or replacement item supplied pursuant to sub-Clause E14.11(c);

(iii) the use of any Deliverable Software made after and in contravention of a judicial decision relating to such Deliverable Software.

The Contractor shall have no liability in respect of any Deliverable Software modified by or on behalf of the Authority, other than Deliverable Software modified under the direction and control of the Contractor himself, PROVIDED THAT the exclusion of liability contained in sub-Clause E14.11(e) shall not apply in circumstances where the Contractor would be liable under the terms of the Contract whether or not the Deliverable Software has been modified.

(f) Where the Contractor is not liable under the provisions of sub-Clause E14.11(e), then the Authority shall indemnify and keep indemnified the Contractor in respect of all costs, claims, demands, damages, liabilities and expenses made against or incurred by the Contractor:


(ii) arising indirectly from any actual or alleged infringement of copyright or breach of confidence or IPR-related breach of contract;

as a result of the copying, modification, use or possession of any modified Deliverable Software by or on behalf of the Authority or any other United Kingdom Government Department or their respective agents or contractors, or by any government which received it in accordance with the provisions of sub-Clause E14.3(e).

(g) Where the Authority supplies or causes to be supplied Software to the Contractor for use, or instructs the Contractor to use Software, in the performance of the Contract and that Software was not previously supplied to the Authority by the Contractor, then the Authority shall indemnify and keep indemnified the Contractor in respect of all costs, claims, demands, damages, liabilities and expenses made against or incurred by the Contractor:


(ii) arising indirectly from any actual or alleged infringement of copyright or breach of confidence or IPR-related breach of contract;

as a result of the copying, modification, use or possession of such Software by the Contractor solely for the performance of the Contract.

(h) In the event that any claim is made against the Contractor in respect of which the Contractor is entitled to be indemnified in accordance with the provisions of sub-Clauses E14.11(f) and E14.11(g) above then:

(i) the Contractor shall promptly notify the Authority in writing of such costs, claims, demands, damages, liabilities and expenses of which he himself shall have notice and shall provide the Authority with such information regarding the claim as the Authority shall reasonably require;

(ii) the Contractor shall not make any statement which may be prejudicial to the settlement or defence of such claim without the prior written consent of the Authority;

(iii) when requested by the Authority the Contractor shall allow the Authority at the Authority's expense to conduct all negotiations and litigation and shall give the Authority all reasonable assistance in connection therewith PROVIDED THAT:

(1) the Authority shall have first given to the Contractor an unconditional written admission of its liability to indemnify the Contractor in accordance with the provisions of sub-Clauses E14.11(f) and (g);

(2) at the request of the Contractor the Authority shall keep the Contractor fully informed about the conduct and progress of such negotiations and proceedings.

(i) The foregoing states the entire liability of the Authority and Contractor with respect to any actual or alleged infringement of copyright or breach of confidence or IPR-related breach of contract arising from the copying, modification, use or possession of:


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(i) the Deliverable Software by or on behalf of the Authority or any other United Kingdom Government Department;

(ii) the Software referred to in sub-Clause E14.11(g) by the Contractor.

E14.12 This Condition shall constitute an 'agreement to the contrary' for the purposes of Section 48 of the Copyright, Design and Patents Act 1988.

E15 THIRD PARTY INTELLECTUAL PROPERTY - RIGHTS AND RESTRICTIONS NOTIFICATIONS

Notifications E15.1 As he becomes aware, the Contractor shall promptly notify the Authority of: (a) any invention or design the subject of Patent or Registered Design rights (or

application therefor) owned by a third party which appears to be relevant to the performance of the Contract or to use by the Authority of anything required to be done or delivered under the Contract;

(b) any restriction as to disclosure or use, including any export requirement or restriction, or obligation to make payments in respect of any other intellectual property (including technical information) required for the purposes of the Contract or subsequent use by the Authority of anything delivered under the Contract and, where appropriate, the notification shall include such information as is required by Section 2 of the Defence Contracts Act 1958;

(c) any allegation of infringement of intellectual property rights made against the Contractor and which pertains to the performance of the Contract or subsequent use by the Authority of anything required to be done or delivered under the Contract.

This Clause E15.1 does not apply in respect of Articles or Services normally available from the Contractor as a commercial off the shelf (COTS) item or service.

E15.2 If the information required under this Condition has been notified previously, the Contractor may meet his obligations by giving details of the previous notification.

Patents and Registered Designs in the UK – COTS Articles or Services E15.3 In respect of any question arising (by way of an allegation made to the Authority or

Contractor, or otherwise) that the manufacture or supply under the Contract of any Article or Service normally available from the Contractor as a COTS item or service is an infringement of a United Kingdom Patent or Registered Design not owned or controlled by the Contractor or the Authority, the Contractor shall, subject to the agreement of the third party owning such Patent or Registered Design, be given exclusive conduct of any and all negotiations for the settlement of any claim or the conduct of any litigation arising out of such question. The Contractor shall indemnify the Authority, its officers, agents and employees against any liability and cost arising from such allegation. This Clause will not apply if:

(a) the Authority has made or makes an admission of any sort relevant to such question; (b) the Authority has entered or enters into any discussions on such question with any

third party without the prior written agreement of the Contractor; (c) ) the Authority has entered or enters into negotiations in respect of any relevant

claim for compensation in respect of Crown Use under Section 55 of the Patents Act 1977 or Section 12 of the Registered Designs Act 1977;

(d) legal proceedings have been commenced against the Authority or the Contractor in respect of Crown Use, but only to the extent of such Crown Use that has been properly authorised.

E15.4 The indemnity in Clause E15.3 does not extend to use by the Authority of anything supplied under the Contract where that use was not reasonably foreseeable at the time of the Contract.

E15.5 In the event that the Authority has entered into negotiation in respect of a claim for compensation, or legal proceedings in respect of the Crown Use have commenced, the Authority shall forthwith authorise the Contractor for the purposes of performing the Contract (but not otherwise) to utilise a relevant invention or design in accordance with Sections 55 and 56 of the Patents Act 1977 or Section 12 of the Registered Designs Act 1949 and to use any model, document or information relating to any such invention or


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design which may be required for that purpose.

Patents and Registered Designs in the UK - All other Articles or Services E15.6 . If a relevant invention or design has been notified to the Authority by the Contractor prior

to the date of the Contract, then unless it has been otherwise agreed, under the provisions of Sections 55 and 56 of the Patents Act 1977 or Section 12 of the Registered Designs Act 1949, the Contractor is hereby authorised to utilise that invention or design, notwithstanding the fact that it is the subject of a United Kingdom Patent or United Kingdom Registered Design, for the purpose of performing the Contract.

E15.7 If, under Clause E15.1, a relevant invention or design is notified to the Authority by the Contractor after the date of Contract, then:

(a) if the owner (or his exclusive licensee) takes or threatens in writing to take any relevant action against the Contractor, the Authority shall issue to the Contractor a written authorisation in accordance with the provisions of Sections 55 and 56 of the Patents Act 1977 or Section 12 of the Registered Designs Act 1949, and

(b) in any event, unless the Contractor and the Authority can agree an alternative course of action, the Authority shall not unreasonably delay the issue of a written authorisation in accordance with the provisions of Sections 55 and 56 of the Patents Act 1977 or Section 12 of the Registered Designs Act 1949.

Patents, Utility Models and Registered Designs outside the UK E15.8 The Authority shall assume all liability and shall indemnify the Contractor, its officers,

agents and employees against liability, including the Contractor’s costs, as a result of infringement by the Contractor or his suppliers of any Patent, Utility Model, Registered Design or like protection outside the United Kingdom in the performance of the Contract when such infringement arises from or is incurred by reason of the Contractor following any specification, statement of work or instruction in the Contract or using, keeping or disposing of any item given by the Authority for the purpose of the Contract in accordance with the Contract.

E15.9 The Contractor shall assume all liability and shall indemnify the Authority, its officers, agents and employees against liability, including the Authority’s costs, as a result of infringement by the Contractor or his suppliers of any Patent, Utility Model, Registered Design or like protection outside the United Kingdom in the performance of the Contract when such infringement arises from or is incurred otherwise than by reason of the Contractor following any specification, statement of work or instruction in the Contract or using, keeping or disposing of any item given by the Authority for the purpose of the Contract in accordance with the Contract.

Royalties and Other Licence Fees E15.10 The Contractor shall not be entitled to any reimbursement of any royalty, licence fee or

similar expense incurred in respect of anything to be done under the Contract, where: (a) a relevant discharge has been given under Section 2 of the Defence Contracts Act

1958, or relevant authorisation in accordance with Sections 55 or 57 of the Patents Act 1977, Section 12 of the Registered Designs Act 1949 or Section 240 of the Copyright, Designs and Patents Act 1988 in respect of any intellectual property, or

(b) any obligation to make payments for intellectual property has not been promptly notified to the Authority under Clause E15.1 of this Condition.

E15.11 Where an authorisation is given by the Authority under Clause E15.5, Clause E15.6 or Clause E15.7, to the extent permitted by Section 57 of the Patents Act 1977, Section 12 of the Registered Designs Act 1949 or Section 240 of the Copyright, Designs and Patents Act 1988, the Contractor shall also be:

(a) released from payment whether by way of royalties, licence fees or similar expenses in respect of the Contractor's use of the relevant invention or design, or the use of any relevant model, document or information for the purpose of performing the Contract, and

(b) authorised to use any model, document or information relating to any such invention or design which may be required for that purpose.


