1
DATED
HEALTH AND CARE PROFESSIONS COUNCIL
and
[SUPPLIER NAME]
FRAMEWORK AGREEMENT
FOR THE PROVISION OF AUDIO RECORDING, TRANSCRIPTION AND
ADDITIONAL SERVICES
2
3
FRAMEWORK SCHEDULE 4
[TEMPLATE] CALL OFF ORDER FORM AND [TEMPLATE] CALL OFF TERMS
GUIDANCE NOTE:
The Parties' attention is drawn to the various guidance notes and information/schedules in square
brackets to complete/settle prior to signing the Call Off Contract, which are highlighted in YELLOW in
this document.
Before any Call Off Contract is entered, the Contracting Authority should ensure that all guidance
notes and text highlighted in YELLOW have been addressed/settled (as appropriate, including deletion
of all the Guidance Notes highlighted in YELLOW).
Contracting Authorities awarding a Call Off Contract by way of a Further Competition Procedure
should note that they are responsible for identifying any parts of the Supplier’s response to the
Contracting Authority’s Statement of Requirements which are relevant to the Call Off Contract and
incorporating them before signature. Alternatively (or in addition) the Supplier’s whole response to
the Statement of Requirements can be inserted in Call Off Schedule 2 (Services).
The guidance notes have been included to assist the Contracting Authority in completing the required
information with sufficient detail, but are not exhaustive.
If the Contracting Authority requires the assistance of the Supplier to fill in certain sections of the
Template Call Off Order Form and Template Call Off Terms prior to those becoming the Call Off
Contract, this will be agreed between the parties.
Delete this page before entering the Call Off Contract.
4
PART 1 – [TEMPLATE] CALL OFF ORDER FORM
Guidance Note: In completing the Template Call Off Order Form, Contracting Authorities must
ensure that they are act in compliance with Framework Schedule 5 (Call Off Procedure) and the
provisions of Regulation 33. In particular, Contracting Authorities entering into the Call Off Contract
following a direct award should complete the Template Call Off Order Form without modification to
the Template Call Off Terms governing the provision of the Services; and by inserting or confirming
only those sections which are necessary for the Call Off Contract to be formed without re-opening
competition. Contracting Authorities entering into the Call Off Contract following a Further
Competition Procedure should note, in particular, the requirements under paragraphs 6 and 11 of
Regulation 33; and complete the Template Call Off Order Form by reference to the Statement of
Requirements and the Call Off Tender submitted during the Further Competition Procedure.
SECTION A
This Call Off Order Form is issued in accordance with the provisions of the Framework Agreement
for
the provision of [ ] dated
Guidance Note: specify above the type of Services provided under and the date of the Framework
Agreement between the Contracting Authority and the Supplier pursuant to which this Call Off
Contract is entered into.
The Supplier agrees to supply the Services specified below on and subject to the terms of this Call Off
Contract.
For the avoidance of doubt this Call Off Contract consists of the terms set out in this Call Off Order
Form and the Call Off Terms.
Order
Number
[ ]
Guidance Note: include order number.
From
[ ]
("AUTHORITY")
Guidance Note: specify the full name of the Contracting Authority
and the Contracting Authority Representative.
To
[ ]
("SUPPLIER")
Guidance Note: specify the full name of the Supplier and the
Supplier Representative.
5
SECTION B
1. CALL OFF CONTRACT PERIOD
1.1.
Commenceme
nt Date: [ ]
Guidance Note: insert the date on which the Initial Period is to
commence.
1.2.
Expiry Date:
End date of Initial Period [
]
End date of Extension
Period [ ]
Minimum written notice
to Supplier in respect of
extension: [ ]
Guidance Note: insert the date on which the Initial Period is to
expire; the end date of any Extension Period; and the minimum
period of written notice to be given to the Supplier where the Call
Off Contract is to be extended from the expiry of the Initial Period
(it is suggested that for long term contracts this should normally
be no less than 3 months). See Clause 5 (Call Off Contract
Period).
2. SERVICES
3. IMPLEMENTATION PLAN
2.1
.
Services required:
In Call Off Schedule 2
(Services)
Guidance Note: include in Annexes 1 and 2 of Call Off Schedule 2
(Services) a description of the Services (Annex 1) required under
this Call Off Contract. Details of all the Services available at
framework level can be found in Part A of Framework Schedule 2
(Services).
If awarding the Call Off Contract by way of direct award, Call Off
Schedule 2 (Services) should reflect the documentation issued to
the Supplier in accordance with paragraph 2 of Framework
Schedule 5 (Call Off Procedure).
If awarding the Call Off Contract by way of Further Competition
Procedure, Call Off Schedule 2 (Services) should reflect the
Statement of Requirements issued to the Suppliers in accordance
with paragraph 3.1.1 of Framework Schedule 5 (Call Off
Procedure). This should be refined to include any additional
information submitted by the successful Supplier in response to the
Statement of Requirements. For example:
details of where the Services shall be delivered/performed,
dates of delivery/performance of the Services (and mark
any dates which the Contracting Authority has so required
as “time of the essence”),
Ensure your requirements are consistent with Clause(s) 7 (Services
and Delivery) and 8 (Services).
6
3.1.
Implementation Plan:
[Not applied]
[OR]
[In Call Off Schedule 4
(Implementation Plan)]
[OR]
[The Supplier shall
provide the Contracting
Authority with a draft
Implementation Plan for
Approval within [ ]
Working Days from the
Call Off Commencement
Date]
Guidance Note: if an Implementation Plan is required,
populate/settle the template form of Implementation Plan in Call
Off Schedule 4 (Implementation Plan) or specify the period from
the Call Off Commencement Date within which the Supplier shall
provide the Contracting Authority with a draft Implementation
Plan for Approval. See the guidance note in Call Off Schedule 4
(Implementation Plan).
4. CONTRACT PERFORMANCE
4.1.
Standards:
[ ]
Guidance Note: see Clause 11 (Standards and Quality) and the
definition of Standards in Call Off Schedule 1 (Definitions). Specify
any particular standards that should apply to this Call Off
Contract.
4.2
Service Levels/Service
Credits:
[Not applied]
[OR]
[In Annex 1 of Part A of
Call Off Schedule 6
(Service Levels, Service
Credits and Performance
Monitoring)]
Service Credit Cap (Call
Off Schedule 1
(Definitions)):
[Not applied]
[OR]
[For the purpose of limb
(a) of the definition of
Guidance Note: see Clause 13 (Service Levels and Service Credits)
and Part A of Call Off Schedule 6 (Service Levels, Service Credits
and Performance Monitoring). If Service Levels/Service Credits
are required, populate the table in Annex 1 to Part A (Service
Levels and Service Credits Table) of Call Off Schedule 6 (Service
Levels, Service Credits and Performance Monitoring).
Service Credits will not be required in all contracts, but the higher
the value, complexity or importance of the contract, the more
likely that Service Credits will apply. If Service Credits have been
applied:
see Clause 36.2.1 (Financial Limits) in respect of the
Supplier’s total financial liability for Service Credits.
Populate the appropriate percentages of the Call Off
Contract Charges that should apply to the definition of
7
Service Credit Cap in Call
Off Schedule 1
(Definitions), the
applicable percentage of
the Estimated Year 1 Call
Off Contract Charges shall
be [ ]%]
[For the purpose of limb
(b) of the definition of
Service Credit Cap in Call
Off Schedule 1
(Definitions), the
applicable percentage of
Call Off Contract Charges
shall be [ ]%]
Contracting Authority
periodic reviews of
Service Levels (Clause
13.7.1 of the Call Off
Terms):
[Not applied]
[OR]
[For the purpose of
clause 13.7.1 the total
number of Service Level
Performance Criteria for
which the weighting is to
be changed should not
exceed [insert number]]
Service Credit Cap in Call Off Schedule 1 (Definitions).
see Clause 13.7.1 (Service Levels and Service Credits) in
respect of the Contracting Authority’s right to
periodically change the Service Level Performance
Measures that underpin the Service Levels. Populate the
maximum number of the Service Level Performance
Criteria in respect of which the weightings may be
changed. See the relevant definitions of the above
mentioned capitalised terms in Call Off Schedule 1
(Definitions).
4.3
Critical Service Level
Failure:
[Not applied]
[OR]
[Example: In relation to
[ ] a Critical Service
Level Failure shall include
a delay in producing [ ]
ordered by the
Contracting Authority in
excess of [twenty four
(24) hours] more than
once in any [three (3)
Month] period or more
Guidance Note: see Clause 14 (Critical Service Level Failure)
which provides the Contracting Authority with a right to retain
and deduct Call Off Contract Charges as compensation or
terminate the Call Off Contract for material Breach if there is a
Critical Service Level Failure. See also paragragh 4 of Part A of
Call Off Schedule 6 (Service Levels, Service Credits and
Performance Monitoring). If Critical Service Level Failure is
required, populate the specific instances which shall constitute
Critical Service Level Failure.
8
than [three (3)] times in
any rolling [twelve (12)
Month] period.]
[Example: In relation to [
] a Critical Service Level
Failure shall include a loss
of [ ] during core hours
(08:00 – 18:00 Mon – Fri
excluding bank holidays)
to the [ ] for more than
[twenty four (24) hours]
accumulated in any
[three (3) Month] period,
or [forty eight (48)] hours
in any rolling [twelve (12)
Month] period.]
[Other]
4.4
Performance Monitoring:
[In Part B of Call Off
Schedule 6 (Service
Levels, Service Credits
and Performance
Monitoring)]
Guidance Note: see Clause 19 (Performance Monitoring) and the
provisions of Part B of Call Off Schedule 6 (Service Levels, Service
Credits and Performance Monitoring). Set out any specific
performance monitoring requirements in addition to,
modification or substitution of the default provisions in Call Off
Schedule 6 (Service Levels, Service Credits and Performance
Monitoring).
4.5
Period for providing
Rectification Plan:
[In Clause 38.2.1(a) of the
Call Off Terms]
[OR]
[The period of ten (10)
Working Days in Clause
38.2.1(a) shall be
amended to [ ]]
Guidance Note: see Clause 38.2.1(a) (Rectification Plan Process).
Confirm the maximum default period within which the Supplier
should provide the Contracting Authority with a draft
Rectification Plan when the Contracting Authority instructs the
Supplier to follow the Rectification Plan Process.
5. PERSONNEL
5.1
Key Personnel:
[ ]
Guidance Note: see Clause 26 (Key Personnel). Include any Key
Personnel (and their Key Roles).
5.2
Relevant Convictions
(Clause 27.2 of the Call
Off Terms):
[ ]
Guidance Note: see Clause 27.2 (Relevant Convictions) and the
definition of “Relevant Convictions” in Call Off Schedule 1
(Definitions). Specify any particular Relevant Conviction(s) that
should apply to this Call Off Contract.
9
6. PAYMENT
6.1
Call Off Contract Charges
(including any applicable
discount(s), but excluding
VAT):
In Annex 1 of Call Off
Schedule 3 (Call Off
Contract Charges,
Payment and Invoicing)
Guidance Note: insert the applicable Call Off Contract Charges in
Annex 1 of Call Off Schedule 3 (Call Off Contract Charges,
Payment and Invoicing).
The Call Off Contract Charges must be compliant with the
provisions of Framework Schedule 3 (Framework Prices and
Charging Structure).
See also paragraph Error! Reference source not found.
(Indexation) of Call Off Schedule 3 (Call Off Contract Charges,
Payment and Invoicing) and consider if any Call Off Contract
Charges should be marked as “subject to increase by way of
Indexation”.
6.2
Payment terms/profile
(including method of
payment e.g.
Government
Procurement Card (GPC)
or BACS):
In Annex 2 of Call Off
Schedule 3 (Call Off
Contract Charges,
Payment and Invoicing)
Guidance Note: insert details of the payment terms/profile in
Annex 2 of Call Off Schedule 3 (Call Off Contract Charges,
Payment and Invoicing).
6.3
Reimbursable Expenses:
[Permitted]
Guidance Note: see paragraph(s) 4 (Costs and Expenses) and 5
(Reimburseable Expenses) of Call Off Schedule 3 (Call Off
Contract Charges, Payment and Invoicing) and the definition of
“Reimbursable expenses” at the outset of Call Off Schedule 3.
State if Reimbursable Expenses should be permitted or not.
6.4
Contracting Authority
billing address
(paragraph 7.6 of Call Off
Schedule 3 (Call Off
Contract Charges,
Payment and Invoicing)):
[ ]
Guidance Note: insert Contracting Authority billing address for
the purposes of paragraph 7.6 (Invoicing Procedure) of Call Off
Schedule 3 (Call Off Contract Charges, Payment and Invoicing).
6.5
Call Off Contract Charges
fixed for (paragraph 8.2
of Schedule 3 (Call Off
Contract Charges,
Payment and Invoicing)):
[ ] Call Off Contract
Years from the Call Off
Commencement Date
Guidance Note: For the purpose of paragraph 8.2 (Adjustment of
Call Off Contract Charges) of Call Off Schedule 3 (Call Off
Contract Charges, Payment and Invoicing), insert the number of
Call Off Contract Years from the Call Off Commencement Date
during which the Call Off Contract Charges shall remain fixed for.
10
6.6
Supplier periodic
assessment of Call Off
Contract Charges
(paragraph 9.2 of Call Off
Schedule 3 (Call Off
Contract Charges,
Payment and Invoicing))
will be carried out on:
[ ] of each Call Off
Contract Year during the
Call off Contract Period
Guidance Note: for the purpose of paragraph 9.2 (Time of
Delivery of the Goods) of Call Off Schedule 3 (Call Off Contract
Charges, Payment and Invoicing), insert the dates in each Call Off
Contract Year on which the Supplier is obliged to carry out
periodic assessments of the Call Off Contract Charges with a view
to reducing them.
6.7
Supplier request for
increase in the Call Off
Contract Charges
(paragraph Error!
Reference source not
found. of Call Off
Schedule 3 (Call Off
Contract Charges,
Payment and Invoicing)):
[Permitted] [Not
Permitted]
Guidance Note: consider paragraph Error! Reference source not
found. (Installation Works) of Call Off Schedule 3 (Call Off
Contract Charges, Payment and Invoicing). State if the Supplier is
permitted to request an increase of the Call Off Contract Charges
after the expiry of the period during which the Call Off Contract
Charges should remain fixed under paragraph Error! Reference
source not found. of Call Off Schedule 3 (Call Off Contract
Charges, Payment and Invoicing).
7. LIABILITY AND INSURANCE
7.1
Estimated Year 1 Call Off
Contract Charges:
The sum of £ [ ]
Guidance Note: consider Clauses 36.2.1 and 36.2.2 (Financial
Limits) in respect of limitation of liability and see the definition of
“Estimated Year 1 Call Off Contract Charges” in Call Off Schedule
1 (Definitions). Insert the sum that should apply to the definition.
7.2
Supplier’s limitation of
Liability (Clause 36.2.1
of the Call Off Terms);
[In Clause 36.2.1 of the
Call Off Terms]
[OR]
[The sum of “ten million
pounds (£10,000,000)” in
Clause 36.2.1(b)(i) shall
be amended to: [ ]]
[The sum of “ten million
pounds (£10,000,000)” in
Clause 36.2.1(b)(ii) shall
be amended to [ ]]
[The sum of “ten million
Guidance Note: consider Clause 36 (Liability) and confirm the
Supplier’s financial limits of liability. Consider whether the
default limits to the Supplier’s liability in Clause 36.2.1 (Financial
Limits) are appropriate for the Call Off Contract and represent
the right apportionment of risk between the Contracting
Authority and the Supplier. The aim should be to establish
liability ceilings reflecting a combination of the best estimate by
the Contracting Authority of the losses that it (and any other
associated bodies) might suffer in the event of a Default by the
Supplier, the likelihood of those losses occurring and the value for
money considerations in limiting liability.
11
pounds (£10,000,000)” in
Clause 36.2.1(b)(iii) shall
be amended to [ ]]
7.3
Insurance (Clause 37.3 of
the Call Off Terms):
Guidance Note: see Clause 37 (Insurance). Include any specific
minimum insurance policies and related requirements pursuant
to Clause 37.3.
8. TERMINATION AND EXIT
8.1
Termination on material
Default (Clause 41.1.1(c)
of the Call Off Terms)):
[In Clause 41.1.1(c) of the
Call Off Terms]
[OR]
[The percentage of “80%”
in Clause 41.1.1(c) shall
be amended to [
Guidance Note: consider Clause 41.1.1(c) (Termination on
Material Default). Insert an appropriate percentage to facilitate
the ability of the Contracting Authority to terminate the Call Off
Contract for material Default where, as a result of any Defaults,
the Contracting Authority incurs Losses in any Call Off Contract
Year which exceed a certain percentage of the value of the
Supplier’s aggregate annual liability limit for that Call Off
Contract Year as set out in Clause 36.2.1 (Financial Limits).
8.2
Termination without
cause notice period
(Clause 41.6.1 of the Call
Off Terms):
[In Clause 41.6.1 of the
Call Off Terms]
[OR]
[The period of thirty (30)
Working Days in Clause
41.6.1 shall be amended
to [ ]]
Guidance Note: consider Clause 41.6.1 (Termination Without
Cause). Confirm the minimum number of Working Days that
should be the notice period in respect of termination without
cause. It is suggested that in long term contracts this should be a
minimum of 30 Working Days, as stipulated in Clause 41.6.1
(Termination Without Cause).
8.3
Undisputed Sums Limit:
[In Clause 42.1.1 of the
Call Off Terms]
[OR]
[The wording “one
month’s average Call Off
Contract Charges” in
Clause 42.1.1 shall be
amended to [ ]]
Guidance Note: consider Clause 42.1.1 (Termination of
Contracting Authority Cause for Failure to Pay) in respect of the
Supplier’s right to terminate the Call Off Contract for undisputed
sums which have not been paid by the Contracting Authority.
Insert an appropriate sum that should be the “Undisputed Sums
Limit”. It is suggested that this should normally be the equivalent
to one (1) month’s average Call Off Contract Charges.
8.4
Exit Management:
Guidance Note: see Clause 45.5 (Exit Management) and Call Off
Schedule 9 (Exit Management). Call Off Schedule 9 is likely to be
12
[Not applied]
[OR]
[In Call Off Schedule 9
(Exit Management)]
[OR]
[Call Off Schedule 9 (Exit
Management) shall be
amended as follows: [ ]]
relevant in the context of procuring Services or Goods and
Services rather than Goods only, with emphasis on procuring
Services or Goods and Services on an ongoing basis. Select the
third option if you have any specific exit requirements in addition
to, modification or substitution of the default provisions in Call
Off Schedule 9 (Exit Management).
9. SUPPLIER INFORMATION
9.1
Supplier’s inspection of
Sites, Contracting
Authority Property and
Contracting Authority
Assets:
[ ]
Guidance Note: see Clauses 2 (Due Diligence), 30 (Contracting
Authority Premises) and 31 (Contracting Authority Property).
Consider if inspection of the Sites by the Supplier is required.
Insert any issues raised by the Supplier in respect of any aspects
of the Sites, Contracting Authority Assets, Contracting Authority
Property that may affect the provision of the Services and any
agreed action to be taken in respect thereof.
9.2
Commercially Sensitive
Information:
[ ]
Guidance Note: see Clause 34.6 (Freedom of Information) and
the definition of Commercially Sensitive Information in Call Off
Schedule 1 (Definitions). Specify any Commercially Sensitive
Information of the Supplier and the duration for which it should
be confidential. Notwithstanding the designation of any such
information as Commercially Sensitive Information, if the
information would not be exempt under FOIA or the EIRs the
Contracting Authority may publish it under Clause 34.6 (Freedom
of Information) and/or Clause 34.4 (Transparency).
10. OTHER CALL OFF REQUIREMENTS
10.1
Recitals (in preamble to
the Call Off Terms):
[Recital A]
[OR]
[Recitals B to E]
[Recital C - date of issue of
the Statement of
Requirements: [ ]]
[Recital D - date of receipt
of Call Off Tender:
[ ]]
Guidance Note: See the preamble to the Call Off Terms. Select
recital A, if you awarding the Call Off Contract by way of direct
award. Select recitals B to E, if awarding the Call Off Contract
by way of further competition. If you have selected recitals B to
E, complete the date of issue of the Statement of Requirements
and the date of receipt of the Call Off Tender.
10.2
Call Off Guarantee (Clause
Guidance Note: See Clauses 4 (Call Off Guarantee), Error!
Reference source not found. (Termination in Relation to Call
13
4 of the Call Off Terms):
[Not required]
[OR]
[This Call Off Contract is
subject to a Call Off
Guarantee from [insert
name of Call Off
Guarantor] which [[has
been procured by the
Supplier and delivered to
the Contracting Authority
on [insert date]] [or] [[the
Supplier must procure and
deliver to the Contracting
Authority by [insert date]]]
Off Guarantee) and 45.1 (Consequences on Expiry or
Termination). Consider whether the Supplier should provide a
Call Off Guarantee on or before the Call Off Commencement
Date (and check if the Contracting Authority has procured a
Framework Guarantee under the Framework Agreement which
covers the Call Off Contract). If so, set out the requirement in
accordance with Clause 4 (Call Off Guarantee).
10.3
Security:
[Select short form security
requirements]
[or]
[Select long form security
requirements]
[AND]
[Security Policy]
Guidance Note: See Call Off Schedule 7 (Security); and the
definition of “Security Policy” in Call Off Schedule 1
(Definitions).
Consider and select short form (paragraphs 1 to 5 of Schedule 7
(Security)) or long form terms (paragraphs 1 to 8 of Schedule
7); insert in Annex 1 (Security Policy) any additional security
requirements of the Contracting Authority that should form the
“Security Policy” under this Call Off Contract., as appropriate to
your security requirements.
10.4
ICT Policy:
[Not applied]
[OR]
[To be provided by the
Contracting Authority
before the
Commencement Date]
Guidance Note: if the Contracting Authority wants the Supplier
to comply with its ICT Policy, ensure it is handed over to the
Supplier before the Commencement Date.
10.5
Testing:
NOT USED
10.6
Business Continuity &
Disaster Recovery:
Guidance Note: see Clause 15 (Business Continuity and Disaster
Recovery) of the Call Off Terms and Call Off Schedule 8
(Business Continuity and Disaster Recovery). Select the third
14
[Not applied]
[OR]
[In Call Off Schedule 8
(Business Continuity and
Disaster Recovery)]
[OR]
[Call Off Schedule 8
(Business Continuity and
Disaster Recovery shall be
amended as follows:[ ]]
Disaster Period:
For the purpose of the
definition of “Disaster” in
Call Off Schedule 1
(Definitions) the “Disaster
Period” shall be [insert
period of time]
option of you have any specific Business Continuity and Disaster
Recovery requirements in addition to, modification or
substitution of the default provisions in Call Off Schedule 8
(Business Continuity and Disaster Recovery).
See the definition of Disaster in Call Off Schedule 1 (Definitions).
Note that the definition of Disaster will not be made out unless
the Services are (or reasonably anticipated to be) unavailable
for a specified period of time. Specify the applicable period.
10.7
Failure of Supplier
Equipment (Clause 32.8 of
the call off Terms:
[Not applied]
[OR]
[For the purpose of that
Clause the value for X shall
be [insert number of
Service Failures] and the
value for Y shall be [insert
number of months]]
Guidance Note: see Clause 32.7 (Supplier Equipment) which
allows the Contracting Authority to request the replacement of
any Supplier Equipment if it causes ‘X’ number of Service
Failures within ‘Y’ months. Note the definition of Service Failure
in Call Off Schedule 1 (Definitions). Specify if the Clause should
apply and, if so, populate the values for ‘X’ and ‘Y’ referred to in
Clause 32.7 (Supplier Equipment).
10.8
Protection of Contracting
Authority Data (Clause
34.2.3 of the Call Off
Terms):
[ ]
Guidance Note: See Clause 34.2.3 (Protection of Contracting
Authority Data). If required from the outset, specify the format
for the Supplier to supply the Contracting Authority Data to the
Contracting Authority when needed.
10.9
Notices (Clause 55.6 of the
Call Off Terms):
Contracting Authority’s
postal address and email
address: [ ]
Supplier’s postal address
and email address:
[ ]
Guidance Note: Specify the postal address and email address of
both the Contracting Authority and the Supplier for the purpose
of serving notices under the Call Off Contract as required under
Clause 55 (Notices).
15
10.10
Transparency Reports
In Call Off Schedule 13
(Transparency Reports)
Guidance Note: Consider Call Off Schedule 13 (Transparency
Reports). If Transparency reports are required, populate Annex
1 (List of Transparency Reports) of Call Off Schedule 13
(Transparency Reports).
10.11
Alternative and/or
additional provisions
(including any Alternative
and/or Additional Clauses
under Call Off Schedule
14):
[ ]
Guidance Note: Include any other provisions in addition to,
modification or substitution of the Template Call Off Terms
prior to those becoming the Call Off Terms of the Call Off
Contract. Include any Alternative or Additional Clauses from
Call Off Schedule 14 (Alternative and/or Additional Clauses).
Note the guidance note at the outset of the Template Call Off
Order Form in respect of the permissibility of such changes.
If you place repeat Orders of the same nature which contain
repeat requirements, consider creating a customised set of
amended and/or refined Template Call Off Terms or a Call Off
Schedule containing those amendments or refinements
(including incorporating any Alternative or Additional Clauses
from Call Off Schedule 14 (Alternative and/or Additional
Clauses)) which you can use with every Order.
10.12
Call Off Tender:
In Schedule 15 (Call Off
Tender)
Guidance Note: If you award the Call Off Contract following a
further Competition Procedure, insert in Schedule 15 (Call Off
Tender) a copy of the Call Off Tender submitted by the Supplier
in response to the Contracting Authority’s Statement of
Requirements.
16
FORMATION OF CALL OFF CONTRACT
BY SIGNING AND RETURNING THIS CALL OFF ORDER FORM (which may be done by electronic
means) the Supplier agrees to enter a Call Off Contract with the Contracting Authority to provide
the Services in accordance with the terms Call Off Order Form and the Call Off Terms.
The Parties hereby acknowledge and agree that they have read the Call Off Order Form and the
Call Off Terms and by signing below agree to be bound by this Call Off Contract.
In accordance with paragraph 6 (Call Off Award Procedure) of Framework Schedule 5 (Call Off
Procedure), the Parties hereby acknowledge and agree that this Call Off Contract shall be formed
when the Contracting Authority acknowledges (which may be done by electronic means) the
receipt of the signed copy of the Call Off Order Form from the Supplier within two (2) Working
Days from such receipt.
For and on behalf of the Supplier:
Name and Title
Signature
Date
For and on behalf of the Contracting Authority:
Name and Title
Signature
Date
17
TABLE OF CONTENTS
A. Where recital A has been selected in the Call Off Order Form, the Contracting Authority
has followed the call off procedure set out in paragraph 1.2 of Framework Schedule 5 (Call Off
Procedure) and has awarded this Call Off Contract to the Supplier by way of direct award........... 21
B. Where recitals B to E have been selected in the Call Off Order Form, the Contracting
Authority has followed the call off procedure set out in paragraph 1.3 of Framework Schedule 5
(Call Off Procedure) and has awarded this Call Off Contract to the Supplier by way of further
competition. .......................................................................................................................... 21
C. The Contracting Authority issued its Statement of Requirements for the provision of the
Services on the date specified at paragraph 10.1 of the Call Off Order Form. .............................. 21
D. In response to the Statement of Requirements the Supplier submitted a Call Off Tender
to the Contracting Authority on the date specified at paragraph 10.1 of the Call Off Order form
through which it provided to the Contracting Authority its solution for providing the Services. .... 21
E. On the basis of the Call Off Tender, the Contracting Authority selected the Supplier to
provide the Services to the Contracting Authority in accordance with the terms of this Call Off
Contract. 21
A. PRELIMINARIES ........................................................................................................ 21
1. DEFINITIONS AND INTERPRETATION ................................................................. 21
2. DUE DILIGENCE ............................................................................................... 22
3. REPRESENTATIONS AND WARRANTIES ............................................................. 23
4. CALL OFF GUARANTEE – NOT USED .................................................................. 24
B. DURATION OF CALL OFF CONTRACT ........................................................................... 24
5. CALL OFF CONTRACT PERIOD ........................................................................... 24
C. CALL OFF CONTRACT PERFORMANCE ......................................................................... 25
6. IMPLEMENTATION PLAN ................................................................................. 25
7. SERVICES AND DELIVERY ................................................................................. 27
8. SERVICES ........................................................................................................ 29
9. GOODS – NOT USED ........................................................................................ 30
10. INSTALLATION WORKS – NOT USED .................................................................. 30
11. STANDARDS AND QUALITY .............................................................................. 30
12. TESTING – NOT USED ...................................................................................... 31
13. SERVICE LEVELS AND SERVICE CREDITS ............................................................. 31
14. CRITICAL SERVICE LEVEL FAILURE ..................................................................... 32
15. BUSINESS CONTINUITY AND DISASTER RECOVERY ............................................. 32
16. DISRUPTION ................................................................................................... 32
17. SUPPLIER NOTIFICATION OF AUTHORITY CAUSE ................................................ 33
18. CONTINUOUS IMPROVEMENT – NOT USED ....................................................... 33
18
D. CALL OFF CONTRACT GOVERNANCE ........................................................................... 33
19. PERFORMANCE MONITORING.......................................................................... 33
20. REPRESENTATIVES .......................................................................................... 34
21. RECORDS, AUDIT ACCESS AND OPEN BOOK DATA .............................................. 34
22. CHANGE ......................................................................................................... 36
E. PAYMENT, TAXATION AND VALUE FOR MONEY PROVISIONS ....................................... 38
23. CALL OFF CONTRACT CHARGES AND PAYMENT ................................................. 38
24. PROMOTING TAX COMPLIANCE – NOT USED ..................................................... 40
25. BENCHMARKING – NOT USED .......................................................................... 40
F. SUPPLIER PERSONNEL AND SUPPLY CHAIN MATTERS .................................................. 40
26. KEY PERSONNEL .............................................................................................. 40
27. SUPPLIER PERSONNEL ..................................................................................... 41
28. STAFF TRANSFER ............................................................................................. 43
29. SUPPLY CHAIN RIGHTS AND PROTECTION ......................................................... 43
G. PROPERTY MATTERS................................................................................................. 47
30. CUSTOMER PREMISES ..................................................................................... 47
31. CUSTOMER PROPERTY .................................................................................... 48
32. SUPPLIER EQUIPMENT ..................................................................................... 49
H. INTELLECTUAL PROPERTY AND INFORMATION ........................................................... 50
33. INTELLECTUAL PROPERTY RIGHTS ..................................................................... 50
34. SECURITY AND PROTECTION OF INFORMATION ................................................. 54
35. PUBLICITY AND BRANDING .............................................................................. 62
I. LIABILITY AND INSURANCE ........................................................................................ 62
36. LIABILITY ........................................................................................................ 62
37. INSURANCE .................................................................................................... 65
J. REMEDIES AND RELIEF .............................................................................................. 65
38. AUTHORITY REMEDIES FOR DEFAULT ............................................................... 65
39. SUPPLIER RELIEF DUE TO AUTHORITY CAUSE ..................................................... 67
40. FORCE MAJEURE EVENT .................................................................................. 69
K. TERMINATION AND EXIT MANAGEMENT .................................................................... 71
41. AUTHORITY TERMINATION RIGHTS .................................................................. 71
42. SUPPLIER TERMINATION RIGHTS ...................................................................... 73
43. TERMINATION BY EITHER PARTY ...................................................................... 73
44. PARTIAL TERMINATION, SUSPENSION AND PARTIAL SUSPENSION ...................... 73
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45. CONSEQUENCES OF EXPIRY OR TERMINATION .................................................. 74
L. MISCELLANEOUS AND GOVERNING LAW .................................................................... 76
46. COMPLIANCE .................................................................................................. 76
47. ASSIGNMENT AND NOVATION ......................................................................... 76
48. WAIVER AND CUMULATIVE REMEDIES.............................................................. 77
49. RELATIONSHIP OF THE PARTIES ........................................................................ 77
50. PREVENTION OF FRAUD AND BRIBERY .............................................................. 77
51. SEVERANCE .................................................................................................... 79
52. FURTHER ASSURANCES.................................................................................... 79
53. ENTIRE AGREEMENT ....................................................................................... 79
54. THIRD PARTY RIGHTS ...................................................................................... 80
55. NOTICES ......................................................................................................... 80
56. DISPUTE RESOLUTION ..................................................................................... 81
57. GOVERNING LAW AND JURISDICTION ............................................................... 81
CALL OFF SCHEDULE 1: DEFINITIONS ........................................................................................ 83
CALL OFF SCHEDULE 2: SERVICES ........................................................................................... 108
1. INTRODUCTION ............................................................................................ 108
ANNEX 1: SERVICES ................................................................................................ 109
ANNEX 2: THE GOODS – NOT USED .......................................................................... 110
CALL OFF SCHEDULE 3: CALL OFF CONTRACT CHARGES, PAYMENT AND INVOICING ................... 111
1. DEFINITIONS ................................................................................................. 111
ANNEX 1: CALL OFF CONTRACT CHARGES ................................................................. 115
[TO BE INSERTED FOLLOWING RECEIPT OF TENDER.] ................................................. 115
ANNEX 2: PAYMENT TERMS/PROFILE ....................................................................... 116
CALL OFF SCHEDULE 4: IMPLEMENTATION PLAN ..................................................................... 117
1. INTRODUCTION ............................................................................................ 117
CALL OFF SCHEDULE 5: TESTING – NOT USED .......................................................................... 119
Annex 1: SATISFACTION CERTIFICATE..................................................................................... 120
CALL OFF SCHEDULE 6: SERVICE LEVELS, SERVICE CREDITS AND PERFORMANCE MONITORING ... 121
1. SCOPE .......................................................................................................... 121
ANNEX 1 TO PART A: SERVICE LEVELS AND SERVICE CREDITS TABLE ............................ 125
ANNEX 1 TO PART B: PERFORMANCE MONITORING .................................................. 126
1. PRINCIPAL POINTS ........................................................................................ 126
CALL OFF SCHEDULE 7: SECURITY ........................................................................................... 128
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1. DEFINITIONS ................................................................................................. 128
AN ANNEX 1: Security Policy .......................................................................................... 133
ANNEX 1: Security Policy ...................................................................................................... 142
ANNEX 2: SECURITY MANAGEMENT PLAN ................................................................ 143
CALL OFF SCHEDULE 8: BUSINESS CONTINUITY AND DISASTER RECOVERY ................................ 144
1. DEFINITIONS ................................................................................................. 144
CALL OFF SCHEDULE 9: EXIT MANAGEMENT ........................................................................... 151
1. DEFINITIONS ................................................................................................. 151
CALL OFF SCHEDULE 10: STAFF TRANSFER .............................................................................. 162
1. DEFINITIONS ................................................................................................. 162
1. RELEVANT TRANSFERS................................................................................... 166
ANNEX TO PART A: PENSIONS ................................................................................. 172
1. PARTICIPATION ............................................................................................ 172
1. RELEVANT TRANSFERS................................................................................... 175
ANNEX TO PART B: PENSIONS ................................................................................. 181
1. PARTICIPATION ............................................................................................ 181
1. PROCEDURE IN THE EVENT OF TRANSFER ........................................................ 184
1. PRE-SERVICE TRANSFER OBLIGATIONS ............................................................ 187
ANNEX TO SCHEDULE 10: LIST OF NOTIFIED SUB-CONTRACTORS ................................ 195
CALL OFF SCHEDULE 11: DISPUTE RESOLUTION PROCEDURE .................................................... 196
1. DEFINITIONS ................................................................................................. 196
CALL OFF SCHEDULE 12: VARIATION FORM ............................................................................ 201
call off SCHEDULE 13: TRANSPARENCY REPORTS ..................................................................... 203
ANNEX 1: LIST OF TRANSPARENCY REPORTS .......................................................................... 204
CALL OFF SCHEDULE 14: ALTERNATIVE AND/OR ADDITIONAL CLAUSES – NOT USED .................. 205
CALL OFF SCHEDULE 15: CALL OFF TENDER ............................................................................. 213
[TO BE INSERTED FOLLOWING RECEIPT OF TENDER.] ................................................. 213
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PART 2 – CALL OFF TERMS
TERMS AND CONDITIONS
RECITALS
A. Where recital A has been selected in the Call Off Order Form, the Contracting Authority
has followed the call off procedure set out in paragraph 1.2 of Framework Schedule 5
(Call Off Procedure) and has awarded this Call Off Contract to the Supplier by way of
direct award.
B. Where recitals B to E have been selected in the Call Off Order Form, the Contracting
Authority has followed the call off procedure set out in paragraph 1.3 of Framework
Schedule 5 (Call Off Procedure) and has awarded this Call Off Contract to the Supplier by
way of further competition.
C. The Contracting Authority issued its Statement of Requirements for the provision of the
Services on the date specified at paragraph 10.1 of the Call Off Order Form.
D. In response to the Statement of Requirements the Supplier submitted a Call Off Tender
to the Contracting Authority on the date specified at paragraph 10.1 of the Call Off
Order form through which it provided to the Contracting Authority its solution for
providing the Services.
E. On the basis of the Call Off Tender, the Contracting Authority selected the Supplier to
provide the Services to the Contracting Authority in accordance with the terms of this
Call Off Contract.
A. PRELIMINARIES
1. DEFINITIONS AND INTERPRETATION
1.1 In this Call Off Contract, unless the context otherwise requires, capitalised expressions
shall have the meanings set out in Call Off Schedule 1 (Definitions) or the relevant Call Off
Schedule in which that capitalised expression appears.
1.2 If a capitalised expression does not have an interpretation in Call Off Schedule 1
(Definitions) or relevant Call Off Schedule, it shall have the meaning given to it in the
Framework Agreement. If no meaning is given to it in the Framework Agreement, it shall,
in the first instance, be interpreted in accordance with the common interpretation within
the relevant market sector/industry where appropriate. Otherwise, it shall be interpreted
in accordance with the dictionary meaning.