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Copyright, Design Rights etc. E15.12 The Contractor shall assume all liability and indemnify the Authority and its officers, agents

and employees against liability, including costs as a result of: (a) infringement or alleged infringement by the Contractor or his suppliers of any

copyright, database right, design right or the like protection in any part of the world in respect of any item to be supplied under the Contract or otherwise in the performance of the Contract;

(b) misuse of any confidential information, trade secret or the like by the Contractor in performing the Contract;

(c) provision to the Authority of any information or material which the Contractor does not have the right to provide for the purpose of the Contract.

E15.13 The Authority shall assume all liability and indemnify the Contractor, its officers, agents and employees against liability, including costs as a result of:

(a) infringement or alleged infringement by the Contractor or his suppliers of any copyright, database right, design right or the like protection in any part of the world in respect of any item provided by the Authority for the purpose of the Contract but only to the extent that the item is used for the purpose of the Contract;

(b) alleged misuse of any confidential information, trade secret or the like by the Contractor as a result of use of information provided by the Authority for the purposes of the Contract, but only to the extent that the Contractor’s use of that information is for the purposes intended when it was disclosed by the Authority.

Authorisation and Indemnity - General E15.14 (a) The above represents the total liability of each party to the other under the Contract

in respect of any infringement or alleged infringement of Patent or other Intellectual Property Right owned by a third party.

(b) Neither party shall be liable, one to the other, for any consequential loss or damage arising as a result, directly or indirectly, of a claim for infringement or alleged infringement of any Patent or other Intellectual Property Right owned by a third party.

(c) A party against whom a claim is made or action brought, shall promptly notify the other party in writing if such claim or action appears to relate to an infringement which is the subject of an indemnity or authorisation given under this Condition by such other party. The notification shall include particulars of the demands, damages and liabilities claimed or made of which the notifying party has notice.

(d) The party benefiting from the indemnity or authorisation shall allow the other party, at its own expense, to conduct any negotiations for the settlement of the same, and any litigation that may arise therefrom and shall provide such information as the other party may reasonably require.

(e) Following a notification under sub-Clause E15.14(c)., the party notified shall advise the other party in writing within 30 days whether or not it is assuming conduct of the negotiations or litigation. In that case the party against whom a claim is made or action brought shall not make any statement which might be prejudicial to the settlement or defence of such a claim without the written consent of the other party.

(f) The party conducting negotiations for the settlement of a claim or any related litigation shall, if requested, keep the other party fully informed of the conduct and progress of such negotiations.

E15.15 (a) If at any time a claim or allegation of infringement arises in respect of copyright, database right, design right or breach of confidence as a result of the provision of any item by the Contractor to the Authority, the Contractor may at its own expense replace the item with an item of equivalent functionality and performance so as to avoid infringement or breach;

(b) The parties will co-operate with one another to mitigate any claim or damage which may arise from use of third party intellectual property rights.

Subcontracts E15.16 The Contractor shall secure from any subcontractor, the prompt notification to the

Authority of the information required by Clause E15.1 of this Condition. On receipt of any such notification the Authority will issue a written authorisation to the subcontractor in


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accordance with Clause E15.7 of this Condition. Any such authorisation will be subject always to Clauses E15.10, E15.11 and E15.14 as though the subcontractor was the Contractor. If any claim or action relevant to such authorisation arises, it shall be promptly notified to the Authority. The Contractor is not authorised to enter into any substantive correspondence in such matter nor in any way to act on behalf of the Authority in such claim or action. Any arrangement between the Contractor and subcontractor to enable the Contractor to underwrite his indemnities to the Authority under this Condition is a matter between the Contractor and the subcontractor.

General E15.17 In this Condition: (a) 'design right' has the meaning ascribed to it by Section 213 of the Copyright, Designs

and Patents Act 1988; (b) 'Crown Use' in relation to a patent means the doing of anything by virtue of Sections

55 to 57 of the Patents Act 1977 which otherwise would be an infringement of the patent and in relation to a Registered Design has the meaning given in paragraph 2A(6) of the First Schedule to the Registered Designs Act 1949.

E15.18 Nothing in this Condition shall be taken as an authorisation or promise of an authorisation under Section 240 of the Copyright, Designs and Patents Act 1988.


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PART F - CONTROL OF THE CONTRACT F1 TRANSFER AND SUB-CONTRACTING

The use of Sub-Contractors for this Contract shall be notified in accordance with Annex L F1.1 Except where F1.4 and 5 applies, the Contractor shall not transfer, sell, assign, sub-contract,

novate or in any other way dispose of the Contract or any part of it or any benefit, interest or advantage without prior Approval. Sub-contracting any part of the Contract shall not relieve the Contractor of any of its obligations or duties under the Contract.

F1.2 The Contractor shall be responsible for the acts and omissions of its Sub-Contractors as though they are its own.

F1.3 Where the Authority has consented to the placing of sub-contracts, copies of each sub-contract shall, at the request of the Authority, be sent by the Contractor to the Authority as soon as reasonably practicable.

F1.4 Notwithstanding Clause F1.1, the Contractor may assign to a third party (“the Assignee”) the right to receive payment of the Contract Price or any part thereof due to the Contractor under this Contract (including any interest which the Authority incurs under Clause C2.6 (Payment and VAT)). Any assignment under this Clause F1.4 shall be subject to:

(a) reduction of any sums in respect of which the Authority exercises it right of recovery under Clause C3 (Recovery of Sums Due);

(b) all related rights of the Authority under the contact in relation to the recovery of sums due but unpaid; and

(c) the Authority receiving notification under both Clauses F1.5 and F1.6.

F1.5 In the event that the Contractor assigns the right to receive the Contract price under Clause F1.4, the Contractor or the Assignee shall notify the Authority in writing of the assignment and the date upon which the assignment becomes effective.

F1,6 The Contractor shall ensure that the Assignee notifies the Authority of the Assignee’s contact information and bank account details to which the Authority shall make payment.

F1.7 The provisions of Clause C2 (Payment and VAT) shall continue to apply in all other respects after the assignment and shall not be amended without the Approval of the Authority.

F1.8 Subject to Clause F1.10, the Authority may assign, novate or otherwise dispose of its rights and obligations under the Contract or any part thereof to:

(a) any Contracting Authority; or (b) any other body established by the Crown or under statute in order substantially to

perform any of the functions that had previously been performed by the Authority; or (c) any private sector body which substantially performs the functions of the Authority,

provided that any such assignment, novation or other disposal shall not increase the burden of the Contractor’s obligations under the Contract.

F1.9 Any change in the legal status of the Authority such that it ceases to be a Contracting Authority shall not, subject to Clause F1.8, affect the validity of the Contract. In such circumstances, the Contract shall bind and inure to the benefit of any successor body to the Authority.

F1.10 If the rights and obligations under the Contract are assigned, novated or otherwise disposed of pursuant to Clause F1.6 to a body which is not a Contracting Authority or if there is a change in the legal status of the Authority such that it ceases to be a Contracting Authority (in the remainder of this Clause both such bodies being referred to as the “Transferee”):

(a) the rights of termination of the Authority in Clauses H1 (Termination on change of control and insolvency), H2 (Termination on Default) and H3 (Break) shall be available to the Contractor in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and

(b) the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under the Contract or any part thereof with the prior consent in writing


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of the Contractor.

F1.11 The Authority may disclose to any Transferee any Confidential Information of the Contractor which relates to the performance of the Contractor’s obligations under the Contract. In such circumstances the Authority shall authorise the Transferee to use such Confidential Information only for purposes relating to the performance of the Contractor’s obligations under the Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Confidential Information.

F1.12 Each Party shall at its own cost and expense carry out, or use all reasonable endeavours to ensure the carrying out of, whatever further actions (including the execution of further documents) the other Party reasonably requires from time to time for the purpose of giving that other party the full benefit of the provisions of the Contract.

F2 SEVERABILITY

If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of the Contract shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated.

F3 REMEDIES IN THE EVENT OF INADEQUATE PERFORMANCE

F3.1 Where a complaint is received about the standard of Services or about the manner in which any Services have been supplied or work has been performed or about the materials or procedures used or about any other matter connected with the performance of the Contractor’s obligations under the Contract, then the Authority shall notify the Contractor, and where considered appropriate by the Authority, investigate the complaint. The Authority may, in its sole discretion, uphold the complaint and take further action in accordance with Clause H2 (Termination on Default) of the Contract.

F3.2 In the event that the Authority is of the reasonable opinion that there has been a material breach of the Contract by the Contractor, then the Authority may, without prejudice to its rights under Clause H2 (Termination on Default), do any of the following:

(a) without terminating the Contract, itself supply or procure the supply of all or part of the Services until such time as the Contractor shall have demonstrated to the reasonable satisfaction of the Authority that the Contractor will once more be able to supply all or such part of the Services in accordance with the Contract;

(b) without terminating the whole of the Contract, terminate the Contract in respect of part of the Services only (whereupon a corresponding reduction in the Contract Price shall be made) and thereafter itself supply or procure a third party to supply such part of the Services; and/or

(c) terminate, in accordance with Clause H2 (Termination on Default), the whole of the Contract.