1.3 In this Call Off Contract, unless the context otherwise requires:
1.3.1 the singular includes the plural and vice versa;
1.3.2 reference to a gender includes the other gender and the neuter;
1.3.3 references to a person include an individual, company, body corporate, corporation,
unincorporated association, firm, partnership or other legal entity or Crown Body;
1.3.4 a reference to any Law includes a reference to that Law as amended, extended,
consolidated or re-enacted from time to time;
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1.3.5 the words "including", "other", "in particular", "for example" and similar words shall
not limit the generality of the preceding words and shall be construed as if they were
immediately followed by the words "without limitation";
1.3.6 references to “writing” include typing, printing, lithography, photography, display on a
screen, electronic and facsimile transmission and other modes of representing or
reproducing words in a visible form, and expressions referring to writing shall be construed
accordingly;
1.3.7 references to “representations” shall be construed as references to present facts, to
“warranties” as references to present and future facts and to “undertakings” as references
to obligations under this Call Off Contract;
1.3.8 references to “Clauses” and “Call Off Schedules” are, unless otherwise provided,
references to the clauses and schedules of this Call Off Contract and references in any Call
Off Schedule to parts, paragraphs, annexes and tables are, unless otherwise provided,
references to the parts, paragraphs, annexes and tables of the Call Off Schedule in which
these references appear; and
1.3.9 the headings in this Call Off Contract are for ease of reference only and shall not affect
the interpretation or construction of this Call Off Contract.
1.4 Subject to Clauses 1.5 and 1.6 (Definitions and Interpretation), in the event of and only
to the extent of any conflict between the Call Off Order Form, the Call Off Terms and the
provisions of the Framework Agreement, the conflict shall be resolved in accordance with
the following order of precedence:
1.4.1 the Framework Agreement, except Framework Schedule 18 (Tender);
1.4.2 the Call Off Order Form;
1.4.3 the Call Off Terms, except Call Off Schedule 15 (Call Off Tender);
1.4.4 Call Off Schedule 15 (Call Off Tender); and
1.4.5 Framework Schedule 18 (Tender).
1.5 Any permitted changes by the Contracting Authority to the Template Call Off Terms and
the Template Call Off Order Form under Clause 5 (Call Off Procedure) of the Framework
Agreement and Framework Schedule 5 (Call Off Procedure) prior to them becoming the
Call Off Terms and the Call Off Order Form which comprise this Call Off Contract shall
prevail over the Framework Agreement.
1.6 Where Call Off Schedule 15 (Call Off Tender) or Framework Schedule 18 (Tender)
contain provisions which are more favourable to the Contracting Authority in relation to
(the rest of) this Call Off Contract, such provisions of the Call Off Tender or the Tender
shall prevail. The Contracting Authority shall in its absolute and sole discretion determine
whether any provision in the Call Off Tender or Tender is more favourable to it in this
context.
2. DUE DILIGENCE
2.1 The Supplier acknowledges that:
2.1.1 the Contracting Authority has delivered or made available to the Supplier all of the
information and documents that the Supplier considers necessary or relevant for the
performance of its obligations under this Call Off Contract;
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2.1.2 it has made its own enquiries to satisfy itself as to the accuracy and adequacy of the Due
Diligence Information;
2.1.3 it has raised all relevant due diligence questions with the Contracting Authority before
the Call Off Commencement Date;
2.1.4 it has undertaken all necessary due diligence and has entered into this Call Off Contract
in reliance on its own due diligence alone; and
2.1.5 it shall not be excused from the performance of any of its obligations under this Call Off
Contract on the grounds of, nor shall the Supplier be entitled to recover any additional costs
or charges, arising as a result of any:
(a) misinterpretation of the requirements of the Contracting Authority in
the Call Off Order Form or elsewhere in this Call Off Contract;
(b) failure by the Supplier to satisfy itself as to the accuracy and/or
adequacy of the Due Diligence Information; and/or
(c) failure by the Supplier to undertake its own due diligence.
3. REPRESENTATIONS AND WARRANTIES
3.1 Each Party represents and warranties that:
3.1.1 it has full capacity and authority to enter into and to perform this Call Off Contract;
3.1.2 this Call Off Contract is executed by its duly authorised representative;
3.1.3 there are no actions, suits or proceedings or regulatory investigations before any court
or administrative body or arbitration tribunal pending or, to its knowledge, threatened
against it (or, in the case of the Supplier, any of its Affiliates) that might affect its ability to
perform its obligations under this Call Off Contract; and
3.1.4 its obligations under this Call Off Contract constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms subject to applicable (as
the case may be for each Party) bankruptcy, reorganisation, insolvency, moratorium or
similar Laws affecting creditors’ rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of whether enforcement is sought in a
proceeding in equity or Law).
3.2 The Supplier represents and warrants that:
3.2.1 it is validly incorporated, organised and subsisting in accordance with the Laws of its
place of incorporation;
3.2.2 it has all necessary consents (including, where its procedures so require, the consent of
its Parent Company) and regulatory approvals to enter into this Call Off Contract;
3.2.3 its execution, delivery and performance of its obligations under this Call Off Contract
does not and will not constitute a breach of any Law or obligation applicable to it and does
not and will not cause or result in a Default under any agreement by which it is bound;
3.2.4 as at the Call Off Commencement Date, all written statements and representations in
any written submissions made by the Supplier as part of the procurement process, its
Tender, Call Off Tender and any other documents submitted remain true and accurate
except to the extent that such statements and representations have been superseded or
varied by this Call Off Contract;
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3.2.5 if the Call Off Contract Charges payable under this Call Off Contract exceed or are likely
to exceed five (5) million pounds, as at the Call Off Commencement Date it has notified the
Contracting Authority in writing of any Occasions of Tax Non-Compliance or any litigation
that it is involved in connection with any Occasions of Tax Non Compliance;
3.2.6 it has and shall continue to have all necessary rights in and to the Third Party IPR, the
Supplier Background IPRs and any other materials made available by the Supplier (and/or
any Sub-Contractor) to the Contracting Authority which are necessary for the performance
of the Supplier’s obligations under this Call Off Contract including the receipt of the Services
by the Contracting Authority;
3.2.7 it shall take all steps, in accordance with Good Industry Practice, to prevent the
introduction, creation or propagation of any disruptive elements (including any virus, worms
and/or Trojans, spyware or other malware) into systems, data, software or the Contracting
Authority’s Confidential Information (held in electronic form) owned by or under the control
of, or used by, the Contracting Authority;
3.2.8 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 this Call Off Contract;
3.2.9 it is not affected by an Insolvency Event and 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 Supplier 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
Supplier’s assets or revenue; and
3.2.10 for the Call Off Contract Period and for a period of twelve (12) Months after the
termination or expiry of this Call Off Contract, the Supplier shall not employ or offer
employment to any staff of the Contracting Authority which have been associated with the
provision of the Services without Approval or the prior written consent of the Contracting
Authority which shall not be unreasonably withheld.
3.3 Each of the representations and warranties set out in Clauses 3.1 and 3.2 shall be
construed as a separate representation and warranty and shall not be limited or restricted
by reference to, or inference from, the terms of any other representation, warranty or any
undertaking in this Call Off Contract.
3.4 If at any time a Party becomes aware that a representation or warranty given by it
under Clauses 3.1 and 3.2 has been breached, is untrue or is misleading, it shall
immediately notify the other Party of the relevant occurrence in sufficient detail to enable
the other Party to make an accurate assessment of the situation.
3.5 For the avoidance of doubt, the fact that any provision within this Call Off Contract is
expressed as a warranty shall not preclude any right of termination the Contracting
Authority may have in respect of breach of that provision by the Supplier which
constitutes a material Default.
4. CALL OFF GUARANTEE – NOT USED
B. DURATION OF CALL OFF CONTRACT
5. CALL OFF CONTRACT PERIOD
25
5.1 This Call Off Contract shall take effect on the Call Off Commencement Date and the term
of this Call Off Contract shall be the Call Off Contract Period.
5.2 Where the Contracting Authority has specified a Call Off Extension Period in the Call Off
Order Form, the Contracting Authority may extend this Call Off Contract for the Call Off
Extension Period by providing written notice to the Supplier before the end of the Initial
Call Off Period. The minimum period for the written notice shall be as specified in the Call
Off Order Form.
C. CALL OFF CONTRACT PERFORMANCE
6. IMPLEMENTATION PLAN
6.1 Formation of Implementation Plan:
6.1.1 Where an Implementation Plan has not been agreed and included in Call Off Schedule 4
(Implementation Plan) on the Call Off Commencement Date, but the Contracting Authority
has specified in the Call Off Order Form that the Supplier shall provide a draft
Implementation Plan prior to the commencement of the provision of the Services, the
Supplier’s draft must contain information at the level of detail necessary to manage the
implementation stage effectively and as the Contracting Authority may require. The draft
Implementation Plan shall take account of all dependencies known to, or which should
reasonably be known to, the Supplier.
6.1.2 The Supplier shall submit the draft Implementation Plan to the Contracting Authority for
Approval (such decision of the Contracting Authority to Approve or not shall not be
unreasonably delayed or withheld) within such period as specified by the Contracting
Authority in the Call Off Order Form.
6.1.3 The Supplier shall perform each of the Deliverables identified in the Implementation
Plan by the applicable date assigned to that Deliverable in the Implementation Plan so as to
ensure that each Milestone identified in the Implementation Plan is Achieved on or before
its Milestone Date.
6.1.4 The Supplier shall monitor its performance against the Implementation Plan and
Milestones (if any) and any other requirements of the Contracting Authority as set out in this
Call Off Contract and report to the Contracting Authority on such performance.
6.2 Control of Implementation Plan
6.2.1 Subject to Clause 6.2.2, the Supplier shall keep the Implementation Plan under review in
accordance with the Contracting Authority’s instructions and ensure that it is maintained
and updated on a regular basis as may be necessary to reflect the then current state of the
provision of the Services. The Contracting Authority shall have the right to require the
Supplier to include any reasonable changes or provisions in each version of the
Implementation Plan.
6.2.2 Changes to the Milestones (if any), Milestone Payments (if any) and Delay Payments (if
any) shall only be made in accordance with the Variation Procedure and provided that the
Supplier shall not attempt to postpone any of the Milestones using the Variation Procedure
or otherwise (except in the event of a Contracting Authority Cause which affects the
Supplier’s ability to achieve a Milestone by the relevant Milestone Date).
6.2.3 Where so specified by the Contracting Authority in the Implementation Plan or
elsewhere in this Call Off Contract, time in relation to compliance with a date, Milestone
26
Date or period shall be of the essence and failure of the Supplier to comply with such date,
Milestone Date or period shall be a material Default unless the Parties expressly agree
otherwise.
6.3 Rectification of Delay in Implementation
6.3.1 If the Supplier becomes aware that there is, or there is reasonably likely to be, a Delay
under this Call Off Contract:
(a) it shall:
(i) notify the Contracting Authority as soon as practically possible
and no later than within two (2) Working Days from becoming
aware of the Delay or anticipated Delay;
(ii) include in its notification an explanation of the actual or
anticipated impact of the Delay;
(iii) comply with the Contracting Authority’s instructions in order
to address the impact of the Delay or anticipated Delay; and
(iv) use all reasonable endeavours to eliminate or mitigate the
consequences of any Delay or anticipated Delay; and
(b) if the Delay or anticipated Delay relates to a Milestone in respect
which a Delay Payment has been specified in the Implementation
Plan, Clause 6.4 (Delay Payments) shall apply.
6.4 Delay Payments
6.4.1 If Delay Payments have been included in the Implementation Plan and a Milestone has
not been achieved by the relevant Milestone Date, the Supplier shall pay to the Contracting
Authority such Delay Payments (calculated as set out by the Contracting Authority in the
Implementation Plan) and the following provisions shall apply:
(a) the Supplier acknowledges and agrees that any Delay Payment is a
price adjustment and not an estimate of the Loss that may be
suffered by the Contracting Authority as a result of the Supplier’s
failure to Achieve the corresponding Milestone;
(b) Delay Payments shall be the Contracting Authority's exclusive
financial remedy for the Supplier’s failure to Achieve a corresponding
Milestone by its Milestone Date except where:
(i) the Contracting Authority is otherwise entitled to or does
terminate this Call Off Contract pursuant to Clause 41
(Contracting Authority Termination Rights) except Clause 41.6
(Termination Without Cause); or
(ii) the delay exceeds the number of days (the “Delay Period
Limit”) specified in Call Off Schedule 4 (Implementation Plan)
for the purposes of this sub-Clause, commencing on the
relevant Milestone Date;
(c) the Delay Payments will accrue on a daily basis from the relevant
Milestone Date and shall continue to accrue until the date when the
Milestone is Achieved (unless otherwise specified by the Contracting
Authority in the Implementation Plan);
27
(d) no payment or concession to the Supplier by the Contracting
Authority or other act or omission of the Contracting Authority shall
in any way affect the rights of the Contracting Authority to recover
the Delay Payments or be deemed to be a waiver of the right of the
Contracting Authority to recover any such damages unless such
waiver complies with Clause 48 (Waiver and Cumulative Remedies)
and refers specifically to a waiver of the Contracting Authority’s
rights to claim Delay Payments; and
(e) the Supplier waives absolutely any entitlement to challenge the
enforceability in whole or in part of this Clause 6.4.1 and Delay
Payments shall not be subject to or count towards any limitation on
liability set out in Clause 36 (Liability).
7. SERVICES AND DELIVERY
7.1 Provision of the Services
7.1.1 The Supplier acknowledges and agrees that the Contracting Authority relies on the skill
and judgment of the Supplier in the provision of the Services and the performance of its
obligations under this Call Off Contract.
7.1.2 The Supplier shall ensure that the Services:
(a) comply in all respects with the description of the Services in Call Off
Schedule 2 (Services) or elsewhere in this Call Off Contract; and
(b) are supplied in accordance with the provisions of this Call Off
Contract (including the Call Off Tender) and the Tender.
7.1.3 The Supplier shall perform its obligations under this Call Off Contract in accordance
with:
(a) all applicable Law;
(b) Good Industry Practice;
(c) the Standards;
(d) the Security Policy;
and
(e) the Supplier’s own established procedures and practices to the
extent the same do not conflict with the requirements of Clause
7.1.3(a).
7.1.4 The Supplier shall:
(a) at all times allocate sufficient resources with the appropriate
technical expertise to supply the Deliverables and to provide the
Services in accordance with this Call Off Contract;
(b) subject to Clause 22.1 (Variation Procedure), obtain, and maintain
throughout the duration of this Call Off Contract, all the consents,
approvals, licences and permissions (statutory, regulatory
contractual or otherwise) it may require and which are necessary for
the provision of the Services;
28
(c) ensure that any Services recommended or otherwise specified by the
Supplier for use by the Contracting Authority in conjunction with the
Deliverables andServices shall enable the Deliverables and the
Services to meet the requirements of the Contracting Authority;
(d) ensure that the Supplier Assets will be free of all encumbrances
(except as agreed in writing with the Contracting Authority);
(e) ensure that the Services are fully compatible with any Contracting
Authority Property or Contracting Authority Assets described in Call
Off Schedule 4 (Implementation Plan) (or elsewhere in this Call Off
Contract) or otherwise used by the Supplier in connection with this
Call Off Contract;
(f) minimise any disruption to the Sites and/or the Contracting
Authority's operations when providing the Services;
(g) ensure that any Documentation and training provided by the
Supplier to the Contracting Authority are comprehensive, accurate
and prepared in accordance with Good Industry Practice;
(h) co-operate with the Other Suppliers and provide reasonable
information (including any Documentation), advice and assistance in
connection with the Services to any Other Supplier and, on the Call
Off Expiry Date for any reason, to enable the timely transition of the
supply of the Services (or any of them) to the Contracting Authority
and/or to any Replacement Supplier;
(i) assign to the Contracting Authority, or if it is unable to do so, shall (to
the extent it is legally able to do so) hold on trust for the sole benefit
of the Contracting Authority, all warranties and indemnities provided
by third parties or any Sub-Contractor in respect of any Deliverables
and/or the Services. Where any such warranties are held on trust,
the Supplier shall enforce such warranties in accordance with any
reasonable directions that the Contracting Authority may notify from
time to time to the Supplier;
(j) provide the Contracting Authority with such assistance as the
Contracting Authority may reasonably require during the Call Off
Contract Period in respect of the supply of the Services;
(k) deliver the Services in a proportionate and efficient manner;
(l) ensure that neither it, nor any of its Affiliates, embarrasses
the Contracting Authority or otherwise brings the Contracting
Authority into disrepute by engaging in any act or omission which is
reasonably likely to diminish the trust that the public places in the
Contracting Authority, regardless of whether or not such act or
omission is related to the Supplier’s obligations under this Call Off
Contract; and
(m) gather, collate and provide such information and co-operation as the
Contracting Authority may reasonably request for the purposes of
ascertaining the Supplier’s compliance with its obligations under this
Call Off Contract.
29
7.1.5 An obligation on the Supplier to do, or to refrain from doing, any act or thing shall
include an obligation upon the Supplier to procure that all Sub-Contractors and Key Sub
Contractors and Supplier Personnel also do, or refrain from doing, such act or thing.
8. SERVICES
8.1 General application
8.1.1 This Clause 8 shall apply if any Services have been included in Annex 1 (The Services) of
Call Off Schedule 2 (Services).
8.2 Time of Delivery of the Services
8.2.1 The Supplier shall provide the Services on the date(s) specified in the Call Off Order
Form (or elsewhere in this Call Off Contract) and the Milestone Dates (if any).
8.3 Location and Manner of Delivery of the Services
8.3.1 Except where otherwise provided in this Call Off Contract, the Supplier shall provide the
Services to the Contracting Authority through the Supplier Personnel at the Sites.
8.3.2 The Contracting Authority may inspect and examine the manner in which the Supplier
provides the Services at the Sites and, if the Sites are not the Contracting Authority Premises,
the Contracting Authority may carry out such inspection and examination during normal
business hours and on reasonable notice.
8.4 Undelivered Services
8.4.1 In the event that any of the Services are not Delivered in accordance with Clauses 7.1
(Provision of the Services), 8.2 (Time of Delivery of the Services) and 8.3 (Location and
Manner of Delivery of the Services) ("Undelivered Services"), the Contracting Authority,
without prejudice to any other rights and remedies of the Contracting Authority howsoever
arising, shall be entitled to withhold payment of the applicable Call Off Contract Charges for
the Services that were not so Delivered until such time as the Undelivered Services are
Delivered.
8.4.2 The Contracting Authority may, at its discretion and without prejudice to any other
rights and remedies of the Contracting Authority howsoever arising, deem the failure to
comply with Clauses 7.1, (Provision of the Services), 8.2 (Time of Delivery of the Services)
and 8.3 (Location and Manner of Delivery of the Services) and meet the relevant Milestone
Date (if any) to be a material Default.
8.5 Obligation to Remedy of Default in the Supply of the Services
8.5.1 Subject to Clauses 33.9.2 and 33.9.3 (IPR Indemnity) and without prejudice to any other
rights and remedies of the Contracting Authority howsoever arising (including under Clauses
8.4.2 (Undelivered Services) and 38 (Contracting Authority Remedies for Default)), the
Supplier shall, where practicable:
(a) remedy any breach of its obligations in Clauses Error! Reference
source not found. and 8 within three (3) Working Days of becoming
aware of the relevant Default or being notified of the Default by the
Contracting Authority or within such other time period as may be
agreed with the Contracting Authority (taking into account the
nature of the breach that has occurred); and
30
(b) meet all the costs of, and incidental to, the performance of such
remedial work.
8.6 Continuing Obligation to Provide the Services
8.6.1 The Supplier shall continue to perform all of its obligations under this Call Off Contract
and shall not suspend the provision of the Services, notwithstanding:
(a) any withholding or deduction by the Contracting Authority of any
sum due to the Supplier pursuant to the exercise of a right of the
Contracting Authority to such withholding or deduction under this
Call Off Contract;
(b) the existence of an unresolved Dispute; and/or
(c) any failure by the Contracting Authority to pay any Call Off Contract
Charges,
unless the Supplier is entitled to terminate this Call Off Contract under
Clause 42.1 (Termination on Contracting Authority Cause for Failure to Pay)
for failure by the Contracting Authority to pay undisputed Call Off Contract
Charges.
9. GOODS – NOT USED
10. INSTALLATION WORKS – NOT USED
11. STANDARDS AND QUALITY
11.1 The Supplier shall at all times during the Call Off Contract Period comply with the
Standards and maintain, where applicable, accreditation with the relevant Standards'
authorisation body.
11.2 Throughout the Call Off Contract Period, the Parties shall notify each other of any new
or emergent standards which could affect the Supplier’s provision, or the receipt by the
Contracting Authority, of the Services. The adoption of any such new or emergent
standard, or changes to existing Standards (including any specified in the Call Off Order
Form), shall be agreed in accordance with the Variation Procedure.
11.3 Where a new or emergent standard is to be developed or introduced by the Contracting
Authority, the Supplier shall be responsible for ensuring that the potential impact on the
Supplier’s provision, or the Contracting Authority’s receipt of the Services is explained to
the Contracting Authority (within a reasonable timeframe), prior to the implementation of
the new or emergent Standard.
11.4 Where Standards referenced conflict with each other or with best professional or
industry practice adopted after the Call Off Commencement Date, then the later Standard
or best practice shall be adopted by the Supplier. Any such alteration to any Standard or
Standards shall require Approval (and the written consent of the Contracting Authority
where the relevant Standard or Standards is/are included in Framework Schedule 2
(Services and Key Performance Indicators) and shall be implemented within an agreed
timescale.
11.5 Where a standard, policy or document is referred to by reference to a hyperlink, then if
the hyperlink is changed or no longer provides access to the relevant standard, policy or
31
document, the Supplier shall notify the Contracting Authority and the Parties shall agree
the impact of such change.
12. TESTING – NOT USED
13. SERVICE LEVELS AND SERVICE CREDITS
13.1 This Clause 13 shall apply where the Contracting Authority has specified Service Levels
and Service Credits in the Call Off Order Form. Where the Contracting Authority has
specified Service Levels but not Service Credits, only sub-clauses 13.2, 13.3 and 13.7 shall
apply.
13.2 When this Clause 13.2 applies, the Parties shall also comply with the provisions of Part A
(Service Levels and Service Credits) of Call Off Schedule 6 (Service Levels, Service Credits
and Performance Monitoring).
13.3 The Supplier shall at all times during the Call Off Contract Period provide the Services to
meet or exceed the Service Level Performance Measure for each Service Level
Performance Criterion.
13.4 The Supplier acknowledges that any Service Level Failure may have a material adverse
impact on the business and operations of the Contracting Authority and that it shall entitle
the Contracting Authority to the rights set out in Part A (Service Levels and Service Credits)
of Call Off Schedule 6 (Service Levels, Service Credits and Performance Monitoring)
including the right to any Service Credits.
13.5 The Supplier acknowledges and agrees that any Service Credit is a price adjustment and
not an estimate of the Loss that may be suffered by the Contracting Authority as a result
of the Supplier’s failure to meet any Service Level Performance Measure.
13.6 A Service Credit shall be the Contracting Authority’s exclusive financial remedy for a
Service Level Failure except where:
13.6.1 the Supplier has over the previous twelve (12) Month period accrued Service Credits in
excess of the Service Credit Cap;
13.6.2 the Service Level Failure:
(a) exceeds the relevant Service Level Threshold;
(b) has arisen due to a Prohibited Act or wilful Default by the Supplier or
any Supplier Personnel; and
(c) results in:
(i) the corruption or loss of any Contracting Authority Data (in
which case the remedies under Clause 34.2.8 (Protection of
Contracting Authority Data) shall also be available); and/or
(ii) the Contracting Authority being required to make a
compensation payment to one or more third parties; and/or
13.6.3 the Contracting Authority is otherwise entitled to or does terminate this Call Off
Contract pursuant to Clause 41 (Contracting Authority Termination Rights) except Clause
41.6 (Termination Without Cause).
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13.7 Not more than once in each Call Off Contract Year, the Contracting Authority may, on
giving the Supplier at least three (3) Months notice, change the weighting of Service Level
Performance Measure in respect of one or more Service Level Performance Criteria and
the Supplier shall not be entitled to object to, or increase the Call Off Contract Charges as
a result of such changes, provided that:
13.7.1 the total number of Service Level Performance Criteria for which the weighting is to be
changed does not exceed the number set out, for the purposes of this clause, in the Call Off
Order Form;
13.7.2 the principal purpose of the change is to reflect changes in the Contracting Authority’s
business requirements and/or priorities or to reflect changing industry standards; and
13.7.3 there is no change to the Service Credit Cap.
14. CRITICAL SERVICE LEVEL FAILURE
14.1 This Clause 14 shall apply if the Contracting Authority has specified both Service Credits
and Critical Service Level Failure in the Call Off Order Form.
14.2 On the occurrence of a Critical Service Level Failure:
14.2.1 any Service Credits that would otherwise have accrued during the relevant Service
Period shall not accrue; and
14.2.2 the Contracting Authority shall (subject to the Service Credit Cap set out in Clause
36.2.1(a) (Financial Limits)) be entitled to withhold and retain as compensation for the
Critical Service Level Failure a sum equal to any Call Off Contract Charges which would
otherwise have been due to the Supplier in respect of that Service Period (“Compensation
for Critical Service Level Failure"),
provided that the operation of this Clause 14.2 shall be without prejudice to the right of the
Contracting Authority to terminate this Call Off Contract and/or to claim damages from the
Supplier for material Default as a result of such Critical Service Level Failure.
14.3 The Supplier:
14.3.1 agrees that the application of Clause 14.2 is commercially justifiable where a Critical
Service Level Failure occurs; and
14.3.2 acknowledges that it has taken legal advice on the application of Clause 14.2 and has
had the opportunity to price for that risk when calculating the Call Off Contract Charges.
15. BUSINESS CONTINUITY AND DISASTER RECOVERY
15.1 This Clause 15 shall apply if the Contracting Authority has so specified in the Call Off
Order Form.
15.2 The Parties shall comply with the provisions of Call Off Schedule 8 (Business Continuity
and Disaster Recovery).
16. DISRUPTION
16.1 The Supplier shall take reasonable care to ensure that in the performance of its
obligations under this Call Off Contract it does not disrupt the operations of the
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Contracting Authority, its employees or any other contractor employed by the Contracting
Authority.
16.2 The Supplier shall immediately inform the Contracting Authority of any actual or
potential industrial action, whether such action be by the Supplier Personnel or others,
which affects or might affect the Supplier’s ability at any time to perform its obligations
under this Call Off Contract.
16.3 In the event of industrial action by the Supplier Personnel, the Supplier shall seek
Approval to its proposals for the continuance of the supply of the Services in accordance
with its obligations under this Call Off Contract.
16.4 If the Supplier’s proposals referred to in Clause 16.3 are considered insufficient or
unacceptable by the Contracting Authority acting reasonably then the Contracting
Authority may terminate this Call Off Contract for material Default.
16.5 If the Supplier is temporarily unable to fulfil the requirements of this Call Off Contract
owing to disruption of normal business solely due to a Contracting Authority Cause, then
subject to Clause 17 (Supplier Notification of Contracting Authority Cause), an appropriate
allowance by way of an extension of time will be Approved by the Contracting Authority.
In addition, the Contracting Authority will reimburse any additional expense reasonably
incurred by the Supplier as a direct result of such disruption.
17. SUPPLIER NOTIFICATION OF AUTHORITY CAUSE
17.1 Without prejudice to any other obligations of the Supplier in this Call Off Contract to
notify the Contracting Authority in respect of a specific Contracting Authority Cause
(including the notice requirements under Clause 42.1.1 (Termination on Contracting
Authority Cause for Failure to Pay)), the Supplier shall:
17.1.1 notify the Contracting Authority as soon as reasonably practicable ((and in any event
within two (2) Working Days of the Supplier becoming aware)) that a Contracting Authority
Cause has occurred or is reasonably likely to occur, giving details of:
(a) the Contracting Authority Cause and its effect, or likely effect, on the
Supplier’s ability to meet its obligations under this Call Off Contract;
and
(b) any steps which the Contracting Authority can take to eliminate or
mitigate the consequences and impact of such Contracting Authority
Cause; and
(c) use all reasonable endeavours to eliminate or mitigate the
consequences and impact of a Contracting Authority Cause, including
any Losses that the Supplier may incur and the duration and
consequences of any Delay or anticipated Delay.
18. CONTINUOUS IMPROVEMENT – NOT USED
D. CALL OFF CONTRACT GOVERNANCE
19. PERFORMANCE MONITORING
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19.1 The Supplier shall comply with the monitoring requirements set out in Part B
(Performance Monitoring) of Call Off Schedule 6 (Service Levels, Service Credits and
Performance Monitoring).
20. REPRESENTATIVES
20.1 Each Party shall have a representative for the duration of this Call Off Contract who shall
have the authority to act on behalf of their respective Party on the matters set out in, or in
connection with, this Call Off Contract.
20.2 The initial Supplier Representative shall be the person named as such in the Call Off
Order Form. Any change to the Supplier Representative shall be agreed in accordance with
Clause 27 (Supplier Personnel).
20.3 If the initial Contracting Authority Representative is not specified in the Call Off Order
Form, the Contracting Authority shall notify the Supplier of the identity of the initial
Contracting Authority Representative within five (5) Working Days of the Call Off
Commencement Date. The Contracting Authority may, by written notice to the Supplier,
revoke or amend the authority of the Contracting Authority Representative or appoint a
new Contracting Authority Representative.
21. RECORDS, AUDIT ACCESS AND OPEN BOOK DATA
21.1 The Supplier shall keep and maintain, until the later of:
21.1.1 seven (7) years after the date of termination or expiry of this Call Off
Contract to expire or terminate; or
21.1.2 such other date as may be agreed between the Parties,
full and accurate records and accounts of the operation of this Call Off Contract, the Services
provided and the amounts paid by the Contracting Authority.
21.2 The Supplier shall keep the records and accounts referred to in Clause 21.1 in
accordance with Good Industry Practice and Law.
21.3 The Supplier shall afford any Auditor access to the records and accounts referred to in
Clause 21.1 at the Supplier’s premises and provide such records and accounts or copies
of the same, as may be required and agreed with any of the Auditors from time to time,
in order that the Auditor may carry out an inspection to assess compliance by the
Supplier and its Key Sub-Contractors of any of the Supplier’s obligations under this Call
Off Contract, including in order to:
21.3.1 verify the accuracy of the Charges and any other amounts payable by a
Contracting Contracting Authority under a Call Off Agreement (including
proposed or actual variations to them in accordance with this Framework
Agreement);
21.3.2 verify the costs of the Supplier (including the costs of all Key Sub-Contractors
and any third party Supplier’s) in connection with the provision of the
Services;
21.3.3 verify the Open Book Data;
21.3.4 verify the Supplier’s and each Key Sub-Contractor’s compliance with the
applicable Law;
35
21.3.5 identify or investigate actual or suspected Prohibited Acts, impropriety or
accounting mistakes or any breach or threatened breach of security and in
these circumstances the Contracting Authority shall have no obligation to
inform the Supplier of the purpose or objective of its investigations;
21.3.6 identify or investigate any circumstances which may impact upon the
financial stability of the Supplier and any Key Sub-Contractors or their ability
to perform the Services;
21.3.7 obtain such information as is necessary to fulfil the Contracting Authority’s
obligations to supply information for parliamentary, ministerial, judicial or
administrative purposes including the supply of information to the
Comptroller and Auditor General;
21.3.8 review any books of account and the internal contract management accounts
kept by the Supplier in connection with this Framework Agreement;
21.3.9 carry out the Contracting Authority’s internal and statutory audits and to
prepare, examine and/or certify the Contracting Authority's annual and
interim reports and accounts;
21.3.10 enable the National Audit Office to carry out an examination pursuant to
Section 6(1) of the National Audit Act 1983 of the economy, efficiency and
effectiveness with which the Contracting Authority has used its resources;
21.3.11 verify the accuracy and completeness of any Management Information
delivered or required by this Framework Agreement;
21.3.12 review any MI Reports and other records relating to the Supplier’s
performance of the Services and to verify that these reflect the Supplier’s
own internal reports and records; and
21.3.13 review the integrity, confidentiality and security of the Contracting Authority
Personal Data.
21.4 The Contracting Authority shall use reasonable endeavours to ensure that the conduct
of each Audit does not unreasonably disrupt the Supplier or delay the provision of the
Services pursuant to the Call Off Agreements, save insofar as the Supplier accepts and
acknowledges that control over the conduct of Audits carried out by the Auditors is
outside of the control of the Contracting Authority.
21.5 Subject to the Contracting Authority's obligations of confidentiality, the Supplier shall on
demand provide the Auditors with all reasonable co-operation and assistance in relation
to each Audit, including by providing:
21.5.1 all information within the scope of the Audit requested by the Auditor;
21.5.2 reasonable access to any sites controlled by the Supplier and to equipment
used in the provision of the Services; and
21.5.3 access to the Supplier Personnel.
21.6 The Parties agree that they shall bear their own respective costs and expenses incurred
in respect of compliance with their obligations under this Clause.
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22. CHANGE
22.1 Variation Procedure
22.1.1 Subject to the provisions of this Clause 22 and of Call Off Schedule 3 (Call Off Contract
Charges, Payment and Invoicing), either Party may request a variation to this Call Off
Contract provided that such variation does not amount to a material change of this Call Off
Contract within the meaning of the Regulations and the Law. Such a change once
implemented is hereinafter called a "Variation".
22.1.2 A Party may request a Variation by completing, signing and sending the Variation Form
to the other Party giving sufficient information for the receiving Party to assess the extent of
the proposed Variation and any additional cost that may be incurred.
22.1.3 Where the Contracting Authority has so specified on receipt of a Variation Form from
the Supplier, the Supplier shall carry out an impact assessment of the Variation on the
Services (the “Impact Assessment”). The Impact Assessment shall be completed in good
faith and shall include:
(a) details of the impact of the proposed Variation on the Services and
the Supplier’s ability to meet its other obligations under this Call Off
Contract;
(b) details of the cost of implementing the proposed Variation;
(c) details of the ongoing costs required by the proposed Variation when
implemented, including any increase or decrease in the Call Off
Contract Charges, any alteration in the resources and/or expenditure
required by either Party and any alteration to the working practices
of either Party;
(d) a timetable for the implementation, together with any proposals for
the testing of the Variation; and
(e) such other information as the Contracting Authority may reasonably
request in (or in response to) the Variation request.
22.1.4 The Parties may agree to adjust the time limits specified in the Variation Form to allow
for the preparation of the Impact Assessment.
22.1.5 Subject to 22.1.4, the receiving Party shall respond to the request within the time limits
specified in the Variation Form. Such time limits shall be reasonable and ultimately at the
discretion of the Contracting Authority having regard to the nature of the Services and the
proposed Variation.
22.1.6 In the event that:
(a) the Supplier is unable to agree to or provide the Variation; and/or
(b) the Parties are unable to agree a change to the Call Off Contract
Charges that may be included in a request of a Variation or response
to it as a consequence thereof,
the Contracting Authority may:
37
(i) agree to continue to perform its obligations under this Call Off
Contract without the Variation; or
(ii) terminate this Call Off Contract with immediate effect, except
where the Supplier has already fulfilled part or all of the
provision of the Services in accordance with this Call Off
Contract or where the Supplier can show evidence of
substantial work being carried out to provide the Services
under this Call Off Contract, and in such a case the Parties shall
attempt to agree upon a resolution to the matter. Where a
resolution cannot be reached, the matter shall be dealt with
under the Dispute Resolution Procedure.
22.1.7 If the Parties agree the Variation, the Supplier shall implement such Variation and be
bound by the same provisions so far as is applicable, as though such Variation was stated in
this Call Off Contract.
22.2 Legislative Change
22.2.1 The Supplier shall neither be relieved of its obligations under this Call Off Contract nor
be entitled to an increase in the Call Off Contract Charges as the result of a:
(a) General Change in Law;
(b) Specific Change in Law where the effect of that Specific Change in
Law on the Services is reasonably foreseeable at the Call Off
Commencement Date.
22.2.2 If a Specific Change in Law occurs or will occur during the Call Off Contract Period (other
than as referred to in Clause 22.2.1(b)), the Supplier shall:
(a) notify the Contracting Authority as soon as reasonably practicable of
the likely effects of that change including:
(i) whether any Variation is required to the provision of the
Services, the Call Off Contract Charges or this Call Off Contract;
and
(ii) whether any relief from compliance with the Supplier’s
obligations is required, including any obligation to Achieve a
Milestone and/or to meet the Service Level Performance
Measures; and
(b) provide to the Contracting Authority with evidence:
(i) that the Supplier has minimised any increase in costs or
maximised any reduction in costs, including in respect of the
costs of its Sub-Contractors;
(ii) as to how the Specific Change in Law has affected the cost of
providing the Services; and
(iii) demonstrating that any expenditure that has been avoided, for
example which would have been required under the provisions
of Clause 18 (Continuous Improvement), has been taken into
account in amending the Call Off Contract Charges.
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22.2.3 Any change in the Call Off Contract Charges or relief from the Supplier’s obligations
resulting from a Specific Change in Law (other than as referred to in Clause 22.2.1(b)) shall
be implemented in accordance with the Variation Procedure.
E. PAYMENT, TAXATION AND VALUE FOR MONEY PROVISIONS
23. CALL OFF CONTRACT CHARGES AND PAYMENT
23.1 Call Off Contract Charges
23.1.1 In consideration of the Supplier carrying out its obligations under this Call Off Contract,
including the provision of the Services, the Contracting Authority shall pay the undisputed
Call Off Contract Charges in accordance with the pricing and payment profile and the
invoicing procedure in Call Off Schedule 3 (Call Off Contract Charges, Payment and Invoicing).
23.1.2 Except as otherwise provided, each Party shall bear its own costs and expenses incurred
in respect of compliance with its obligations under Clauses 12 (Testing), 21 (Records, Audit
Access and Open Book Data), 34.5 (Freedom of Information) and 34.6 (Protection of Personal
Data).
23.1.3 If the Contracting Authority fails to pay any undisputed Call Off Contract Charges
properly invoiced under this Call Off Contract, the Supplier shall have the right to charge
interest on the overdue amount at the applicable rate under the Late Payment of
Commercial Debts (Interest) Act 1998, accruing on a daily basis from the due date up to the
date of actual payment, whether before or after judgment.
23.1.4 If at any time during this Call Off Contract Period the Supplier reduces its Framework
Prices for any Services which are provided under the Framework Agreement (whether or not
such Services are offered in a catalogue, if any, which is provided under the Framework
Agreement) in accordance with the terms of the Framework Agreement, the Supplier shall
immediately reduce the Call Off Contract Charges for such Services under this Call Off
Contract by the same amount.
23.2 VAT
23.2.1 The Call Off Contract Charges are stated exclusive of VAT, which shall be added at the
prevailing rate as applicable and paid by the Contracting Authority following delivery of a
Valid Invoice.
23.2.2 The Supplier shall indemnify the Contracting Authority on a continuing basis against any
liability, including any interest, penalties or costs incurred, which is levied, demanded or
assessed on the Contracting Authority at any time (whether before or after the making of a
demand pursuant to the indemnity hereunder) in respect of the Supplier’s failure to account
for or to pay any VAT relating to payments made to the Supplier under this Call Off Contract.
Any amounts due under Clause 23.2 (VAT) shall be paid in cleared funds by the Supplier to
the Contracting Authority not less than five (5) Working Days before the date upon which the
tax or other liability is payable by the Contracting Authority.
23.3 Retention and Set Off
23.3.1 The Contracting Authority may retain or set off any amount owed to it by the Supplier
against any amount due to the Supplier under this Call Off Contract or under any other
agreement between the Supplier and the Contracting Authority.
39
23.3.2 If the Contracting Authority wishes to exercise its right pursuant to Clause 23.3.1 it shall
give notice to the Supplier within thirty (30) days of receipt of the relevant invoice, setting
out the Contracting Authority’s reasons for retaining or setting off the relevant Call Off
Contract Charges.
23.3.3 The Supplier shall make any payments due to the Contracting Authority without any
deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless
the Supplier has obtained a sealed court order requiring an amount equal to such deduction
to be paid by the Contracting Authority to the Supplier.
23.4 Foreign Currency
23.4.1 Any requirement of Law to account for the Services in any currency other than Sterling,
(or to prepare for such accounting) instead of and/or in addition to Sterling, shall be
implemented by the Supplier free of charge to the Contracting Authority.
23.4.2 The Contracting Authority shall provide all reasonable assistance to facilitate compliance
with Clause 23.4.1 by the Supplier.
23.5 Income Tax and National Insurance Contributions
23.5.1 Where the Supplier or any Supplier Personnel are liable to be taxed in the UK or to pay
national insurance contributions in respect of consideration received under this Call Off
Contract, the Supplier shall:
(a) at all times comply with the Income Tax (Earnings and Pensions) Act
2003 and all other statutes and regulations relating to income tax,
and the Social Security Contributions and Benefits Act 1992 and all
other statutes and regulations relating to national insurance
contributions, in respect of that consideration; and
(b) indemnify the Contracting Authority against any income tax, national
insurance and social security contributions and any other liability,
deduction, contribution, assessment or claim arising from or made
(whether before or after the making of a demand pursuant to the
indemnity hereunder) in connection with the provision of the
Services by the Supplier or any Supplier Personnel.
23.5.2 In the event that any one of the Supplier Personnel is a Worker as defined in Call Off
Schedule 1 (Definitions) who receives consideration relating to the Services, then, in
addition to its obligations under Clause 23.5.1, the Supplier shall ensure that its contract with
the Worker contains the following requirements:
(a) that the Contracting Authority may, at any time during the Call Off
Contract Period, request that the Worker provides information which
demonstrates how the Worker complies with the requirements of
Clause 23.5.1, or why those requirements do not apply to it. In such
case, the Contracting Authority may specify the information which
the Worker must provide and the period within which that
information must be provided;
(b) that the Worker’s contract may be terminated at the Contracting
Authority’s request if:
40
(i) the Worker fails to provide the information requested by the
Contracting Authority within the time specified by the
Contracting Authority under Clause 23.5.2(a); and/or
(ii) the Worker provides information which the Contracting
Authority considers is inadequate to demonstrate how the
Worker complies with Clause 23.5.1 or confirms that the
Worker is not complying with those requirements; and
(c) that the Contracting Authority may supply any information it receives
from the Worker to HMRC for the purpose of the collection and
management of revenue for which they are responsible.
24. PROMOTING TAX COMPLIANCE – NOT USED
25. BENCHMARKING – NOT USED
F. PERSONNEL AND SUPPLY CHAIN MATTERS
26. KEY PERSONNEL
26.1 This Clause 26 shall apply where the Contracting Authority has specified Key Personnel
in the Call Off Order Form.
26.2 The Call Off Order Form lists the key roles (“Key Roles”) and names of the persons who
the Supplier shall appoint to fill those Key Roles at the Call Off Commencement Date.
26.3 The Supplier shall ensure that the Key Personnel fulfil the Key Roles at all times during
the Call Off Contract Period.
26.4 The Contracting Authority may identify any further roles as being Key Roles and,
following agreement to the same by the Supplier, the relevant person selected to fill those
Key Roles shall be included on the list of Key Personnel.
26.5 The Supplier shall not remove or replace any Key Personnel (including when carrying out
its obligations under Call Off Schedule 9 (Exit Management) unless:
26.5.1 requested to do so by the Contracting Authority;
26.5.2 the person concerned resigns, retires or dies or is on maternity or long-term sick leave;
26.5.3 the person’s employment or contractual arrangement with the Supplier or a Sub-
Contractor is terminated for material breach of contract by the employee; or
26.5.4 the Supplier obtains the Contracting Authority’s prior written consent (such consent not
to be unreasonably withheld or delayed).
26.6 The Supplier shall:
26.6.1 notify the Contracting Authority promptly of the absence of any Key Personnel (other
than for short-term sickness or holidays of two (2) weeks or less, in which case the Supplier
shall ensure appropriate temporary cover for that Key Role);
26.6.2 ensure that any Key Role is not vacant for any longer than ten (10) Working Days;
26.6.3 give as much notice as is reasonably practicable of its intention to remove or replace
any member of Key Personnel and, except in the cases of death, unexpected ill health or a
41
material breach of the Key Personnel’s employment contract, this will mean at least three (3)
Months notice;
26.6.4 ensure that all arrangements for planned changes in Key Personnel provide adequate
periods during which incoming and outgoing personnel work together to transfer
responsibilities and ensure that such change does not have an adverse impact on the
provision of the Services; and
26.6.5 ensure that any replacement for a Key Role:
(a) has a level of qualifications and experience appropriate to the
relevant Key Role; and
(b) is fully competent to carry out the tasks assigned to the Key
Personnel whom he or she has replaced.
26.6.6 shall and shall procure that any Sub-Contractor shall not remove or replace any Key
Personnel during the Call Off Contract Period without Approval.
26.7 The Contracting Authority may require the Supplier to remove any Key Personnel that
the Contracting Authority considers in any respect unsatisfactory. The Contracting
Authority shall not be liable for the cost of replacing any Key Personnel.
27. SUPPLIER PERSONNEL
27.1 Supplier Personnel
27.1.1 The Supplier shall:
(a) provide a list of the names of all Supplier Personnel requiring
admission to Contracting Authority Premises, specifying the capacity
in which they require admission and giving such other particulars as
the Contracting Authority may reasonably require;
(b) ensure that all Supplier Personnel:
(i) are appropriately qualified, trained and experienced to provide
the Services with all reasonable skill, care and diligence;
(ii) are vetted in accordance with Good Industry Practice and,
where applicable, the Security Policy and the Standards;
(iii) obey all lawful instructions and reasonable directions of the
Contracting Authority (including, if so required by the
Contracting Authority, the ICT Policy) and provide the Services
to the reasonable satisfaction of the Contracting Authority;
and
(iv) comply with all reasonable requirements of the Contracting
Authority concerning conduct at the Contracting Authority
Premises, including the security requirements set out in Call
Off Schedule 7 (Security);
(c) subject to Call Off Schedule 10 (Staff Transfer), retain overall control
of the Supplier Personnel at all times so that the Supplier Personnel
shall not be deemed to be employees, agents or contractors of the
Contracting Authority;
42
(d) be liable at all times for all acts or omissions of Supplier Personnel, so
that any act or omission of a member of any Supplier Personnel
which results in a Default under this Call Off Contract shall be a
Default by the Supplier;
(e) use all reasonable endeavours to minimise the number of changes in
Supplier Personnel;
(f) replace (temporarily or permanently, as appropriate) any Supplier
Personnel as soon as practicable if any Supplier Personnel have been
removed or are unavailable for any reason whatsoever;
(g) bear the programme familiarisation and other costs associated with
any replacement of any Supplier Personnel; and
(h) procure that the Supplier Personnel shall vacate the Contracting
Authority Premises immediately upon the Call Off Expiry Date.
27.1.2 If the Contracting Authority reasonably believes that any of the Supplier Personnel are
unsuitable to undertake work in respect of this Call Off Contract, it may:
(a) refuse admission to the relevant person(s) to the Contracting
Authority Premises; and/or
(b) direct the Supplier to end the involvement in the provision of the
Services of the relevant person(s).
27.1.3 The decision of the Contracting Authority as to whether any person is to be refused
access to the Contracting Authority Premises shall be final and conclusive.
27.2 Relevant Convictions
27.2.1 This sub-clause 27.2 shall apply if the Contracting Authority has specified Relevant
Convictions in the Call Off Order Form.
27.2.2 The Supplier shall ensure that no person who discloses that he has a Relevant
Conviction, or who is found to have any Relevant Convictions (whether as a result of a police
check or through the procedure of the Disclosure and Barring Service (DBS) or otherwise), is
employed or engaged in any part of the provision of the Services without Approval.
27.2.3 Notwithstanding Clause 27.2.2, for each member of Supplier Personnel who, in
providing the Services, has, will have or is likely to have access to children, vulnerable
persons or other members of the public to whom the Contracting Authority owes a special
duty of care, the Supplier shall (and shall procure that the relevant Sub-Contractor shall):
(a) carry out a check with the records held by the Department for
Education (DfE);
(b) conduct thorough questioning regarding any Relevant Convictions;
and
(c) ensure a police check is completed and such other checks as may be
carried out through the Disclosure and Barring Service (DBS),
and the Supplier shall not (and shall ensure that any Sub-Contractor shall
not) engage or continue to employ in the provision of the Services any
person who has a Relevant Conviction or an inappropriate record.
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28. STAFF TRANSFER
28.1 This Clause 28 shall not apply if there are Goods but no Services under this Call Off
Contract.
28.2 The Parties agree that :
28.2.1 where the commencement of the provision of the Services or any part of the Services
results in one or more Relevant Transfers, Call Off Schedule 10 (Staff Transfer) shall apply as
follows:
(a) where the Relevant Transfer involves the transfer of Transferring
Customer Employees, Part A of Call Off Schedule 10 (Staff Transfer)
shall apply;
(b) where the Relevant Transfer involves the transfer of Transferring
Former Supplier Employees, Part B of Call Off Schedule 10 (Staff
Transfer) shall apply;
(c) where the Relevant Transfer involves the transfer of Transferring
Customer Employees and Transferring Former Supplier Employees,
Parts A and B of Call Off Schedule 10 (Staff Transfer) shall apply; and
(d) Part C of Call Off Schedule 10 (Staff Transfer) shall not apply;
28.2.2 where commencement of the provision of the Services or a part of the Services does not
result in a Relevant Transfer, Part C of Call Off Schedule 10 (Staff Transfer) shall apply and
Parts A and B of Call Off Schedule 10 (Staff Transfer) shall not apply; and
28.2.3 Part D of Call Off Schedule 10 (Staff Transfer) shall apply on the expiry or termination of
the Services or any part of the Services;
28.3 The Supplier shall both during and after the Call Off Contract Period indemnify the
Customer against all Employee Liabilities that may arise as a result of any claims brought
against the Customer by any person where such claim arises from any act or omission of
the Supplier or any Supplier Personnel.
29. SUPPLY CHAIN RIGHTS AND PROTECTION
29.1 Appointment of Sub-Contractors
29.1.1 The Supplier shall exercise due skill and care in the selection of any Sub-Contractors to
ensure that the Supplier is able to:
(a) manage any Sub-Contractors in accordance with Good Industry
Practice;
(b) comply with its obligations under this Call Off Contract in the
Delivery of the Services; and
(c) assign, novate or otherwise transfer to the Contracting Authority or
any Replacement Supplier any of its rights and/or obligations under
each Sub-Contract that relates exclusively to this Call Off Contract.
29.1.2 Prior to sub-contacting any of its obligations under this Call Off Contract, the Supplier
shall notify the Contracting Authority and provide the Contracting Authority with:
44
(a) the proposed Sub-Contractor’s name, registered office and company
registration number;
(b) the scope of any Services to be provided by the proposed Sub-
Contractor; and
(c) where the proposed Sub-Contractor is an Affiliate of the Supplier,
evidence that demonstrates to the reasonable satisfaction of the
Contracting Authority that the proposed Sub-Contract has been
agreed on "arm’s-length" terms.
29.1.3 If requested by the Contracting Authority within ten (10) Working Days of receipt of the
Supplier’s notice issued pursuant to Clause 29.1.2, the Supplier shall also provide:
(a) a copy of the proposed Sub-Contract; and
(b) any further information reasonably requested by the Contracting
Authority.
29.1.4 The Contracting Authority may, within ten (10) Working Days of receipt of the Supplier’s
notice issued pursuant to Clause 29.1.2 (or, if later, receipt of any further information
requested pursuant to Clause 29.1.3), object to the appointment of the relevant Sub-
Contractor if they consider that:
(a) the appointment of a proposed Sub-Contractor may prejudice the
provision of the Services or may be contrary to the interests
respectively of the Contracting Authority under this Call Off Contract;
(b) the proposed Sub-Contractor is unreliable and/or has not provided
reasonable services to its other Contracting Authorities; and/or
(c) the proposed Sub-Contractor employs unfit persons,
in which case, the Supplier shall not proceed with the proposed
appointment.
29.1.5 If:
(a) the Contracting Authority has not notified the Supplier that it objects
to the proposed Sub-Contractor’s appointment by the later of ten
(10) Working Days of receipt of:
(i) the Supplier’s notice issued pursuant to Clause 29.1.2; and
(ii) any further information requested by the Contracting
Authority pursuant to Clause 29.1.3; and
(b) the proposed Sub-Contract is not a Key Sub-Contract which shall
require the written consent of the Contracting Authority and the
Contracting Authority in accordance with Clause 29.2 (Appointment
of Key Sub-Contractors).
the Supplier may proceed with the proposed appointment.
29.2 Appointment of Key Sub-Contractors
29.2.1 The Contracting Authority and the Contracting Authority have consented to the
engagement of the Key Sub-Contractors listed in Framework Schedule 7 (Key Sub-
Contractors).
45
29.2.2 Where the Supplier wishes to enter into a new Key Sub-Contract or replace a Key Sub-
Contractor, it must obtain the prior written consent of the Contracting Authority and the
Contracting Authority (the decision to consent or otherwise not to be unreasonably withheld
or delayed). The Contracting Authority and/or the Contracting Authority may reasonably
withhold its consent to the appointment of a Key Sub-Contractor if any of them considers
that:
(a) the appointment of a proposed Key Sub-Contractor may prejudice
the provision of the Services or may be contrary to its interests;
(b) the proposed Key Sub-Contractor is unreliable and/or has not
provided reasonable services to its other Contracting Authorities;
and/or
(c) the proposed Key Sub-Contractor employs unfit persons.
29.2.3 Except where the Contracting Authority and the Contracting Authority have given their
prior written consent under Clause 29.2.1, the Supplier shall ensure that each Key Sub-
Contract shall include:
(a) provisions which will enable the Supplier to discharge its obligations
under this Call Off Contract;
(b) a right under CRTPA for the Contracting Authority to enforce any
provisions under the Key Sub-Contract which confer a benefit upon
the Contracting Authority;
(c) a provision enabling the Contracting Authority to enforce the Key
Sub-Contract as if it were the Supplier;
(d) a provision enabling the Supplier to assign, novate or otherwise
transfer any of its rights and/or obligations under the Key Sub-
Contract to the Contracting Authority or any Replacement Supplier;
(e) obligations no less onerous on the Key Sub-Contractor than those
imposed on the Supplier under this Call Off Contract in respect of:
(i) data protection requirements set out in Clauses 34.1 (Security
Requirements), 34.2 (Protection of Contracting Authority Data)
and 34.6 (Protection of Personal Data);
(ii) FOIA requirements set out in Clause 34.5 (Freedom of
Information);
(iii) the obligation not to embarrass the Contracting Authority or
otherwise bring the Contracting Authority into disrepute set
out in Clause 7.1.4(l) (Provision of Services);
(iv) the keeping of records in respect of the Services being
provided under the Key Sub-Contract, including the
maintenance of Open Book Data;
(v) the conduct of audits set out in Clause 21 (Records, Audit
Access & Open Book Data);
(f) provisions enabling the Supplier to terminate the Key Sub-Contract
on notice on terms no more onerous on the Supplier than those
imposed on the Contracting Authority under Clauses 41 (Contracting
46
Authority Termination Rights), 43 (Termination by Either Party) and
45 (Consequences of Expiry or Termination) of this Call Off Contract;
(g) a provision restricting the ability of the Key Sub-Contractor to Sub-
Contract all or any part of the provision of the Services provided to
the Supplier under the Sub-Contract without first seeking the written
consent of the Contracting Authority;
(h) a provision, where a provision in Call Off Schedule 10 (Staff Transfer)
imposes an obligation on the Supplier to provide an indemnity,
undertaking or warranty, requiring the Key Sub-Contractor to provide
such indemnity, undertaking or warranty to the Contracting
Authority, Former Supplier or the Replacement Supplier as the case
may be.
29.3 Supply Chain Protection
29.3.1 The Supplier shall ensure that all Sub-Contracts contain a provision:
(a) requiring the Supplier to pay any undisputed sums which are due
from it to the Sub-Contractor within a specified period not exceeding
thirty (30) days from the receipt of a Valid Invoice;
(b) requiring that any invoices submitted by a Sub-Contractor shall be
considered and verified by the Supplier in a timely fashion and that
undue delay in doing so shall not be sufficient justification for failing
to regard an invoice as valid and undisputed;
(c) requiring the Sub-Contractor to include in any Sub-Contract which it
in turn awards suitable provisions to impose, as between the parties
to that Sub-Contract, requirements to the same effect as those
required by sub-clauses (a) and (b) directly above; and
(d) conferring a right to the Contracting Authority to publish the
Supplier’s compliance with its obligation to pay undisputed invoices
within the specified payment period.
29.3.2 The Supplier shall:
(a) pay any undisputed sums which are due from it to a Sub-Contractor
within thirty (30) days from the receipt of a Valid Invoice;
(b) include within the Performance Monitoring Reports required under
Part B of Call Off Schedule 6 (Service Levels, Service Credits and
Performance Monitoring) a summary of its compliance with this
Clause 29.3.2 (a), such data to be certified each quarter by a director
of the Supplier as being accurate and not misleading.
29.3.3 Any invoices submitted by a Sub-Contractor to the Supplier shall be considered and
verified by the Supplier in a timely fashion. Undue delay in doing so shall not be sufficient
justification for the Supplier failing to regard an invoice as valid and undisputed.
29.3.4 Notwithstanding any provision of Clauses 34.3 (Confidentiality) and 35 (Publicity and
Branding) if the Supplier notifies the Contracting Authority that the Supplier has failed to pay
an undisputed Sub-Contractor’s invoice within thirty (30) days of receipt, or the Contracting
Authority otherwise discovers the same, the Contracting Authority shall be entitled to
47
publish the details of the late or non-payment (including on government websites and in the
press).
29.4 Termination of Sub-Contracts
29.4.1 The Contracting Authority may require the Supplier to terminate:
(a) a Sub-Contract where:
(i) the acts or omissions of the relevant Sub-Contractor have
caused or materially contributed to the Contracting Authority's
right of termination pursuant to any of the termination events
in Clause 41 (Contracting Authority Termination Rights) except
Clause 41.6 (Termination Without Cause); and/or
(ii) the relevant Sub-Contractor or its Affiliates embarrassed the
Contracting Authority or otherwise brought the Contracting
Authority into disrepute by engaging in any act or omission
which is reasonably likely to diminish the trust that the public
places in the Contracting Authority, regardless of whether or
not such act or omission is related to the Sub-Contractor’s
obligations in relation to the Services or otherwise; and/or
(b) a Key Sub-Contract where there is a Change of Control of the
relevant Key Sub-Contractor, unless:
(i) the Contracting Authority has given its prior written consent to
the particular Change of Control, which subsequently takes
place as proposed; or
(ii) the Contracting Authority has not served its notice of objection
within six (6) Months of the later of the date the Change of
Control took place or the date on which the Contracting
Authority was given notice of the Change of Control.
29.5 Competitive Terms – NOT USED
29.6 Retention of Legal Obligations
29.6.1 Notwithstanding the Supplier’s right to Sub-Contract pursuant to Clause 29 (Supply
Chain Rights and Protection), the Supplier shall remain responsible for all acts and omissions
of its Sub-Contractors and the acts and omissions of those employed or engaged by the Sub-
Contractors as if they were its own.
G. PROPERTY MATTERS
30. CUSTOMER PREMISES
30.1 Licence to Occupy Customer Premises
30.1.1 Any Customer Premises shall be made available to the Supplier on a non-exclusive
licence basis free of charge and shall be used by the Supplier solely for the purpose of
performing its obligations under this Call Off Contract. The Supplier shall have the use of
such Customer Premises as licensee and shall vacate the same immediately upon
completion, termination, expiry or abandonment of this Call Off Contract and in accordance
with Call Off Schedule 9 (Exit Management).
48
30.1.2 The Supplier shall limit access to the Customer Premises to such Supplier Personnel as is
necessary to enable it to perform its obligations under this Call Off Contract and the Supplier
shall co-operate (and ensure that the Supplier Personnel co-operate) with such other
persons working concurrently on such Customer Premises as the Customer may reasonably
request.
30.1.3 Save in relation to such actions identified by the Supplier in accordance with Clause 2
(Due Diligence) and set out in the Call Off Order Form (or elsewhere in this Call Off Contract),
should the Supplier require modifications to the Customer Premises, such modifications shall
be subject to Approval and shall be carried out by the Customer at the Supplier’s expense.
The Customer shall undertake any modification work which it approves pursuant to this
Clause 30.1.3 without undue delay. Ownership of such modifications shall rest with the
Customer.
30.1.4 The Supplier shall observe and comply with such rules and regulations as may be in
force at any time for the use of such Customer Premises and conduct of personnel at the
Customer Premises as determined by the Customer, and the Supplier shall pay for the full
cost of making good any damage caused by the Supplier Personnel other than fair wear and
tear. For the avoidance of doubt, damage includes without limitation damage to the fabric of
the buildings, plant, fixed equipment or fittings therein.
30.1.5 The Parties agree that there is no intention on the part of the Customer to create a
tenancy of any nature whatsoever in favour of the Supplier or the Supplier Personnel and
that no such tenancy has or shall come into being and, notwithstanding any rights granted
pursuant to this Call Off Contract, the Customer retains the right at any time to use any
Customer Premises in any manner it sees fit.
30.2 Security of Customer Premises
30.2.1 The Customer shall be responsible for maintaining the security of the Customer
Premises in accordance with the Security Policy. The Supplier shall comply with the Security
Policy and any other reasonable security requirements of the Customer while on the
Customer Premises.
30.2.2 The Customer shall afford the Supplier upon Approval (the decision to Approve or not
will not be unreasonably withheld or delayed) an opportunity to inspect its physical security
arrangements.
31. CUSTOMER PROPERTY
31.1 Where the Customer issues Customer Property free of charge to the Supplier such
Customer Property shall be and remain the property of the Customer and the Supplier
irrevocably licences the Customer and its agents to enter upon any premises of the
Supplier during normal business hours on reasonable notice to recover any such Customer
Property.
31.2 The Supplier shall not in any circumstances have a lien or any other interest on the
Customer Property and at all times the Supplier shall possess the Customer Property as
fiduciary agent and bailee of the Customer.
31.3 The Supplier shall take all reasonable steps to ensure that the title of the Customer to
the Customer Property and the exclusion of any such lien or other interest are brought to
the notice of all Sub-Contractors and other appropriate persons and shall, at the
49
Customer's request, store the Customer Property separately and securely and ensure that
it is clearly identifiable as belonging to the Customer.
31.4 The Customer Property shall be deemed to be in good condition when received by or on
behalf of the Supplier unless the Supplier notifies the Customer otherwise within five (5)
Working Days of receipt.
31.5 The Supplier shall maintain the Customer Property in good order and condition
(excluding fair wear and tear) and shall use the Customer Property solely in connection
with this Call Off Contract and for no other purpose without Approval.
31.6 The Supplier shall ensure the security of all the Customer Property whilst in its
possession, either on the Sites or elsewhere during the supply of the Services, in
accordance with the Customer's Security Policy and the Customer’s reasonable security
requirements from time to time.
31.7 The Supplier shall be liable for all loss of, or damage to the Customer Property,
(excluding fair wear and tear), unless such loss or damage was solely caused by a
Customer Cause. The Supplier shall inform the Customer immediately of becoming aware
of any defects appearing in or losses or damage occurring to the Customer Property.
32. SUPPLIER EQUIPMENT
32.1 Unless otherwise stated in the Call Off Order Form (or elsewhere in this Call Off
Contract), the Supplier shall provide all the Supplier Equipment necessary for the provision
of the Services.
The Supplier shall not deliver any Supplier Equipment nor begin any work on the
Customer Premises without obtaining Approval.
32.2 The Supplier shall be solely responsible for the cost of carriage of the Supplier
Equipment to the Sites and/or any Customer Premises, including its off-loading, removal of
all packaging and all other associated costs. Likewise on the Call Off Expiry Date the
Supplier shall be responsible for the removal of all relevant Supplier Equipment from the
Sites and/or any Customer Premises, including the cost of packing, carriage and making
good the Sites and/or the Customer Premises following removal.
32.3 All the Supplier’s property, including Supplier Equipment, shall remain at the sole risk
and responsibility of the Supplier, except that the Customer shall be liable for loss of or
damage to any of the Supplier’s property located on Customer Premises which is due to
the negligent act or omission of the Customer.
32.4 Subject to any express provision of the BCDR Plan to the contrary, the loss or
destruction for any reason of any Supplier Equipment shall not relieve the Supplier of its
obligation to supply the Services in accordance with this Call Off Contract, including the
Service Level Performance Measures.
32.5 The Supplier shall maintain all Supplier Equipment within the Sites in a safe, serviceable
and clean condition.
32.6 The Supplier shall, at the Contracting Authority's written request, at its own expense
and as soon as reasonably practicable
32.6.1 remove from the Customer Premises any Supplier Equipment or any component part of
Supplier Equipment which in the reasonable opinion of the Customer is either hazardous,
noxious or not in accordance with this Call Off Contract; and
50
replace such Supplier Equipment or component part of Supplier Equipment with a
suitable substitute item of Supplier Equipment.
32.7 For the purposes of this Clause 32.7, ‘X’ shall be the number of Service Failures, and ‘Y’
shall be the period in months, as respectively specified for ‘X’ and ‘Y’ in the Call Off Order
Form. If this Clause 32.7 has been specified to apply in the Call Off Order Form, and there
are no values specified for ‘X’ and/or ‘Y’, in default, ‘X’ shall be two (2) and ‘Y’ shall be
twelve (12). Where a failure of Supplier Equipment or any component part of Supplier
Equipment causes X or more Service Failures in any Y Month period, the Supplier shall
notify the Contracting Authority in writing and shall, at the Contracting Authority’s request
(acting reasonably), replace such Supplier Equipment or component part thereof at its
own cost with a new item of Supplier Equipment or component part thereof (of the same
specification or having the same capability as the Supplier Equipment being replaced).
H. INTELLECTUAL PROPERTY AND INFORMATION
33. INTELLECTUAL PROPERTY RIGHTS
33.1 Allocation of Title to IPR
33.1.1 Save as granted under this Call Off Contract, neither Party shall acquire any right, title or
interest in or to the Intellectual Property Rights of the other Party.
33.1.2 Where either Party acquires, by operation of Law, title to Intellectual Property Rights
that is inconsistent with the allocation of title set out in Clause 33.1.1, it shall assign in
writing such Intellectual Property Rights as it has acquired to the other Party on the request
of the other Party (whenever made).
33.1.3 Subject to Clauses 33.1.4, neither Party shall have any right to use any of the other
Party's names, logos or trademarks on any of its products or services without the other
Party's prior written consent.
33.1.4 Subject to full compliance with the Branding Guidance, the Supplier shall be entitled to
use the Contracting Authority’s logo exclusively in connection with the provision of the
Services during the term of this Call Off Contract and for no other purpose.
33.2 Assignments Granted by the Supplier: Project Specific IPR
33.2.1 The Supplier hereby agrees to assign to the Contracting Authority with full title
guarantee (or shall procure from the first owner the assignment to the Contracting
Authority), title to and all rights and interest in the Project Specific IPRs, such assignment to
take effect as a present assignment of future rights that will take effect immediately on the
coming into existence of the relevant Project Specific IPRs.
33.3 Licence Granted by the Supplier: Supplier Background IPR
33.3.1 Subject always to Clause 33.3.4, the Supplier hereby grants to the Contracting Authority
a perpetual, royalty-free and non-exclusive licence to use the Supplier Background IPR for
any purpose relating to the Services (or substantially equivalent Services) or for any purpose
relating to the exercise of the Contracting Authority’s (or, if the Contracting Authority is a
Central Government Body, any other Central Government Body’s) business or function.
33.3.2 At any time during the Call Off Contract Period or following the Call Off Expiry Date, the
Supplier may terminate a licence granted in respect of the Supplier Background IPR under
51
Clause 33.3.1 by giving thirty (30) days’ notice in writing (or such other period as agreed by
the Parties) if there is a Contracting Authority Cause which constitutes a material breach of
the terms of 33.3.1 which, if the breach is capable of remedy, is not remedied within twenty
(20) Working Days after the Supplier gives the Contracting Authority written notice
specifying the breach and requiring its remedy.
33.3.3 In the event the licence of the Supplier Background IPR is terminated pursuant to Clause
33.3.2, the Contracting Authority shall:
(a) immediately cease all use of the Supplier Background IPR;
(b) at the discretion of the Supplier, return or destroy documents and
other tangible materials that contain any of the Supplier Background
IPR, provided that if the Supplier has not made an election within six
(6) Months of the termination of the licence, the Contracting
Authority may destroy the documents and other tangible materials
that contain any of the Supplier Background IPR; and
(c) ensure, so far as reasonably practicable, that any Supplier
Background IPR that is held in electronic, digital or other machine-
readable form ceases to be readily accessible (other than by the
information technology staff of the Contracting Authority) from any
computer, word processor, voicemail system or any other device
containing such Supplier Background IPR.
33.3.4 The Supplier shall not include any Supplier Background IPRs in any of the Deliverables or
Project Specific IPRs without the Approval of the Contracting Authority.
33.3.5 Where Approval is requested by the Supplier pursuant to Clause 33.3.4, the Supplier
shall provide full details to the Contracting Authority of the Supplier Background IPRs to be
included, along with details of the impact on the Contracting Authority’s right to use the
Deliverables and Project Specific IPRs and, without prejudice to any other provision of this
Call Off Contract, any licencing implications which may arise as a result.
33.4 Contracting Authority’s Right to Sub-License
33.4.1 not used
33.4.2 The Contracting Authority may sub-license:
(a) the rights granted under Clause 33.3.1 (Licence Granted by the
Supplier: Supplier Background IPR) to a third party (including for the
avoidance of doubt, any Replacement Supplier) provided that:
(i) the sub-licence is on terms no broader than those granted to
the Contracting Authority; and
(ii) the sub-licence only authorises the third party to use the rights
licensed in Clause 33.3.1 (Licence Granted by the Supplier:
Supplier Background IPR) for purposes relating to the Services
(or substantially equivalent Services) or for any purpose
relating to the exercise of the Contracting Authority’s (or, if the
Contracting Authority is a Central Government Body, any other
Central Government Body’s) business or function; and
(b) the rights granted under Clause 33.3.1 (Licence Granted by the
Supplier: Supplier Background IPR) to any Approved Sub-Licensee to
52
the extent necessary to use and/or obtain the benefit of the Project
Specific IPR provided that the sub-licence is on terms no broader
than those granted to the Contracting Authority.
33.5 Contracting Authority’s Right to Assign/Novate Licences
33.5.1 not used
33.5.2 The Contracting Authority may assign, novate or otherwise transfer its rights and
obligations under the licence granted pursuant to Clause 33.3 (Licence Granted by the
Supplier: Supplier Background IPR) to
to any body (including any private sector body) which performs or
carries on any of the functions and/or activities that previously had
been performed and/or carried on by the Contracting Authority.
33.5.3 If a licence granted in Clause 33.3 (Licence Granted by the Supplier: Supplier Background
IPR) is novated under Clauses 33.5.1 and/or 33.5.2 or there is a change of the Contracting
Authority’s status pursuant to Clause Error! Reference source not found. (both such bodies
being referred to as the “Transferee”), the rights acquired by the Transferee shall not extend
beyond those previously enjoyed by the Contracting Authority.
33.6 Third Party IPR
33.6.1 The Supplier shall procure that the owners or the authorised licensors of any Third Party
IPR grant a direct licence to the Contracting Authority on terms at least equivalent to those
set out in Clause 33.3 (Licence Granted by the Supplier: Supplier Background IPR) and
Clause 33.5.2 (Contracting Authority’s Right to Assign/Novate Licences). If the Supplier
cannot obtain for the Contracting Authority a licence materially in accordance with the
licence terms set out in Clause 33.3 (Licences Granted by the Supplier: Supplier Background
IPR) and Clause 33.5.2 (Contracting Authority’s Right to Assign/Novate Licences) in respect of
any such Third Party IPR, the Supplier shall:
(a) notify the Contracting Authority in writing giving details of what
licence terms can be obtained from the relevant third party and
whether there are alternative providers which the Supplier could
seek to use; and
(b) only use such Third Party IPR if the Contracting Authority Approves
the terms of the licence from the relevant third party.
33.7 Licence Granted by the Contracting Authority
33.7.1 The Contracting Authority hereby grants to the Supplier a royalty-free, non-exclusive,
non-transferable licence during the Call Off Contract Period to use the Contracting Authority
Background IPR, Contracting Authority Data and the Project Specific IPRs solely to the extent
necessary for providing the Services in accordance with this Call Off Contract, including (but
not limited to) the right to grant sub-licences to Sub-Contractors provided that:
(a) any relevant Sub-Contractor has entered into a confidentiality
undertaking with the Supplier on the same terms as set out in Clause
34.3 (Confidentiality); and
(b) the Supplier shall not without Approval use the licensed materials for
any other purpose or for the benefit of any person other than the
Contracting Authority.
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33.8 Termination of Licences
33.8.1 Subject to Clause 33.3 (Licence Granted by the Supplier: Supplier Background IPR), all
licences granted pursuant to Clause 33 (Intellectual Property Rights) (other than those
granted pursuant to Clause 33.6 (Third Party IPR) and 33.7 (Licence Granted by the
Contracting Authority) shall survive the Call Off Expiry Date.
33.8.2 The Supplier shall, if requested by the Contracting Authority in accordance with Call Off
Schedule 9 (Exit Management), grant (or procure the grant) to the Replacement Supplier of
a licence to use any Supplier Background IPR and/or Third Party IPR on terms equivalent to
those set out in Clause 33.3 (Licence Granted by the Supplier: Supplier Background IPR)
subject to the Replacement Supplier entering into reasonable confidentiality undertakings
with the Supplier.
33.8.3 The licence granted pursuant to Clause 33.7 (Licence Granted by the Contracting
Authority ) and any sub-licence granted by the Supplier in accordance with Clause 33.7.1
(Licence Granted by the Contracting Authority) shall terminate automatically on the Call Off
Expiry Date and the Supplier shall:
(a) immediately cease all use of the Contracting Authority Background
IPR and the Contracting Authority Data (as the case may be);
(b) at the discretion of the Contracting Authority, return or destroy
documents and other tangible materials that contain any of the
Contracting Authority Background IPR and the Contracting Authority
Data, provided that if the Contracting Authority has not made an
election within six months of the termination of the licence, the
Supplier may destroy the documents and other tangible materials
that contain any of the Contracting Authority Background IPR and the
Contracting Authority Data (as the case may be); and
(c) ensure, so far as reasonably practicable, that any Contracting
Authority Background IPR and Contracting Authority Data that are
held in electronic, digital or other machine-readable form ceases to
be readily accessible from any computer, word processor, voicemail
system or any other device of the Supplier containing such
Contracting Authority Background IPR and/or Contracting Authority
Data.
33.9 IPR Indemnity
33.9.1 The Supplier shall, during and after the Call Off Contract Period, on written demand,
indemnify the Contracting Authority against all Losses incurred by, awarded against, or
agreed to be paid by the Contracting Authority (whether before or after the making of the
demand pursuant to the indemnity hereunder) arising from an IPR Claim.
33.9.2 If an IPR Claim is made, or the Supplier anticipates that an IPR Claim might be made, the
Supplier may, at its own expense and sole option, either:
(a) procure for the Contracting Authority the right to continue using the
relevant item which is subject to the IPR Claim; or
(b) replace or modify the relevant item with non-infringing substitutes
provided that:
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(i) the performance and functionality of the replaced or modified
item is at least equivalent to the performance and
functionality of the original item;
(ii) the replaced or modified item does not have an adverse effect
on any other Services;
(iii) there is no additional cost to the Contracting Authority; and
(iv) the terms and conditions of this Call Off Contract shall apply to
the replaced or modified Services.
33.9.3 If the Supplier elects to procure a licence in accordance with Clause 33.9.2(a) or to
modify or replace an item pursuant to Clause 33.9.2(b), but this has not avoided or resolved
the IPR Claim, then:
(i) the Contracting Authority may terminate this Call Off Contract
by written notice with immediate effect; and
(ii) without prejudice to the indemnity set out in Clause 33.9.1,
the Supplier shall be liable for all reasonable and unavoidable
costs of the substitute Services including the additional costs
of procuring, implementing and maintaining the substitute
items.
34. SECURITY AND PROTECTION OF INFORMATION
34.1 Security Requirements
34.1.1 The Supplier shall comply with the Security Policy and the requirements of Call Off
Schedule 7 (Security) including the Security Management Plan (if any) and shall ensure that
the Security Management Plan produced by the Supplier fully complies with the Security
Policy.
34.1.2 The Contracting Authority shall notify the Supplier of any changes or proposed changes
to the Security Policy.
34.1.3 If the Supplier believes that a change or proposed change to the Security Policy will have
a material and unavoidable cost implication to the provision of the Services it may propose a
Variation to the Contracting Authority. In doing so, the Supplier 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 Call Off Contract Charges shall then be subject to
the Variation Procedure.
34.1.4 Until and/or unless a change to the Call Off Contract Charges is agreed by the
Contracting Authority pursuant to the Variation Procedure the Supplier shall continue to
provide the Services in accordance with its existing obligations.