F3.3 Without prejudice to its right under Clause C3 (Recovery of Sums Due), the Authority may charge the Contractor for any costs reasonably incurred and any reasonable administration costs in respect of the supply of any part of the Services by the Authority or a third party to the extent that such costs exceed the payment which would otherwise have been payable to the Contractor for such part of the Services and provided that the Authority uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement Services.

F3.4 If the Contractor fails to supply any of the Services in accordance with the provisions of the Contract and such failure is capable of remedy, then the Authority shall instruct the Contractor to remedy the failure and the Contractor shall at its own cost and expense remedy such failure (and any damage resulting from such failure) within 25 Working Days or such other period of time as the Authority may direct.

F3.5 In the event that: (a) the Contractor fails to comply with Clause F3.4 above and the failure is materially

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statutory duty; or (b) the Contractor persistently fails to comply with Clause F3.4 above,

the Authority may terminate the Contract with immediate effect by notice in writing.

F4 REMEDIES CUMULATIVE

Except as otherwise expressly provided by the Contract, all remedies available to either Party for breach of the Contract are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

F5 EXTENSION OF INITIAL CONTRACT PERIOD

Subject to Clause C4. (Price adjustment on extension of the Initial Contract Period), the Authority may, by giving written notice to the Contractor not less than 3 Month(s) prior to the last day of the Initial Contract Period, extend the Contract for a further period of up to 12 Month(s). The provisions of the Contract will apply (subject to any variation or adjustment to the Contract Price pursuant to Clause C4 (Price adjustment on extension of the Initial Contract Period)) throughout any such extended period.

F6 ENTIRE AGREEMENT

F6.1 The Contract constitutes the entire agreement between the Parties in respect of the matters dealt with therein. The Contract supersedes all prior negotiations between the Parties and all representations and undertakings made by one Party to the other, whether written or oral, except that this Clause shall not exclude liability in respect of any Fraud or fraudulent misrepresentation.

F6.2 In the event of, and only to the extent of, any conflict between the Clauses of the Contract, any document referred to in those Clauses and the Schedules, the conflict shall be resolved in accordance with the following order of precedence:

(a) the Clauses of the Contract; (b) the Schedules; and (c) any other document referred to in the Clauses of the Contract.

F7 CHANGES

In the event of tension, emergencies or hostilities affecting the Contract the Authority will advise the Contractor of any necessary alterations to the Contract and will negotiate a suitable adjustment to the Contract Conditions as appropriate.

F8 WAIVER AND CUMULATIVE REMEDIES AND DEFAULT

F8.1 The failure of the Contractor or the Authority to insist upon strict performance of any provision of this Contract or to exercise any right or remedy to which it is entitled hereunder, shall not constitute a waiver thereof and shall not cause a diminution of the obligations established by this Contract.

F8.2 A waiver of any default shall not constitute a waiver of any other default. Any failure to exercise or any delay in exercising a right or remedy by either party shall not constitute a waiver of that right or remedy or of any other rights or remedies.

F8.3 No waiver of any of the provisions of this Contract shall be effective unless it is expressed to be a waiver communicated by notice, in accordance with the provisions of Clause A5 (Notices).

F8.4 Should the Articles or Services, or any portion thereof not be delivered or performed within the time or times specified in the Contract, or in an Order where used, the Authority may without prejudice to any other remedies, by notice to the Contractor determine the Contract either as respects the Articles or Services which have not been delivered or performed in accordance with the Contract at the time of such determination, or as respects all the Articles or Services to which the Contract relates other than those delivered or performed in accordance with the Contract before that time.


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F8.5 Where the Authority has determined the Contract under Clause F8.1 hereof and without prejudice as aforesaid the Authority may replace all or any of the Articles and Services as respects which the Contract is so determined by purchasing or manufacturing other articles or services of the same or similar description, or by allocating other articles of the same or similar description in the possession or control of the Authority to the purposes for which the Articles replaced are required and there shall be recoverable from the Contractor the amount by which the aggregate of the cost of purchasing and of manufacturing articles or performing services in this way and of the value of any articles allocated as aforesaid exceeds the amount which would have been payable to the Contractor in respect of all the Articles or Services so replaced if they had been delivered or performed in accordance with the Contract.

F9 CHANGE AND CONFIGURATION CONTROL PROCEDURE

F9.1 All changes to the Contract shall be the subject of an amendment to the Contract issued and accepted in accordance with Clause F12 (Contract Change) of this Contract.

F9.2 The procedures for controlling changes to the Specification, as defined in Clause B22 (Specifications) of this Contract, and maintaining configuration control shall be as specified in the Contract.

F9.3 For the avoidance of doubt, this Clause neither alters nor conflicts with the provisions of Clause B22 (Specifications) of this Contract.

F10 ENABLING CONTRACTS – STANDING OFFER

In consideration for the payment of the sum of £1 (one pound) by the Authority to the Contractor, the Contractor shall not for the duration of the Contract withdraw from or amend in any way the standing offers contained in the Contract except by agreement in accordance with Clause F12 (Contract Change) of this Contract.

F11 EXIT PLAN AND CO-OPERATION ON EXPIRY OF CONTRACT

F11.1 The Contractor shall, when so required by the Authority in writing, prepare a draft Exit Plan and shall within thirty (30) days of such written request submit that plan to the Authority for approval.

F11.2 The Exit Plan shall address termination arising from any cause, and shall set out in full all activities to be undertaken by the Contractor to facilitate the smooth handover of the Services or any part of the Services to the Authority or to a replacement Contractor, and the timetable and manner in which such transfer of the Services is to be managed.

F11.3 The Exit Plan to be developed for the Contract will need to deal with a number of different scenarios, which can be summarised as follows

(a) Exit on full termination of the Contract with the transfer to an alternate Contractor or Authority

(b) Exit on partial termination i.e. how the terminated Services would be transferred to another Contractor or the Authority

(c) Novation of the whole Contract i.e. any activities required to transfer the rights and responsibilities of the Authority under the Contract or a third party

(d) Partial novation i.e. any activities needed to effect a partial novation of particular services to a third party

(e) Provisions to deal with the situation where the Contractor is part of the consortium that is awarded a Contract which includes services similar or equivalent to the defined Services

(f) Finally combinations of the above might be needed e.g. termination of part coupled with a novation of the remaining services

F11.4 The Authority shall within a reasonable time provide its comments on the draft Exit Plan. If necessary the parties shall discuss the Authority's comments and the Contractor shall, within thirty (30) days of receipt of those comments, prepare a revised Exit Plan which addresses the Authority's comments and submit it to the Authority for approval. This process shall be repeated until the Exit Plan has been approved in writing by the Authority.


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F11.5 The Authority and the Contractor shall in agreeing the Exit Plan emphasise the need for continuity of service delivery and minimum disruption to the Authority’s business during the Exit Period.

F11.6 Once the Authority has approved the Exit Plan in writing it shall be incorporated into the termination clause via the change Control process.

F11.7 The Contractor shall at any time during the term of this Contract, within 30 days of a written request by the Authority, produce an updated Exit Plan and submit it to the Authority for approval.

F11.8 The Contractor shall utilise for the Exit Plan a project management methodology meeting the requirements of ISO 9002

F11.9 The management responsibility applicable to provision of the Services during the Exit Period shall be vested in a Transition Manager appointed by the Contractor who shall liaise and consult with a Service Manager appointed by the Authority. The Transition Manager and Service Manager shall be members of the Project Review Board and shall develop the specific Exit Plan with the replacement Contractor.

F11.10 The Contractor shall provide handover assistance in accordance with this Schedule and the Exit Plan during the Exit Period.

F11.11 In addition to the specific requirements of the Exit Plan, the Contractor shall as part of the Services co-operate fully with any third party engaged by the Authority in order to ensure a seamless TUPE Transfer and Service transition in passing responsibility for the provision of the Services (or equivalent or alternative services) to the Authority or to any replacement Contractor or third party nominated by the Authority.

F11.12 The Contractor shall: (a) continue to deliver the then current Services in accordance with the Schedule of

Requirements until the Transfer Date; (b) on request provide the Authority with an up-to-date operational services manual

detailing how the Contractor performs and delivers the Services under this Agreement, and up-to-date versions of any other documents used by the Contractor to provide the Services;

(c) during the Exit Period provide the Authority and any replacement Contractor with reasonable access to the Contractor’s staff who were providing the Services during the twelve (12) months prior to the Exit Period;

(d) provide all such information relating to the Services and the method of delivering the Services as may be required by the Authority or a replacement Contractor;

(e) forthwith following the Transfer Date return to the Authority all copies of any information or materials relating to the Services which are the property of the Authority and then in the possession of the Contractor;

F11.13 Upon the expiry of the Contract the Contractor agrees to co-operate with the Authority to such extent as he may be reasonably required to do so for a period of up to 6 months from the date of expiry, such period to be determined by the Authority, to ensure an orderly and efficient transition from the management by the Contractor to management by the Authority or some other person.

F11.14 The Authority and the Contractor shall agree a fair and reasonable price for satisfying the provisions of this Clause.