34.2 Protection of Contracting Authority Data
34.2.1 The Supplier shall not delete or remove any proprietary notices contained within or
relating to the Contracting Authority Data.
34.2.2 The Supplier shall not store, copy, disclose, or use the Contracting Authority Data except
as necessary for the performance by the Supplier of its obligations under this Call Off
Contract or as otherwise Approved by the Contracting Authority.
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34.2.3 To the extent that the Contracting Authority Data is held and/or Processed by the
Supplier, the Supplier shall supply that Contracting Authority Data to the Contracting
Authority as requested by the Contracting Authority and in the format (if any) specified by
the Contracting Authority in the Call Off Order Form and, in any event, as specified by the
Contracting Authority from time to time in writing.
34.2.4 The Supplier shall take responsibility for preserving the integrity of Contracting
Authority Data and preventing the corruption or loss of Contracting Authority Data.
34.2.5 The Supplier shall perform secure back-ups of all Contracting Authority Data and shall
ensure that up-to-date back-ups are stored off-site at an Approved location in accordance
with any BCDR Plan or otherwise. The Supplier shall ensure that such back-ups are available
to the Contracting Authority (or to such other person as the Contracting Authority may
direct) at all times upon request and are delivered to the Contracting Authority at no less
than six (6) Monthly intervals (or such other intervals as may be agreed in writing between
the Parties).
34.2.6 The Supplier shall ensure that any system on which the Supplier holds any Contracting
Authority Data, including back-up data, is a secure system that complies with the Security
Policy and the Security Management Plan (if any).
34.2.7 If at any time the Supplier suspects or has reason to believe that the Contracting
Authority Data is corrupted, lost or sufficiently degraded in any way for any reason, then the
Supplier shall notify the Contracting Authority immediately and inform the Contracting
Authority of the remedial action the Supplier proposes to take.
34.2.8 If the Contracting Authority Data is corrupted, lost or sufficiently degraded as a result of
a Default so as to be unusable, the Supplier may:
(a) require the Supplier (at the Supplier’s expense) to restore or procure
the restoration of Contracting Authority Data to the extent and in
accordance with the requirements specified in Call Off Schedule
8 (Business Continuity and Disaster Recovery) or as otherwise
required by the Contracting Authority, and the Supplier shall do so as
soon as practicable but not later than five (5) Working Days from the
date of receipt of the Contracting Authority’s notice; and/or
(b) itself restore or procure the restoration of Contracting Authority
Data, and shall be repaid by the Supplier any reasonable expenses
incurred in doing so to the extent and in accordance with the
requirements specified in Call Off Schedule 8 (Business Continuity
and Disaster Recovery) or as otherwise required by the Contracting
Authority.
34.3 Confidentiality
34.3.1 For the purposes of Clause 34.3, the term “Disclosing Party” shall mean a Party which
discloses or makes available directly or indirectly its Confidential Information and
“Recipient” shall mean the Party which receives or obtains directly or indirectly Confidential
Information.
34.3.2 Except to the extent set out in Clause 34.3 or where disclosure is expressly permitted
elsewhere in this Call Off Contract, the Recipient shall:
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(a) treat the Disclosing Party's Confidential Information as confidential
and keep it in secure custody (which is appropriate depending upon
the form in which such materials are stored and the nature of the
Confidential Information contained in those materials); and
(b) not disclose the Disclosing Party's Confidential Information to any
other person except as expressly set out in this Call Off Contract or
without obtaining the owner's prior written consent;
(c) not use or exploit the Disclosing Party’s Confidential Information in
any way except for the purposes anticipated under this Call Off
Contract; and
(d) immediately notify the Disclosing Party if it suspects or becomes
aware of any unauthorised access, copying, use or disclosure in any
form of any of the Disclosing Party’s Confidential Information.
34.3.3 The Recipient shall be entitled to disclose the Confidential Information of the Disclosing
Party where:
(a) the Recipient is required to disclose the Confidential Information by
Law, provided that Clause 34.5 (Freedom of Information) shall apply
to disclosures required under the FOIA or the EIRs;
(b) the need for such disclosure arises out of or in connection with:
(i) any legal challenge or potential legal challenge against the
Contracting Authority arising out of or in connection with this
Call Off Contract;
(ii) the examination and certification of the Contracting
Authority's accounts (provided that the disclosure is made on a
confidential basis) or for any examination pursuant to Section
6(1) of the National Audit Act 1983 of the economy, efficiency
and effectiveness with which the Contracting Authority is
making use of any Services provided under this Call Off
Contract; or
(iii) the conduct of a Central Government Body review in respect
of this Call Off Contract; or
(c) the Recipient has reasonable grounds to believe that the Disclosing
Party is involved in activity that may constitute a criminal offence
under the Bribery Act 2010 and the disclosure is being made to the
Serious Fraud Office.
34.3.4 If the Recipient is required by Law to make a disclosure of Confidential Information, the
Recipient shall as soon as reasonably practicable and to the extent permitted by Law notify
the Disclosing Party of the full circumstances of the required disclosure including the
relevant Law and/or regulatory body requiring such disclosure and the Confidential
Information to which such disclosure would apply.
34.3.5 Subject to Clause 34.3.2, the Supplier may only disclose the Confidential Information of
the Contracting Authority on a confidential basis to:
(a) Supplier Personnel who are directly involved in the provision of the
Services and need to know the Confidential Information to enable
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performance of the Supplier’s obligations under this Call Off
Contract; and
(b) its professional advisers for the purposes of obtaining advice in
relation to this Call Off Contract.
34.3.6 Where the Supplier discloses Confidential Information of the Contracting Authority
pursuant to Clause 34.3.5, it shall remain responsible at all times for compliance with the
confidentiality obligations set out in this Call Off Contract by the persons to whom disclosure
has been made.
34.3.7 The Contracting Authority may disclose the Confidential Information of the Supplier:
(a) to any Central Government Body on the basis that the information
may only be further disclosed to Central Government Bodies;
(b) to the British Parliament and any committees of the British
Parliament or if required by any British Parliamentary reporting
requirement;
(c) to the extent that the Contracting Authority (acting reasonably)
deems disclosure necessary or appropriate in the course of carrying
out its public functions;
(d) on a confidential basis to a professional adviser, consultant, supplier
or other person engaged by any of the entities described in
Clause 34.3.7(a) (including any benchmarking organisation) for any
purpose relating to or connected with this Call Off Contract;
(e) on a confidential basis for the purpose of the exercise of its rights
under this Call Off Contract; or
(f) to a proposed transferee, assignee or novatee of, or successor in title
to the Contracting Authority,
and for the purposes of the foregoing, references to disclosure on a
confidential basis shall mean disclosure subject to a confidentiality
agreement or arrangement containing terms no less stringent than those
placed on the Contracting Authority under Clause 34.3.
34.3.8 Nothing in Clause 34.3 shall prevent a Recipient from using any techniques, ideas or
Know-How gained during the performance of this Call Off Contract in the course of its
normal business to the extent that this use does not result in a disclosure of the Disclosing
Party’s Confidential Information or an infringement of Intellectual Property Rights.
34.3.9 In the event that the Supplier fails to comply with Clauses 34.3.2 to 34.3.5, the
Contracting Authority reserves the right to terminate this Call Off Contract for material
Default.
34.4 Transparency
34.4.1 The Parties acknowledge and agree that, except for any information which is exempt
from disclosure in accordance with the provisions of the FOIA, the content of this Call Off
Contract and any Transparency Reports under it is not Confidential Information and shall be
made available in accordance with the procurement policy note 13/15
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/458554/Pr
ocurement_Policy_Note_13_15.pdf and the Transparency Principles referred to therein. The
58
Contracting Authority shall determine whether any of the content of this Call Off Contract is
exempt from disclosure in accordance with the provisions of the FOIA. The Contracting
Authority may consult with the Supplier to inform its decision regarding any redactions but
shall have the final decision in its absolute discretion.
34.4.2 Notwithstanding any other provision of this Call Off Contract, the Supplier hereby gives
his consent for the Contracting Authority to publish this Call Off Contract in its entirety (but
with any information which is exempt from disclosure in accordance with the provisions of
the FOIA redacted), including any changes to this Call Off Contract agreed from time to time.
34.4.3 The Supplier shall assist and cooperate with the Contracting Authority to enable the
Contracting Authority to publish this Call Off Contract.
34.5 Freedom of Information
34.5.1 The Supplier acknowledges that the Contracting Authority is subject to
the requirements of the FOIA and the EIRs. The Supplier shall:
(a) provide all necessary assistance and cooperation as reasonably
requested by the Contracting Authority to enable the Contracting
Authority to comply with its Information disclosure obligations
under the FOIA and EIRs;
(b) transfer to the Contracting Authority all Requests for Information
relating to this Call-Off Contract that it receives as soon as
practicable and in any event within two (2) Working Days of
receipt;
(c) provide the Contracting Authority with a copy of all Information
belonging to the Contracting Authority requested in the Request
for Information which is in the Supplier’s possession or control in
the form that the Contracting Authority requires within five (5)
Working Days (or such other period as the Contracting Authority
may reasonably specify) of the Contracting Authority's request for
such Information; and
(d) not respond directly to a Request for Information unless authorised
in writing to do so by the Contracting Authority.
34.5.2 The Supplier acknowledges that the Contracting Authority may be
required under the FOIA and EIRs to disclose Information (including
Commercially Sensitive Information) without consulting or obtaining
consent from the Supplier. The Contracting Authority shall take reasonable
steps to notify the Supplier of a Request for Information (in accordance
with the Secretary of State’s Section 45 Code of Practice on the Discharge
of the Functions of Public Contracting Authorities under Part 1 of the FOIA)
to the extent that it is permissible and reasonably practical for it to do so
but (notwithstanding any other provision in this Call-Off Contract) for the
purpose of this Call-Off Contract, the Contracting Authority shall be
responsible for determining in its absolute discretion whether any
Commercially Sensitive Information and any other information is exempt
from disclosure in accordance with the FOIA and/or the EIRs.
34.6 Contracting AuthoritiesProtection of Personal Data
34.6.1 The Parties acknowledge that for the purposes of the Data Protection
Legislation, the Contracting Authority is the Controller and the Supplier is
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the Processor. The only processing that the Supplier is authorised to do is
listed in Schedule 16 by the Contracting Authority and may not be
determined by the Supplier.
34.6.2 The Supplier shall notify the Contracting Authority immediately if it
considers that any of the Contracting Authority’s instructions infringe the
Data Protection Legislation.
34.6.3 The Supplier shall provide all reasonable assistance to the Contracting
Authority in the preparation of any Data Protection Impact Assessment
prior to commencing any processing. Such assistance may, at the
discretion of the Contracting Authority, include:
(a) a systematic description of the envisaged processing operations
and the purposes of the processing;
(b) an assessment of the necessity and proportionality of the
processing operations in relation to the Services;
(c) an assessment of the risks to the rights and freedoms of Data
Subjects; and
(d) the measures envisaged to address the risks, including
safeguards, security measures and mechanisms to ensure the
protection of Personal Data.
34.6.4 The Supplier shall, in relation to any Personal Data processed in
connection with its obligations under this Agreement:
(a) process that Personal Data only in accordance with Schedule 16,
unless the Supplier is required to do otherwise by Law. If it is so
required the Supplier shall promptly notify the Contracting
Authority before processing the Personal Data unless prohibited
by Law;
(b) ensure that it has in place Protective Measures, which have been
reviewed and approved by the Contracting Authority as
appropriate to protect against a Data Loss Event having taken
account of the:
(i) nature of the data to be protected;
(ii) harm that might result from a Data Loss Event;
(iii) state of technological development; and
(iv) cost of implementing any measures.
(c) ensure that:
(i) the Supplier Personnel do not process Personal Data except in
accordance with this Agreement (and in particular Schedule 16);
(ii) it takes all reasonable steps to ensure the reliability and integrity of any
Supplier Personnel who have access to the Personal Data and ensure that they:
(A) are aware of and comply with the Supplier’s duties under this clause;
(B) are subject to appropriate confidentiality undertakings with the Supplier
or any Sub-processor;
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(C) are informed of the confidential nature of the Personal Data and do not
publish, disclose or divulge any of the Personal Data to any third Party unless
directed in writing to do so by the Contracting Authority or as otherwise permitted
by this Agreement; and
(D) have undergone adequate training in the use, care, protection and
handling of Personal Data; and
(d) not transfer Personal Data outside of the EU unless the prior
written consent of the Contracting Authority has been obtained
and the following conditions are fulfilled:
(i) the Contracting Authority or the Supplier has provided appropriate
safeguards in relation to the transfer (whether in accordance with GDPR Article
46 or LED Article 37) as determined by the Contracting Authority;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection
Legislation by providing an adequate level of protection to any Personal Data
that is transferred (or, if it is not so bound, uses its best endeavours to assist the
Contracting Authority in meeting its obligations); and
(iv) the Supplier complies with any reasonable instructions notified to it in
advance by the Contracting Authority with respect to the processing of Personal
Data;
(e) at the written direction of the Contracting Authority, delete or return
Personal Data (and any copies of it) to the Contracting Authority
on termination of the Agreement unless the Supplier is required by
Law to retain the Personal Data.
34.6.5 Subject to clause 22.5.6, the Supplier shall notify the Contracting
Authority immediately if it:
(a) receives a Data Subject Access Request (or purported Data
Subject Access Request);
(b) receives a request to rectify, block or erase any Personal Data;
(c) receives any other request, complaint or communication relating to
either Party’s obligations under the Data Protection Legislation;
(d) receives any communication from the Information Commissioner
or any other regulatory authority in connection with Personal Data
processed under this Agreement;
(e) receives a request from any third Party for disclosure or Personal
Data where compliance with such request is required or purported
to be required by Law; or
(f) becomes aware of a Data Loss Event.
34.6.6 The Supplier’s obligation to notify under clause 22.5.5 shall include the
provision of further information to the Contracting Authority in phases, as
details become available.
34.6.7 Taking into account the nature of the processing, the Supplier shall
provide the Contracting Authority with full assistance in relation to either
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Party’s obligations under Data Protection Legislation and any complaint,
communication or request made under clause 22.5.5 (and insofar as
possible within timescales reasonably required by the Contracting
Authority) including by promptly providing:
(a) the Contracting Authority with full details and copies of the
complaint, communication or request;
(b) such assistance as is reasonably requested by the Contracting
Authority to enable the Contracting Authority to comply with a Data
Subject Access Request within the relevant timescales set out in
the Data Protection Legislation;
(c) the Contracting Authority, at its request, with any Personal Data it
holds in relation to a Data Subject;
(d) assistance as requested by the Contracting Authority following any
Data Loss Event;
(e) assistance as requested by the Contracting Authority with respect
to any request from the Information Commissioner’s Office, or any
consultation by the Contracting Authority with the Information
Commissioner’s Office.
34.6.8 The Supplier shall maintain complete and accurate records and
information to demonstrate its compliance with this clause. This
requirement does not apply where the Supplier employs fewer than 250
staff, unless:
(a) the Contracting Authority determines that the processing is not
occasional;
(b) the Contracting Authority determines the processing includes
special categories of data as referred to in Article 9(1) of the
GDPR or Personal Data relating to criminal convictions and
offences referred to in Article 10 of the GDPR; and
(c) the Contracting Authority determines that the processing is likely
to result in a risk to the rights and freedoms of Data Subjects.
34.6.9 The Supplier shall allow for audits of its Data Processing activity by the
Contracting Authority or the Contracting Authority’s designated auditor.
34.6.10 The Supplier shall designate a Data Protection Officer if required by the
Data Protection Legislation.
34.6.11 Before allowing any Sub-processor to process any Personal Data
related to this Agreement, the Supplier must:
(a) notify the Contracting Authority in writing of the intended Sub-
processor and processing;
(b) obtain the written consent of the Contracting Authority;
(c) enter into a written agreement with the Sub-processor which give
effect to the terms set out in this clause 22.5 such that they apply
to the Sub-processor; and
(d) provide the Contracting Authority with such information regarding
the Sub-processor as the Contracting Authority may reasonably
require.
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34.6.12 The Supplier shall remain fully liable for all acts or omissions of any
Sub-processor.
34.6.13 The Contracting Authority may, at any time on not less than 30 Working
Days’ notice, revise this clause by replacing it with any applicable controller
to processor standard clauses or similar terms forming part of an applicable
certification scheme (which shall apply when incorporated by attachment to
this Agreement).
34.6.14 The Parties agree to take account of any guidance issued by the
Information Commissioner’s Office. The Contracting Authority may on not
less than 30 Working Days’ notice to the Supplier amend this agreement to
ensure that it complies with any guidance issued by the Information
Commissioner’s Office.
35. PUBLICITY AND BRANDING
35.1 The Supplier shall not:
35.1.1 make any press announcements or publicise this Framework Agreement
in any way; or
35.1.2 use the Contracting Authority's name or brand in any promotion or
marketing or announcement of Orders,
without Approval (the decision of the Contracting Authority to Approve or
not shall not be unreasonably withheld or delayed) and any such use
shall be in accordance with the Contracting Authority’s Branding
Guidance as provided to the Supplier from time to time.
35.2 Each Party acknowledges to the other that nothing in this Framework Agreement
either expressly or by implication constitutes an approval and endorsement of any
products or services of the other Party (including the Services) and each Party agrees not
to conduct itself in such a way as to imply or express any such approval and endorsement.
35.3 The Contracting Authority shall be entitled to publicise this Framework
Agreement in accordance with any legal obligation upon the Contracting Authority,
including any examination of this Framework Agreement by the National Audit
Office pursuant to the National Audit Act 1983 or otherwise.
I. LIABILITY AND INSURANCE
36. LIABILITY
36.1 Unlimited Liability
36.1.1 Neither Party excludes or limits it liability for:
(a) death or personal injury caused by its negligence, or that of its
employees, agents or Sub-Contractors (as applicable);
(b) bribery or Fraud by it or its employees;
(c) breach of any obligation as to title implied by section 12 of the Sale
of Goods Act 1979 or section 2 of the Supply of Goods and Services
Act 1982; or
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(d) any liability to the extent it cannot be excluded or limited by Law.
36.1.2 The Supplier does not exclude or limit its liability in respect of the indemnity in Clauses
33.9 (IPR Indemnity) and in each case whether before or after the making of a demand
pursuant to the indemnity therein.
36.2 Financial Limits
36.2.1 Subject to Clause 36.1 (Unlimited Liability), the Supplier’s total aggregate liability:
(a) in respect of all:
(i) Service Credits; and
(ii) Compensation for Critical Service Level Failure;
incurred in any rolling period of twelve (12) Months shall be subject
in aggregate to the Service Credit Cap;
(b) in respect of all other Losses incurred by the Contracting Authority
under or in connection with this Call Off Contract as a result of
Defaults by the Supplier shall in no event exceed:
(i) in relation to any Defaults occurring from the Call Off
Commencement Date to the end of the first Call Off Contract
Year, the higher of ten million pounds (£10,000,000) or a sum
equal to one hundred and fifty per cent (150%) of the
Estimated Year 1 Call Off Contract Charges;
(ii) in relation to any Defaults occurring in each subsequent Call
Off Contract Year that commences during the remainder of the
Call Off Contract Period, the higher of ten million pounds
(£10,000,000) in each such Call Off Contract Year or a sum
equal to one hundred and fifty percent (150%) of the Call Off
Contract Charges payable to the Supplier under this Call Off
Contract in the previous Call Off Contract Year; and
(iii) in relation to any Defaults occurring in each Call Off Contract
Year that commences after the end of the Call Off Contract
Period, the higher of ten million pounds (£10,000,000) in each
such Call Off Contract Year or a sum equal to one hundred and
fifty percent (150%) of the Call Off Contract Charges payable to
the Supplier under this Call Off Contract in the last Call Off
Contract Year commencing during the Call Off Contract Period;
unless the Contracting Authority has specified different financial
limits in the Call Off Order Form.
36.2.2 Subject to Clauses 36.1 (Unlimited Liability) and 36.2 (Financial Limits) and without
prejudice to its obligation to pay the undisputed Call Off Contract Charges as and when they
fall due for payment, the Contracting Authority's total aggregate liability in respect of all
Losses as a result of Contracting Authority Causes shall be limited to:
(a) in relation to any Contracting Authority Causes occurring from the
Call Off Commencement Date to the end of the first Call Off Contract
Year, a sum equal to the Estimated Year 1 Call Off Contract Charges;
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(b) in relation to any Contracting Authority Causes occurring in each
subsequent Call Off Contract Year that commences during the
remainder of the Call Off Contract Period, a sum equal to the Call Off
Contract Charges payable to the Supplier under this Call Off Contract
in the previous Call Off Contract Year; and
(c) in relation to any Contracting Authority Causes occurring in each Call
Off Contract Year that commences after the end of the Call Off
Contract Period, a sum equal to the Call Off Contract Charges payable
to the Supplier under this Call Off Contract in the last Call Off
Contract Year commencing during the Call Off Contract Period.
36.3 Non-recoverable Losses
36.3.1 Subject to Clause 36.1 (Unlimited Liability) neither Party shall be liable to the other Party
for any:
(a) indirect, special or consequential Loss;
(b) loss of profits, turnover, savings, business opportunities or damage
to goodwill (in each case whether direct or indirect).
36.4 Recoverable Losses
36.4.1 Subject to Clause 36.2 (Financial Limits), and notwithstanding Clause 36.3 (Non-
recoverable Losses), the Supplier acknowledges that the Contracting Authority may, amongst
other things, recover from the Supplier the following Losses incurred by the Contracting
Authority to the extent that they arise as a result of a Default by the Supplier:
(a) any additional operational and/or administrative costs and expenses
incurred by the Contracting Authority, including costs relating to time
spent by or on behalf of the Contracting Authority in dealing with the
consequences of the Default;
(b) any wasted expenditure or charges;
(c) the additional cost of procuring Replacement Services for the
remainder of the Call Off Contract Period and/or replacement
Deliverables, which shall include any incremental costs associated
with such Replacement Services and/or replacement Deliverables
above those which would have been payable under this Call Off
Contract;
(d) any compensation or interest paid to a third party by the Contracting
Authority; and
(e) any fine, penalty or costs incurred by the Contracting Authority
pursuant to Law.
36.5 Miscellaneous
36.5.1 Each Party shall use all reasonable endeavours to mitigate any loss or damage suffered
arising out of or in connection with this Call Off Contract.
36.5.2 Any Deductions shall not be taken into consideration when calculating the Supplier’s
liability under Clause 36.2 (Financial Limits).
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36.5.3 Subject to any rights of the Contracting Authority under this Call Off Contract (including
in respect of an IPR Claim), any claims by a third party where an indemnity is sought by that
third party from a Party to this Call Off Contract shall be dealt with in accordance with the
provisions of Framework Schedule 20 (Conduct of Claims).
37. INSURANCE
37.1 This Clause 37 will only apply where specified in the Call Off Order Form or elsewhere in
this Call Off Contract.
37.2 Notwithstanding any benefit to the Contracting Authority of the policy or policies of
insurance referred to in Clause 31 (Insurance) of the Framework Agreement, the Supplier
shall effect and maintain such further policy or policies of insurance or extensions to such
existing policy or policies of insurance procured under the Framework Agreement in
respect of all risks which may be incurred by the Supplier arising out of its performance of
its obligations under this Call Off Contract.
37.3 Without limitation to the generality of Clause 37.2 the Supplier shall ensure that it
maintains the policy or policies of insurance as stipulated in the Call Off Order Form.
37.4 The Supplier shall effect and maintain the policy or policies of insurance referred to in
Clause 37 for six (6) years after the Call Off Expiry Date.
37.5 The Supplier shall give the Contracting Authority, on request, copies of all insurance
policies referred to in Clause 37 or a broker's verification of insurance to demonstrate that
the appropriate cover is in place, together with receipts or other evidence of payment of
the latest premiums due under those policies.
37.6 If, for whatever reason, the Supplier fails to give effect to and maintain the insurance
policies required under Clause 37 the Contracting Authority may make alternative
arrangements to protect its interests and may recover the premium and other costs of
such arrangements as a debt due from the Supplier.
37.7 The provisions of any insurance or the amount of cover shall not relieve the Supplier of
any liability under this Call Off Contract. It shall be the responsibility of the Supplier to
determine the amount of insurance cover that will be adequate to enable the Supplier to
satisfy any liability in relation to the performance of its obligations under this Call Off
Contract.
37.8 The Supplier shall ensure that nothing is done which would entitle the relevant insurer
to cancel, rescind or suspend any insurance or cover, or to treat any insurance, cover or
claim as voided in whole or part. The Supplier shall use all reasonable endeavours to
notify the Contracting Authority (subject to third party confidentiality obligations) as soon
as practicable when it becomes aware of any relevant fact, circumstance or matter which
has caused, or is reasonably likely to provide grounds to, the relevant insurer to give
notice to cancel, rescind, suspend or void any insurance, or any cover or claim under any
insurance in whole or in part.
J. REMEDIES AND RELIEF
38. AUTHORITY REMEDIES FOR DEFAULT
38.1 Remedies
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38.1.1 Without prejudice to any other right or remedy of the Contracting Authority howsoever
arising (including under Call Off Schedule 6 (Service Levels, Service Credits and Performance
Monitoring)) and subject to the exclusive financial remedy provisions in Clauses 13.6 (Service
Levels and Service Credits) and 6.4.1(b) (Delay Payments), if the Supplier commits any
Default of this Call Off Contract then the Contracting Authority may (whether or not any part
of the Services have been Delivered) do any of the following:
(a) at the Contracting Authority's option, give the Supplier the
opportunity (at the Supplier’s expense) to remedy the Default
together with any damage resulting from such Default (where such
Default is capable of remedy) or to supply Replacement Services and
carry out any other necessary work to ensure that the terms of this
Call Off Contract are fulfilled, in accordance with the Contracting
Authority's instructions;
(b) carry out, at the Supplier’s expense, any work necessary to make the
provision of the Services comply with this Call Off Contract;
(c) if the Default is a material Default that is capable of remedy (and for
these purposes a material Default may be a single material Default or
a number of Defaults or repeated Defaults - whether of the same or
different obligations and regardless of whether such Defaults are
remedied - which taken together constitute a material Default):
(i) instruct the Supplier to comply with the Rectification Plan
Process;
(ii) suspend this Call Off Contract (whereupon the relevant
provisions of Clause 44 (Partial Termination, Suspension and
Partial Suspension) shall apply) and step-in to itself supply or
procure a third party to supply (in whole or in part) the
Services;
(iii) without terminating or suspending the whole of this Call Off
Contract, terminate or suspend this Call Off Contract in respect
of part of the provision of the Services only (whereupon the
relevant provisions of Clause 44 (Partial Termination,
Suspension and Partial Suspension) shall apply) and step-in to
itself supply or procure a third party to supply (in whole or in
part) such part of the Good and/or Services;
38.1.2 Where the Contracting Authority exercises any of its step-in rights under Clauses
38.1.1(c)(ii) or 38.1.1(c)(iii), the Contracting Authority shall have the right to charge the
Supplier for and the Supplier shall on demand pay any costs reasonably incurred by the
Contracting Authority (including any reasonable administration costs) in respect of the
supply of any part of the Services by the Contracting Authority or a third party and provided
that the Contracting Authority uses its reasonable endeavours to mitigate any additional
expenditure in obtaining Replacement Services.
38.2 Rectification Plan Process
38.2.1 Where the Contracting Authority has instructed the Supplier to comply with the
Rectification Plan Process pursuant to Clause 38.1.1(c)(i):
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(a) the Supplier shall submit a draft Rectification Plan to the Contracting
Authority for it to review as soon as possible and in any event within
10 (ten) Working Days (or such other period as may be agreed
between the Parties) from the date of Contracting Authority’s
instructions. The Supplier shall submit a draft Rectification Plan even
if the Supplier disputes that it is responsible for the Default giving
rise to the Contracting Authority’s request for a draft Rectification
Plan.
(b) the draft Rectification Plan shall set out:
(i) full details of the Default that has occurred, including a cause
analysis;
(ii) the actual or anticipated effect of the Default; and
(iii) the steps which the Supplier proposes to take to rectify the
Default (if applicable) and to prevent such Default from
recurring, including timescales for such steps and for the
rectification of the Default (where applicable).
38.2.2 The Supplier shall promptly provide to the Contracting Authority any further
documentation that the Contracting Authority requires to assess the Supplier’s root cause
analysis. If the Parties do not agree on the root cause set out in the draft Rectification Plan,
either Party may refer the matter to be determined by an expert in accordance with
paragraph 5 of Call Off Schedule 11 (Dispute Resolution Procedure).
38.2.3 The Contracting Authority may reject the draft Rectification Plan by notice to the
Supplier if, acting reasonably, it considers that the draft Rectification Plan is inadequate, for
example because the draft Rectification Plan:
(a) is insufficiently detailed to be capable of proper evaluation;
(b) will take too long to complete;
(c) will not prevent reoccurrence of the Default; and/or
(d) will rectify the Default but in a manner which is unacceptable to the
Contracting Authority.
38.2.4 The Contracting Authority shall notify the Supplier whether it consents to the draft
Rectification Plan as soon as reasonably practicable. If the Contracting Authority rejects the
draft Rectification Plan, the Contracting Authority shall give reasons for its decision and the
Supplier shall take the reasons into account in the preparation of a revised Rectification Plan.
The Supplier shall submit the revised draft of the Rectification Plan to the Contracting
Authority for review within five (5) Working Days (or such other period as agreed between
the Parties) of the Contracting Authority’s notice rejecting the first draft.
38.2.5 If the Contracting Authority consents to the Rectification Plan, the Supplier shall
immediately start work on the actions set out in the Rectification Plan.
39. SUPPLIER RELIEF DUE TO AUTHORITY CAUSE
39.1 If the Supplier has failed to:
39.1.1 Achieve a Milestone by its Milestone Date;
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39.1.2 provide the Services in accordance with the Service Levels;
39.1.3 comply with its obligations under this Call Off Contract,
(each a “Supplier Non-Performance”),
and can demonstrate that the Supplier Non-Performance would not have occurred but
for a Contracting Authority Cause, then (subject to the Supplier fulfilling its obligations
in Clause 17 (Supplier Notification of Contracting Authority Cause)):
(a) the Supplier shall not be treated as being in breach of this Call Off
Contract to the extent the Supplier can demonstrate that the
Supplier Non-Performance was caused by the Contracting Authority
Cause;
(b) the Contracting Authority shall not be entitled to exercise any rights
that may arise as a result of that Supplier Non-Performance to
terminate this Call Off Contract pursuant to Clause 41 (Contracting
Authority Termination Rights) except Clause 41.6 (Termination
Without Cause);
(c) where the Supplier Non-Performance constitutes the failure to
Achieve a Milestone by its Milestone Date:
(i) the Milestone Date shall be postponed by a period equal to
the period of Delay that the Supplier can demonstrate was
caused by the Contracting Authority Cause;
(ii) if the Contracting Authority, acting reasonably, considers it
appropriate, the Implementation Plan shall be amended to
reflect any consequential revisions required to subsequent
Milestone Dates resulting from the Contracting Authority
Cause;
(iii) if failure to Achieve a Milestone attracts a Delay Payment, the
Supplier shall have no liability to pay any such Delay Payment
associated with the Milestone to the extent that the Supplier
can demonstrate that such failure was caused by the
Contracting Authority Cause; and/or
(d) where the Supplier Non-Performance constitutes a Service Level
Failure:
(i) the Supplier shall not be liable to accrue Service Credits;
(ii) the Contracting Authority shall not be entitled to any
Compensation for Critical Service Level Failure pursuant to
Clause 14 (Critical Service Level Failure); and
(iii) the Supplier shall be entitled to invoice for the Call Off
Contract Charges for the provision of the relevant Services
affected by the Contracting Authority Cause,
in each case, to the extent that the Supplier can demonstrate that
the Service Level Failure was caused by the Contracting Authority
Cause.
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39.2 In order to claim any of the rights and/or relief referred to in Clause 39.1, the Supplier
shall:
39.2.1 comply with its obligations under Clause 17 (Notification of Contracting Authority
Cause); and
39.2.2 within ten (10) Working Days of becoming aware that a Contracting Authority Cause has
caused, or is likely to cause, a Supplier Non-Performance, give the Contracting Authority
notice (a “Relief Notice”) setting out details of:
(a) the Supplier Non-Performance;
(b) the Contracting Authority Cause and its effect on the Supplier’s
ability to meet its obligations under this Call Off Contract; and
(c) the relief claimed by the Supplier.
39.3 Following the receipt of a Relief Notice, the Contracting Authority shall as soon as
reasonably practicable consider the nature of the Supplier Non-Performance and the
alleged Contracting Authority Cause and whether it agrees with the Supplier’s assessment
set out in the Relief Notice as to the effect of the relevant Contracting Authority Cause and
its entitlement to relief, consulting with the Supplier where necessary.
39.4 Without prejudice to Clauses 8.6 (Continuing obligation to provide the Services), if a
Dispute arises as to:
39.4.1 whether a Supplier Non-Performance would not have occurred but for a Contracting
Authority Cause; and/or
39.4.2 the nature and/or extent of the relief claimed by the Supplier,
either Party may refer the Dispute to the Dispute Resolution Procedure. Pending the
resolution of the Dispute, both Parties shall continue to resolve the causes of, and mitigate
the effects of, the Supplier Non-Performance.
39.5 Any Variation that is required to the Implementation Plan or to the Call Off Contract
Charges pursuant to Clause 39 shall be implemented in accordance with the Variation
Procedure.
40. FORCE MAJEURE EVENT
40.1 Subject to the remainder of Clause 40 (and, in relation to the Supplier, subject to its
compliance with any obligations in Clause 15 (Business Continuity and Disaster Recovery)),
a Party may claim relief under Clause 40 from liability for failure to meet its obligations
under this Call Off Contract for as long as and only to the extent that the performance of
those obligations is directly affected by a Force Majeure Event. Any failure or delay by the
Supplier in performing its obligations under this Call Off Contract which results from a
failure or delay by an agent, Sub-Contractor or supplier shall be regarded as due to a Force
Majeure Event only if that agent, Sub-Contractor or supplier is itself impeded by a Force
Majeure Event from complying with an obligation to the Supplier.
40.2 The Affected Party shall as soon as reasonably practicable issue a Force Majeure Notice,
which shall include details of the Force Majeure Event, its effect on the obligations of the
Affected Party and any action the Affected Party proposes to take to mitigate its effect.
40.3 If the Supplier is the Affected Party, it shall not be entitled to claim relief under
Clause 40 to the extent that consequences of the relevant Force Majeure Event:
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40.3.1 are capable of being mitigated by any of the provision of any Services, including any
BCDR Services, but the Supplier has failed to do so; and/or
40.3.2 should have been foreseen and prevented or avoided by a prudent provider of Services
similar to the Services, operating to the standards required by this Call Off Contract.
40.4 Subject to Clause 40.5, as soon as practicable after the Affected Party issues the Force
Majeure Notice, and at regular intervals thereafter, the Parties shall consult in good faith
and use reasonable endeavours to agree any steps to be taken and an appropriate
timetable in which those steps should be taken, to enable continued provision of the
Services affected by the Force Majeure Event.
40.5 The Parties shall at all times following the occurrence of a Force Majeure Event and
during its subsistence use their respective reasonable endeavours to prevent and mitigate
the effects of the Force Majeure Event. Where the Supplier 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.
40.6 Where, as a result of a Force Majeure Event:
40.6.1 an Affected Party fails to perform its obligations in accordance with this Call Off
Contract, then during the continuance of the Force Majeure Event:
(a) the other Party shall not be entitled to exercise any rights to
terminate this Call Off Contract in whole or in part as a result of such
failure unless the provision of the Services is materially impacted by a
Force Majeure Event which endures for a continuous period of more
than ninety (90) days; and
(b) the Supplier shall not be liable for any Default and the Contracting
Authority shall not be liable for any Contracting Authority Cause
arising as a result of such failure;
40.6.2 the Supplier fails to perform its obligations in accordance with this Call Off Contract:
(a) the Contracting Authority shall not be entitled:
(i) during the continuance of the Force Majeure Event to exercise
its step-in rights under Clause 38.1.1(b) and
38.1.1(c) (Contracting Authority Remedies for Default) as a
result of such failure;
(ii) to receive Delay Payments pursuant to Clause 6.4 (Delay
Payments) to the extent that the Achievement of any
Milestone is affected by the Force Majeure Event; and
(iii) to receive Service Credits or withhold and retain any of the Call
Off Contract Charges as Compensation for Critical Service Level
Failure pursuant to Clause 14 (Critical Service Level Failure) to
the extent that a Service Level Failure or Critical Service Level
Failure has been caused by the Force Majeure Event; and
(b) the Supplier shall be entitled to receive payment of the Call Off
Contract Charges (or a proportional payment of them) only to the
extent that the Services (or part of the Services) continue to be
provided in accordance with the terms of this Call Off Contract during
the occurrence of the Force Majeure Event.
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40.7 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 Call Off Contract.
40.8 Relief from liability for the Affected Party under Clause 40 shall end as soon as the Force
Majeure Event no longer causes the Affected Party to be unable to comply with its
obligations under this Call Off Contract and shall not be dependent on the serving of
notice under Clause 40.7.
K. TERMINATION AND EXIT MANAGEMENT
41. AUTHORITY TERMINATION RIGHTS
41.1 Termination on Material Default
41.1.1 The Contracting Authority may terminate this Call Off Contract for material Default by
issuing a Termination Notice to the Supplier where:
(a) the Supplier commits a Critical Service Level Failure;
(b) the representation and warranty given by the Supplier pursuant to
Clause 3.2.5 (Representations and Warranties) is materially untrue
or misleading, and the Supplier fails to provide details of proposed
mitigating factors which in the reasonable opinion of the Contracting
Authority are acceptable;
(c) as a result of any Defaults, the Contracting Authority incurs Losses in
any Contract Year which exceed 80% (unless stated differently in the
Call Off Order Form) of the value of the Supplier’s aggregate annual
liability limit for that Contract Year as set out in Clauses 36.2.1(a) and
36.2.1(b) (Liability);
(d) the Contracting Authority expressly reserves the right to terminate
this Call Off Contract for material Default, including pursuant to any
of the following Clauses: 6.2.3 (Implementation Plan), 8.4.2
(Services), , 14 (Critical Service Level Failure), 16.4 (Disruption), Error!