F12 CONTRACT CHANGE

F12.1 Where the Authority or the Contractor, during the life of the Contract, sees the need for change to any aspect of the Contract, the Authority may at any time request, and the Contractor at any time recommend such change, and propose an amendment to the Contract.

F12.2 Any proposed changes to Contract terms and conditions will be subject to a formal, written Contract Amendment raised by the Authority.


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F12.3 Additional or supplementary services that are complementary and fall within the scope of the Contract may be added to the Contract in accordance with Clause F12.1 above subject to approval by the Authority.

F12.4 Neither the Authority nor the Contractor shall unreasonably withhold its agreement to any change.

F12.5 Unless the Authority and the Contractor otherwise agree in writing there shall be no presumption that the obligations undertaken by either party in connection with the Contract is in any way changed, until an amendment to the Contract has been effected in accordance with Clause F12.2.

F12.6 No amendment to the provisions of this Contract shall be effective unless made in accordance with Clauses F12.1 to F12.6.


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PART G - LIABILITIES G1 LIABILITY, INDEMNITY AND INSURANCE

G1.1 Neither Party excludes or limits liability to the other Party for: (a) death or personal injury caused by its negligence; or (b) Fraud; or (c) fraudulent misrepresentation; or (d) any breach of any obligations implied by Section 2 of the Supply of Goods and

Services Act 1982.

G1.2 Subject to Clauses G1.3 and G1.4, the Contractor shall indemnify the Authority and keep the Authority indemnified fully against all claims, proceedings, actions, damages, costs, expenses and any other liabilities which may arise out of, or in consequence of, the supply, or the late or purported supply, of the Services or the performance or non-performance by the Contractor of its obligations under the Contract or the presence of the Contractor or any Staff on the Premises, including in respect of any death or personal injury, loss of or damage to property, financial loss arising from any advice given or omitted to be given by the Contractor, or any other loss which is caused directly or indirectly by any act or omission of the Contractor.

G1.3 The Contractor shall not be responsible for any injury, loss, damage, cost or expense if and to the extent that it is caused by the negligence or wilful misconduct of the Authority or by breach by the Authority of its obligations under the Contract.

G1.4 This is an Enabling Contract and the Authority is unable to assess all possible risks associated with many potential customers / demanders requesting a variety of services at sites worldwide. Therefore and always subject to Clause G1.1 it is agreed that:

(a) the liability of the Contractor to each Customer for all Defaults (excluding liability for property damage in Clause C22.4) under or in connection with the Contract whether arising from breach of contract |||| ||||||||||||||||| |||||||| ||| ||||| |||||||||| ||||||||||||| |||||| ||||||||||| ||||||||||||| |||||||||||||||||||||| |||||| |||||||||| |||| ||||||||||| ||| |||||||||||||||||| |||||||||||| ||||||||||||||||| |||||||||||| ||||||||||||| ||||||| ||| |||||||||||||||||| |||||| ||||||||||||||||| |||||||| |||||| ||||||||||||| ||||||| |||||||||||||| ||||||| |||||||||||| |||||| ||||||||||||| ||||||||||||| ||| |||||| ||||||||||||||| |||||||| |||| |||||||||||||| ||||| |||||| ||||| ||||||||||| ||||||||||| ||| |||||||||| |||||| |||||||||||| ||||||||||||

(c) the Authority shall participate in a full appraisal of risk and legal aspects for any occurrence; and

(d) the Authority ensures that it will act reasonably in any liability related matters, but ultimately will have to let the Courts decide on the extent of any liability payment.

G1.5 Subject always to Clause G1.1, in no event shall either Party be liable to the other for any: (a) loss of profits, business, revenue or goodwill; and/or (b) loss of savings (whether anticipated or otherwise); and/or (c) indirect or consequential loss or damage.

G1.6 The Contractor shall not exclude liability for additional operational, administrative costs and/or expenses or wasted expenditure resulting from the direct Default of the Contractor.

G1.7 The Contractor shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which may be incurred by the Contractor, arising out of the Contractor’s performance of its obligations under the Contract, including death or personal injury, loss of or damage to property or any other loss. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the Contractor. Such insurance shall be maintained for the duration of the Contract Period [and for a minimum of 6 (six) years following the expiration or earlier termination of the Contract].

G1.8 The Contractor shall hold employer’s liability insurance in respect of Staff in accordance with any legal requirement from time to time in force.

G1.9 The Contractor shall give the Authority, on request, copies of all insurance policies referred to in this Clause or a broker’s verification of insurance to demonstrate that the appropriate


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cover is in place, together with receipts or other evidence of payment of the latest premiums due under those policies.

G1.10 If, for whatever reason, the Contractor fails to give effect to and maintain the insurances required by the provisions of the Contract the Authority may make alternative arrangements to protect its interests and may recover the costs of such arrangements from the Contractor.

G1.11 The provisions of any insurance or the amount of cover shall not relieve the Contractor of any liabilities under the Contract. It shall be the responsibility of the Contractor to determine the amount of insurance cover that will be adequate to enable the Contractor to satisfy any liability referred to in Clause G1.2.

G2 PROFESSIONAL INDEMNITY

The Contractor shall effect and maintain appropriate professional indemnity insurance cover during the Contract Period and shall ensure that all agents, professional consultants and Sub-Contractors involved in the supply of the Services do the same. Such insurance shall be maintained for a minimum of 6 (six) years following the expiration or earlier termination of the Contract.

G3 WARRANTIES AND REPRESENTATIONS

The Contractor warrants and represents that: (a) it has full capacity and Authority and all necessary consents (including where its

procedures so require, the consent of its parent company) to enter into and perform its obligations under the Contract and that the Contract is executed by a duly authorised representative of the Contractor;

(b) in entering the Contract it has not committed any Fraud; (c) as at the Commencement Date, all information contained in the Tender remains true,

accurate and not misleading, save as may have been specifically disclosed in writing to the Authority prior to execution of the Contract;

(d) no claim is being asserted and no litigation, arbitration or administrative proceeding is presently in progress or, to the best of its knowledge and belief, pending or threatened against it or any of its assets which will or might have a material adverse effect on its ability to perform its obligations under the Contract;

(e) it is not subject to any contractual obligation, compliance with which is likely to have a material adverse effect on its ability to perform its obligations under the Contract;

(f) no proceedings or other steps have been taken and not discharged (nor, to the best of its knowledge, are threatened) for the winding up of the Contractor or for its dissolution or for the appointment of a receiver, administrative receiver, liquidator, manager, administrator or similar officer in relation to any of the Contractor’s assets or revenue;

(g) it owns, has obtained or is able to obtain, valid licences for all Intellectual Property Rights that are necessary for the performance of its obligations under the Contract;

(h) in the three 3 years prior to the date of the Contract: (i) it has conducted all financial accounting and reporting activities in compliance in all

material respects with the generally accepted accounting principles that apply to it in any country where it files accounts;

(I) it has been in full compliance with all applicable securities and tax laws and regulations in the jurisdiction in which it is established; and

(II) it has not done or omitted to do anything which could have a material adverse effect on its assets, financial condition or position as an ongoing business concern or its ability to fulfil its obligations under the Contract.

G4 DEFECT INVESTIGATION AND LIABILITY

G4.1 The procedure for the reporting, investigation and rectification of all defects whether or not they relate to design, software or manufacturing shall be as agreed between the Contractor and the Authority.

G4.2 Where it is established that, pursuant to the Contract or any other contract relating to the Articles, the Contractor bears the liability for any of the costs of investigating, repairing or rectifying a defect, the costs of any such work undertaken by the Contractor shall be borne


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by the Contractor.

G4.3 If liability for the defect is in dispute, the Contractor shall separately identify and record all related costs.

G4.4 Any Article, and work thereon, which after examination is required to be rectified/repaired at the Authority’s or Contractor’s expense (or if liability is in dispute) is to be notified to the Integrated Project Team (IPT) Project Manager or Equipment Support Manager prior to any work being put in hand or transfer to any other contract placed by the Authority, e.g. for repair, overhaul and/or modification.

G4.5 The Contractor shall submit to the Commercial Staff a tasks list, in duplicate, countersigned by the IPT Project Manager/Equipment Support Manager, of the Articles or work which have been investigated/rectified. The list shall be submitted in accordance with the timescales laid down in the Contract and if none is specified within four weeks of completion of all work. The list shall include:

(a) the description, including, where appropriate, the Stores Reference Number and Serial Number of all Articles or work investigated;

(b) the description of all other tasks (e.g. design of modification, amendments of drawings);

(c) against each Item, whether liability has been accepted by the Authority or the Contractor, or is still to be determined, quoting dates and references of relevant correspondence;

(d) against each Item, the Contract Number and Item Number against which repair, overhaul and/or modification of the Articles has been or will be carried out;

(e) where liability rests with the Contractor for any item, for contracts subject to UNIQUE IDENTIFIERS, the Unique Order Identifier;. And

(f) where overhaul, repair or modification has already been completed, for contracts subject to UNIQUE IDENTIFIERS, the Unique Order Identifier for any work for which he has already accepted liability


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PART H - DEFAULT, DISRUPTION AND TERMINATION H1 TERMINATION ON INSOLVENCY AND CHANGE OF CONTROL

H1.1 The Authority may terminate the Contract with immediate effect by notice in writing where the Contractor is a company and in respect of the Contractor:

(a) a proposal is made for a voluntary arrangement within Part I of the Insolvency Act 1986 or of any other composition scheme or arrangement with, or assignment for the benefit of, its creditors; or

(b) a shareholders’ 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 as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation); or

(c) a petition is presented for its winding up (which is not dismissed within 14 days of its service) or an application is made for the appointment of a provisional liquidator or a creditors’ meeting is convened pursuant to section 98 of the Insolvency Act 1986; or

(d) a receiver, administrative receiver or similar officer is appointed over the whole or any part of its business or assets; or

(e) an application order is made either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given; or

(f) it is or becomes insolvent within the meaning of section 123 of the Insolvency Act 1986; or

(g) being a “small company” within the meaning of section 247(3) of the Companies Act 1985, a moratorium comes into force pursuant to Schedule A1 of the Insolvency Act 1986; or

(h) any event similar to those listed in H1.1(a)-(g) occurs under the law of any other jurisdiction.

H1.2 The Authority may terminate the Contract with immediate effect by notice in writing where the Contractor is an individual and:

(a) an application for an interim order is made pursuant to sections 252-253 of the Insolvency Act 1986 or a proposal is made for any composition scheme or arrangement with, or assignment for the benefit of, the Contractor’s creditors; or

(b) a petition is presented and not dismissed within 14 days or order made for the Contractor’s bankruptcy; or

(c) a receiver, or similar officer is appointed over the whole or any part of the Contractor’s assets or a person becomes entitled to appoint a receiver, or similar officer over the whole or any part of his assets; or

(d) the Contractor is unable to pay his debts or has no reasonable prospect of doing so, in either case within the meaning of section 268 of the Insolvency Act 1986; or

(e) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Contractor’s assets and such attachment or process is not discharged within 14 days; or

(f) he dies or is adjudged incapable of managing his affairs within the meaning of Part VII of the Mental Capacity Act 2005; or

(g) he suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of his business.

H1.3 The Contractor shall notify the Authority immediately if the Contractor undergoes a change of control within the meaning of section 416 of the Income and Corporation Taxes Act 1988 (“change of control”). The Authority may terminate the Contract by notice in writing with immediate effect within six months of:

(a) being notified that a change of control has occurred; or (b) where no notification has been made, the date that the Authority becomes aware of the

change of control,

but shall not be permitted to terminate where an Approval was granted prior to the change of control.


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H2 TERMINATION ON DEFAULT

H2.1 The Authority may terminate the Contract by written notice to the Contractor with immediate effect if the Contractor commits a Default and if:

(a) the Contractor has not remedied the Default to the satisfaction of the Authority within 25 Working Days, or such other period as may be specified by the Authority, after issue of a written notice specifying the Default and requesting it to be remedied; or

(b) the Default is not, in the opinion of the Authority, capable of remedy; or (c) the Default is a material breach of the Contract.

H2.2 If the Authority fails to pay the Contractor undisputed sums of money when due, the Contractor shall notify the Authority in writing of such failure to pay. If the Authority fails to pay such undisputed sums within 90 Working Days of the date of such written notice, the Contractor may terminate the Contract in writing with immediate effect, save that such right of termination shall not apply where the failure to pay is due to the Authority exercising its rights under Clauses C3.1 (Recovery of Sums Due).

H3 BREAK

H3.1 The Authority shall, in addition to its power under any other of the Conditions of Contract, have power to determine the Contract at any time by giving to the Contractor a minimum of 6 months written notice to determine the Contract under this Condition, and upon the expiration of the notice the Contract shall be determined without prejudice to the rights of the parties accrued to the date of determination but subject to the operation of the following provisions of this Condition.

H3.2 In the event of such notice being given the Authority shall, at any time before the expiration of the notice, be entitled to exercise and shall, as soon as may be reasonably practicable within that period, exercise such of the following powers as it considers expedient:

(a) to direct the Contractor, where production has not been commenced, to refrain from commencing production;

(b) to direct the Contractor to complete in accordance with the Contract all or any of the Articles, or any part or component thereof in course of manufacture at the expiration of the notice and to deliver the same at such time or times as may be mutually agreed on, or, in default of agreement, at the time or times provided by the Contract. All Articles delivered by the Contractor in accordance with such directions and accepted shall be paid for at a fair and reasonable price;

(c) to direct that the Contractor shall, as soon as may be reasonably practicable after the receipt of such notice;

(I) take such steps as will ensure that the production rate of the Articles and parts and components thereof is reduced as rapidly as possible;

(II) as far as possible, consistent with sub-clause H3.2(c)(i) of this clause, concentrate work on the completion of parts and components already in a partly manufactured state;

(III) determine on the best possible terms such sub-contracts and orders for materials and parts and components bought out in a partly manufactured or wholly manufactured state as have not been completed, observing in this connection any direction given under sub clause b) and sub-clause c)i. and ii. of this clause as far as may be possible.

H3.3 In the event of such notice being given: (a) for Articles; (I) the Authority shall take over from the Contractor at a fair and reasonable price all

unused and undamaged materiel and Articles in course of manufacture in the possession of the Contractor at the expiration of the notice and properly provided by or supplied to the Contractor for the performance of the Contract except such materiel and Articles in course of manufacture as the Contractor shall, with the concurrence of the Authority, elect to retain;

(II) the Contractor shall prepare and deliver to the Authority within an agreed period, or in default of agreement within such period as the Authority may specify, a list of all such unused and undamaged materiel and Articles in course of


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manufacture liable to be taken over by or previously belonging to the Authority and shall deliver such materiel and Articles in course of manufacture in accordance with the directions of the Authority who shall pay to the Contractor fair and reasonable handling and delivery charges incurred in complying with such directions.

(b) for Services, the Authority shall pay the Contractor fair and reasonable prices for each Service performed or partially performed in accordance with the Contract;

(c) the Authority shall indemnify the Contractor against any commitments, liabilities or expenditure which are reasonable and properly chargeable by the Contractor in connection with the Contract to the extent to which the said commitments, liabilities or expenditure would otherwise represent an unavoidable loss by the Contractor by reason of the determination of the Contract.Provided that in the event of the Contractor not having observed any direction given to him under Clause H3.2 of this Condition the Authority shall not under this Clause pay any sums in excess of those which the Authority would have paid had the Contractor observed that direction.

H3.4 If in any particular case hardship to the Contractor should arise from the operation of this Condition it shall be open to the Contractor to refer the circumstances to the Authority who, on being satisfied that such hardship exists shall make such allowance, if any, as in its opinion is reasonable and the decision of the Authority on any matter or thing arising out of this Clause shall be final and conclusive.

H3.5 The Authority shall not in any case be liable to pay under the provisions of the Condition anysum which, when taken together with any sums paid or due or becoming due to theContractor under the Contract, shall exceed the total price of the Articles payable under the Contract.

H3.6 The Contractor shall in any sub-contract or order, the value of which is £50,000 or over madeor placed by it with any one subcontractor or supplier in connection with or for the purpose ofthe Contract, take power to determine such subcontract or order under this Condition uponthe terms of Clauses H3.1 to H3.5 of this Condition save only that:

(a) the name of the Contractor shall be substituted for the Authority throughout except in sub-clause H3.3(a)(i). where it last occurs and in Clause H3.4; and

(b) the period of the notice of determination shall be 3 months ; and (c) the Contractor shall not exercise the power taken in those subcontracts until the

Authority (that is to say the Secretary of State for Defence) has exercised its power under Clause H3.1 of this Condition; each of those subcontracts shall restrict the Contractor’s right to exercise that power in the manner described in this sub-clause H3.6(c) by including in the power “Provided that this power is not exercised unless the main contract has been determined by the Secretary of State pursuant to the provisions of this Clause H3.

H3.7 Claims for payment under this condition shall be made in accordance with the procedure set out in Annex N (DEFFORM 43.)

H4 CONSEQUENCES OF EXPIRY OR TERMINATION

H4.1 Where the Authority terminates the Contract under Clause H2 (Termination on Default) and then makes other arrangements for the supply of Services, the Authority may recover from the Contractor the cost reasonably incurred of making those other arrangements and any additional expenditure incurred by the Authority throughout the remainder of the Contract Period. The Authority shall take all reasonable steps to mitigate such additional expenditure. Where the Contract is terminated under Clause H2 (Termination on Default), no further payments shall be payable by the Authority to the Contractor (for Services supplied by the Contractor prior to termination and in accordance with the Contract but where the payment has yet to be made by the Authority), until the Authority has established the final cost of making the other arrangements envisaged under this Clause.

H4.2 Subject to Clause G1 (Liability, Indemnity and Insurance), where the Authority terminates the Contract under Clause H3 (Break), the Authority shall indemnify the Contractor against any commitments, liabilities or expenditure which represent an unavoidable direct loss to


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the Contractor by reason of the termination of the Contract, provided that the Contractor takes all reasonable steps to mitigate such loss. Where the Contractor holds insurance, the Authority shall only indemnify the Contractor for those unavoidable direct costs that are not covered by the insurance available. The Contractor shall submit a fully itemised and costed list of unavoidable direct loss which it is seeking to recover from the Authority, with supporting evidence, of losses reasonably and actually incurred by the Contractor as a result of termination under Clause H3 (Break).