Reference source not found. (Records, Audit Access and Open Book
Data), 24 (Promoting Tax Compliance), 34.3.9 (Confidentiality),
50.6.2 (Prevention of Fraud and Bribery), Paragraph 1.2.4 of the
Annex to Part A and Paragraph 1.2.4 of the Annex to Part B of Call Off
Schedule 10 (Staff Transfer);
(e) the Supplier commits any material Default of this Call Off Contract
which is not, in the reasonable opinion of the Contracting Authority,
capable of remedy; and/or
(f) the Supplier commits a Default, including a material Default, which in
the opinion of the Contracting Authority is remediable but has not
remedied such Default to the satisfaction of the Contracting
Authority in accordance with the Rectification Plan Process.
41.1.2 For the purpose of Clause 41.1.1, a material Default may be a single material Default or
a number of Defaults or repeated Defaults (whether of the same or different obligations and
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regardless of whether such Defaults are remedied) which taken together constitute a
material Default.
41.2 Termination in Relation to Financial Standing
41.2.1 The Contracting Authority may terminate this Call Off Contract by issuing a Termination
Notice to the Supplier where in the reasonable opinion of the Contracting Authority there is
a material detrimental change in the financial standing and/or the credit rating of the
Supplier which:
(a) adversely impacts on the Supplier’s ability to supply the Services
under this Call Off Contract; or
(b) could reasonably be expected to have an adverse impact on the
Supplier’s ability to supply the Services under this Call Off Contract.
41.3 Termination on Insolvency
41.3.1 The Contracting Authority may terminate this Call Off Contract by issuing a Termination
Notice to the Supplier where an Insolvency Event affecting the Supplier occurs.
41.4 Termination on Change of Control
41.4.1 The Supplier shall notify the Contracting Authority immediately in writing and as soon as
the Supplier is aware (or ought reasonably to be aware) that it is anticipating, undergoing,
undergoes or has undergone a Change of Control and provided such notification does not
contravene any Law.
41.4.2 The Supplier shall ensure that any notification made pursuant to Clause 41.4.1 shall set
out full details of the Change of Control including the circumstances suggesting and/or
explaining the Change of Control.
41.4.3 The Contracting Authority may terminate this Call Off Contract by issuing a Termination
Notice under Clause 41.4 to the Supplier within six (6) Months of:
(a) being notified in writing that a Change of Control is anticipated or in
contemplation or has occurred; or
(b) where no notification has been made, the date that the Contracting
Authority becomes aware that a Change of Control is anticipated or
is in contemplation or has occurred,
but shall not be permitted to terminate where an Approval was granted prior
to the Change of Control.
41.5 Termination for breach of Regulations
41.5.1 The Contracting Authority may terminate this Call Off Contract by issuing a Termination
Notice to the Supplier on the occurrence of any of the statutory provisos contained in
Regulation 73 (1) (a) to (c).
41.6 Termination Without Cause
41.6.1 The Contracting Authority shall have the right to terminate this Call Off Contract at any
time by issuing a Termination Notice to the Supplier giving at least thirty (30) Working Days
written notice (unless stated differently in the Call Off Order Form).
41.7 Termination in Relation to Framework Agreement
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41.7.1 The Contracting Authority may terminate this Call Off Contract by issuing a Termination
Notice to the Supplier if the Framework Agreement is terminated for any reason whatsoever.
41.8 Termination in Relation to Variation
41.8.1 The Contracting Authority may terminate this Call Off Contract by issuing a Termination
Notice to the Supplier for failure of the Parties to agree or the Supplier to implement a
Variation in accordance with the Variation Procedure.
42. SUPPLIER TERMINATION RIGHTS
42.1 Termination on Contracting Authority Cause for Failure to Pay
42.1.1 The Supplier may, by issuing a Termination Notice to the Contracting Authority,
terminate this Call Off Contract if the Contracting Authority fails to pay an undisputed sum
due to the Supplier under this Call Off Contract which in aggregate exceeds an amount equal
to one month’s average Call Off Contract Charges (unless a different amount has been
specified in the Call Off Order Form), for the purposes of this Clause 42.1.1 (the “Undisputed
Sums Limit”), and the said undisputed sum due remains outstanding for forty (40) Working
Days (the “Undisputed Sums Time Period”) after the receipt by the Contracting Authority of
a written notice of non-payment from the Supplier specifying:
(a) the Contracting Authority’s failure to pay; and
(b) the correct overdue and undisputed sum; and
(c) the reasons why the undisputed sum is due; and
(d) the requirement on the Contracting Authority to remedy the failure
to pay; and
this Call Off Contract shall then terminate on the date specified in the
Termination Notice (which shall not be less than twenty (20) Working Days
from the date of the issue of the Termination Notice), save that such right of
termination shall not apply where the failure to pay is due to the Contracting
Authority exercising its rights under this Call Off Contract including Clause
23.3 (Retention and Set off).
42.1.2 The Supplier shall not suspend the supply of the Services for failure of the Contracting
Authority to pay undisputed sums of money (whether in whole or in part).
43. TERMINATION BY EITHER PARTY
43.1 Termination for continuing Force Majeure Event
43.1.1 Either Party may, by issuing a Termination Notice to the other Party, terminate this Call
Off Contract in accordance with Clause 40.6.1(a) (Force Majeure).
44. PARTIAL TERMINATION, SUSPENSION AND PARTIAL SUSPENSION
44.1 Where the Contracting Authority has the right to terminate this Call Off Contract, the
Contracting Authority shall be entitled to terminate or suspend all or part of this Call Off
Contract provided always that, if the Contracting Authority elects to terminate or suspend
this Call Off Contract in part, the parts of this Call Off Contract not terminated or
suspended can, in the Contracting Authority’s reasonable opinion, operate effectively to
deliver the intended purpose of the surviving parts of this Call Off Contract.
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44.2 Any suspension of this Call Off Contract under Clause 44.1 shall be for such period as the
Contracting Authority may specify and without prejudice to any right of termination which
has already accrued, or subsequently accrues, to the Contracting Authority.
44.3 The Parties shall seek to agree the effect of any Variation necessitated by a partial
termination, suspension or partial suspension in accordance with the Variation Procedure,
including the effect that the partial termination, suspension or partial suspension may
have on the provision of any other Services and the Call Off Contract Charges, provided
that the Supplier shall not be entitled to:
44.3.1 an increase in the Call Off Contract Charges in respect of the provision of the Services
that have not been terminated if the partial termination arises due to the exercise of any of
the Contracting Authority’s termination rights under Clause 41 (Contracting Authority
Termination Rights) except Clause 41.6 (Termination Without Cause); and
44.3.2 reject the Variation.
45. CONSEQUENCES OF EXPIRY OR TERMINATION
45.1 Consequences of termination under Clauses Error! Reference source not found.
(Termination in Relation to Guarantee), 41.1 (Termination on Material Default), 41.2
(Termination in Relation to Financial Standing), 41.7 (Termination in Relation to
Framework Agreement), Error! Reference source not found. (Termination in Relation to
Benchmarking) and 41.8 (Termination in Relation to Variation)
45.1.1 Where the Contracting Authority:
(a) terminates (in whole or in part) this Call Off Contract under any of
the Clauses referred to in Clause 45.1; and
(b) then makes other arrangements for the supply of the Services,
the Contracting Authority may recover from the Supplier the cost reasonably
incurred of making those other arrangements and any additional expenditure
incurred by the Contracting Authority throughout the remainder of the Call
Off Contract Period provided that Contracting Authority shall take all
reasonable steps to mitigate such additional expenditure. No further
payments shall be payable by the Contracting Authority to the Supplier until
the Contracting Authority has established the final cost of making those
other arrangements.
45.2 Consequences of termination under Clauses 41.6 (Termination without Cause) and 42.1
(Termination on Contracting Authority Cause for Failure to Pay)
45.2.1 Where:
(a) the Contracting Authority terminates (in whole or in part) this Call
Off Contract under Clause 41.6 (Termination without Cause); or
(b) the Supplier terminates this Call Off Contract pursuant to Clause 42.1
(Termination on Contracting Authority Cause for Failure to Pay),
the Contracting Authority shall indemnify the Supplier against any
reasonable and proven Losses which would otherwise represent an
unavoidable loss by the Supplier by reason of the termination of this Call Off
Contract, provided that the Supplier takes all reasonable steps to mitigate
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such Losses. The Supplier shall submit a fully itemised and costed list of such
Losses, with supporting evidence including such further evidence as the
Contracting Authority may require, reasonably and actually incurred by the
Supplier as a result of termination under Clause 41.6 (Termination without
Cause).
45.2.2 The Contracting Authority shall not be liable under Clause 45.2.1 to pay any sum which:
(a) was claimable under insurance held by the Supplier, and the Supplier
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; or
(b) when added to any sums paid or due to the Supplier under this Call
Off Contract, exceeds the total sum that would have been payable to
the Supplier if this Call Off Contract had not been terminated.
45.3 Consequences of termination under Clause 43.1 (Termination for Continuing Force
Majeure Event)
45.3.1 The costs of termination incurred by the Parties shall lie where they fall if either Party
terminates or partially terminates this Call Off Contract for a continuing Force Majeure Event
pursuant to Clause 43.1 (Termination for Continuing Force Majeure Event).
45.4 Consequences of Termination for Any Reason
45.4.1 Save as otherwise expressly provided in this Call Off Contract:
(a) termination or expiry of this Call Off Contract shall be without
prejudice to any rights, remedies or obligations accrued under this
Call Off Contract prior to termination or expiration and nothing in
this Call Off Contract shall prejudice the right of either Party to
recover any amount outstanding at the time of such termination or
expiry; and
(b) termination of this Call Off Contract shall not affect the continuing
rights, remedies or obligations of the Contracting Authority or the
Supplier under Clauses 21 (Records, Audit Access & Open Book Data),
33 (Intellectual Property Rights), 34.3 (Confidentiality),
34.5 (Freedom of Information) 34.6 (Protection of Personal Data),
36 (Liability), 45 (Consequences of Expiry or Termination),
51 (Severance), 53 (Entire Agreement), 54 (Third Party Rights)
56 (Dispute Resolution) and 57 (Governing Law and Jurisdiction), and
the provisions of Call Off Schedule 1 (Definitions), Call Off Schedule 3
(Call Off Contract Charges, Payment and Invoicing), Call Off Schedule
9 (Exit Management), Call Off Schedule 10 (Staff Transfer), Call Off
Schedule 11 (Dispute Resolution Procedure) and, without limitation
to the foregoing, any other provision of this Call Off Contract which
expressly or by implication is to be performed or observed
notwithstanding termination or expiry shall survive the Call Off Expiry
Date.
45.5 Exit management
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45.5.1 The Parties shall comply with the exit management provisions set out in Call Off
Schedule 9 (Exit Management).
L. MISCELLANEOUS AND GOVERNING LAW
46. COMPLIANCE
46.1 Health and Safety
46.1.1 The Supplier shall perform its obligations under this Call Off Contract (including those in
relation to the Services) in accordance with:
(a) all applicable Law regarding health and safety; and
(b) the Contracting Authority’s health and safety policy (as provided to
the Supplier from time to time) whilst at the Contracting Authority
Premises.
46.1.2 Each Party shall promptly notify the other of as soon as possible of any health and safety
incidents or material health and safety hazards at the Contracting Authority Premises of
which it becomes aware and which relate to or arise in connection with the performance of
this Call Off Contract
46.1.3 While on the Contracting Authority Premises, the Supplier shall comply with any health
and safety measures implemented by the Contracting Authority in respect of Supplier
Personnel and other persons working there and any instructions from the Contracting
Authority on any necessary associated safety measures.
46.2 Equality and Diversity
46.2.1 The Supplier shall:
(a) perform its obligations under this Call Off Contract (including those in
relation to provision of the Services) in accordance with:
(i) all applicable equality Law (whether in relation to race, sex,
gender reassignment, religion or belief, disability, sexual
orientation, pregnancy, maternity, age or otherwise); and
(ii) any other requirements and instructions which the Contracting
Authority reasonably imposes in connection with any equality
obligations imposed on the Contracting Authority at any time
under applicable equality Law;
(b) take all necessary steps, and inform the Contracting Authority of the
steps taken, to prevent unlawful discrimination designated as such
by any court or tribunal, or the Equality and Human Rights
Commission or (any successor organisation).
46.3 Environmental Requirements
46.3.1 The Supplier shall, when working on the Sites, perform its obligations under this Call Off
Contract in accordance with the Environmental Policy of the Contracting Authority.
46.3.2 The Contracting Authority shall provide a copy of its written Environmental Policy (if
any) to the Supplier upon the Supplier’s written request.
47. ASSIGNMENT AND NOVATION
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47.1 The Supplier shall not assign, novate, Sub-Contract or otherwise dispose of or create any
trust in relation to any or all of its rights, obligations or liabilities under this Call Off
Contract or any part of it without Approval.
47.2 The Contracting Authority may assign, novate or otherwise dispose of any or all of its
rights, liabilities and obligations under this Call Off Contract or any part thereof to:
47.2.1 any other Contracting Contracting Authority; or
47.2.2 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 Contracting
Authority; or
47.2.3 any private sector body which substantially performs the functions of the Contracting
Authority,
and the Supplier shall, at the Contracting Authority’s request, enter into a novation
agreement in such form as the Contracting Authority shall reasonably specify in order to
enable the Contracting Authority to exercise its rights pursuant to this Clause 47.2.
47.3 A change in the legal status of the Contracting Authority shall not, subject to Clause 47.4
affect the validity of this Call Off Contract and this Call Off Contract shall be binding on any
successor body to the Contracting Authority.
47.4 If the Contracting Authority assigns, novates or otherwise disposes of any of its rights,
obligations or liabilities under this Call Off Contract to a private sector body in accordance
with Clause 47.2.3 (the “Transferee” in the rest of this Clause 47.4) the right of
termination of the Contracting Authority in Clause 41.3 (Termination on Insolvency) shall
be available to the Supplier in the event of insolvency of the Transferee.
48. WAIVER AND CUMULATIVE REMEDIES
48.1 The rights and remedies under this Call Off Contract may be waived only by notice in
accordance with Clause 55 (Notices) and in a manner that expressly states that a waiver is
intended. A failure or delay by a Party in ascertaining or exercising a right or remedy
provided under this Call Off Contract or by Law shall not constitute a waiver of that right
or remedy, nor shall it prevent or restrict the further exercise of that right or remedy.
48.2 Unless otherwise provided in this Call Off Contract, rights and remedies under this Call
Off Contract are cumulative and do not exclude any rights or remedies provided by Law, in
equity or otherwise.
49. RELATIONSHIP OF THE PARTIES
49.1 Except as expressly provided otherwise in this Call Off Contract, nothing in this Call Off
Contract, nor any actions taken by the Parties pursuant to this Call Off Contract, shall
create a partnership, joint venture or relationship of employer and employee or principal
and agent between the Parties, or authorise either Party to make representations or enter
into any commitments for or on behalf of any other Party.
50. PREVENTION OF FRAUD AND BRIBERY
50.1 The Supplier represents and warrants that neither it, nor to the best of its knowledge
any Supplier Personnel, have at any time prior to the Call Off Commencement Date:
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50.1.1 committed a Prohibited Act or been formally notified that it is subject to an
investigation or prosecution which relates to an alleged Prohibited Act; and/or
50.1.2 been listed by any government department or agency as being debarred, suspended,
proposed for suspension or debarment, or otherwise ineligible for participation in
government procurement programmes or contracts on the grounds of a Prohibited Act.
50.2 The Supplier shall not during the Call Off Contract Period:
50.2.1 commit a Prohibited Act; and/or
50.2.2 do or suffer anything to be done which would cause the Contracting Authority or any of
the Contracting Authority’s employees, consultants, contractors, sub-contractors or agents
to contravene any of the Relevant Requirements or otherwise incur any liability in relation to
the Relevant Requirements.
50.3 The Supplier shall during the Call Off Contract Period:
50.3.1 establish, maintain and enforce, and require that its Sub-Contractors establish, maintain
and enforce, policies and procedures which are adequate to ensure compliance with the
Relevant Requirements and prevent the occurrence of a Prohibited Act;
50.3.2 keep appropriate records of its compliance with its obligations under Clause 50.3.1 and
make such records available to the Contracting Authority on request;
50.3.3 if so required by the Contracting Authority, within twenty (20) Working Days of the Call
Off Commencement Date, and annually thereafter, certify to the Contracting Authority in
writing that the Supplier and all persons associated with it or its Sub-Contractors or other
persons who are supplying the Services in connection with this Call Off Contract are
compliant with the Relevant Requirements. The Supplier shall provide such supporting
evidence of compliance as the Contracting Authority may reasonably request; and
50.3.4 have, maintain and where appropriate enforce an anti-bribery policy (which shall be
disclosed to the Contracting Authority on request) to prevent it and any Supplier Personnel
or any person acting on the Supplier’s behalf from committing a Prohibited Act.
50.4 The Supplier shall immediately notify the Contracting Authority in writing if it becomes
aware of any breach of Clause 50.1, or has reason to believe that it has or any of the
Supplier Personnel have:
50.4.1 been subject to an investigation or prosecution which relates to an alleged Prohibited
Act;
50.4.2 been listed by any government department or agency as being debarred, suspended,
proposed for suspension or debarment, or otherwise ineligible for participation in
government procurement programmes or contracts on the grounds of a Prohibited Act;
and/or
50.4.3 received a request or demand for any undue financial or other advantage of any kind in
connection with the performance of this Call Off Contract or otherwise suspects that any
person or Party directly or indirectly connected with this Call Off Contract has committed or
attempted to commit a Prohibited Act.
50.5 If the Supplier makes a notification to the Contracting Authority pursuant to Clause 50.4,
the Supplier shall respond promptly to the Contracting Authority's enquiries, co-operate
with any investigation, and allow the Contracting Authority to audit any books, records
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and/or any other relevant documentation in accordance with Clause 21 (Records, Audit
Access and Open Book Data).
50.6 If the Supplier breaches Clause 50.3, the Contracting Authority may by notice:
50.6.1 require the Supplier to remove from performance of this Call Off Contract any Supplier
Personnel whose acts or omissions have caused the Supplier’s breach; or
50.6.2 immediately terminate this Call Off Contract for material Default.
50.7 Any notice served by the Contracting Authority under Clause 50.4 shall specify the
nature of the Prohibited Act, the identity of the Party who the Contracting Authority
believes has committed the Prohibited Act and the action that the Contracting Authority
has elected to take (including, where relevant, the date on which this Call Off Contract
shall terminate).
51. SEVERANCE
51.1 If any provision of this Call Off Contract (or part of any provision) is held to be void or
otherwise unenforceable by any court of competent jurisdiction, such provision (or part)
shall to the extent necessary to ensure that the remaining provisions of this Call Off
Contract are not void or unenforceable be deemed to be deleted and the validity and/or
enforceability of the remaining provisions of this Call Off Contract shall not be affected.
51.2 In the event that any deemed deletion under Clause 51.1 is so fundamental as to
prevent the accomplishment of the purpose of this Call Off Contract or materially alters
the balance of risks and rewards in this Call Off Contract, either Party may give notice to
the other Party requiring the Parties to commence good faith negotiations to amend this
Call Off Contract so that, as amended, it is valid and enforceable, preserves the balance of
risks and rewards in this Call Off Contract and, to the extent that is reasonably practicable,
achieves the Parties' original commercial intention.
51.3 If the Parties are unable to resolve the Dispute arising under Clause 51 within twenty
(20) Working Days of the date of the notice given pursuant to Clause 51.2, this Call Off
Contract shall automatically terminate with immediate effect. The costs of termination
incurred by the Parties shall lie where they fall if this Call Off Contract is terminated
pursuant to Clause 51.
52. FURTHER ASSURANCES
52.1 Each Party undertakes at the request of the other, and at the cost of the requesting
Party to do all acts and execute all documents which may be necessary to give effect to
the meaning of this Call Off Contract.
53. ENTIRE AGREEMENT
53.1 This Call Off Contract and the documents referred to in it constitute the entire
agreement between the Parties in respect of the matter and supersede and extinguish all
prior negotiations, course of dealings or agreements made between the Parties in relation
to its subject matter, whether written or oral.
53.2 Neither Party has been given, nor entered into this Call Off Contract in reliance on, any
warranty, statement, promise or representation other than those expressly set out in this
Call Off Contract.
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53.3 Nothing in Clause 53 shall exclude any liability in respect of misrepresentations made
fraudulently.
54. THIRD PARTY RIGHTS
54.1 The provisions of paragraphs 2.1 and 2.6 of Part A, paragraphs 2.1, 2.6, 3.1 and 3.3 of
Part B, paragraphs 2.1 and 2.3 of Part C and paragraphs and 1.4, 2.3 and 2.8 of Part D of
Call Off Schedule 10 (Staff Transfer) and the provisions of paragraph 9.9 of Call Off
Schedule 9 (Exit Management) (together “Third Party Provisions”) confer benefits on
persons named in such provisions other than the Parties (each such person a “Third Party
Beneficiary”) and are intended to be enforceable by Third Parties Beneficiaries by virtue of
the CRTPA.
54.2 Subject to Clause 54.1, a person who is not a Party to this Call Off Contract has no right
under the CTRPA to enforce any term of this Call Off Contract but this does not affect any
right or remedy of any person which exists or is available otherwise than pursuant to that
Act.
54.3 No Third Party Beneficiary may enforce, or take any step to enforce, any Third Party
Provision without the prior written consent of the Contracting Authority, which may, if
given, be given on and subject to such terms as the Contracting Authority may determine.
54.4 Any amendments or modifications to this Call Off Contract may be made, and any rights
created under Clause 54.1 may be altered or extinguished, by the Parties without the
consent of any Third Party Beneficiary.
55. NOTICES
55.1 Except as otherwise expressly provided within this Call Off Contract, any notices sent
under this Call Off Contract must be in writing. For the purpose of Clause 55, an e-mail is
accepted as being "in writing".
55.2 Subject to Clause 55.3, the following table sets out the method by which notices may be
served under this Call Off Contract and the respective deemed time and proof of service:
Manner of delivery
Deemed time of delivery
Proof of Service
Email (Subject to
Clauses 55.3 and 55.4)
9.00am on the first
Working Day after sending
Dispatched as a pdf
attachment to an e-mail to
the correct e-mail address
without any error message
Personal delivery
On delivery, provided
delivery is between
9.00am and 5.00pm on a
Working Day. Otherwise,
delivery will occur at
9.00am on the next
Working Day
Properly addressed and
delivered as evidenced by
signature of a delivery receipt
Royal Mail Signed For™
1
st
Class or other
At the time recorded by
the delivery service,
Properly addressed prepaid
and delivered as evidenced
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prepaid, next Working
Day service providing
proof of delivery
provided that delivery is
between 9.00am and
5.00pm on a Working Day.
Otherwise, delivery will
occur at 9.00am on the
same Working Day (if
delivery before 9.00am) or
on the next Working Day
(if after 5.00pm)
by signature of a delivery
receipt
55.3 The following notices may only be served as an attachment to an email if the original
notice is then sent to the recipient by personal delivery or Royal Mail Signed For™ 1
st
Class
or other prepaid in the manner set out in the table in Clause 55.2:
55.3.1 any Termination Notice (Clause 41 (Contracting Authority Termination Rights)),
55.3.2 any notice in respect of:
(a) partial termination, suspension or partial suspension (Clause 44
(Partial Termination, Suspension and Partial Suspension)),
(b) waiver (Clause 48 (Waiver and Cumulative Remedies))
(c) Default or Contracting Authority Cause; and
55.3.3 any Dispute Notice.
55.4 Failure to send any original notice by personal delivery or recorded delivery in
accordance with Clause 55.3 shall invalidate the service of the related e-mail transmission.
The deemed time of delivery of such notice shall be the deemed time of delivery of the
original notice sent by personal delivery or Royal Mail Signed For™ 1st Class delivery (as
set out in the table in Clause 55.2) or, if earlier, the time of response or acknowledgement
by the other Party to the email attaching the notice.
55.5 Clause 55 does not apply to the service of any proceedings or other documents in any
legal action or, where applicable, any arbitration or other method of dispute resolution
(other than the service of a Dispute Notice under the Dispute Resolution Procedure).
55.6 For the purposes of Clause 55, the address and email address of each Party shall be as
specified in the Call Off Order Form.
56. DISPUTE RESOLUTION
56.1 The Parties shall resolve Disputes arising out of or in connection with this Call Off
Contract in accordance with the Dispute Resolution Procedure.
56.2 The Supplier shall continue to provide the Services in accordance with the terms of this
Call Off Contract until a Dispute has been resolved.
57. GOVERNING LAW AND JURISDICTION
57.1 This Call Off Contract and any issues, Disputes or claims (whether contractual or non-
contractual) arising out of or in connection with it or its subject matter or formation shall
be governed by and construed in accordance with the laws of England and Wales.
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57.2 Subject to Clause 56 (Dispute Resolution) and Call Off Schedule 12 (Dispute Resolution
Procedure) (including the Contracting Authority’s right to refer the Dispute to arbitration),
the Parties agree that the courts of England and Wales (unless stated differently in the Call
Off Order Form) shall have exclusive jurisdiction to settle any Dispute or claim (whether
contractual or non-contractual) that arises out of or in connection with this Call Off
Contract or its subject matter or formation.
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CALL OFF SCHEDULE 1: DEFINITIONS
1. In accordance with Clause 1 (Definitions and Interpretation) of this Call Off Contract
including its recitals the following expressions shall have the following meanings:
"Achieve"
means in respect of a Test, to successfully pass such Test
without any Test Issues in accordance with the Test Strategy
Plan and in respect of a Milestone, the issue of a Satisfaction
Certificate in respect of that Milestone and "Achieved",
“Achieving” and "Achievement" shall be construed
accordingly;
"Acquired Rights
Directive"
means the European Council Directive 77/187/EEC on the
approximation of laws of European member states relating to
the safeguarding of employees’ rights in the event of
transfers of undertakings, businesses or parts of undertakings
or businesses, as amended or re-enacted from time to time;
"Additional Clauses"
means the additional Clauses in Call Off Schedule 14
(Alternative and/or Additional Clauses) and any other
additional Clauses set out in the Call Off Order Form or
elsewhere in this Call Off Contract;
"Affected Party"
means the party seeking to claim relief in respect of a Force
Majeure;
"Affiliates"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Alternative Clauses"
means the alternative Clauses in Call Off Schedule 14
(Alternative and/or Additional Clauses) and any other
alternative Clauses set out in the Call Off Order Form or
elsewhere in this Call Off Contract;
"Approval"
means the prior written consent of the Contracting Authority
and "Approve" and "Approved" shall be construed
accordingly;
"Approved Sub-
Licensee"
means any of the following:
a) a Central Government Body;
b) any third party providing Services to a Central
Government Body; and/or
c) any body (including any private sector body) which
performs or carries on any of the functions and/or
activities that previously had been performed and/or
carried on by the Contracting Authority;
"Auditor"
means:
a) the Contracting Authority’s internal and external
auditors;
b) the Contracting Authority’s statutory or regulatory
auditors;
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c) the Comptroller and Auditor General, their staff and/or
any appointed representatives of the National Audit
Office;
d) HM Treasury or the Cabinet Office;
e) any party formally appointed by the Contracting
Authority to carry out audit or similar review functions;
and
f) successors or assigns of any of the above;
"Contracting Authority"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Contracting Authority
Personal Data"
means any Personal Data supplied for the purposes of or in
connection with this Framework Agreement by the
Contracting Authority to the Supplier;
"Contracting Authority's
Confidential
Information"
means all Contracting Authority Personal Data and any
information, however it is conveyed, that relates to the
business, affairs, developments, trade secrets, Know How,
personnel, and Suppliers of the Contracting Authority and/or
Other Contracting Contracting Authorities, including all IPR,
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 to be considered to be confidential;
“BACS”
means the Bankers’ Automated Clearing Services, which is a
scheme for the electronic processing of financial transactions
within the United Kingdom;
"BCDR Services"
means the Business Continuity Services and Disaster Recovery
Services;
"BCDR Plan"
means the plan prepared pursuant to paragraph 2 of Call Off
Schedule 8 (Business Continuity and Disaster Recovery), as
may be amended from time to time;
“Branding Guidance”
means the Contracting Authority’s guidance in relation to the
use of branding as provided to the Supplier from time to time;
"Business Continuity
Services"
has the meaning given to it in paragraph 4.2.2 of Call Off
Schedule 8 (Business Continuity and Disaster Recovery);
"Call Off
Commencement Date"
means the date of commencement of this Call Off Contract
set out in the Call Off Order Form;
"Call Off Contract"
means this contract between the Contracting Authority and
the Supplier (entered into pursuant to the provisions of the
Framework Agreement), which consists of the terms set out
in the Call Off Order Form and the Call Off Terms;
"Call Off Contract
Charges"
means the prices (inclusive of any Milestone Payments and
exclusive of any applicable VAT), payable to the Supplier by
the Contracting Authority under this Call Off Contract, as set
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out in Annex 1 of Call Off Schedule 3 (Call Off Contract
Charges, Payment and Invoicing), for the full and proper
performance by the Supplier of its obligations under this Call
Off Contract less any Deductions;
"Call Off Contract
Period"
means the term of this Call Off Contract from the Call Off
Commencement Date until the Call Off Expiry Date;
"Call Off Contract Year"
means a consecutive period of twelve (12) Months
commencing on the Call Off Commencement Date or each
anniversary thereof;
"Call Off Expiry Date"
means:
(a) the end date of the Call Off Initial Period or any Call Off
Extension Period; or
(b) if this Call Off Contract is terminated before the date
specified in (a) above, the earlier date of termination of
this Call Off Contract;
"Call Off Extension
Period"
means such period or periods up to a maximum of the
number of years in total as may be specified by the
Contracting Authority, pursuant to Clause 5.2 and in the Call
Off Order Form;
"Call Off Guarantee"
means a deed of guarantee that may be required under this
Call Off Contract in favour of the Contracting Authority in the
form set out in Framework Schedule 13 (Guarantee) granted
pursuant to Clause 7 (Call Off Guarantee);
"Call Off Guarantor"
means the person, in the event that a Call Off Guarantee is
required under this Call Off Contract, acceptable to the
Contracting Authority to give a Call Off Guarantee;
"Call Off Initial Period"
means the initial term of this Call Off Contract from the Call
Off Commencement Date to the end date of the initial term
stated in the Call Off Order Form;
“Call Off Order Form”
means the order form applicable to and set out in Part 1 of
this Call Off Contract;
“Call Off Procedure”
has the meaning given to it in Framework Schedule 1
(Definitions);
"Call Off Schedule"
means a schedule to this Call Off Contract;
“Call Off Tender”
means the tender submitted by the Supplier in response to
the Contracting Authority’s Statement of Requirements
following a Further Competition Procedure and set out at Call
Off Schedule 15 (Call Off Tender);
"Call Off Terms"
means the terms applicable to and set out in Part 2 of this Call
Off Contract;
"Central Government
has the meaning given to it in Framework Schedule 1
86
Body"
(Definitions);
"Change in Law"
means any change in Law which impacts on the supply of the
Services and performance of the Call Off Contract which
comes into force after the Call Off Commencement Date;
"Change of Control"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Charges"
means the charges raised under or in connection with this Call
Off Contract from time to time, which shall be calculated in a
manner that is consistent with the Charging Structure;
"Charging Structure"
means the structure to be used in the establishment of the
charging model which is applicable to the Call Off Contract,
which is set out in Framework Schedule 3 (Framework Prices
and Charging Structure);
"Commercially Sensitive
Information"
means the Confidential Information listed in the Call Off
Order Form (if any) comprising of commercially sensitive
information relating to the Supplier, its IPR or its business or
which the Supplier has indicated to the Contracting Authority
that, if disclosed by the Contracting Authority, would cause
the Supplier significant commercial disadvantage or material
financial loss;
"Comparable Supply"
means the supply of Services to another Contracting
Authority of the Supplier that are the same or similar to the
Services;
“Compensation for
Critical Service Level
Failure”
has the meaning given to it in Clause 14 (Critical Service Level
Failure);
"Confidential
Information"
means the Contracting Authority's Confidential Information
and/or the Supplier’s Confidential Information, as the context
requires;
"Continuous
Improvement Plan"
means a plan for improving the provision of the Services
and/or reducing the Charges produced by the Supplier
pursuant to Framework Schedule 12 (Continuous
Improvement and Benchmarking);
"Contracting Contracting
Authority"
means the Contracting Authority, the Contracting Authority
and any other bodies listed in the OJEU Notice;
"Control"
has the meaning given to it in Framework Schedule 1
(Definitions);
“Controller”
has the meaning given to it in the GDPR, as amended from
time to time;
"Conviction"
means other than for minor road traffic offences, any
previous or pending prosecutions, convictions, cautions and
binding over orders (including any spent convictions as
contemplated by section 1(1) of the Rehabilitation of
Offenders Act 1974 by virtue of the exemptions specified in
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Part II of Schedule 1 of the Rehabilitation of Offenders Act
1974 (Exemptions) Order 1975 (SI 1975/1023) or any
replacement or amendment to that Order, or being placed on
a list kept pursuant to section 1 of the Protection of Children
Act 1999 or being placed on a list kept pursuant to the
Safeguarding Vulnerable Groups Act 2006;
"Costs"
the following costs (without double recovery) to the extent
that they are reasonably and properly incurred by the
Supplier in providing the Services:
a) the cost to the Supplier or the Key Sub-Contractor (as
the context requires), calculated per Man Day, of
engaging the Supplier Personnel, including:
i) base salary paid to the Supplier Personnel;
ii) employer’s national insurance contributions;
iii) pension contributions;
iv) car allowances;
v) any other contractual employment benefits;
vi) staff training;
vii) work place accommodation;
viii) work place IT equipment and tools reasonably
necessary to provide the Services (but not
including items included within limb (b) below); and
ix) reasonable recruitment costs, as agreed with the
Contracting Authority;
b) costs incurred in respect of those Supplier Assets which
are detailed on the Registers and which would be
treated as capital costs according to generally accepted
accounting principles within the UK, which shall include
the cost to be charged in respect of Supplier Assets by
the Supplier to the Contracting Authority or (to the
extent that risk and title in any Supplier Asset is not
held by the Supplier) any cost actually incurred by the
Supplier in respect of those Supplier Assets;
c) operational costs which are not included within (a) or
(b) above, to the extent that such costs are necessary
and properly incurred by the Supplier in the provision
of the Services;
d) Reimbursable Expenses to the extent these have been
specified as allowable in the Call Off Order Form and
are incurred in delivering any Services where the Call
Off Contract Charges for those Services are to be
calculated on a Fixed Price or Firm Price pricing
mechanism (as set out in Framework Schedule 3
88
(Framework Prices and Charging Structure);
but excluding:
a) Overhead;
b) financing or similar costs;
c) maintenance and support costs to the extent that these
relate to maintenance and/or support Services
provided beyond the Call Off Contract Period whether
in relation to Supplier Assets or otherwise;
d) taxation;
e) fines and penalties;
f) amounts payable under Clause 25 (Benchmarking); and
g) non-cash items (including depreciation, amortisation,
impairments and movements in provisions);
"Critical Service Level
Failure"
means any instance of critical service level failure specified in
the Call Off Order Form;
"Crown"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Crown Body"
has the meaning given to it in Framework Schedule 1
(Definitions);
"CRTPA"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Contracting Authority"
means the Contracting Authority(s) identified in the Call Off
Order Form;
"Contracting Authority
Assets"
means the Contracting Authority’s infrastructure, data,
software, materials, assets, equipment or other property
owned by and/or licensed or leased to the Contracting
Authority and which is or may be used in connection with the
provision of the Services;
"Contracting Authority
Background IPR"
means:
a) IPRs owned by the Contracting Authority before the Call
Off Commencement Date, including IPRs contained in
any of the Contracting Authority's Know-How,
documentation, software, processes and procedures,
specifications, instructions, digital assets, toolkits,
plans, data, drawings, databases, patents, designs or
other materials;
b) IPRs created by the Contracting Authority
independently of this Call Off Contract; and/or
c) Crown Copyright which is not available to the Supplier
otherwise than under this Call Off Contract;
"Contracting Authority
means any breach of the obligations of the Contracting
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Cause"
Authority or any other default, act, omission, negligence or
statement of the Contracting Authority, of its employees,
servants, agents in connection with or in relation to the
subject-matter of this Call Off Contract and in respect of
which the Contracting Authority is liable to the Supplier;
"Contracting Authority
Data"
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, including any Contracting Authority’s
Confidential Information, and which:
i) are supplied to the Supplier by or on behalf of the
Contracting Authority; or
ii) the Supplier is required to generate, process, store
or transmit pursuant to this Call Off Contract; or
b) any Personal Data for which the Contracting Authority
is the Data Controller;
"Contracting Authority
Premises"
means premises owned, controlled or occupied by the
Contracting Authority which are made available for use by the
Supplier or its Sub-Contractors for the provision of the
Services (or any of them);
"Contracting Authority
Property"
means the property, other than real property and IPR,
including any equipment issued or made available to the
Supplier by the Contracting Authority in connection with this
Call Off Contract;
"Contracting Authority
Representative"
means the representative appointed by the Contracting
Authority from time to time in relation to this Call Off
Contract;
"Contracting Authority
Responsibilities"
means the responsibilities of the Contracting Authority set
out in Call Off Schedule 4 (Implementation Plan) and any
other responsibilities of the Contracting Authority in the Call
Off Order Form or agreed in writing between the Parties from
time to time in connection with this Call Off Contract;
"Contracting Authority's
Confidential
Information"
means:
a) all Personal Data and any information, however it is
conveyed, that relates to the business, affairs,
developments, property rights, trade secrets, Know-
How and IPR of the Contracting Authority (including all
Contracting Authority Background IPR and Project
Specific IPR);
b) any other information clearly designated as being
confidential (whether or not it is marked "confidential")
or which ought reasonably be considered confidential
which comes (or has come) to the Contracting
90
Authority’s attention or into the Contracting Authority’s
possession in connection with this Call Off Contract;
and
c) information derived from any of the above;
"Data Protection
Legislation"
means the GDPR, LED and any applicable national
implementing Laws, as amended from time to time, the Data
Protection Act 2018, and all applicable laws and regulations to
the extent that they relate to the processing of personal data
and privacy, including where applicable the guidance and
codes of practice issued by the Information Commissioner or