H4.3 The Authority shall not be liable under Clause H4.2 to pay any sum which: (a) was claimable under insurance held by the Contractor, and the Contractor has failed to

make a claim on its insurance, or has failed to make a claim in accordance with the procedural requirements of the insurance policy;

(b) when added to any sums paid or due to the Contractor under the Contract, exceeds the total sum that would have been payable to the Contractor if the Contract had not been terminated prior to the expiry of the Contract Period; or

(c) is a claim by the Contractor for loss of profit, due to early termination of the Contract.

H4.4 Save as otherwise expressly provided in the Contract: (a) termination or expiry of the Contract shall be without prejudice to any rights, remedies

or obligations accrued under the Contract prior to termination or expiration and nothing in the Contract shall prejudice the right of either Party to recover any amount outstanding at such termination or expiry; and

(b) termination of the Contract shall not affect the continuing rights, remedies or obligations of the Authority or the Contractor under Clauses C2 (Payment and VAT), C3 (Recovery of Sums Due), D1 (Prevention of Corruption), E1 (Data Protection Act), E2 (Official Secrets Acts 1911 to 1989, Section 182 of the Finance Act 1989), E3 (Freedom of Information), E4(Disclosure of Information, E7 (Audit), E13 (Intellectual Property Rights), E14 (Intellectual Property Rights In Software), E15 (Third Party Intellectual Property - Rights And Restrictions Notifications) F4 (Remedies Cumulative), G1 (Liability, Indemnity and Insurance), G2 (Professional Indemnity), H4 (Consequences of Expiry or Termination), H6 (Recovery upon Expiry or Termination) and I1 (Law (English)).

H5 DISRUPTION

H5.1 The Contractor shall take reasonable care to ensure that in the performance of its obligations under the Contract it does not disrupt the operations of the Authority, its employees or any other Contractor employed by the Authority.

H5.2 The Contractor shall immediately inform the Authority of any actual or potential industrial action, whether such action be by their own employees or others, which affects or might affect its ability at any time to perform its obligations under the Contract.

H5.3 In the event of industrial action by the Staff, the Contractor shall seek approval to its proposals to continue to perform its obligations under the Contract.

H5.4 If the Contractor’s proposals referred to in Clause H5.3 are considered insufficient or unacceptable by the Authority acting reasonably, then the Contract may be terminated with immediate effect by the Authority by notice in writing.

H5.5 If the Contractor is temporarily unable to fulfil the requirements of the Contract owing to disruption of normal business of the Authority, the Contractor may request a reasonable allowance of time and in addition, the Authority will reimburse any additional expense reasonably incurred by the Contractor as a direct result of such disruption.

H6 RECOVERY UPON TERMINATION

H6.1 On the termination of the Contract for any reason, the Contractor shall: (a) immediately return to the Authority all Confidential Information, Personal Data and IP

Materials in its possession or in the possession or under the control of any permitted suppliers or Sub-Contractors, which was obtained or produced in the course of providing the Services;

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information and access keys) provided to the Contractor under Clause B9 (Scope of this Contract). Such property shall be handed back in good working order (allowance shall be made for reasonable wear and tear);

(c) assist and co-operate with the Authority to ensure an orderly transition of the provision of the Services to the Replacement Contractor and/or the completion of any work in progress.

(d) promptly provide all information concerning the provision of the Services which may reasonably be requested by the Authority for the purposes of adequately understanding the manner in which the Services have been provided or for the purpose of allowing the Authority or the Replacement Contractor to conduct due diligence.

H6.2 If the Contractor fails to comply with sub-Clauses H6.1(a) and (b), the Authority may recover possession thereof and the Contractor grants a licence to the Authority or its appointed agents to enter (for the purposes of such recovery) any premises of the Contractor or its permitted suppliers or Sub-Contractors where any such items may be held.

H6.3 Where the end of the Contract Period arises due to the Contractor’s Default, the Contractor shall provide all assistance under sub-Clauses H6.1(c) and (d) free of charge. Otherwise, the Authority shall pay the Contractor’s reasonable costs of providing the assistance and the Contractor shall take all reasonable steps to mitigate such costs.

H7 FORCE MAJEURE

H7.1 For the purposes of this Contract, the expression “Force Majeure Event” shall mean any cause affecting the performance by either the Authority or the Contractor of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including acts of God, riots, war or armed conflict, acts of terrorism, acts of government, local government or Regulatory Bodies, fire, flood or any disaster or an industrial dispute affecting a third party for which a substitute third party is not reasonably available but excluding any industrial dispute relating to the Contractor, the Contractor Personnel or any other failure in the Contractor or the Sub-Contractor’s supply chain.

H7.2 Subject to the remaining provisions of this Clause H7, either party to this Contract may claim relief from liability for non-performance of its obligations to the extent this is due to a Force Majeure Event.

H7.3 Any act, event, omission, happening or non-happening will only be considered a Force Majeure Event if it is not attributable to the wilful act, neglect or failure to take reasonable precautions of the Affected Party, its employees, servants or agents (including where the Affected Party is the Contractor, its Sub-Contractors and the Contractor Personnel) or the failure of either the Authority or the Contractor to perform its obligations under this Contract. The Contractor cannot claim relief from a Force Majeure Event to the extent that it is required to comply with the BCDR Plan but has failed to do so.

H7.4 It is expressly agreed that any failure by the Contractor to perform or any delay by the Contractor in performing its obligations under this Contract which results from any failure or delay in the performance of its obligations by any person, firm or company with which the Contractor shall have entered into any contract, supply arrangement or Sub-Contract or otherwise shall be regarded as a failure or delay due to a Force Majeure Event only in the event that such person, firm or company shall itself be prevented from or delayed in complying with its obligations under such contract, supply arrangement or Sub-Contract or otherwise as a result of circumstances of a Force Majeure Event.

H7.5 If an Affected Party becomes aware of circumstances of a Force Majeure Event which give rise to or which are likely to give rise to any such failure or delay on its part, it shall notify the other party by the most expeditious method available and shall inform the other party of the likely duration of any failure or delay caused by those circumstances. The notification shall include details of the Force Majeure Event together with evidence of its effect on the obligations of the Affected Party, and any action the Affected Party proposes to take to mitigate its effect.


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H7.6 In the event of a Force Majeure Event, the Authority and the Contractor shall use all reasonable endeavours to continue to perform, or resume performance of, all of their obligations under this Contract.

H7.7 Provided always that (as applicable) the Authority or the Contractor use reasonable endeavours pursuant to the provisions of Clause H7.6, it shall not, in any circumstances, be liable to the other for any loss of any kind whatsoever, including any damages or abatement of Charges, whether directly or indirectly caused to, or incurred by, the other party by reason of any failure or delay in the performance of its obligations hereunder which is due to a Force Majeure Event.

H7.8 As soon as practicable following the Affected Party’s notification, 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 this Contract. Where the Contractor is the Affected Party, it shall take all steps in accordance with Good Industry Practice to overcome or minimise the consequences of the Force Majeure Event.

H7.9 The Affected Party shall notify the other party as soon as practicable after the Force Majeure Event ceases or no longer causes the Affected Party to be unable to comply with its obligations under this Contract. Following such notification, this Contract shall continue to be performed on the terms existing immediately before the occurrence of the Force Majeure Event unless agreed otherwise by the parties.

H7.10 It is hereby expressly declared that the only events that shall afford relief from liability for failure or delay shall be events recognised as Force Majeure Events under this Clause H7.

H8 FINANCIAL STANDING OF THE CONTRACTOR

H8.1 The Authority may from time to time during the Term assess the financial standing of the Contractor including an assessment of credit ratings as published by a credit rating agency appointed by the Authority. In the event that the Authority considers that the financial status of the Contractor represents a substantial risk to the Contractor’s ability to perform its obligations under this Contract the Authority will discuss that risk with the Contractor.

H8.2 Following such discussions, if the Authority concludes that the financial status of the Contractor remains a substantial risk, the Authority may by notice in writing either:

(a) forbid the Contractor from accepting further Orders without specific prior written agreement from the Authority; or

(b) terminate this Contract.

H8.3 In the event that the Authority takes the actions specified in sub-Clause H8.2(a), the Contractor may invite the Authority at any time to carry out a new assessment, giving evidence of changes to its financial standing.

H8.4 Where the Authority carries out a new assessment, and it concludes that there is no longer a substantial risk to the Contractor’s ability to perform its obligations under this Contract , it shall advise the Contractor that the provisions of sub-Clause H8.2(a) no longer applies.

H8.5 Where the Authority carries out a new assessment, and it concludes that there remains a substantial risk to the Contractor’s ability to perform its obligations under this Contract, the Authority may by notice in writing terminate this Contract.

H9 CHANGE OF CONTROL OF CONTRACTOR

H9.1 The Contractor shall inform the Authority, as soon as practicable, in writing of any material change in control of the Contractor. The Contractor shall not be required to submit any advice which is unlawful or is in breach of either any pre-existing non-disclosure agreement or any regulations governing the conduct of the Contractor in the UK or other jurisdictions where the Contractor may be subject to legal sanction arising from issue of such advice.

H9.2 For the purposes of this Clause ‘control’ means the power of a person to secure that the affairs of the Contractor are conducted in accordance with the wishes of that person:

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to, the Contractor; or (b) by virtue of any powers conferred by the constitutional or corporate documents, or any

other document, regulating the Contractor. and a change of control occurs if a person who controls the Contractor ceases to do so or if

another person acquires control of the Contractor.

H9.3 The Contractor shall inform the Authority on each occurrence of a material change in control. Each advice shall be taken to be in respect of all contracts with the Authority. The advice should be submitted to: Mergers & Acquisitions Section Directorate of Supplier Relations Ash 1 #3103 Ministry of Defence Abbey Wood Bristol BS34 8JH

H9.4 Advice by the Contractor of any material change of control shall not prejudice the existing rights of the Authority or the Contractor under the Contract nor create or imply any rights of either the Contractor or the Authority additional to the Authority’s right to receive that information.

H10 SUSPENSION AND TERMINATION

H10.1 The Authority may at any time by notice in writing suspend this Contract by ceasing to publish details of any or all of the Contractor’s Articles in the ICS Catalogue and forbidding the Contractor to accept further Orders for those Articles without specific prior written agreement from the Authority in the event that:

(a) the Contractor does not maintain its ability and capacity in respect of those Articles in accordance with the provisions of Clauses B8 (Requirements) and G3 (Warranties and Representations); or

(b) the Contractor fails to submit Management Information in respect of those Articles in accordance with the provisions of Clause B24 (Performance, Monitoring And Reporting – Supplier & Authority Performance Measurement Process); or

(c) the Contractor fails to pay the Business Service Charge in respect of those Articles in accordance with the provisions of Clause C12 (Business Service Charge)

(d) the Authority considers that the financial status of the Contractor represents a substantial risk to the Contractor’s ability to perform its obligations under Contracts pursuant to Clause H8 (Financial Standing of the Contractor); or

(e) the Contractor fails to comply with any notice issued by the Authority in accordance with Clause E7 (Audit).

H10.2 The Authority may at any time by notice in writing terminate this Contract as from the date of service of such notice, or a later date specified in such notice, if any Termination Events occur.

H10.3 Termination Events

A change of control, as defined by Section 416 of the Income and Corporation Taxes Act 1988, in the Contractor or its Parent Company where the proposed new owner has:

(a) been convicted of a criminal offence relating to the conduct of its business or profession; or

(b) committed an act of grave misconduct in the course of its business or profession; or (c) failed to comply with any obligations relating to the payment of any taxes or social

security contributions; or (d) made any serious misrepresentations in the tendering process for any project or

matter in which the public sector has or had a significant participation; or (e) failed to obtain any necessary licences or membership of any relevant body.

H10.4

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security concerns arising from the new ownership or issues relating to the provision of the Articles by the new owner.

H10.5 Any of the events listed in Clauses H10.3 (a) to H10.3 (e) (inclusive) occur in relation to or in respect of the Contractor itself, or if the Authority has reasonable grounds to object to the Contractor arising from security concerns in respect of the Contractor.

H10.6 Where the circumstances detailed in Clauses D1, G3, E13, H8.2 or H8.5

H10.7 For the purposes of Clause H10.3, the following shall be disregarded: (a) any change in beneficial or legal ownership of any shares that are listed on a stock

exchange resulting in the relevant shareholding being less than or equal to five per cent (5%) of the total issued share capital; and

(b) any transfer of shares or of any interest in shares by a person to its Affiliate where such transfer forms part of a bona fide reorganisation or restructuring.

H10.8 The Contractor shall promptly notify the Authority in writing on each occasion of the occurrence of any of the events specified in Clause H10.3.

H10.9 The Authority shall only be permitted to exercise its rights pursuant to Clause H10.3 for six (6) months after service of a notice by the Contractor pursuant to Clause H1 relative to each such change of control and shall not be permitted to exercise such rights where the Authority has agreed in advance in writing to the particular change of control and such change of control takes place as proposed.

H10.10 The termination (howsoever arising) or expiry of this Contract pursuant to this Clause H10 shall be without prejudice to any rights of either the Authority or the Contractor that shall have accrued before the date of such termination or expiry.

H10.11 Save as aforesaid, the Contractor shall not be entitled to any payment from the Authority after the termination (howsoever arising) or expiry of this Contract.

H10.12 Failure to remedy a breach of warranties in accordance with the provisions of Clause G3 (Warranties and Representations).

H10.13 Without prejudice to the provisions of Clause H10.1 or H10.4, where the Authority considers that the Contractor has committed a Persistent Breach in relation to this Contract or any part thereof (including any part of the Articles), the Authority shall be entitled to serve a notice on the Contractor:

(a) specifying that it is a formal warning notice; (b) giving reasonable details of the breach; and (c) stating that such breach is a breach which, if it recurs or continues, may result in a

termination of this Contract or that part of the Articles affected by such breach.

H10.14 If, thirty (30) Days after service of a formal warning notice as described in Clause H10.13, the Contractor has failed to demonstrate to the satisfaction of the Authority that the breach specified has not continued or recurred and that the Contractor has put in place measures to ensure that such breach does not recur, then the Authority may deem such failure shall be a material Default not capable of remedy for the purposes of Clause H2.1(b).

H10.15 The Contractor shall not be entitled to suspend the supply of the Articles where it is in dispute with the Authority and shall instead follow the procedure set out in Clause I2 (Dispute Resolution (English Law)).

H11 TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) (TUPE) – AT CONTRACT EXPIREY EXCLUDES EX-AUTHORITY STAFF

Employment Matters

H11.1 Definitions

In this Clause unless the context otherwise requires and without prejudice to the provisions of the overall terms and conditions definitions, the following expressions shall have the following meanings:


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“Business Day” means any day excluding: (a) Saturdays and Sundays; (b) any public and statutory holidays in the UK; and (c) privilege days;

“Contract Award Date” means the date of this Contract;

“Employee Liability Information” has the same meaning as in regulation 11(2) of the Transfer Regulations.

“Expiry Date” means the date of expiry of this Contract by whatever means;

“New Provider” means any replacement service provider nominated by the Authority to provide the Services or the Authority itself where the Services or substantially similar services continue to be provided by the Authority upon or after the termination or expiry of this Contract;

“Previous Contractor” means HP Enterprise Services Defence & Security UK Ltd

“Previous Contractor Employee” means an employee who immediately prior to 0001 hours on the Relevant Transfer Date is an employee of the Previous Contractor and assigned to carry out the services which will be performed by the Contractor under this Contract;

“Previous Contractor Third Party Employee” means an employee of any third party employer contracted to provide services to the Previous Contractor the same as or similar to any of the Services who immediately before the Relevant Transfer to the Contractor or any Sub-Contractor is employed or engaged to carry out those services;

“Relevant Employee” means the Previous Contractor Employees, the Previous Contractor Third Party Employees and Previous Contractor Sub-contractor Employees;

“Relevant Statutory Scheme” has the same meaning as in regulation 8 of the Transfer Regulations;

“Relevant Transfer” means a transfer to the Contractor or Sub-Contractor of the Relevant Employees pursuant to this Contract and the Transfer Regulations;

“Relevant Transfer Date” means the date on which the Relevant Transfer is effected;

“Service Commencement Date” means the date of commencement of the Services [if different from date of contract award];]

“Sub-Contractor” means any person who enters into a Sub-Contract with the Contractor;]

“Subsequent Transferring Employee” means an employee assigned, engaged or employed in the provision of the Services who is transferred under the Transfer Regulations to a New Provider on expiry or termination of this Contract;

“Subsequent Contract” means the contract for Services with the New Provider;

“Subsequent Contract Award” means the award of a contract for the Services to a New Provider;

“Subsequent Relevant Transfer” means a transfer of employees assigned, engaged or employed in the provision of the Services from the Contractor or any Sub-Contractor to a New Provider under the Transfer Regulations;

“Subsequent Transfer Date” means the date on which the transfer of a Subsequent Transferring Employee takes place under the Transfer Regulations;

“Third Party Employees” means the employees of any third party employer contracted to provide services to the Authority the same as or similar to any of the Services who immediately before any relevant transfer of those services (within the meaning of the Transfer Regulations) to the Contractor or any Sub-Contractor is employed or engaged to carry out those services;


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“Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006; as amended from time to time, and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006, as amended from time to time, as appropriate;

Employees

H11.2 Within four (4) weeks of Service Commencement Date, the Authority shall provide the Contractor with the information listed in Annex O Parts 1 and 2 to this Clause H11 in respect of Relevant Employees together with any Employee Liability Information in respect of such Relevant Employees to the extent that such information and Employee Liability Information has been provided to the Authority by the Previous Contractor.

H11.3 The Authority shall provide the Contractor with any update to the information and Employee Liability Information provided under Clause H11.2 as soon as is reasonably practicable.

H11.4 The Authority does not warrant the accuracy of the information provided under Clauses H11.2 and H11.3 above.

H11.5 The Contractor and the Authority acknowledge that the provision of the Services under this Contract will constitute a Relevant Transfer.

H11.6 The Contractor agrees that from the Relevant Transfer Date the contracts of employment of any Relevant Employees together with any collective agreements (save insofar as such contracts and such agreements relate to benefits for old age, invalidity or survivors under any occupational pension scheme) will take effect as if originally made between the Contractor and the Relevant Employees (or the relevant trade union, as the case may be) subject to any variations to such contracts of employment made pursuant to regulation 9 of the Transfer Regulations, where applicable.