relevant Government department in relation to such
legislation and all applicable Law about the processing of
personal data and privacy;
“Data Protection Impact
Assessment”
means an assessment by the Controller of the impact of the
envisaged processing on the protection of Personal Data;
“Data Protection
Officer”
has the meaning given to it in the GDPR, as amended from
time to time;
"Data Subject"
has the meaning given to it in the GDPR, as amended from
time to time;
"Data Subject Access
Request"
means a request made by, or on behalf of, a Data Subject in
accordance with rights granted pursuant to the Data
Protection Legislation to access their Personal Data;
“Deductions"
means all Service Credits, Delay Payments or any other
deduction which the Contracting Authority is paid or is
payable under this Call Off Contract;
"Default"
means any breach of the obligations of the Supplier (including
but not limited to including abandonment of this Call Off
Contract in breach of its terms) or any other default (including
material Default), act, omission, negligence or statement of
the Supplier, of its Sub-Contractors or any Supplier Personnel
howsoever arising in connection with or in relation to the
subject-matter of this Call Off Contract and in respect of
which the Supplier is liable to the Contracting Authority;
"Delay"
means:
a) a delay in the Achievement of a Milestone by its
Milestone Date; or
b) a delay in the design, development, testing or
implementation of a Deliverable by the relevant date
set out in the Implementation Plan;
"Delay Payments"
means the amounts payable by the Supplier to the
Contracting Authority in respect of a delay in respect of a
Milestone as specified in the Implementation Plan;
“Delay Period Limit”
shall be the number of days specified in Call Off Schedule 4
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(Implementation Plan) for the purposes of Clause 6.4.1(b)(ii);
"Deliverable"
means an item or feature in the supply of the Services
delivered or to be delivered by the Supplier at or before a
Milestone Date listed in the Implementation Plan (if any) or at
any other stage during the performance of this Call Off
Contract;
"Delivery"
means delivery in accordance with the terms of this Call Off
Contract as confirmed by the issue by the Contracting
Authority of a Satisfaction Certificate in respect of the
relevant Milestone thereof (if any) or otherwise in accordance
with this Call Off Contract and accepted by the Contracting
Authority and "Deliver" and "Delivered" shall be construed
accordingly;
"Disaster"
means the occurrence of one or more events which, either
separately or cumulatively, mean that the Services, or a
material part thereof will be unavailable (or could reasonably
be anticipated to be unavailable) for the period specified in
the Call Off Order Form (for the purposes of this definition the
“Disaster Period”);
"Disaster Recovery
Services"
means the Services embodied in the processes and
procedures for restoring the provision of Services following
the occurrence of a Disaster, as detailed further in Call Off
Schedule 8 (Business Continuity and Disaster Recovery);
"Disclosing Party"
has the meaning given to it in Clause 34.3.1 (Confidentiality);
"Dispute"
means any dispute, difference or question of interpretation
arising out of or in connection with this Call Off Contract,
including any dispute, difference or question of interpretation
relating to the Services, failure to agree in accordance with
the Variation Procedure or any matter where this Call Off
Contract directs the Parties to resolve an issue by reference to
the Dispute Resolution Procedure;
"Dispute Notice"
means a written notice served by one Party on the other
stating that the Party serving the notice believes that there is
a Dispute;
"Dispute Resolution
Procedure"
means the dispute resolution procedure set out in Call Off
Schedule 11 (Dispute Resolution Procedure);
"Documentation"
means all documentation as:
a) is required to be supplied by the Supplier to the
Contracting Authority under this Call Off Contract;
b) would reasonably be required by a competent third
party capable of Good Industry Practice contracted by
the Contracting Authority to develop, configure, build,
deploy, run, maintain, upgrade and test the individual
systems that provide the Services;
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c) is required by the Supplier in order to provide the
Services; and/or
d) has been or shall be generated for the purpose of
providing the Services;
"DOTAS"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Due Diligence
Information"
means any information supplied to the Supplier by or on
behalf of the Contracting Authority prior to the Call Off
Commencement Date;
"Employee Liabilities"
means all claims, actions, proceedings, orders, demands,
complaints, investigations (save for any claims for personal
injury which are covered by insurance) and any award,
compensation, damages, tribunal awards, fine, loss, order,
penalty, disbursement, payment made by way of settlement
and costs, expenses and legal costs reasonably incurred in
connection with a claim or investigation including in relation
to the following:
a) redundancy payments including contractual or
enhanced redundancy costs, termination costs and
notice payments;
b) unfair, wrongful or constructive dismissal
compensation;
c) compensation for discrimination on grounds of sex,
race, disability, age, religion or belief, gender
reassignment, marriage or civil partnership, pregnancy
and maternity or sexual orientation or claims for equal
pay;
d) compensation for less favourable treatment of part-
time workers or fixed term employees;
e) outstanding debts and unlawful deduction of wages
including any PAYE and National Insurance
Contributions in relation to payments made by the
Contracting Authority or the Replacement Supplier to a
Transferring Supplier Employee which would have been
payable by the Supplier or the Sub-Contractor if such
payment should have been made prior to the Service
Transfer Date;
f) claims whether in tort, contract or statute or otherwise;
g) any investigation by the Equality and Human Rights
Commission or other enforcement, regulatory or
supervisory body and of implementing any
requirements which may arise from such investigation;
"Employment
means the Transfer of Undertakings (Protection of
93
Regulations"
Employment) Regulations 2006 (SI 2006/246) as amended or
replaced or any other Regulations implementing the Acquired
Rights Directive;
"Environmental Policy"
means 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, including any
written environmental policy of the Contracting Authority;
"Environmental
Information Regulations
or EIRs"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Estimated Year 1 Call
Off Contract Charges"
means the sum in pounds estimated by the Contracting
Authority to be payable by it to the Supplier as the total
aggregate Call Off Contract Charges from the Call Off
Commencement Date until the end of the first Call Off
Contract Year stipulated in the Call Off Order Form;
“Exit Plan”
means the exit plan described in paragraph 5 of Call Off
Schedule 9 (Exit Management);
"Expedited Dispute
Timetable"
means the timetable set out in paragraph 5 of Call Off
Schedule 11 (Dispute Resolution Procedure);
"FOIA"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Force Majeure"
means any event, occurrence, circumstance, matter or cause
affecting the performance by either the Contracting Authority
or the Supplier of its obligations arising from:
a) acts, events, omissions, happenings or non-happenings
beyond the reasonable control of the Affected Party
which prevent or materially delay the Affected Party
from performing its obligations under this Call Off
Contract;
b) riots, civil commotion, war or armed conflict, acts of
terrorism, nuclear, biological or chemical warfare;
c) acts of the Crown, local government or Regulatory
Bodies;
d) fire, flood or any disaster; and
e) an industrial dispute affecting a third party for which a
substitute third party is not reasonably available but
excluding:
i) any industrial dispute relating to the Supplier, the
Supplier Personnel (including any subsets of them)
or any other failure in the Supplier or the Sub-
Contractor's supply chain; and
94
ii) any event, occurrence, circumstance, matter or
cause which is attributable to the wilful act, neglect
or failure to take reasonable precautions against it
by the Party concerned; and
iii) any failure of delay caused by a lack of funds;
"Force Majeure Notice"
means a written notice served by the Affected Party on the
other Party stating that the Affected Party believes that there
is a Force Majeure Event;
"Former Supplier"
means a supplier supplying the Services to the Contracting
Authority before the Relevant Transfer Date that are the
same as or substantially similar to the Services (or any part of
the Services) and shall include any sub-contractor of such
supplier (or any sub-contractor of any such sub-contractor);
"Framework
Agreement"
means the framework agreement between the Contracting
Authority and the Supplier referred to in the Call Off Order
Form;
"Framework
Commencement Date"
means the date of commencement of the Framework
Agreement as stated in the Call Off Schedule 1 (Definitions);
"Framework Period"
means the period from the Framework Commencement Date
until the expiry or earlier termination of the Framework
Agreement;
"Framework Price(s)"
means the price(s) applicable to the provision of the Services
set out in Framework Schedule 3 (Framework Prices and
Charging Structure);
"Framework Schedule"
means a schedule to the Framework Agreement;
"Fraud"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Further Competition
Procedure"
means the further competition procedure described in
paragraph 3 of Framework Schedule 5 (Call Off Procedure);
“GDPR”
means the General Data Protection Regulation (Regulation (EU)
2016/679)
"General Anti-Abuse
Rule"
has the meaning given to it in Framework Schedule 1
(Definitions);
"General Change in Law"
means a Change in Law where the change is of a general
legislative nature (including taxation or duties of any sort
affecting the Supplier) or which affects or relates to a
Comparable Supply;
"Good Industry Practice"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Government"
has the meaning given to it in Framework Schedule 1
(Definitions);
“Government
means the Government’s preferred method of purchasing
95
Procurement Card”
and payment for low value services
https://www.gov.uk/government/publications/government-
procurement-card--2 ;
"Halifax Abuse Principle"
has the meaning given to it in Framework Schedule 1
(Definitions);
"HMRC"
means Her Majesty’s Revenue and Customs;
"Holding Company"
has the meaning given to it in Framework Schedule 1
(Definitions);
"ICT Policy"
means the Contracting Authority's policy in respect of
information and communications technology, referred to in
the Call Off Order Form, which is in force as at the Call Off
Commencement Date (a copy of which has been supplied to
the Supplier), as updated from time to time in accordance
with the Variation Procedure;
"Impact Assessment"
has the meaning given to it in Clause 22.1.3 (Variation
Procedure);
"Implementation Plan"
means the plan set out in the Call Off Schedule 4
(Implementation Plan);
"Information"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Insolvency Event"
means, in respect of the Supplier or Framework Guarantor or
Call Off Guarantor (as applicable):
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 fourteen (14) Working 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
96
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 382(3) of the Companies Act 2006, a
moratorium comes into force pursuant to Schedule A1
of the Insolvency Act 1986; or
h) where the Supplier or Framework Guarantor or Call Off
Guarantor is an individual or partnership, any event
analogous to those listed in limbs (a) to (g) (inclusive)
occurs in relation to that individual or partnership; or
i) any event analogous to those listed in limbs (a) to (h)
(inclusive) occurs under the law of any other
jurisdiction;
"Intellectual Property
Rights" or "IPR"
means
a) copyright, rights related to or affording protection
similar to copyright, rights in databases, patents and
rights in inventions, semi-conductor topography rights,
trade marks, rights in internet domain names and
website addresses and other rights in trade or business
names, designs, Know-How, trade secrets and other
rights in Confidential Information;
b) applications for registration, and the right to apply for
registration, for any of the rights listed at (a) that are
capable of being registered in any country or
jurisdiction; and
c) all other rights having equivalent or similar effect in any
country or jurisdiction;
"IPR Claim"
means any claim of infringement or alleged infringement
(including the defence of such infringement or alleged
infringement) of any IPR, used to provide the Services or as
otherwise provided and/or licensed by the Supplier (or to
which the Supplier has provided access) to the Contracting
Authority in the fulfilment of its obligations under this Call Off
Contract;
"Key Performance
Indicators" or "KPIs"
means the performance measurements and targets in respect
of the Supplier’s performance of the Framework Agreement
set out in Part B of Framework Schedule 2 (Services and Key
Performance Indicators);
"Key Personnel"
means the individuals (if any) identified as such in the Call Off
Order Form;
"Key Role(s) "
has the meaning given to it in Clause 26.1 (Key Personnel);
"Key Sub-Contract"
means each Sub-Contract with a Key Sub-Contractor;
97
"Key Sub-Contractor"
means any Sub-Contractor:
a) listed in Framework Schedule 7 (Key Sub-Contractors);
b) which, in the opinion of the Contracting Authority and
the Contracting Authority, performs (or would perform
if appointed) a critical role in the provision of all or any
part of the Services; and/or
c) with a Sub-Contract with a contract value which at the
time of appointment exceeds (or would exceed if
appointed) 10% of the aggregate Call Off Contract
Charges forecast to be payable under this Call Off
Contract;
"Know-How"
means all ideas, concepts, schemes, information, knowledge,
techniques, methodology, and anything else in the nature of
know-how relating to the Services but excluding know-how
already in the other Party’s possession before the Call Off
Commencement Date;
"Law"
means any law, subordinate legislation within the meaning of
Section 21(1) of the Interpretation Act 1978, bye-law,
enforceable right within the meaning of Section 2 of the
European Communities Act 1972, regulation, order,
regulatory policy, mandatory guidance or code of practice,
judgment of a relevant court of law, or directives or
requirements with which the Supplier is bound to comply;
“LED”
means the Law Enforcement Directive (Directive (EU)
2016/680)
"Losses"
means all losses, liabilities, damages, costs, expenses
(including legal fees), disbursements, costs of investigation,
litigation, settlement, judgment, interest and penalties
whether arising in contract, tort (including negligence),
breach of statutory duty, misrepresentation or otherwise and
“Loss” shall be interpreted accordingly;
"Man Day"
means 7.5 Man Hours, whether or not such hours are worked
consecutively and whether or not they are worked on the
same day;
"Man Hours"
means the hours spent by the Supplier Personnel properly
working on the provision of the Services including time spent
travelling (other than to and from the Supplier’s offices, or to
and from the Sites) but excluding lunch breaks;
"Milestone"
means an event or task described in the Implementation Plan
which, if applicable, must be completed by the relevant
Milestone Date;
"Milestone Date"
means the target date set out against the relevant Milestone
in the Implementation Plan by which the Milestone must be
Achieved;
98
"Milestone Payment"
means a payment identified in the Implementation Plan to be
made following the issue of a Satisfaction Certificate in
respect of Achievement of the relevant Milestone;
"Month"
means a calendar month and "Monthly" shall be interpreted
accordingly;
"Occasion of Tax Non-
Compliance"
means:
a) any tax return of the Supplier submitted to a Relevant
Tax Contracting Authority on or after 1 October 2012
which is found on or after 1 April 2013 to be incorrect
as a result of:
i) a Relevant Tax Contracting Authority successfully
challenging the Supplier under the General Anti-
Abuse Rule or the Halifax Abuse Principle or under
any tax rules or legislation in any jurisdiction that
have an effect equivalent or similar to the General
Anti-Abuse Rule or the Halifax Abuse Principle;
ii) the failure of an avoidance scheme which the
Supplier was involved in, and which was, or should
have been, notified to a Relevant Tax Contracting
Authority under DOTAS or any equivalent or similar
regime in any jurisdiction; and/or
b) any tax return of the Supplier submitted to a Relevant
Tax Contracting Authority on or after 1 October 2012
which gives rise, on or after 1 April 2013, to a criminal
conviction in any jurisdiction for tax related offences
which is not spent at the Call Off Commencement Date
or to a civil penalty for fraud or evasion;
"Open Book Data "
means complete and accurate financial and non-financial
information which is sufficient to enable the Contracting
Authority to verify the Call Off Contract Charges already paid
or payable and Call Off Contract Charges forecast to be paid
during the remainder of this Call Off Contract, including
details and all assumptions relating to:
a) the Supplier’s Costs broken down against each Good
and/or Service and/or Deliverable, including actual
capital expenditure (including capital replacement
costs) and the unit cost and total actual costs of all
Services;
b) operating expenditure relating to the provision of the
Services including an analysis showing:
i) bought-in Services;
ii) manpower resources broken down into the number
and grade/role of all Supplier Personnel (free of any
contingency) together with a list of agreed rates
99
against each manpower grade;
iii) a list of Costs underpinning those rates for each
manpower grade, being the agreed rate less the
Supplier’s Profit Margin; and
iv) Reimbursable Expenses, if allowed under the Call
Off Order Form;
c) Overheads;
d) all interest, expenses and any other third party
financing costs incurred in relation to the provision of
the Services;
e) the Supplier Profit achieved over the Call Off Contract
Period and on an annual basis;
f) confirmation that all methods of Cost apportionment
and Overhead allocation are consistent with and not
more onerous than such methods applied generally by
the Supplier;
g) an explanation of the type and value of risk and
contingencies associated with the provision of the
Services, including the amount of money attributed to
each risk and/or contingency; and
h) the actual Costs profile for each Service Period.
"Order"
means the order for the provision of the Services placed by
the Contracting Authority with the Supplier in accordance
with the Framework Agreement and under the terms of this
Call Off Contract;
"Other Supplier"
means any supplier to the Contracting Authority (other than
the Supplier) which is notified to the Supplier from time to
time and/or of which the Supplier should have been aware;
"Overhead"
means those amounts which are intended to recover a
proportion of the Supplier’s or the Key Sub-Contractor’s (as
the context requires) indirect corporate costs (including
financing, marketing, advertising, research and development
and insurance costs and any fines or penalties) but excluding
allowable indirect costs apportioned to facilities and
administration in the provision of Supplier Personnel and
accordingly included within limb (a) of the definition of
“Costs”;
"Parent Company"
means any company which is the ultimate Holding Company
of the Supplier and which is either responsible directly or
indirectly for the business activities of the Supplier or which is
engaged by the same or similar business to the Supplier. The
term "Holding or Parent Company" shall have the meaning
ascribed by the Companies Act 2006 or any statutory re-
enactment or amendment thereto;
100
"Party"
means the Contracting Authority or the Supplier and "Parties"
shall mean both of them;
"Performance
Monitoring System"
has the meaning given to it in paragraph 1.1.2 in Part B of
Schedule 6 (Service Levels, Service Credits and Performance
Monitoring);
"Performance
Monitoring Reports"
has the meaning given to it in paragraph 3.1 of Part B of
Schedule 6 (Service Level, Service Credit and Performance
Monitoring);
"Personal Data"
has the meaning given to it in the GDPR, as amended from
time to time;
“Personal Data Breach”
has the meaning given to it in the GDPR, as amended from
time to time
“Processor”
has the meaning given to it in the GDPR, as amended from
time to time;
"Processing"
has the meaning given to it in the Data Protection Legislation
but, for the purposes of this Framework Agreement, it shall
include both manual and automatic processing and “Process”
and “Processed” shall be interpreted accordingly;
"Prohibited Act"
means any of the following:
a) to directly or indirectly offer, promise or give any
person working for or engaged by the Contracting
Authority and/or the Contracting Authority or other
Contracting Contracting Authority or any other public
body a financial or other advantage to:
i) induce that person to perform improperly a
relevant function or activity; or
ii) reward that person for improper performance of a
relevant function or activity;
b) to directly or indirectly request, agree to receive or
accept any financial or other advantage as an
inducement or a reward for improper performance of a
relevant function or activity in connection with this
Agreement;
c) committing any offence:
i) under the Bribery Act 2010 (or any legislation
repealed or revoked by such Act); or
ii) under legislation or common law concerning
fraudulent acts; or
iii) defrauding, attempting to defraud or conspiring to
defraud the Contracting Authority; or
iv) any activity, practice or conduct which would
constitute one of the offences listed under (c)
101
above if such activity, practice or conduct had been
carried out in the UK;
"Project Specific IPR"
means:
a) Intellectual Property Rights in items created by the
Supplier (or by a third party on behalf of the Supplier)
specifically for the purposes of this Call Off Contract
and updates and amendments of these items including
(but not limited to) database schema, typographical
arrangements, designs, toolkits, data, plans, patterns,
drawings patents or other materials ; and/or
b) IPR in or arising as a result of the performance of the
Supplier’s obligations under this Call Off Contract and
all updates and amendments to the same;
but shall not include the Supplier Background IPR;
"Recipient"
has the meaning given to it in Clause 34.3.1 (Confidentiality);
"Rectification Plan"
means the rectification plan pursuant to the Rectification Plan
Process;
"Rectification Plan
Process"
means the process set out in Clause 38.2 (Rectification Plan
Process);
"Registers"
has the meaning given to in Call Off Schedule 9 (Exit
Management);
"Regulations"
has the meaning given to it in Framework Schedule 1
(Definitions);
"Reimbursable
Expenses"
has the meaning given to it in Call Off Schedule 3 (Call Off
Contract Charges, Payment and Invoicing);
"Related Supplier"
means any person who provides Services to the Contracting
Authority which are related to the Services from time to time;
"Relevant Conviction"
means a Conviction that is relevant to the nature of the
Services to be provided or as specified in the Call Off Order
Form;
"Relevant
Requirements"
means all applicable Law relating to bribery, corruption and
fraud, including the Bribery Act 2010 and any guidance issued
by the Secretary of State for Justice pursuant to section 9 of
the Bribery Act 2010;
"Relevant Tax
Contracting Authority"
means HMRC, or, if applicable, the tax authority in the
jurisdiction in which the Supplier is established;
"Relevant Transfer"
means a transfer of employment to which the Employment
Regulations applies;
"Relevant Transfer Date"
means, in relation to a Relevant Transfer, the date upon
which the Relevant Transfer takes place;
"Relief Notice"
has the meaning given to it in Clause 39.2.2 (Supplier Relief
102
Due to Contracting Authority Cause);
"Replacement Services"
means any services which are substantially similar to any of
the Services and which the Contracting Authority receives in
substitution for any of the Services following the Call Off
Expiry Date, whether those services are provided by the
Contracting Authority internally and/or by any third party;
"Replacement Sub-
Contractor"
means a sub-contractor of the Replacement Supplier to
whom Transferring Supplier Employees will transfer on a
Service Transfer Date (or any sub-contractor of any such sub-
contractor);
"Replacement Supplier"
means any third party provider of Replacement Services
appointed by or at the direction of the Contracting Authority
from time to time or where the Contracting Authority is
providing Replacement Services for its own account, shall also
include the Contracting Authority;
"Request for
Information"
means a request for information or an apparent request
relating to this Call Off Contract or the provision of the
Services or an apparent request for such information under
the FOIA or the EIRs;
"Restricted Countries"
has the meaning given to it in Clause Error! Reference source
not found. (Protection of Personal Data);
"Satisfaction Certificate"
means the certificate materially in the form of the document
contained in Call Off Schedule 5 (Testing) granted by the
Contracting Authority when the Supplier has Achieved a
Milestone or a Test;
"Security Management
Plan"
means the Supplier’s security management plan prepared
pursuant to paragraph 4 of Call Off Schedule 7 (Security) a
draft of which has been provided by the Supplier to the
Contracting Authority in accordance with paragraph 4 of Call
Off Schedule 7 (Security) and as updated from time to time;
"Security Policy"
means the Contracting Authority's security policy, referred to
in the Call Off Order Form, in force as at the Call Off
Commencement Date (a copy of which has been supplied to
the Supplier), as updated from time to time and notified to
the Supplier;
"Security Policy
Framework”
the current HMG Security Policy Framework that can be
found at
https://www.gov.uk/government/publications/security-
policy-framework ;
"Service Credit Cap"
has the meaning given to it in the Call Off Order Form;
"Service Credits"
means any service credits specified in Annex 1 to Part A of
Call Off Schedule 6 (Service Levels, Service Credits and
Performance Monitoring) being payable by the Supplier to
the Contracting Authority in respect of any failure by the
103
Supplier to meet one or more Service Levels;
"Service Failure"
means an unplanned failure and interruption to the provision
of the Services, reduction in the quality of the provision of the
Services or event which could affect the provision of the
Services in the future;
"Service Level Failure"
means a failure to meet the Service Level Performance
Measure in respect of a Service Level Performance Criterion;
"Service Level
Performance Criteria"
has the meaning given to it in paragraph 4.2 of Part A of Call
Off Schedule 6 (Service Levels, Service Credits and
Performance Monitoring);
"Service Level
Performance Measure"
shall be as set out against the relevant Service Level
Performance Criterion in Annex 1 of Part A of Call Off
Schedule 6 (Service Levels, Service Credits and Performance
Monitoring);
"Service Level
Threshold"
shall be as set out against the relevant Service Level
Performance Criterion in Annex 1 of Part A of Call Off
Schedule 6 (Service Levels, Service Credits and Performance
Monitoring);
"Service Levels"
means any service levels applicable to the provision of the
Services under this Call Off Contract specified in Annex 1 to
Part A of Call Off Schedule 6 (Service Levels, Service Credits
and Performance Monitoring);
"Service Period"
has the meaning given to in paragraph 5.1 of Call Off Schedule
6 (Service Levels, Service Credits and Performance
Monitoring);
"Service Transfer"
means any transfer of the Services (or any part of the
Services), for whatever reason, from the Supplier or any Sub-
Contractor to a Replacement Supplier or a Replacement Sub-
Contractor;
"Service Transfer Date"
means the date of a Service Transfer;
"Services"
means the services to be provided by the Supplier to the
Contracting Authority as referred to in Annex A of Call Off
Schedule 2 (Services);
"Sites"
means any premises (including the Contracting Authority
Premises, the Supplier’s premises or third party premises)
from, to or at which:
a) the Services are (or are to be) provided; or
b) the Supplier manages, organises or otherwise directs
the provision or the use of the Services.
"Specific Change in Law"
means a Change in Law that relates specifically to the
business of the Contracting Authority and which would not
affect a Comparable Supply;
104
"Staffing Information"
has the meaning give to it in Call Off Schedule 10 (Staff
Transfer);
"Standards"
means any:
a) standards published by BSI British Standards, the
National Standards Body of the United Kingdom, the
International Organisation for Standardisation or other
reputable or equivalent bodies (and their successor
bodies) that a skilled and experienced operator in the
same type of industry or business sector as the Supplier
would reasonably and ordinarily be expected to comply
with;
b) standards detailed in the specification in Framework
Schedule 2 (Services and Key Performance Indicators);
c) standards detailed by the Contracting Authority in the
Call Off Order Form or agreed between the Parties from
time to time;
d) relevant Government codes of practice and guidance
applicable from time to time.
“Statement of
Requirements”
means a statement issued by the Contracting Authority
detailing its requirements in respect of Services issued in
accordance with the Call Off Procedure;
"Sub-Contract"
means any contract or agreement (or proposed contract or
agreement), other than this Call Off Contract or the
Framework Agreement, pursuant to which a third party:
a) provides the Services (or any part of them);
b) provides facilities or services necessary for the
provision of the Services (or any part of them); and/or
c) is responsible for the management, direction or control
of the provision of the Services (or any part of them);
"Sub-Contractor"
means any person other than the Supplier, who is a party to a
Sub-Contract and the servants or agents of that person;
"Supplier"
means the person, firm or company with whom the
Contracting Authority enters into this Call Off Contract as
identified in the Call Off Order Form;
"Supplier Assets"
means all assets and rights used by the Supplier to provide
the Services in accordance with this Call Off Contract but
excluding the Contracting Authority Assets;
"Supplier Background
IPR"
means
a) Intellectual Property Rights owned by the Supplier
before the Call Off Commencement Date, for example
those subsisting in the Supplier’s standard development
tools, program components or standard code used in
computer programming or in physical or electronic
105
media containing the Supplier’s Know-How or generic
business methodologies; and/or
b) Intellectual Property Rights created by the Supplier
independently of this Call Off Contract,
"Supplier Equipment"
means the Supplier’s hardware, computer and telecoms
devices, equipment, plant, materials and such other items
supplied and used by the Supplier (but not hired, leased or
loaned from the Contracting Authority) in the performance of
its obligations under this Call Off Contract;
"Supplier Non-
Performance"
has the meaning given to it in Clause 39.1 (Supplier Relief Due
to Contracting Authority Cause);
"Supplier Personnel"
means all directors, officers, employees, agents, consultants
and contractors of the Supplier and/or of any Sub-Contractor
engaged in the performance of the Supplier’s obligations
under this Call Off Contract;
"Supplier Profit"
means, in relation to a period or a Milestone (as the context
requires), the difference between the total Call Off Charges
(in nominal cash flow terms but excluding any Deductions)
and total Costs (in nominal cash flow terms) for the relevant
period or in relation to the relevant Milestone;
"Supplier Profit Margin"
means, in relation to a period or a Milestone (as the context
requires), the Supplier Profit for the relevant period or in
relation to the relevant Milestone divided by the total Call Off
Contract Charges over the same period or in relation to the
relevant Milestone and expressed as a percentage;
"Supplier
Representative"
means the representative appointed by the Supplier named in
the Call Off Order Form;
"Supplier’s Confidential
Information"
means
a) any information, however it is conveyed, that relates to
the business, affairs, developments, IPR of the Supplier
(including the Supplier Background IPR) trade secrets,
Know-How, and/or personnel of the Supplier;
b) 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 and which comes (or has
come) to the Supplier’s attention or into the Supplier’s
possession in connection with this Call Off Contract;
c) information derived from any of the above.
"Template Call Off Order
Form"
means the template Call Off Order Form in Annex 1 of
Framework Schedule 4 (Template Call Off Order Form and
Template Call Off Terms);
"Template Call Off
means the template terms and conditions in Annex 2 of
Framework Schedule 4 (Template Order Form and Template
106
Terms"
Call Off Terms);
"Tender"
means the tender submitted by the Supplier to the
Contracting Authority and annexed to or referred to in
Framework Schedule 21;
"Termination Notice"
means a written notice of termination given by one Party to
the other, notifying the Party receiving the notice of the
intention of the Party giving the notice to terminate this Call
Off Contract on a specified date and setting out the grounds
for termination;
"Test Issue"
means any variance or non-conformity of the Services or
Deliverables from their requirements as set out in the Call Off
Contract;
"Test Plan"
means a plan:
a) for the Testing of the Deliverables; and
b) setting out other agreed criteria related to the
achievement of Milestones,
as described further in paragraph 4 of Call of Schedule 5
(Testing);
"Test Strategy"
means a strategy for the conduct of Testing as described
further in paragraph 3 of Call Off Schedule 5 (Testing);
"Tests and Testing"
means any tests required to be carried out pursuant to this
Call Off Contract as set out in the Test Plan or elsewhere in
this Call Off Contract and “Tested” shall be construed
accordingly;
"Third Party IPR"
means Intellectual Property Rights owned by a third party
which is or will be used by the Supplier for the purpose of
providing the Services;
“Transferring
Contracting Authority
Employees”
those employees of the Contracting Authority to whom the
Employment Regulations will apply on the Relevant Transfer
Date;
“Transferring Former
Supplier Employees”
in relation to a Former Supplier, those employees of the
Former Supplier to whom the Employment Regulations will
apply on the Relevant Transfer Date;
"Transferring Supplier
Employees"
means those employees of the Supplier and/or the Supplier’s
Sub-Contractors to whom the Employment Regulations will
apply on the Service Transfer Date.
“Transparency
Principles”
has the meaning given to it in Framework Schedule 1
(Definitions);
"Transparency Reports"
means the information relating to the Services and
performance of this Call Off Contract which the Supplier is
required to provide to the Contracting Authority in
accordance with the reporting requirements in Schedule 13;
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"Undelivered Services"
has the meaning given to it in Clause 8.4.1 (Services);
"Undisputed Sums Time
Period"
has the meaning given to it Clause 42.1.1 (Termination of
Contracting Authority Cause for Failure to Pay);
"Valid Invoice"
means an invoice issued by the Supplier to the Contracting
Authority that complies with the invoicing procedure in
paragraph 7 (Invoicing Procedure) of Call Off Schedule 3 (Call
Off Contract Charges, Payment and Invoicing);
"Variation"
has the meaning given to it in Clause 22.1 (Variation
Procedure);
"Variation Form"
means the form set out in Call Off Schedule 12 (Variation
Form);
"Variation Procedure"
means the procedure set out in Clause 22.1 (Variation
Procedure);
"VAT"
has the meaning given to it in Framework Schedule 1
(Definitions);
“Worker”
means any one of the Supplier Personnel which the
Contracting Authority, in its reasonable opinion, considers is
an individual to which Procurement Policy Note 08/15 (Tax
Arrangements of Public Appointees)
https://www.gov.uk/government/publications/procurement-
policy-note-0815-tax-arrangements-of-appointees applies in
respect of the Services.
"Working Day"
means any day other than a Saturday or Sunday or public
holiday in England and Wales unless specified otherwise by
Parties in this Call Off Contract.
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CALL OFF SCHEDULE 2: SERVICES
1. INTRODUCTION
1.1 This Call Off Schedule 2 specifies the
Services to be provided under this Call Off Contract, in Annex 1.
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ANNEX 1: SERVICES
110
ANNEX 2: THE GOODS – NOT USED
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CALL OFF SCHEDULE 3: CALL OFF CONTRACT CHARGES, PAYMENT AND INVOICING
1. DEFINITIONS
1.1 The following terms used in this Call Off Schedule 3 shall have the following meaning:
"Reimbursable Expenses”
means the reasonable out of pocket travel and
subsistence (for example, hotel and food) expenses,
properly and necessarily incurred in the performance
of the Services;
"Review Adjustment Date"
has the meaning given to it in paragraph Error!
Reference source not found. of this Call Off Schedule
3;
"CPI"
means the Consumer Prices Index as published by
the Office of National Statistics (
http://www.statistics.gov.uk/instantfigures.asp); and
"Supporting Documentation"
means sufficient information in writing to enable the
Contracting Authority to reasonably to assess
whether the Call Off Contract Charges, Reimbursable
Expenses and other sums due from the Contracting
Authority under this Call Off Contract detailed in the
information are properly payable.
2. GENERAL PROVISIONS
2.1 This Call Off Schedule 3 details:
2.1.1 the Call Off Contract Charges for the Services under this Call Off Contract; and
2.1.2 the payment terms/profile for the Call Off Contract Charges;
2.1.3 the invoicing procedure; and
2.1.4 the procedure applicable to any adjustments of the Call Off Contract Charges.
3. CALL OFF CONTRACT CHARGES
3.1 The Call Off Contract Charges which are applicable to this Call Off Contract are set out in
Annex 1 of this Call Off Schedule 3.
3.2 The Supplier acknowledges and agrees that:
3.2.1 in accordance with paragraph 2 (General Provisions) of Framework Schedule 3
(Framework Prices and Charging Structure), the Call Off Contract Charges can in no event
exceed the Framework Prices set out in Annex 3 to Framework Schedule 3 (Framework
Prices and Charging Structure); and
3.2.2 subject to paragraph 8 of this Call Off Schedule 3 (Adjustment of Call Off Contract
Charges), the Call Off Contract Charges cannot be increased during the Call Off Contract
Period.
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4. COSTS AND EXPENSES
4.1 Except as expressly set out in paragraph 5 of this Call Off Schedule 3(Reimbursable
Expenses),] the Call Off Contract Charges include all costs and expenses relating to the
Services and/or the Supplier’s performance of its obligations under this Call Off Contract
and no further amounts shall be payable by the Contracting Authority to the Supplier in
respect of such performance, including in respect of matters such as:
4.1.1 any incidental expenses that the Supplier incurs, including travel, subsistence and
lodging, document or report reproduction, shipping, desktop or office equipment costs
required by the Supplier Personnel, network or data interchange costs or other
telecommunications charges; or
4.1.2 any amount for any services provided or costs incurred by the Supplier prior to the Call
Off Commencement Date.
5. REIMBURSEABLE EXPENSES
5.1 If the Contracting Authority has so specified in the Call Off Order Form, the Supplier
shall be entitled to be reimbursed by the Contracting Authority for Reimbursable Expenses
(in addition to being paid the relevant Call Off Contract Charges under this Call Off
Contract), provided that such Reimbursable Expenses are supported by Supporting
Documentation. The Contracting Authority shall provide a copy of their current expenses
policy to the Supplier upon request.
6. PAYMENT TERMS/PAYMENT PROFILE
6.1 The payment terms/profile which are applicable to this Call Off Contract are set out in
Annex 2 of this Call Off Schedule 3.
7. INVOICING PROCEDURE
7.1 The Contracting Authority shall pay all sums properly due and payable to the Supplier in
cleared funds within thirty (30) days of receipt of a Valid Invoice, submitted to the address
specified by the Contracting Authority in paragraph 7.6 of this Call Off Schedule 3 and in
accordance with the provisions of this Call Off Contract.
7.2 The Supplier shall ensure that each invoice (whether submitted electronically through a
purchase-to-pay (P2P) automated system (or similar) or in a paper form, as the
Contracting Authority may specify (but, in respect of paper form, subject to paragraph 7.3
below)):
7.2.1 contains:
(a) all appropriate references, including the unique order reference
number set out in the Call Off Order Form; and
(b) a detailed breakdown of the Delivered Services, including the
Milestone(s) (if any) and Deliverable(s) within this Call Off Contract to
which the Delivered Services relate, against the applicable due and
payable Call Off Contract Charges; and
7.2.2 shows separately:
(a) any Service Credits due to the Contracting Authority; and
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(b) the VAT added to the due and payable Call Off Contract Charges in
accordance with Clause 23.2.1 of this Call Off Contract (VAT) and the
tax point date relating to the rate of VAT shown; and
7.2.3 is exclusive of any Management Charge (and the Supplier shall not attempt to increase
the Call Off Contract Charges or otherwise recover from the Contracting Authority as a
surcharge the Management Charge levied on it by the Contracting Authority); and
7.2.4 it is supported by any other documentation reasonably required by the Contracting
Authority to substantiate that the invoice is a Valid Invoice.
7.3 If the Contracting Authority is a Central Government Body, the Contracting Authority’s
right to request paper form invoicing shall be subject to procurement policy note 11/15
(available at Procurement policy note 11/15: unstructured electronic invoices -
Publications - GOV.UK ), which sets out the policy in respect of unstructured electronic
invoices submitted by the Supplier to the Contracting Authority (as may be amended from
time to time).
7.4 The Supplier shall accept the Government Procurement Card as a means of payment for
the Services where such card is agreed with the Contracting Authority to be a suitable
means of payment. The Supplier shall be solely liable to pay any merchant fee levied for
using the Government Procurement Card and shall not be entitled to recover this charge
from the Contracting Authority.
7.5 All payments due by one Party to the other shall be made within thirty (30) days of
receipt of a Valid Invoice unless otherwise specified in this Call Off Contract, in cleared
funds, to such bank or building society account as the recipient Party may from time to
time direct.
7.6 The Supplier shall submit invoices directly to the Contracting Authority’s billing address
set out in the Call Off Order Form.
8. ADJUSTMENT OF CALL OFF CONTRACT CHARGES
8.1 The Call Off Contract Charges shall only be varied:
8.1.1 due to a Specific Change in Law in relation to which the Parties agree that a change is
required to all or part of the Call Off Contract Charges in accordance with Clause 22.2 of this
Call Off Contract (Legislative Change);
8.1.2 in accordance with Clause 23.1.4 of this Call Off Contract (Call Off Contract Charges and
Payment) where all or part of the Call Off Contract Charges are reduced as a result of a
reduction in the Framework Prices;
8.1.3 where all or part of the Call Off Contract Charges are reduced as a result of a review of
the Call Off Contract Charges in accordance with Clause 18 of this Call Off Contract
(Continuous Improvement);
8.1.4 where all or part of the Call Off Contract Charges are reduced as a result of a review of
Call Off Contract Charges in accordance with Clause 25 of this Call Off Contract
(Benchmarking); or
8.1.5 where all or part of the Call Off Contract Charges are reviewed and reduced in
accordance with paragraph 9 of this Call Off Schedule 3.
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8.2 Subject to paragraphs 8.1.1 to 8.1.5 of this Call Off Schedule 3, the Call Off Contract
Charges will remain fixed for the number of Contract Years specified in the Call Off Order
Form.
9. SUPPLIER PERIODIC ASSESSMENT OF CALL OFF CONTRACT CHARGES
9.1 Every six (6) Months during the Call Off Contract Period, the Supplier shall assess the
level of the Call Off Contract Charges to consider whether it is able to reduce them.
9.2 Such assessments by the Supplier under paragraph 9 of this Call Off Schedule 3 shall be
carried out on the dates specified in the Call Off Order Form in each Contract Year (or in
the event that such dates do not, in any Contract Year, fall on a Working Day, on the next
Working Day following such dates). To the extent that the Supplier is able to decrease all
or part of the Call Off Contract Charges it shall promptly notify the Contracting Authority in
writing and such reduction shall be implemented in accordance with paragraph 10.1.4 of
this Call Off Schedule 3 below.
10. IMPLEMENTATION OF ADJUSTED CALL OFF CONTRACT CHARGES
10.1 Variations in accordance with the provisions of this Call Off Schedule 3 to all or part the
Call Off Contract Charges (as the case may be) shall be made by the Contracting Authority
to take effect:
10.1.1 in accordance with Clause 22.2 of this Call Off Contract (Legislative Change) where an
adjustment to the Call Off Contract Charges is made in accordance with paragraph 8.1.1 of
this Call Off Schedule 3;
10.1.2 in accordance with Clause 23.1.4 of this Call Off Contract (Call Off Contract Charges and
Payment) where an adjustment to the Call Off Contract Charges is made in accordance with
paragraph 8.1.2 of this Call Off Schedule 3;
10.1.3 ;
10.1.4 on the dates specified in the Call Off Order Form where an adjustment to the Call Off
Contract Charges is made in accordance with paragraph 8.1.5 of this Call Off Schedule 3;
and the Parties shall amend the Call Off Contract Charges shown in Annex 1 to this Call Off
Schedule 3 to reflect such variations.
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ANNEX 1: CALL OFF CONTRACT CHARGES
[TO BE INSERTED FOLLOWING RECEIPT OF TENDER.]
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ANNEX 2: PAYMENT TERMS/PROFILE
INVOICING AND PAYMENT
1. The Supplier shall have the ability to invoice Contracting Bodies and receive payment by
the following methods as a minimum, where required.
Cheque
Debit / Credit card / Government payment card
Electronic bank transfer (BACS)
Direct debit
2. The Supplier shall be capable of consolidating invoices as instructed by Contracting
Contracting Authorities as defined in their Call-Off Contract.
3. The Supplier shall ensure that each invoice submitted includes, but not be limited to, the
account number, Supplier’s order number, Contracting Authority’s Order reference,
product information including description, amount ordered, unit and total price, delivery
address and a contact name.
4. The Supplier shall provide a breakdown of the cost components for each requirement,
including but not limited to, pre-production costs, paper, fulfilment, postage and service
charge.
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CALL OFF SCHEDULE 4: IMPLEMENTATION PLAN
1. INTRODUCTION
1.1 This Call Off Schedule 4 specifies the Implementation Plan in accordance with which the
Supplier shall provide the Services.
2. IMPLEMENTATION PLAN
2.1 The Implementation Plan is set out below.
2.2 The Milestones to be Achieved are Identified below:
Milestone
Deliverables
Duration
Milestone
Date
Contracting
Authority
Responsibilities
Milestone
Payments
Delay
Payments
The Milestones will be Achieved in accordance with Call Off Schedule 5 (Testing).
For the purposes of Clause 6.4.1(b)(ii) the number of days shall be [insert number of days] days (‘the
Delay Period Limit’).
Guidance Note:
See Clauses 6, 7.1.2 and Error! Reference source not found. in relation to implementation prior to
the provision the Services and consider if your need an Implementation Plan. If so, cross refer to
this Call Off Schedule in the Call Off Order Form and populate this Call Off Schedule accordingly
prior to signing the Call Off Contract. Alternatively, state in the Call Off Order Form within what
period the Supplier should provide a draft Implementation Plan for Approval.
Consider what Milestones should be inserted, together with associated Deliverables and Milestone
Dates. See also Clauses 8.2 and/or Error! Reference source not found. in relation to time of Delivery
and consider if you should make 'time of the essence” in respect of any Milestone Dates.
Consider if you should include any Milestone Payments for Achievement of certain Milestones. If
so, tie any Milestone Payments to Clause 23 and Annex 1 of Call Off Schedule 3 (Call Off Contract
Charges, Invoicing and Payment).
See also Clause 6.4 in relation to Delay Payments and refine the Delay Payment provisions if
needed.
Under Clause 6.4.1(b)(ii) the Contracting Authority shall have additional remedies for delay (over
and above the Delay Payments) where the delay exceeds the time specified above for the Delay
Period Limit. Please insert the desired number of days.
Consider whether Call Off Schedule 5 provides an appropriate Test Strategy or whether an
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alternative plan needs to be produced by the Supplier.
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CALL OFF SCHEDULE 5: TESTING – NOT USED
120
ANNEX 1: SATISFACTION CERTIFICATE
To: [insert name of Supplier]
FROM: [insert name of Contracting Authority]
[insert Date: dd/mm/yyyy]
Dear Sirs,
SATISFACTION CERTIFICATE
[Deliverable(s)/Milestone(s)]: [Insert relevant description of the agreed
Deliverables/Milestones]
We refer to the agreement ("Call Off Contract") [insert Call Off Contract reference number]
relating to the provision of the [insert description of the Services] between the [insert
Contracting Authority name] ("Contracting Authority") and [insert Supplier name] ("Supplier")
dated [insert Call Off Commencement Date dd/mm/yyyy].
The definitions for any capitalised terms in this certificate are as set out in the Call Off
Contract.
We confirm that all the [Deliverables/Milestones] relating to [ ] [insert relevant description
of agreed Deliverables/Milestones and/or reference numbers(s) from the Implementation Plan]
have been completed.
Yours faithfully
[insert Name]
[insert Position]
acting on behalf of [insert name of Contracting Authority]
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CALL OFF SCHEDULE 6: SERVICE LEVELS, SERVICE CREDITS AND PERFORMANCE MONITORING
1. SCOPE
1.1 This Call Off Schedule 6 (Service Levels, Service Credits and Performance Monitoring)
sets out the Service Levels which the Supplier is required to achieve when providing the
Services, the mechanism by which Service Level Failures and Critical Service Level Failures
will be managed and the method by which the Supplier’s performance in the provision by
it of the Services will be monitored.
1.2 This Call Off Schedule 6 comprises:
1.2.1 Part A: Service Levels and Service Credits;
1.2.2 Annex 1 to Part A - Service Levels and Service Credits Table; and
1.2.3 Annex 1 to Part B: Performance Monitoring.
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PART A: SERVICE LEVELS AND SERVICE CREDITS
2. GENERAL PROVISIONS
2.1 The Supplier shall provide a proactive Call Off Contract manager to ensure that all
Service Levels in this Call Off Contract and Key Performance Indicators in the Framework
Agreement are achieved to the highest standard throughout, respectively, the Call Off
Contract Period and the Framework Period.
2.2 The Supplier shall provide a managed service through the provision of a dedicated Call
Off Contract manager where required on matters relating to:
2.2.1 [Supply performance;
2.2.2 Quality of [Services];
2.2.3 Contracting Authority support;
2.2.4 Complaints handling; and
2.2.5 Accurate and timely invoices.]
2.3 The Supplier accepts and acknowledges that failure to meet the Service Level
Performance Measures set out in the table in Annex 1 to this Part A of this Call Off
Schedule 6 will result in Service Credits being issued to Contracting Authorities.
3. PRINCIPAL POINTS
3.1 The objectives of the Service Levels and Service Credits are to:
3.1.1 ensure that the Services are of a consistently high quality and meet the requirements of
the Contracting Authority;
3.1.2 provide a mechanism whereby the Contracting Authority can attain meaningful
recognition of inconvenience and/or loss resulting from the Supplier’s failure to deliver the
level of service for which it has contracted to deliver; and
3.1.3 incentivise the Supplier to comply with and to expeditiously remedy any failure to
comply with the Service Levels.
4. SERVICE LEVELS
4.1 Annex 1 to this Part A of this Call Off Schedule 6 sets out the Service Levels the
performance of which the Parties have agreed to measure.
4.2 The Supplier shall monitor its performance of this Call Off Contract by reference to the
relevant performance criteria for achieving the Service Levels shown in Annex 1 to this
Part A of this Call Off Schedule 6 (the “Service Level Performance Criteria”) and shall send
the Contracting Authority a Performance Monitoring Report detailing the level of service
which was achieved in accordance with the provisions of Part B (Performance Monitoring)
of this Call Off Schedule 6.
4.3 The Supplier shall, at all times, provide the Services in such a manner that the Service
Levels Performance Measures are achieved.
4.4 If the level of performance of the Supplier of any element of the provision by it of the
Services during the Call Off Contract Period:
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4.4.1 is likely to or fails to meet any Service Level Performance Measure or
4.4.2 is likely to cause or causes a Critical Service Failure to occur,
4.4.3 the Supplier shall immediately notify the Contracting Authority in writing and the
Contracting Authority, in its absolute discretion and without prejudice to any other of its
rights howsoever arising including under Clause 13 of this Call Off Contract (Service Levels
and Service Credits), may:
(a) require the Supplier to immediately take all remedial action that is
reasonable to mitigate the impact on the Contracting Authority and
to rectify or prevent a Service Level Failure or Critical Service Level
Failure from taking place or recurring; and
(b) if the action taken under paragraph (a) above has not already
prevented or remedied the Service Level Failure or Critical Service
Level Failure, the Contracting Authority shall be entitled to instruct
the Supplier to comply with the Rectification Plan Process; or
(c) if a Service Level Failure has occurred, deduct from the Call Off
Contract Charges the applicable Service Level Credits payable by the
Supplier to the Contracting Authority in accordance with the
calculation formula set out in Annex 1 of this Part A of this Call Off
Schedule 6; or
(d) if a Critical Service Level Failure has occurred, exercise its right to
Compensation for Critical Service Level Failure in accordance with
Clause 14 of this Call Off Contract (Critical Service Level Failure)
(including subject, for the avoidance of doubt, the proviso in Clause
14 of this Call Off Contract in relation to Material Breach).
4.5 Approval and implementation by the Contracting Authority of any Rectification Plan
shall not relieve the Supplier of any continuing responsibility to achieve the Service Levels,
or remedy any failure to do so, and no estoppels or waiver shall arise from any such
Approval and/or implementation by the Contracting Authority.
5. SERVICE CREDITS
5.1 Annex 1 to this Part A of this Call Off Schedule 6 sets out the formula used to calculate a
Service Credit payable to the Contracting Authority as a result of a Service Level Failure in
a given service period which, for the purpose of this Call Off Schedule 6, shall be a
recurrent period of [one Month] during the Call Off Contract Period (the “Service
Period”).
5.2 Annex 1 to this Part A of this Call Off Schedule 6 includes details of each Service Credit
available to each Service Level Performance Criterion if the applicable Service Level
Performance Measure is not met by the Supplier.
5.3 The Contracting Authority shall use the Performance Monitoring Reports supplied by
the Supplier under Part B (Performance Monitoring) of this Call Off Schedule 6 to verify
the calculation and accuracy of the Service Credits, if any, applicable to each relevant
Service Period.
5.4 Service Credits are a reduction of the amounts payable in respect of the Services and do
not include VAT. The Supplier shall set-off the value of any Service Credits against the
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appropriate invoice in accordance with calculation formula in Annex 1 of Part A of this Call
Off Schedule 6.
6. NATURE OF SERVICE CREDITS
6.1 The Supplier confirms that it has modelled the Service Credits and has taken them into
account in setting the level of the Call Off Contract Charges. Both Parties agree that the
Service Credits are a reasonable method of price adjustment to reflect poor performance.
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ANNEX 1 TO PART A: SERVICE LEVELS AND SERVICE CREDITS TABLE
Command and House Papers Service
Service Level Performance Criteria
KPI
Key indicator
Service Level
Performance -
measure
Target
Performance
Level
Service
Credit
General Service Level Performance Criteria
126
ANNEX 1 TO PART B: PERFORMANCE MONITORING
1. PRINCIPAL POINTS
1.1 Part B to this Call Off Schedule 6 provides the methodology for monitoring the provision
of the Services:
1.1.1 to ensure that the Supplier is complying with the Service Levels; and
1.1.2 for identifying any failures to achieve Service Levels in the performance of the Supplier
and/or provision of the Services ("Performance Monitoring System").
1.2 Within twenty (20) Working Days of the Call Off Commencement Date the Supplier shall
provide the Contracting Authority with details of how the process in respect of the
monitoring and reporting of Service Levels will operate between the Parties and the
Parties will endeavour to agree such process as soon as reasonably possible.
2. REPORTING OF SERVICE FAILURES
2.1 The Supplier shall report all failures to achieve Service Levels and any Critical Service
Level Failure to the Contracting Authority in accordance with the processes agreed in
paragraph 1.2 of Part B of this Call Off Schedule 6 above.
3. PERFORMANCE MONITORING AND PERFORMANCE REVIEW
3.1 The Supplier shall provide the Contracting Authority with performance monitoring
reports (“Performance Monitoring Reports”) in accordance with the process and
timescales agreed pursuant to paragraph 1.2 of Part B of this Call Off Schedule 6 above
which shall contain, as a minimum, the following information in respect of the relevant
Service Period just ended:
3.1.1 for each Service Level, the actual performance achieved over the Service Level for the
relevant Service Period;
3.1.2 a summary of all failures to achieve Service Levels that occurred during that Service
Period;
3.1.3 any Critical Service Level Failures and details in relation thereto;
3.1.4 for any repeat failures, actions taken to resolve the underlying cause and prevent
recurrence;
3.1.5 the Service Credits to be applied in respect of the relevant period indicating the failures
and Service Levels to which the Service Credits relate; and
3.1.6 such other details as the Contracting Authority may reasonably require from time to
time.
3.2 The Parties shall attend meetings to discuss Performance Monitoring Reports
("Performance Review Meetings") on a monthly basis (unless otherwise agreed). The
Performance Review Meetings will be the forum for the review by the Supplier and the
Contracting Authority of the Performance Monitoring Reports. The Performance Review
Meetings shall (unless otherwise agreed):
3.2.1 take place within one (1) week of the Performance Monitoring Reports being issued by
the Supplier;
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3.2.2 take place at such location and time (within normal business hours) as the Contracting
Authority shall reasonably require unless otherwise agreed in advance;
3.2.3 be attended by the Supplier’s Representative and the Contracting Authority's
Representative; and
3.2.4 be fully minuted by the Supplier. The prepared minutes will be circulated by the
Supplier to all attendees at the relevant meeting and also to the Contracting Authority's
Representative and any other recipients agreed at the relevant meeting. The minutes of the
preceding month's Performance Review Meeting will be agreed and signed by both the
Supplier’s Representative and the Contracting Authority's Representative at each meeting.
3.3 The Contracting Authority shall be entitled to raise any additional questions and/or
request any further information regarding any failure to achieve Service Levels.
3.4 The Supplier shall provide to the Contracting Authority such supporting documentation
as the Contracting Authority may reasonably require in order to verify the level of the
performance by the Supplier and the calculations of the amount of Service Credits for any
specified Service Period.
4. SATISFACTION SURVEYS
4.1 In order to assess the level of performance of the Supplier, the Contracting Authority
may undertake satisfaction surveys in respect of the Supplier’s provision of the Services.
4.2 The Contracting Authority shall be entitled to notify the Supplier of any aspects of their
performance of the provision of the Services which the responses to the Satisfaction
Surveys reasonably suggest are not in accordance with this Call Off Contract.
4.3 All other suggestions for improvements to the provision of Services shall be dealt with
as part of the continuous improvement programme pursuant to Clause 18 of this Call Off
Contract (Continuous Improvement).
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CALL OFF SCHEDULE 7: SECURITY
1. DEFINITIONS
1.1 In this Call Off Schedule 7, the following definitions shall apply:
"Breach of Security"
means the occurrence of:
a) any unauthorised access to or use of the Services
and/or any Information and Communication
Technology (“ICT”), information or data (including
the Confidential Information and the Contracting
Authority Data) used by the Contracting Authority
and/or the Supplier in connection with this Call Off
Contract; and/or
b) the loss and/or unauthorised disclosure of any
information or data (including the Confidential
Information and the Contracting Authority Data),
including any copies of such information or data,
used by the Contracting Authority and/or the
Supplier in connection with this Call Off Contract,
in either case as more particularly set out in the Security
Policy;
2. INTRODUCTION
2.1 The purpose of this Call Off Schedule 7 is to ensure a good organisational approach to
security under which the specific requirements of this Call Off Contract will be met;
2.2 This Call Off Schedule 7 covers:
2.2.1 principles of protective security to be applied in delivering the Services;
2.2.2 the creation and maintenance of the Security Management Plan; and
2.2.3 obligations in the event of actual or attempted Breaches of Security.
3. PRINCIPLES OF SECURITY
3.1 The Supplier acknowledges that the Contracting Authority places great emphasis on the
reliability of the performance of the Services, confidentiality, integrity and availability of
information and consequently on security.
3.2 The Supplier shall be responsible for the effective performance of its security obligations
and shall at all times provide a level of security which:
3.2.1 is in accordance with the Law and this Call Off Contract;
3.2.2 as a minimum demonstrates Good Industry Practice;
3.2.3 complies with the Security Policy;
3.2.4 meets any specific security threats of immediate relevance to the Services and/or the
Contracting Authority Data; and
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3.2.5 complies with the Contracting Authority’s ICT Policy.
3.3 Subject to Clause 34 of this Call Off Contract (Security and Protection of Information) the
references to standards, guidance and policies contained or set out in paragraph 3.2 of
this Call Off Schedule 7 shall be deemed to be references to such items as developed and
updated and to any successor to or replacement for such standards, guidance and policies,
as notified to the Supplier from time to time.
3.4 In the event of any inconsistency in the provisions of the above standards, guidance and
policies, the Supplier should notify the Contracting Authority's Representative of such
inconsistency immediately upon becoming aware of the same, and the Contracting
Authority's Representative shall, as soon as practicable, advise the Supplier which
provision the Supplier shall be required to comply with.
4. SECURITY MANAGEMENT PLAN
4.1 Introduction
4.1.1 The Supplier shall develop and maintain a Security Management Plan in accordance with
this Call Off Schedule 7. The Supplier shall thereafter comply with its obligations set out in
the Security Management Plan.
4.2 Content of the Security Management Plan
4.2.1 The Security Management Plan shall:
(a) comply with the principles of security set out in paragraph 3 of this
Call Off Schedule 7 and any other provisions of this Call Off Contract
relevant to security;
(b) identify the necessary delegated organisational roles defined for
those responsible for ensuring it is complied with by the Supplier;
(c) detail the process for managing any security risks from
Sub-Contractors and third parties authorised by the Contracting
Authority with access to the Services, processes associated with the
provision of the Services, the Contracting Authority Premises, the
Sites and any ICT, Information and data (including the Contracting
Authority’s Confidential Information and the Contracting Authority
Data) and any system that could directly or indirectly have an impact
on that Information, data and/or the Services;
(d) unless otherwise specified by the Contracting Authority in writing, be
developed to protect all aspects of the Services and all processes
associated with the provision of the Services, including the
Contracting Authority Premises, the Sites, and any ICT, Information
and data (including the Contracting Authority’s Confidential
Information and the Contracting Authority Data) to the extent used
by the Contracting Authority or the Supplier in connection with this
Call Off Contract or in connection with any system that could directly
or indirectly have an impact on that Information, data and/or the
Services;
(e) set out the security measures to be implemented and maintained by
the Supplier in relation to all aspects of the Services and all processes
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associated with the provision of the Services and shall at all times
comply with and specify security measures and procedures which are
sufficient to ensure that the Services comply with the provisions of
this Call Off Contract;
(f) set out the plans for transitioning all security arrangements and
responsibilities for the Supplier to meet the full obligations of the
security requirements set out in this Call Off Contract and the
Security Policy; and
(g) be written in plain English in language which is readily
comprehensible to the staff of the Supplier and the Contracting
Authority engaged in the provision of the Services and shall only
reference documents which are in the possession of the Parties or
whose location is otherwise specified in this Call Off Schedule 7.
4.3 Development of the Security Management Plan
4.3.1 Within twenty (20) Working Days after the Call Off Commencement Date (or such other
period agreed by the Parties in writing) and in accordance with paragraph 4.4 (Amendment
and Revision of the Security Management Plan), the Supplier shall prepare and deliver to the
Contracting Authority for Approval a fully complete and up to date Security Management
Plan which will be based on the draft Security Management Plan.
4.3.2 If the Security Management Plan submitted to the Contracting Authority in accordance
with paragraph 4.3.1, or any subsequent revision to it in accordance with paragraph 4.4
(Amendment and Revision of the Security Management Plan), is Approved it will be adopted
immediately and will replace the previous version of the Security Management Plan and
thereafter operated and maintained in accordance with this Call Off Schedule 7. If the
Security Management Plan is not Approved, the Supplier shall amend it within ten (10)
Working Days or such other period as the Parties may agree in writing of a notice of non-
approval from the Contracting Authority and re-submit to the Contracting Authority for
Approval. The parties will use all reasonable endeavours to ensure that the approval process
takes as little time as possible and in any event no longer than fifteen (15) Working Days (or
such other period as the parties may agree in writing) from the date of its first submission to
the Contracting Authority. If the Contracting Authority does not approve the Security
Management Plan following its resubmission, the matter will be resolved in accordance with
the Dispute Resolution Procedure.
4.3.3 The Contracting Authority shall not unreasonably withhold or delay its decision to
Approve or not the Security Management Plan pursuant to paragraph 4.3.2. However a
refusal by the Contracting Authority to Approve the Security Management Plan on the
grounds that it does not comply with the requirements set out in paragraph 4.2 shall be
deemed to be reasonable.
4.3.4 Approval by the Contracting Authority of the Security Management Plan pursuant to
paragraph 4.3.2 of this Call Off Schedule 7 or of any change to the Security Management Plan
in accordance with paragraph 4.4 shall not relieve the Supplier of its obligations under this
Call Off Schedule 7.
4.4 Amendment and Revision of the Security Management Plan
4.4.1 The Security Management Plan shall be fully reviewed and updated by the Supplier at
least annually to reflect:
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(a) emerging changes in Good Industry Practice;
(b) any change or proposed change to the Services and/or associated
processes;
(c) any change to the Security Policy;
(d) any new perceived or changed security threats; and
(e) any reasonable change in requirements requested by the Contracting
Authority.
4.4.2 The Supplier shall provide the Contracting Authority with the results of such reviews as
soon as reasonably practicable after their completion and amendment of the Security
Management Plan at no additional cost to the Contracting Authority. The results of the
review shall include, without limitation:
(a) suggested improvements to the effectiveness of the Security
Management Plan;
(b) updates to the risk assessments; and
(c) suggested improvements in measuring the effectiveness of controls.
4.4.3 Subject to paragraph 4.4.4, any change or amendment which the Supplier proposes to
make to the Security Management Plan (as a result of a review carried out in accordance
with paragraph 4.4.1, a request by the Contracting Authority or otherwise) shall be subject
to the Variation Procedure and shall not be implemented until Approved by the Contracting
Authority.
4.4.4 The Contracting Authority may, where it is reasonable to do so, Approve and require
changes or amendments to the Security Management Plan to be implemented on timescales
faster than set out in the Variation Procedure but, without prejudice to their effectiveness,
all such changes and amendments shall thereafter be subject to the Variation Procedure for
the purposes of formalising and documenting the relevant change or amendment for the
purposes of this Call Off Contract.
5. BREACH OF SECURITY
5.1 Either party shall notify the other in accordance with the agreed security incident
management process (as detailed in the Security Management Plan if one exists) upon
becoming aware of any Breach of Security or any potential or attempted Breach of
Security.
5.2 Without prejudice to the security incident management process, upon becoming aware
of any of the circumstances referred to in paragraph 5.1, the Supplier shall:
5.2.1 immediately take all reasonable steps(which shall include any action or changes
reasonably required by the Contracting Authority) necessary to:
(a) minimise the extent of actual or potential harm caused by any
Breach of Security;
(b) remedy such Breach of Security to the extent possible and protect
the integrity of the Contracting Authority and the provision of the
Services to the extent within its control against any such Breach of
Security or attempted Breach of Security;
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(c) prevent an equivalent breach in the future exploiting the same root
cause failure; and
(d) as soon as reasonably practicable provide to the Contracting
Authority, where the Contracting Authority so requests, full details
(using the reporting mechanism defined by the Security
Management Plan if one exists) of the Breach of Security or
attempted Breach of Security, including a root cause analysis where
required by the Contracting Authority.
5.3 In the event that any action is taken in response to a Breach of Security or potential or
attempted Breach of Security that demonstrates non-compliance of the Security
Management Plan with the Security policy or the requirements of this Call Off Schedule 7,
then any required change to the Security Management Plan shall be at no cost to the
Contracting Authority.
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AN ANNEX 1: SECURITY POLICY
0.
134
ANNEX 2: Security Management Plan NEX 1 ANNEX 1: Security Policy: Security Policy ANNEX 1: Security Policy
1. DEFINITIONS
1.1 In this Call Off Schedule 7, the following definitions shall apply:
"Breach of
Security"
means the occurrence of:
a) any unauthorised access to or use of the Services, the Sites and/or
any Information and Communication Technology (“ICT”),
information or data (including the Confidential Information and
the Contracting Authority Data) used by the Contracting Authority
and/or the Supplier in connection with this Call Off Contract;
and/or
b) the loss and/or unauthorised disclosure of any information or data
(including the Confidential Information and the Contracting
Authority Data), including any copies of such information or data,
used by the Contracting Authority and/or the Supplier in
connection with this Call Off Contract,
in either case as more particularly set out in the security requirements in
the Security Policy;
"ISMS"
the information security management system and process developed by
the Supplier in accordance with paragraph 3 (ISMS) as updated from
time to time in accordance with this Schedule 7; and
"Security
Tests"
tests to validate the ISMS and security of all relevant processes, systems,
incident response plans, patches to vulnerabilities and mitigations to
Breaches of Security.
2. INTRODUCTION
2.1 The Parties acknowledge that the purpose of the ISMS and Security Management Plan
are to ensure a good organisational approach to security under which the specific
requirements of this Call Off Contract will be met.
2.2 The Parties shall each appoint a security representative to be responsible for Security.
The initial security representatives of the Parties are:
2.2.1 [insert security representative of the Contracting Authority]
2.2.2 [insert security representative of the Supplier]
2.3 If the persons named in paragraphs 2.2.1 and 2.2.2 are included as Key Personnel,
Clause 26 (Key Personnel) shall apply in relation to such persons.
2.4 The Contracting Authority shall clearly articulate its high level security requirements so
that the Supplier can ensure that the ISMS, security related activities and any mitigations
are driven by these fundamental needs.
2.5 Both Parties shall provide a reasonable level of access to any members of their
personnel for the purposes of designing, implementing and managing security.
2.6 The Supplier shall use as a minimum Good Industry Practice in the day to day operation
of any system holding, transferring or processing Contracting Authority Data and any
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system that could directly or indirectly have an impact on that information, and shall
ensure that Contracting Authority Data remains under the effective control of the Supplier
at all times.
2.7 The Supplier shall ensure the up-to-date maintenance of a security policy relating to the
operation of its own organisation and systems and on request shall supply this document
as soon as practicable to the Contracting Authority.
2.8 The Contracting Authority and the Supplier acknowledge that information security risks
are shared between the Parties and that a compromise of either the Supplier or the
Contracting Authority’s security provisions represents an unacceptable risk to the
Contracting Authority requiring immediate communication and co-operation between the
Parties.
3. ISMS
3.1 The Supplier shall develop and submit to the Contracting Authority for the Contracting
Authority’s Approval, within twenty (20) working days after the Call Off Commencement
Date or such other date as agreed between the Parties, an information security
management system for the purposes of this Call Off Contract, which shall comply with the
requirements of paragraphs 3.3 to 3.5 of this Call Off Schedule 7 (Security).
3.2 The Supplier acknowledges that the Contracting Authority places great emphasis on the
reliability of the performance of the Services, confidentiality, integrity and availability of
information and consequently on the security provided by the ISMS and that the Supplier
shall be responsible for the effective performance of the ISMS.
3.3 The ISMS shall:
3.3.1 unless otherwise specified by the Contracting Authority in writing, be developed to
protect all aspects of the Services and all processes associated with the provision of the
Services, including the Contracting Authority Premises, the Sites, any ICT, information and
data (including the Contracting Authority’s Confidential Information and the Contracting
Authority Data) to the extent used by the Contracting Authority or the Supplier in connection
with this Call Off Contract;
3.3.2 meet the relevant standards in ISO/IEC 27001 and ISO/IEC27002 in accordance with
Paragraph 7;and
3.3.3 at all times provide a level of security which:
(a) is in accordance with the Law and this Call Off Contract;
(b) as a minimum demonstrates Good Industry Practice;
(c) complies with the Security Policy;
(d) complies with at least the minimum set of security measures and
standards as determined by the Security Policy Framework (Tiers 1-4)
https://www.gov.uk/government/uploads/system/uploads/attachm
ent_data/file/255910/HMG_Security_Policy_Framework_V11.0.pdf ;
(e) takes account of guidance issued by the Centre for Protection of
National Infrastructure on Risk Management
http://www.cpni.gov.uk/Documents/Publications/2005/2005003-
Risk_management.pdf
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(f) complies with HMG Information Assurance Maturity Model and
AssuranceFramework
http://www.cesg.gov.uk/publications/Documents/iamm-assessment-
framework.pdf
(g) meets any specific security threats of immediate relevance to the
Services and/or Contracting Authority Data; and
(h) complies with the Contracting Authority’s ICT policies:
3.3.4 document the security incident management processes and incident response plans;
3.3.5 document the vulnerability management policy including processes for identification of
system vulnerabilities and assessment of the potential impact on the Services of any new
threat, vulnerability or exploitation technique of which the Supplier becomes aware; and
3.3.6 be certified by (or by a person with the direct delegated authority of) a Supplier’s main
board representative, being the “Chief Security Officer”, “Chief Information Officer”, “Chief
Technical Officer” or “Chief Financial Officer” (or equivalent as agreed in writing by the
Contracting Authority in advance of issue of the relevant Security Management Plan).
3.4 Subject to Clause 34 of this Call Off Contract (Security and Protection of Information) the
references to Standards, guidance and policies contained or set out in paragraph 3.3 of
this Call Off Schedule 7 shall be deemed to be references to such items as developed and
updated and to any successor to or replacement for such standards, guidance and policies,
as notified to the Supplier from time to time.
3.5 In the event that the Supplier becomes aware of any inconsistency in the provisions of
the standards, guidance and policies set out in paragraph 3.3 of this Call Off Schedule 7,
the Supplier shall immediately notify the Contracting Authority Representative of such
inconsistency and the Contracting Authority Representative shall, as soon as practicable,
notify the Supplier as to which provision the Supplier shall comply with.
3.6 If the ISMS submitted to the Contracting Authority pursuant to paragraph 3.1 of this Call
Off Schedule 7 is Approved by the Contracting Authority, it shall be adopted by the
Supplier immediately and thereafter operated and maintained in accordance with this Call
Off Schedule 7. If the ISMS is not Approved by the Contracting Authority, the Supplier shall
amend it within ten (10) Working Days of a notice of non-approval from the Contracting
Authority and re-submit it to the Contracting Authority for Approval. The Parties shall use
all reasonable endeavours to ensure that the Approval process takes as little time as
possible and in any event no longer than fifteen (15) Working Days (or such other period
as the Parties may agree in writing) from the date of the first submission of the ISMS to
the Contracting Authority. If the Contracting Authority does not Approve the ISMS
following its resubmission, the matter shall be resolved in accordance with the Dispute
Resolution Procedure. No Approval to be given by the Contracting Authority pursuant to
this paragraph 3 of this Call Off Schedule 7 may be unreasonably withheld or delayed.
However any failure to approve the ISMS on the grounds that it does not comply with any
of the requirements set out in paragraphs 3.3 to 3.5 of this Call Off Schedule 7 shall be
deemed to be reasonable.
3.7 Approval by the Contracting Authority of the ISMS pursuant to paragraph 3.6 of this Call
Off Schedule 7 or of any change to the ISMS shall not relieve the Supplier of its obligations
under this Call Off Schedule 7.
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4. SECURITY MANAGEMENT PLAN
4.1 Within twenty (20) Working Days after the Call Off Commencement Date, the Supplier
shall prepare and submit to the Contracting Authority for Approval in accordance with
paragraph 4 of this Call Off Schedule 7 a fully developed, complete and up-to-date Security
Management Plan which shall comply with the requirements of paragraph 4.2 of this Call
Off Schedule 7.
4.2 The Security Management Plan shall:
4.2.1 be based on the initial Security Management Plan set out in Annex 2 (Security
Management Plan);
4.2.2 comply with the Security Policy;
4.2.3 identify the necessary delegated organisational roles defined for those responsible for
ensuring this Call Off Schedule 7 is complied with by the Supplier;
4.2.4 detail the process for managing any security risks from Sub-Contractors and third parties
authorised by the Contracting Authority with access to the Services, processes associated
with the delivery of the Services, the Contracting Authority Premises, the Sites and any ICT,
Information and data (including the Contracting Authority’s Confidential Information and the
Contracting Authority Data) and any system that could directly or indirectly have an impact
on that information, data and/or the Services;
4.2.5 unless otherwise specified by the Contracting Authority in writing, be developed to
protect all aspects of the Services and all processes associated with the delivery of the
Services, including the Contracting Authority Premises, the Sites and any ICT, Information
and data (including the Contracting Authority’s Confidential Information and the Contracting
Authority Data) to the extent used by the Contracting Authority or the Supplier in connection
with this Call Off Contract or in connection with any system that could directly or indirectly
have an impact on that Information, data and/or the Services;
4.2.6 set out the security measures to be implemented and maintained by the Supplier in
relation to all aspects of the Services and all processes associated with the delivery of the
Services and at all times comply with and specify security measures and procedures which
are sufficient to ensure that the Services comply with the provisions of this Call Off
Schedule 7 (including the requirements set out in paragraph 3.3 of this Call Off Schedule 7);
4.2.7 set out the plans for transitioning all security arrangements and responsibilities from
those in place at the Call Off Commencement Date to those incorporated in the ISMS within
the timeframe agreed between the Parties .
4.2.8 be structured in accordance with ISO/IEC27001 and ISO/IEC27002, cross-referencing if
necessary to other Schedules which cover specific areas included within those standards;
and
4.2.9 be written in plain English in language which is readily comprehensible to the staff of
the Supplier and the Contracting Authority engaged in the Services and shall reference only
documents which are in the possession of the Parties or whose location is otherwise
specified in this Call Off Schedule 7 .
4.3 If the Security Management Plan submitted to the Contracting Authority pursuant to
paragraph 3.1 of this Call Off Schedule 7 is Approved by the Contracting Authority, it shall
be adopted by the Supplier immediately and thereafter operated and maintained in
accordance with this Call Off Schedule 7. If the Security Management Plan is not approved
138
by the Contracting Authority, the Supplier shall amend it within ten (10) Working Days of a
notice of non-approval from the Contracting Authority and re-submit it to the Contracting
Authority for Approval. The Parties shall use all reasonable endeavours to ensure that the
Approval process takes as little time as possible and in any event no longer than fifteen
(15) Working Days (or such other period as the Parties may agree in writing) from the date
of the first submission to the Contracting Authority of the Security Management Plan. If
the Contracting Authority does not Approve the Security Management Plan following its
resubmission, the matter shall be resolved in accordance with the Dispute Resolution
Procedure. No Approval to be given by the Contracting Authority pursuant to this
paragraph may be unreasonably withheld or delayed. However any failure to approve the
Security Management Plan on the grounds that it does not comply with the requirements
set out in paragraph 4.2 of this Call Off Schedule 7 shall be deemed to be reasonable.
4.4 Approval by the Contracting Authority of the Security Management Plan pursuant to
paragraph 4.3 of this Call Off Schedule 7 or of any change or amendment to the Security
Management Plan shall not relieve the Supplier of its obligations under this Call Off
Schedule 7.
5. AMENDMENT AND REVISION OF THE ISMS AND SECURITY MANAGEMENT PLAN
5.1 The ISMS and Security Management Plan shall be fully reviewed and updated by the
Supplier and at least annually to reflect:
5.1.1 emerging changes in Good Industry Practice;
5.1.2 any change or proposed change to Services and/or associated processes;
5.1.3 any changes to the Security Policy;
5.1.4 any new perceived or changed security threats; and
5.1.5 any reasonable change in requirement requested by the Contracting Authority.
5.2 The Supplier shall provide the Contracting Authority with the results of such reviews as
soon as reasonably practicable after their completion and amend the ISMS and Security
Management Plan at no additional cost to the Contracting Authority. The results of the
review shall include, without limitation:
5.2.1 suggested improvements to the effectiveness of the ISMS;
5.2.2 updates to the risk assessments;
5.2.3 proposed modifications to respond to events that may impact on the ISMS including the
security incident management process, incident response plans and general procedures and
controls that affect information security; and
5.2.4 suggested improvements in measuring the effectiveness of controls.
5.3 Subject to paragraph 5.4 of this Call Off Schedule 7, any change which the Supplier
proposes to make to the ISMS or Security Management Plan (as a result of a review
carried out pursuant to paragraph 5.1 of this Call Off Schedule 7, a Contracting Authority
request, a change to Annex 1 (Security) or otherwise) shall be subject to the Variation
Procedure and shall not be implemented until Approved in writing by the Contracting
Authority.
5.4 The Contracting Authority may, where it is reasonable to do so, Approve and require
changes or amendments to the ISMS or Security Management Plan to be implemented on
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timescales faster than set out in the Variation Procedure but, without prejudice to their
effectiveness, all such changes and amendments shall thereafter be subject to the
Variation Procedure for the purposes of formalising and documenting the relevant change
or amendment for the purposes of this Call Off Contract.