H11.7 Save for any liabilities in respect of Relevant Employees under a Relevant Statutory Scheme or Schemes, the Contractor or Sub-Contractor (as the case may be) shall have responsibility for all emoluments and outgoings (including without limitation all wages, bonuses, commissions, holiday entitlement accrued up to the Relevant Transfer Date, PAYE, national insurance contributions and contributions to retirement benefit schemes) in relation to the Relevant Employees with effect from and including the Relevant Transfer Date until the Expiry Date.

Cost Transfer Reporting

H11.8 The Contractor shall provide the Authority with the following information as part of the normal reporting regime of this Contract on an [annual] basis (to include information relating to employees transferred under the Transfer Regulations to Sub-Contractors as a result of this Contract):

(a) any proposed, agreed or imposed changes to terms and conditions of service in respect of persons wholly or mainly employed or engaged in provision of the Services under this Contract;

(b) disputes relating to compliance with the Transfer Regulations which are regarded as unresolved by a recognised Trade Union;

(c) any court action or tribunal proceedings relating to compliance with the Transfer Regulations;

(d) completed court action or tribunal proceedings relating to compliance with the Transfer Regulations; and

(e) out of court settlements relating to compliance with the Transfer Regulations if possible having regard to the wording of the settlement

and the Contractor acknowledges that the information referred to in this Clause H11.8 may also be used in considering the Contractor’s bid to re-let, or in considering the Contractor’s bid(s) for other contracts let by the Authority.

Information on Re-tender, Expiry or Termination

H11.9 No earlier than two years preceding the Expiry Date or at any time after the service of a notice to terminate or other expiry of this Contract and on receipt of a written request by the


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Authority, the Contractor shall (and shall procure that any Sub-Contractor shall): (a) supply to the Authority such full and accurate and up-to-date information as may be

requested by the Authority including the information listed in [Annex O Part 1 to this Clause H11] to this Contract relating to the employees who are wholly or mainly employed, assigned or engaged in providing the Services under this Contract,;

(b) provide the information promptly and in any event not later than three months from the date when a request for such information is made and at no cost to the Authority;

(c) permit the Authority to use the information for informing any prospective New Provider for any services which are substantially the same as the Services provided pursuant to this Contract; and

(d) enable and assist the Authority and a New Provider to communicate with and meet those employees and their trade union or other employee representatives.

H11.10 On notification to the Contractor by the Authority of a New Provider, or any time within 6 months of the Expiry Date or after the Authority has given notice to terminate or other expiry of this Contract, whichever is first, and on receipt of a written request by the Authority, the Contractor shall:

(a) fully and accurately disclose to the Authority such information listed in [Annex O Part 2 to Clause H11 including any Employee Liability Information relating to his employees and relating to all employees of any third party who are employed, assigned or engaged in providing the Services under this Contract,

(b) provide the information promptly and in any event not later than three months from the date when a request for such information is made (save when the written request is received less than 3 months prior to the Expiry Date, in which case no later than 28 days from the date of that request) and at no cost to the Authority; and

(c) permit the Authority to use the information for informing any prospective New Provider for any services which are substantially the same as the Services provided pursuant to this Contract.

H11.11 Nothing in clause H11.10 shall affect the Contractor’s obligations under regulation 11 of the Transfer Regulations to provide Employee Liability Information to the New Provider.

H11.12 On notification to the Contractor by the Authority of a New Provider or within 6 months of the Expiry Date or after service of a notice to terminate or other expiry of this Contract, whichever is first, and on receipt of a written request by the Authority, the Contractor shall not:

(a) materially amend or promise to amend the rates of remuneration or other terms and conditions of employment of any person wholly or mainly employed or engaged in providing the Services;

(b) replace or re-deploy from the Services any person wholly or mainly employed or engaged in providing the Services, or materially increase the number of persons performing the Services;

(c) reorganise any working methods or assign to any person wholly or mainly employed or engaged in providing the Services any duties unconnected with the Services; or

(d) terminate or give notice to terminate the employment of any person wholly or mainly employed or engaged in providing the Services

save for genuine business reasons without the prior written agreement of the Authority, such agreement not to be unreasonably withheld or delayed, and the Contractor shall indemnify and keep indemnified the Authority in respect of any reasonable costs (including reasonable legal costs), losses and expenses and all damages, compensation, fines and liabilities arising out of or in connection with any breach of Clauses, H11.10, H11.12 and H11.13.

H11.13 The Authority may at any time prior to the period set out in Clause H11.10 request from the Contractor any of the information in Annex O paragraphs 1(a) to (d) of Part 1 to Clause H11 and the Contractor shall provide the information requested within three months of receipt of that request

Indemnities on subsequent TUPE transfer on expiry or termination of the Contract

H11.14 In the event that on the expiry of the Contract there is a Subsequent Relevant Transfer, the


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Contractor shall indemnify the Authority against all reasonable costs (including reasonable legal costs) losses and expenses and all damages, compensation, fines and liabilities arising out of or in connection with:

(a) any claim or claims by Subsequent Transferring Employees or by the New Provider or any sub-contractor of the New Provider at any time on or after the Subsequent Transfer Date which arise as a result of an act or omission of the Contractor or any Sub-Contractor during the period from and including the Relevant Transfer Date and prior to the Subsequent Transfer Date;

(b) any claim by any employee or trade union representative or employee representative arising whether before or after the Subsequent Transfer Date out of any failure by the Contractor or any Sub-Contractor to comply with their obligations under Regulation 13 of the Transfer Regulations in relation to any Subsequent Transferring Employee or any other employee engaged wholly or mainly in connection with the Services by the Contractor or any Sub-Contractor.

H11.15 In the event that there is a Subsequent Relevant Transfer, the Authority shall indemnify the Contractor against all reasonable costs (including reasonable legal costs) losses and expenses and all damages, compensation, fines and liabilities arising out of, or in connection with:

(a) the employment or the termination of the employment of each of the Subsequent Transferring Employees by the New Provider or any Sub-Contractor of the New Provider at any time on or after the Subsequent Transfer Date which arise as a result of an act or omission of the New Provider or any Sub-Contractor of the New Provider during the period from and including the Subsequent Transfer Date; and

(b) any claim by any employee or trade union representative or employee representative arising whether before or after the Subsequent Transfer Date out of any failure by the New Provider or any Sub-Contractor of the New Provider to comply with their obligations under Regulation 13 of the Transfer Regulations in relation to any Subsequent Transferring Employee or any other employee engaged wholly or mainly in connection with the Services by the New Provider or any Sub-Contractor of the New Provider.

Contracts (Rights of Third Parties) Act 1999

H11.16 A New Provider may enforce the terms of Clause H11.14 against the Contractor in accordance with the Contracts (Rights of Third Parties) Act 1999.

H11.17 The consent of a New Provider (save where the New Provider is the Authority) is not required to rescind, vary or terminate this Contract.

H11.18 Nothing in Clause H11.16 shall affect the accrued rights of the New Provider prior to the rescission, variation or termination of this Contract.


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PART I - DISPUTES AND LAW I1 LAW (ENGLISH)

I1.1 The Contract shall be considered as a contract made in England and subject to English Law.

I1.2 Subject to Clause I2 and without prejudice to the dispute resolution process set out in that Condition, each party hereby irrevocably submits and agrees to the exclusive jurisdiction of the Courts of England to resolve, and the laws of England to govern, any actions, proceedings, controversy or claim of whatever nature arising out of or relating to the Contract or breach thereof.

I1.3 Other jurisdictions may apply solely for the purpose of giving effect to this Condition and for the enforcement of any judgement, order or award given under English jurisdiction.

I2 DISPUTE RESOLUTION (ENGLISH LAW)

I2.1 The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Contract through negotiations between the respective representatives of the parties having Authority to settle the matter, which attempts may include the use of any Alternative Dispute Resolution (ADR) procedure on which the parties may agree.

I2.2 In the event that the dispute or claim is not resolved by negotiation, or where the parties have agreed to use an ADR procedure, by the use of such procedure, the dispute shall, unless it is a question to be referred to the Review Board for Government Contracts, be referred to arbitration.

I2.3 The party initiating the arbitration shall give a written Notice of Arbitration to the other party. The Notice of Arbitration shall specifically state:

(a) that the dispute is referred to arbitration; and (b) the particulars of the Contract out of or in relation to which the dispute arises.

I2.4 Unless otherwise agreed in writing by the parties, the arbitration and this Condition shall be governed by the provisions of the Arbitration Act 1996.

I2.5 It is agreed between the parties that for the purposes of the arbitration, the arbitrator shall have the power to make provisional awards as provided for in Section 39 of the Arbitration Act 1996.

I2.6 For the avoidance of doubt it is agreed between the parties that the arbitration process and anything said, done or produced in or in relation to the arbitration process (including any awards) shall be confidential as between the parties, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise. No report relating to anything said, done or produced in or in relation to the arbitration process may be made beyond the tribunal, the parties, their legal representatives and any person necessary to the conduct of the proceedings, without the concurrence of all the parties to the arbitration

Contract No CMMS/480331 Terms & Conditions

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