6. SECURITY TESTING
6.1 The Supplier shall conduct Security Tests from time to time (and at least annually across
the scope of the ISMS) and additionally after any change or amendment to the ISMS
(including security incident management processes and incident response plans) or the
Security Management Plan. Security Tests shall be designed and implemented by the
Supplier so as to minimise the impact on the delivery of the Services and the date, timing,
content and conduct of such Security Tests shall be agreed in advance with the
Contracting Authority. Subject to compliance by the Supplier with the foregoing
requirements, if any Security Tests adversely affect the Supplier’s ability to deliver the
Services so as to meet the Service Level Performance Measures, the Supplier shall be
granted relief against any resultant under-performance for the period of the Security
Tests.
6.2 The Contracting Authority shall be entitled to send a representative to witness the
conduct of the Security Tests. The Supplier shall provide the Contracting Authority with
the results of such Security Tests (in a form approved by the Contracting Authority in
advance) as soon as practicable after completion of each Security Test.
6.3 Without prejudice to any other right of audit or access granted to the Contracting
Authority pursuant to this Call Off Contract, the Contracting Authority and/or its
authorised representatives shall be entitled, at any time upon giving reasonable notice to
the Supplier, to carry out such tests (including penetration tests) as it may deem necessary
in relation to the ISMS and the Supplier’s compliance with the ISMS and the Security
Management Plan. The Contracting Authority may notify the Supplier of the results of such
tests after completion of each such test. If any such Contracting Authority’s test adversely
affects the Supplier’s ability to deliver the Services so as to meet the Target Performance
Levels, the Supplier shall be granted relief against any resultant under-performance for the
period of the Contracting Authority’s test.
6.4 Where any Security Test carried out pursuant to paragraphs 6.2 or 6.3 of this Call Off
Schedule 7 reveals any actual or potential Breach of Security or weaknesses (including un-
patched vulnerabilities, poor configuration and/or incorrect system management), the
Supplier shall promptly notify the Contracting Authority of any changes to the ISMS and to
the Security Management Plan (and the implementation thereof) which the Supplier
proposes to make in order to correct such failure or weakness. Subject to the Contracting
Authority's prior written Approval, the Supplier shall implement such changes to the ISMS
and the Security Management Plan and repeat the relevant Security Tests in accordance
with the timetable agreed with the Contracting Authority or, otherwise, as soon as
reasonably possible. For the avoidance of doubt, where the change to the ISMS or
Security Management Plan is to address a non-compliance with the Security Policy or
security requirements (as set out in Annex 1 (Security) to this Call Off Schedule 7) or the
requirements of this Call Off Schedule 7, the change to the ISMS or Security Management
Plan shall be at no cost to the Contracting Authority.
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6.5 If any repeat Security Test carried out pursuant to paragraph 6.4 of this Call Off
Schedule 7 reveals an actual or potential Breach of Security exploiting the same root cause
failure, such circumstance shall constitute a material Default of this Call Off Contract.
7. ISMS COMPLIANCE
7.1 The Contracting Authority shall be entitled to carry out such security audits as it may
reasonably deem necessary in order to ensure that the ISMS maintains compliance with
the principles and practices of ISO 27001 and/or the Security Policy.
7.2 If, on the basis of evidence provided by such security audits, it is the Contracting
Authority's reasonable opinion that compliance with the principles and practices of
ISO/IEC 27001 and/or the Security Policy are not being achieved by the Supplier, then the
Contracting Authority shall notify the Supplier of the same and give the Supplier a
reasonable time (having regard to the extent and criticality of any non-compliance and any
other relevant circumstances) to implement and remedy. If the Supplier does not become
compliant within the required time then the Contracting Authority shall have the right to
obtain an independent audit against these standards in whole or in part.
7.3 If, as a result of any such independent audit as described in paragraph 7.2 of this Call Off
Schedule 7 the Supplier is found to be non-compliant with the principles and practices of
ISO/IEC 27001 and/or the Security Policy then the Supplier shall, at its own expense,
undertake those actions required in order to achieve the necessary compliance and shall
reimburse in full the costs incurred by the Contracting Authority in obtaining such audit.
8. BREACH OF SECURITY
8.1 Either Party shall notify the other in accordance with the agreed security incident
management process as defined by the ISMS upon becoming aware of any breach of
security or any potential or attempted Breach of Security.
8.2 Without prejudice to the security incident management process, upon becoming aware
of any of the circumstances referred to in paragraph 8.1 of this Call Off Schedule 7, the
Supplier shall:
8.2.1 immediately take all reasonable steps (which shall include any action or changes
reasonably required by the Contracting Authority) necessary to:
(a) minimise the extent of actual or potential harm caused by any
Breach of Security;
(b) remedy such Breach of Security or any potential or attempted Breach
of Security in order to protect the integrity of the Contracting
Authority Property and/or Contracting Authority Assets and/or ISMS
to the extent that this within the Supplier’s control;
(c) apply a tested mitigation against any such Breach of Security or
attempted Breach of Security and provided that reasonable testing
has been undertaken by the Supplier, if the mitigation adversely
affects the Supplier’s ability to provide the Services so as to meet the
relevant Service Level Performance Measures, the Supplier shall be
granted relief against any resultant under-performance for such
period as the Contracting Authority, acting reasonably, may specify
by written notice to the Supplier;
141
(d) prevent a further Breach of Security or any potential or attempted
Breach of Security in the future exploiting the same root cause
failure;
(e) supply any requested data to the Contracting Authority (or the
Computer Emergency Response Team for UK Government
(“GovCertUK”)) on the Contracting Authority’s request within two
(2) Working Days and without charge (where such requests are
reasonably related to a possible incident or compromise); and
(f) as soon as reasonably practicable provide to the Contracting
Authority full details (using the reporting mechanism defined by the
ISMS) of the Breach of Security or the potential or attempted Breach
of Security, including a root cause analysis where required by the
Contracting Authority.
8.3 In the event that any action is taken in response to a Breach of Security or potential or
attempted Breach of Security that demonstrates non-compliance of the ISMS with the
Security Policy or the requirements of this Call Off Schedule 7, then any required change to
the ISMS shall be at no cost to the Contracting Authority.
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ANNEX 1: SECURITY POLICY
143
ANNEX 2: SECURITY MANAGEMENT PLAN
144
CALL OFF SCHEDULE 8: BUSINESS CONTINUITY AND DISASTER RECOVERY
1. DEFINITIONS
1.1 In this Call Off Schedule 8, the following definitions shall apply:
"Business Continuity Plan"
has the meaning given to it in paragraph 2.2.1(b) of
this Call Off Schedule 8;
"Disaster Recovery Plan"
has the meaning given to it in 2.2.1(c) of this Call Off
Schedule 8;
"Disaster Recovery
System"
means the system embodied in the processes and
procedures for restoring the provision of Services
following the occurrence of a disaster;
"Review Report"
has the meaning given to it in paragraph 6.2 of this
Call Off Schedule 8;
"Supplier’s Proposals"
has the meaning given to it in paragraph 6.2.3 of
this Call Off Schedule 8;
2. BCDR PLAN
2.1 Within [thirty] [30] Working Days from the Call Off Commencement Date the Supplier
shall prepare and deliver to the Contracting Authority for the Contracting Authority’s
written approval a plan, which shall detail the processes and arrangements that the
Supplier shall follow to:
2.1.1 ensure continuity of the business processes and operations supported by the Services
following any failure or disruption of any element of the Services; and
2.1.2 the recovery of the Services in the event of a Disaster.
2.2 The BCDR Plan shall:
2.2.1 be divided into three parts:
(a) Part A which shall set out general principles applicable to the BCDR
Plan;
(b) Part B which shall relate to business continuity (the “Business
Continuity Plan”); and
(c) Part C which shall relate to disaster recovery (the “Disaster Recovery
Plan”); and
2.2.2 unless otherwise required by the Contracting Authority in writing, be based upon and be
consistent with the provisions of paragraphs 3, 4 and 5.
2.3 Following receipt of the draft BCDR Plan from the Supplier, the Contracting Authority
shall:
2.3.1 review and comment on the draft BCDR Plan as soon as reasonably practicable; and
145
2.3.2 notify the Supplier in writing that it approves or rejects the draft BCDR Plan no later
than twenty (20) Working Days after the date on which the draft BCDR Plan is first delivered
to the Contracting Authority.
2.4 If the Contracting Authority rejects the draft BCDR Plan:
2.4.1 the Contracting Authority shall inform the Supplier in writing of its reasons for its
rejection; and
2.4.2 the Supplier shall then revise the draft BCDR Plan (taking reasonable account of the
Contracting Authority’s comments) and shall re-submit a revised draft BCDR Plan to the
Contracting Authority for the Contracting Authority's approval within twenty (20) Working
Days of the date of the Contracting Authority’s notice of rejection. The provisions of
paragraphs 2.3 and 2.4 of this Call Off Schedule 8 shall apply again to any resubmitted draft
BCDR Plan, provided that either Party may refer any disputed matters for resolution by the
Dispute Resolution Procedure at any time.
3. PART A OF THE BCDR PLAN AND GENERAL PRINCIPLES AND REQUIREMENTS
3.1 Part A of the BCDR Plan shall:
3.1.1 set out how the business continuity and disaster recovery elements of the BCDR Plan
link to each other;
3.1.2 provide details of how the invocation of any element of the BCDR Plan may impact upon
the operation of the provision of the Services and any Services provided to the Contracting
Authority by a Related Supplier;
3.1.3 contain an obligation upon the Supplier to liaise with the Contracting Authority and (at
the Contracting Authority’s request) any Related Suppliers with respect to issues concerning
business continuity and disaster recovery where applicable;
3.1.4 detail how the BCDR Plan links and interoperates with any overarching and/or
connected disaster recovery or business continuity plan of the Contracting Authority and any
of its other Related Supplier in each case as notified to the Supplier by the Contracting
Authority from time to time;
3.1.5 contain a communication strategy including details of an incident and problem
management service and advice and help desk facility which can be accessed via multi-
channels (including but without limitation a web-site (with FAQs), e-mail, phone and fax) for
both portable and desk top configurations, where required by the Contracting Authority;
3.1.6 contain a risk analysis, including:
(a) failure or disruption scenarios and assessments and estimates of
frequency of occurrence;
(b) identification of any single points of failure within the provision of
Services and processes for managing the risks arising therefrom;
(c) identification of risks arising from the interaction of the provision of
Services and with the Services provided by a Related Supplier; and
(d) a business impact analysis (detailing the impact on business
processes and operations) of different anticipated failures or
disruptions;
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3.1.7 provide for documentation of processes, including business processes, and procedures;
3.1.8 set out key contact details (including roles and responsibilities) for the Supplier (and any
Sub-Contractors) and for the Contracting Authority;
3.1.9 identify the procedures for reverting to “normal service”;
3.1.10 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 no more than the accepted
amount of data loss and to preserve data integrity;
3.1.11 identify the responsibilities (if any) that the Contracting Authority has agreed it will
assume in the event of the invocation of the BCDR Plan; and
3.1.12 provide for the provision of technical advice and assistance to key contacts at the
Contracting Authority as notified by the Contracting Authority from time to time to inform
decisions in support of the Contracting Authority’s business continuity plans.
3.2 The BCDR Plan shall be designed so as to ensure that:
3.2.1 the Services are provided in accordance with this Call Off Contract at all times during
and after the invocation of the BCDR Plan;
3.2.2 the adverse impact of any Disaster, service failure, or disruption on the operations of
the Contracting Authority is minimal as far as reasonably possible;
3.2.3 it complies with the relevant provisions of [ISO/IEC 27002] and all other industry
standards from time to time in force; and
3.2.4 there is a process for the management of disaster recovery testing detailed in the BCDR
Plan.
3.3 The BCDR Plan shall be upgradeable and sufficiently flexible to support any changes to
the Services or to the business processes facilitated by and the business operations
supported by the provision of Services.
3.4 The Supplier 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 Supplier of this Call Off Contract.
4. BUSINESS CONTINUITY PLAN - PRINCIPLES AND CONTENTS
4.1 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 provision of Services
remain supported and to ensure continuity of the business operations supported by the
Services including, unless the Contracting Authority expressly states otherwise in writing:
4.1.1 the alternative processes (including business processes), options and responsibilities
that may be adopted in the event of a failure in or disruption to the provision of Services;
and
4.1.2 the steps to be taken by the Supplier upon resumption of the provision of Services in
order to address any prevailing effect of the failure or disruption including a root cause
analysis of the failure or disruption.
4.2 The Business Continuity Plan shall:
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4.2.1 address the various possible levels of failures of or disruptions to the provision of
Services;
4.2.2 set out the Services to be provided and the steps to be taken to remedy the different
levels of failures of and disruption to the Services (such Services and steps, the “Business
Continuity Services”);
4.2.3 specify any applicable Service Levels with respect to the provision of the Business
Continuity Services and details of any agreed relaxation to the Service Levels in respect of
the provision of other Services during any period of invocation of the Business Continuity
Plan; and
4.2.4 clearly set out the conditions and/or circumstances under which the Business Continuity
Plan is invoked.
5. DISASTER RECOVERY PLAN - PRINCIPLES AND CONTENTS
5.1 The Disaster Recovery Plan shall be designed so as to ensure that upon the occurrence
of a Disaster the Supplier ensures continuity of the business operations of the Contracting
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.
5.2 The Disaster Recovery Plan shall be invoked only upon the occurrence of a Disaster.
5.3 The Disaster Recovery Plan shall include the following:
5.3.1 the technical design and build specification of the Disaster Recovery System;
5.3.2 details of the procedures and processes to be put in place by the Supplier 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:
(a) [data centre and disaster recovery site audits;
(b) backup methodology and details of the Supplier’s approach to data
back-up and data verification;
(c) identification of all potential disaster scenarios;
(d) risk analysis;
(e) documentation of processes and procedures;
(f) hardware configuration details;
(g) network planning including details of all relevant data networks and
communication links;
(h) invocation rules;
(i) Service recovery procedures; and
(j) steps to be taken upon resumption of the provision of Goods and/or
Services to address any prevailing effect of the failure or disruption
of the provision of Services;]
5.3.3 any applicable Service Levels with respect to the provision of the Disaster Recovery
Services and details of any agreed relaxation to the Service Levels in respect of the provision
of other Services during any period of invocation of the Disaster Recovery Plan;
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5.3.4 details of how the Supplier shall ensure compliance with security standards ensuring
that compliance is maintained for any period during which the Disaster Recovery Plan is
invoked;
5.3.5 access controls to any disaster recovery sites used by the Supplier in relation to its
obligations pursuant to this Schedule 8; and
5.3.6 testing and management arrangements.
6. REVIEW AND AMENDMENT OF THE BCDR PLAN
6.1 The Supplier shall review the BCDR Plan (and the risk analysis on which it is based):
6.1.1 on a regular basis and as a minimum once every six (6) Months;
6.1.2 within three calendar months of the BCDR Plan (or any part) having been invoked
pursuant to paragraph 7; and
6.1.3 where the Contracting Authority requests any additional reviews (over and above those
provided for in paragraphs 6.1.1and 6.1.2 of this Call Off Schedule 8) by notifying the
Supplier to such effect in writing, whereupon the Supplier shall conduct such reviews in
accordance with the Contracting Authority’s written requirements. Prior to starting its
review, the Supplier shall provide an accurate written estimate of the total costs payable by
the Contracting Authority for the Contracting Authority’s approval. The costs of both Parties
of any such additional reviews shall be met by the Contracting Authority except that the
Supplier shall not be entitled to charge the Contracting Authority for any costs that it may
incur above any estimate without the Contracting Authority’s prior written approval.
6.2 Each review of the BCDR Plan pursuant to paragraph 6.1 of this Call off Schedule 8 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
Supplier within the period required by the BCDR Plan or, if no such period is required,
within such period as the Contracting Authority shall reasonably require. The Supplier
shall, within twenty (20) Working Days of the conclusion of each such review of the BCDR
Plan, provide to the Contracting Authority a report (a “Review Report”) setting out:
6.2.1 the findings of the review;
6.2.2 any changes in the risk profile associated with the provision of Services; and
6.2.3 the Supplier’s proposals (the “Supplier’s 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 Supplier 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.
6.3 Following receipt of the Review Report and the Supplier’s Proposals, the Contracting
Authority shall:
6.3.1 review and comment on the Review Report and the Supplier’s Proposals as soon as
reasonably practicable; and
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6.3.2 notify the Supplier in writing that it approves or rejects the Review Report and the
Supplier’s Proposals no later than twenty (20) Working Days after the date on which they are
first delivered to the Contracting Authority.
6.4 If the Contracting Authority rejects the Review Report and/or the Supplier’s Proposals:
6.4.1 the Contracting Authority shall inform the Supplier in writing of its reasons for its
rejection; and
6.4.2 the Supplier shall then revise the Review Report and/or the Supplier’s Proposals as the
case may be (taking reasonable account of the Contracting Authority’s comments and
carrying out any necessary actions in connection with the revision) and shall re-submit a
revised Review Report and/or revised Supplier’s Proposals to the Contracting Authority for
the Contracting Authority’s approval within twenty (20) Working Days of the date of the
Contracting Authority’s notice of rejection. The provisions of paragraphs 6.3 and 6.4 of this
Call Off Schedule 8 shall apply again to any resubmitted Review Report and Supplier’s
Proposals, provided that either Party may refer any disputed matters for resolution by the
Dispute Resolution Procedure at any time.
6.5 The Supplier shall as soon as is reasonably practicable after receiving the Contracting
Authority’s approval of the Supplier’s 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 Supplier’s Proposals. Any such change shall be at the
Supplier’s expense unless it can be reasonably shown that the changes are required
because of a material change to the risk profile of the Services.
7. TESTING OF THE BCDR PLAN
7.1 The Supplier shall test the BCDR Plan on a regular basis (and in any event not less than
once in every Contract Year). Subject to paragraph 7.2 of this Call Off Schedule 8, the
Contracting Authority may require the Supplier to conduct additional tests of some or all
aspects of the BCDR Plan at any time where the Contracting 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.
7.2 If the Contracting Authority requires an additional test of the BCDR Plan, it shall give the
Supplier written notice and the Supplier shall conduct the test in accordance with the
Contracting Authority’s requirements and the relevant provisions of the BCDR Plan. The
Supplier’s costs of the additional test shall be borne by the Contracting Authority unless
the BCDR Plan fails the additional test in which case the Supplier’s costs of that failed test
shall be borne by the Supplier.
7.3 The Supplier shall undertake and manage testing of the BCDR Plan in full consultation
with the Contracting Authority and shall liaise with the Contracting Authority in respect of
the planning, performance, and review, of each test, and shall comply with the reasonable
requirements of the Contracting Authority in this regard. Each test shall be carried out
under the supervision of the Contracting Authority or its nominee.
7.4 The Supplier shall ensure that any use by it or any Sub-Contractor of “live” data in such
testing is first approved with the Contracting Authority. Copies of live test data used in any
such testing shall be (if so required by the Contracting Authority) destroyed or returned to
the Contracting Authority on completion of the test.
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7.5 The Supplier shall, within twenty (20) Working Days of the conclusion of each test,
provide to the Contracting Authority a report setting out:
7.5.1 the outcome of the test;
7.5.2 any failures in the BCDR Plan (including the BCDR Plan's procedures) revealed by the
test; and
7.5.3 the Supplier’s Proposals for remedying any such failures.
7.6 Following each test, the Supplier shall take all measures requested by the Contracting
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
Supplier, at no additional cost to the Contracting Authority, by the date reasonably
required by the Contracting Authority and set out in such notice.
7.7 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 Supplier of any of its obligations under
this Call Off Contract.
7.8 The Supplier shall also perform a test of the BCDR Plan in the event of any major
reconfiguration of the Services or as otherwise reasonably requested by the Contracting
Authority.
8. INVOCATION OF THE BCDR PLAN
8.1 In the event of a complete loss of service or in the event of a Disaster, the Supplier shall
immediately invoke the BCDR Plan (and shall inform the Contracting Authority promptly of
such invocation). In all other instances the Supplier shall invoke or test the BCDR Plan only
with the prior consent of the Contracting Authority.
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CALL OFF SCHEDULE 9: EXIT MANAGEMENT
1. DEFINITIONS
1.1 In this Call Off Schedule 9, the following definitions shall apply:
"Exclusive Assets"
means those Supplier Assets used by the
Supplier or a Key Sub-Contractor which are
used exclusively in the provision of the
Services;
"Exit Information"
has the meaning given to it in paragraph 4.1 of
this Call Off Schedule 9;
"Exit Manager"
means the person appointed by each Party
pursuant to paragraph 3.4 of this Call Off
Schedule 9 for managing the Parties' respective
obligations under this Call Off Schedule 9;
"Net Book Value"
means the net book value of the relevant
Supplier Asset(s) calculated in accordance with
the depreciation policy of the Supplier set out
in the letter in the agreed form from the
Supplier to the Costumer of even date with this
Call Off Contract;
"Non-Exclusive Assets"
means those Supplier Assets (if any) which are
used by the Supplier or a Key Sub-Contractor in
connection with the Services but which are
also used by the Supplier or Key Sub-
Contractor for other purposes;
"Registers"
means the register and configuration database
referred to in paragraphs 3.1.1 and 3.1.2 of this
Call Off Schedule 9;
"Termination Assistance"
means the activities to be performed by the
Supplier pursuant to the Exit Plan, and any
other assistance required by the Contracting
Authority pursuant to the Termination
Assistance Notice;
"Termination Assistance
Notice"
has the meaning given to it in paragraph 6.1 of
this Call Off Schedule 9;
"Termination Assistance
Period"
means in relation to a Termination Assistance
Notice, the period specified in the Termination
Assistance Notice for which the Supplier is
required to provide the Termination Assistance
as such period may be extended pursuant to
paragraph 6.2 of this Call Off Schedule 9;
"Transferable Assets"
means those of the Exclusive Assets which are
capable of legal transfer to the Contracting
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Authority;
"Transferable Contracts"
means the Sub-Contracts, licences for Supplier
Background IPR, licences for Third Party IPR or
other agreements which are necessary to
enable the Contracting Authority or any
Replacement Supplier to provide the Services
or the Replacement Services, including in
relation to licences all relevant Documentation;
“Transferring Assets”
has the meaning given to it in paragraph 9.2.1
of this Call Off Schedule 9;
"Transferring Contracts"
has the meaning given to it in paragraph 9.2.3
of this Call Off Schedule 9.
2. INTRODUCTION
2.1 This Call Off Schedule 9 describes provisions that should be included in the Exit Plan, the
duties and responsibilities of the Supplier to the Contracting Authority leading up to and
covering the Call Off Expiry Date and the transfer of service provision to the Contracting
Authority and/or a Replacement Supplier.
2.2 The objectives of the exit planning and service transfer arrangements are to ensure a
smooth transition of the availability of the Services from the Supplier to the Contracting
Authority and/or a Replacement Supplier at the Call Off Expiry Date.
3. OBLIGATIONS DURING THE CALL OFF CONTRACT PERIOD TO FACILITATE EXIT
3.1 During the Call Off Contract Period, the Supplier shall:
3.1.1 create and maintain a Register of all:
(a) Supplier Assets, detailing their:
(i) make, model and asset number;
(ii) ownership and status as either Exclusive Assets or Non-
Exclusive Assets;
(iii) Net Book Value;
(iv) condition and physical location; and
(v) use (including technical specifications); and
(b) Sub-Contracts and other relevant agreements (including relevant
software licences, maintenance and support agreements and
equipment rental and lease agreements) required for the
performance of the Services;
3.1.2 create and maintain a configuration database detailing the technical infrastructure and
operating procedures through which the Supplier provides the Services, which shall contain
sufficient detail to permit the Contracting Authority and/or Replacement Supplier to
understand how the Supplier provides the Services and to enable the smooth transition of
the Services with the minimum of disruption;
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3.1.3 agree the format of the Registers with the Contracting Authority as part of the process
of agreeing the Exit Plan; and
3.1.4 at all times keep the Registers up to date, in particular in the event that Assets, Sub-
Contracts or other relevant agreements are added to or removed from the Services.
3.2 The Supplier shall:
3.2.1 procure that all Exclusive Assets listed in the Registers are clearly marked to identify that
they are exclusively used for the provision of the Services under this Call Off Contract; and
3.2.2 (unless otherwise agreed by the Contracting Authority in writing) procure that all
licences for Third Party IPR and all Sub-Contracts shall be assignable and/or capable of
novation at the request of the Contracting Authority to the Contracting Authority (and/or its
nominee) and/or any Replacement Supplier upon the Supplier ceasing to provide the
Services (or part of them) without restriction (including any need to obtain any consent or
approval) or payment by the Contracting Authority.
3.3 Where the Supplier is unable to procure that any Sub-Contract or other agreement
referred to in paragraph 3.2.2 of this Call Off Schedule 9 which the Supplier proposes to
enter into after the Call Off Commencement Date is assignable and/or capable of novation
to the Contracting Authority (and/or its nominee) and/or any Replacement Supplier
without restriction or payment, the Supplier shall promptly notify the Contracting
Authority of this and the Parties shall (acting reasonably and without undue delay) discuss
the appropriate action to be taken which, where the Contracting Authority so directs, may
include the Supplier seeking an alternative Sub-Contractor or provider of Services to which
the relevant agreement relates.
3.4 Each Party shall appoint a person for the purposes of managing the Parties' respective
obligations under this Call Off Schedule 9 and provide written notification of such
appointment to the other Party within three (3) Months of the Call Off Commencement
Date. The Supplier’s Exit Manager shall be responsible for ensuring that the Supplier and
its employees, agents and Sub-Contractors comply with this Call Off Schedule 9. The
Supplier shall ensure that its Exit Manager has the requisite authority to arrange and
procure any resources of the Supplier as are reasonably necessary to enable the Supplier
to comply with the requirements set out in this Call Off Schedule 9. The Parties' Exit
Managers will liaise with one another in relation to all issues relevant to the termination of
this Call Off Contract and all matters connected with this Call Off Schedule 9 and each
Party's compliance with it.
4. OBLIGATIONS TO ASSIST ON RE-TENDERING OF SERVICES
4.1 On reasonable notice at any point during the Call Off Contract Period, the Supplier shall
provide to the Contracting Authority and/or its potential Replacement Suppliers (subject
to the potential Replacement Suppliers entering into reasonable written confidentiality
undertakings), the following material and information in order to facilitate the preparation
by the Contracting Authority of any invitation to tender and/or to facilitate any potential
Replacement Suppliers undertaking due diligence:
4.1.1 details of the Service(s);
4.1.2 a copy of the Registers, updated by the Supplier up to the date of delivery of such
Registers;
4.1.3 an inventory of Contracting Authority Data in the Supplier’s possession or control;
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4.1.4 details of any key terms of any third party contracts and licences, particularly as regards
charges, termination, assignment and novation;
4.1.5 a list of on-going and/or threatened disputes in relation to the provision of the Services;
4.1.6 all information relating to Transferring Supplier Employees required to be provided by
the Supplier under this Call Off Contract; and
4.1.7 such other material and information as the Contracting Authority shall reasonably
require,
(together, the “Exit Information”).
4.2 The Supplier acknowledges that the Contracting Authority may disclose the Supplier’s
Confidential Information to an actual or prospective Replacement Supplier or any third
party whom the Contracting Authority is considering engaging to the extent that such
disclosure is necessary in connection with such engagement (except that the Contracting
Authority may not under this paragraph 4.2 of this Call Off Schedule 9 disclose any
Supplier’s Confidential Information which is information relating to the Supplier’s or its
Sub-Contractor’s prices or costs).
4.3 The Supplier shall:
4.3.1 notify the Contracting Authority within five (5) Working Days of any material change to
the Exit Information which may adversely impact upon the provision of any Services and
shall consult with the Contracting Authority regarding such proposed material changes; and
4.3.2 provide complete updates of the Exit Information on an as-requested basis as soon as
reasonably practicable and in any event within ten (10) Working Days of a request in writing
from the Contracting Authority.
4.4 The Supplier may charge the Contracting Authority for its reasonable additional costs to
the extent the Contracting Authority requests more than four (4) updates in any six
(6) month period.
4.5 The Exit Information shall be accurate and complete in all material respects and the
level of detail to be provided by the Supplier shall be such as would be reasonably
necessary to enable a third party to:
4.5.1 prepare an informed offer for those Services; and
4.5.2 not be disadvantaged in any subsequent procurement process compared to the Supplier
(if the Supplier is invited to participate).
5. EXIT PLAN
5.1 The Supplier shall, within three (3) Months after the Call Off Commencement Date,
deliver to the Contracting Authority an Exit Plan which:
5.1.1 sets out the Supplier’s proposed methodology for achieving an orderly transition of the
Services from the Supplier to the Contracting Authority and/or its Replacement Supplier on
the expiry or termination of this Call Off Contract;
5.1.2 complies with the requirements set out in paragraph 5.3 of this Call Off Schedule 9;
5.1.3 is otherwise reasonably satisfactory to the Contracting Authority.
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5.2 The Parties shall use reasonable endeavours to agree the contents of the Exit Plan. If the
Parties are unable to agree the contents of the Exit Plan within twenty (20) Working Days
of its submission, then such Dispute shall be resolved in accordance with the Dispute
Resolution Procedure.
5.3 Unless otherwise specified by the Contracting Authority or Approved, the Exit Plan shall
set out, as a minimum:
5.3.1 how the Exit Information is obtained;
5.3.2 the management structure to be employed during both transfer and cessation of the
Services;
5.3.3 the management structure to be employed during the Termination Assistance Period;
5.3.4 a detailed description of both the transfer and cessation processes, including a
timetable;
5.3.5 how the Services will transfer to the Replacement Supplier and/or the Contracting
Authority, including details of the processes, documentation, data transfer, systems
migration, security and the segregation of the Contracting Authority's technology
components from any technology components operated by the Supplier or its Sub-
Contractors (where applicable);
5.3.6 details of contracts (if any) which will be available for transfer to the Contracting
Authority and/or the Replacement Supplier upon the Call Off Expiry Date together with any
reasonable costs required to effect such transfer (and the Supplier agrees that all assets and
contracts used by the Supplier in connection with the provision of the Services will be
available for such transfer);
5.3.7 proposals for the training of key members of the Replacement Supplier’s personnel in
connection with the continuation of the provision of the Services following the Call Off Expiry
Date charged at rates agreed between the Parties at that time;
5.3.8 proposals for providing the Contracting Authority or a Replacement Supplier copies of
all documentation:
(a) used in the provision of the Services and necessarily required for the
continued use thereof, in which the Intellectual Property Rights are
owned by the Supplier; and
(b) relating to the use and operation of the Services;
5.3.9 proposals for the assignment or novation of the provision of all services, leases,
maintenance agreements and support agreements utilised by the Supplier in connection
with the performance of the supply of the Services;
5.3.10 proposals for the identification and return of all Contracting Authority Property in the
possession of and/or control of the Supplier or any third party (including any Sub-
Contractor);
5.3.11 proposals for the disposal of any redundant Services and materials;
5.3.12 procedures to deal with requests made by the Contracting Authority and/or a
Replacement Supplier for Staffing Information pursuant to Call Off Schedule 10 (Staff
Transfer);
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5.3.13 how each of the issues set out in this Call Off Schedule 9 will be addressed to facilitate
the transition of the Services from the Supplier to the Replacement Supplier and/or the
Contracting Authority with the aim of ensuring that there is no disruption to or degradation
of the Services during the Termination Assistance Period; and
5.3.14 proposals for the supply of any other information or assistance reasonably required by
the Contracting Authority or a Replacement Supplier in order to effect an orderly handover
of the provision of the Services.
6. TERMINATION ASSISTANCE
6.1 The Contracting Authority shall be entitled to require the provision of Termination
Assistance at any time during the Call Off Contract Period by giving written notice to the
Supplier (a "Termination Assistance Notice") at least four (4) Months prior to the Call Off
Expiry Date or as soon as reasonably practicable (but in any event, not later than one (1)
month) following the service by either Party of a Termination Notice. The Termination
Assistance Notice shall specify:
6.1.1 the date from which Termination Assistance is required;
6.1.2 the nature of the Termination Assistance required; and
6.1.3 the period during which it is anticipated that Termination Assistance will be required,
which shall continue no longer than twelve (12) Months after the date that the Supplier
ceases to provide the Services.
6.2 The Contracting Authority shall have an option to extend the Termination Assistance
Period beyond the period specified in the Termination Assistance Notice provided that
such extension shall not extend for more than six (6) Months after the date the Supplier
ceases to provide the Services or, if applicable, beyond the end of the Termination
Assistance Period and provided that it shall notify the Supplier to such effect no later than
twenty (20) Working Days prior to the date on which the provision of Termination
Assistance is otherwise due to expire. The Contracting Authority shall have the right to
terminate its requirement for Termination Assistance by serving not less than (20)
Working Days' written notice upon the Supplier to such effect.
7. TERMINATION ASSISTANCE PERIOD
7.1 Throughout the Termination Assistance Period, or such shorter period as the
Contracting Authority may require, the Supplier shall:
7.1.1 continue to provide the Services (as applicable) and, if required by the Contracting
Authority pursuant to paragraph 6.1 of this Call Off Schedule 9, provide the Termination
Assistance;
7.1.2 in addition to providing the Services and the Termination Assistance, provide to the
Contracting Authority any reasonable assistance requested by the Contracting Authority to
allow the Services to continue without interruption following the termination or expiry of
this Call Off Contract and to facilitate the orderly transfer of responsibility for and conduct of
the Services to the Contracting Authority and/or its Replacement Supplier;
7.1.3 use all reasonable endeavours to reallocate resources to provide such assistance as is
referred to in paragraph 7.1.2 of this Call Off Schedule 9 without additional costs to the
Contracting Authority;
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7.1.4 provide the Services and the Termination Assistance at no detriment to the Service
Level Performance Measures, save to the extent that the Parties agree otherwise in
accordance with paragraph 7.3; and
7.1.5 at the Contracting Authority's request and on reasonable notice, deliver up-to-date
Registers to the Contracting Authority.
7.2 Without prejudice to the Supplier’s obligations under paragraph 7.1.3 of this Call Off
Schedule 9, if it is not possible for the Supplier to reallocate resources to provide such
assistance as is referred to in paragraph 7.1.2 of this Call Off Schedule 9 without additional
costs to the Contracting Authority, any additional costs incurred by the Supplier in
providing such reasonable assistance which is not already in the scope of the Termination
Assistance or the Exit Plan shall be subject to the Variation Procedure.
7.3 If the Supplier demonstrates to the Contracting Authority's reasonable satisfaction that
transition of the Services and provision of the Termination Assist during the Termination
Assistance Period will have a material, unavoidable adverse effect on the Supplier’s ability
to meet one or more particular Service Level Performance Measure(s), the Parties shall
vary the relevant Service Level Performance Measure(s) and/or the applicable Service
Credits to take account of such adverse effect.
8. TERMINATION OBLIGATIONS
8.1 The Supplier shall comply with all of its obligations contained in the Exit Plan.
8.2 Upon termination or expiry (as the case may be) or at the end of the Termination
Assistance Period (or earlier if this does not adversely affect the Supplier’s performance of
the Services and the Termination Assistance and its compliance with the other provisions
of this Call Off Schedule 9), the Supplier shall:
8.2.1 cease to use the Contracting Authority Data;
8.2.2 provide the Contracting Authority and/or the Replacement Supplier with a complete
and uncorrupted version of the Contracting Authority Data in electronic form (or such other
format as reasonably required by the Contracting Authority);
8.2.3 erase from any computers, storage devices and storage media that are to be retained by
the Supplier after the end of the Termination Assistance Period all Contracting Authority
Data and promptly certify to the Contracting Authority that it has completed such deletion;
8.2.4 return to the Contracting Authority such of the following as is in the Supplier’s
possession or control:
(a) all materials created by the Supplier under this Call Off Contract in
which the IPRs are owned by the Contracting Authority;
(b) any equipment which belongs to the Contracting Authority;
(c) any items that have been on-charged to the Contracting Authority,
such as consumables; and
(d) all Contracting Authority Property issued to the Supplier under
Clause 31 of this Call Off Contract (Contracting Authority Property).
Such Contracting Authority Property shall be handed back to the
Contracting Authority in good working order (allowance shall be
made only for reasonable wear and tear);
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(e) any sums prepaid by the Contracting Authority in respect of Services
not Delivered by the Call Off Expiry Date;
8.2.5 vacate any Contracting Authority Premises;
8.2.6 remove the Supplier Equipment together with any other materials used by the Supplier
to supply the Services and shall leave the Sites in a clean, safe and tidy condition. The
Supplier is solely responsible for making good any damage to the Sites or any objects
contained thereon, other than fair wear and tear, which is caused by the Supplier and/or any
Supplier Personnel;
8.2.7 provide access during normal working hours to the Contracting Authority and/or the
Replacement Supplier for up to twelve (12) Months after expiry or termination to:
(a) such information relating to the Services as remains in the possession
or control of the Supplier; and
(b) such members of the Supplier Personnel as have been involved in the
design, development and provision of the Services and who are still
employed by the Supplier, provided that the Contracting Authority
and/or the Replacement Supplier shall pay the reasonable costs of
the Supplier actually incurred in responding to requests for access
under this paragraph.
8.3 Upon termination or expiry (as the case may be) or at the end of the Termination
Assistance Period (or earlier if this does not adversely affect the Supplier’s performance of
the Services and the Termination Assistance and its compliance with the other provisions
of this Call Off Schedule 9), each Party shall return to the other Party (or if requested,
destroy or delete) all Confidential Information of the other Party and shall certify that it
does not retain the other Party's Confidential Information save to the extent (and for the
limited period) that such information needs to be retained by the Party in question for the
purposes of providing or receiving any Services or termination services or for statutory
compliance purposes.
8.4 Except where this Call Off Contract provides otherwise, all licences, leases and
authorisations granted by the Contracting Authority to the Supplier in relation to the
Services shall be terminated with effect from the end of the Termination Assistance
Period.
9. ASSETS AND SUB-CONTRACTS
9.1 Following notice of termination of this Call Off Contract and during the Termination
Assistance Period, the Supplier shall not, without the Contracting Authority's prior written
consent:
9.1.1 terminate, enter into or vary any Sub-Contract;
9.1.2 (subject to normal maintenance requirements) make material modifications to, or
dispose of, any existing Supplier Assets or acquire any new Supplier Assets; or
9.1.3 terminate, enter into or vary any licence for software in connection with the provision
of Services.
9.2 Within twenty (20) Working Days of receipt of the up-to-date Registers provided by the
Supplier pursuant to paragraph 7.1.5 of this Call Off Schedule 9, the Contracting Authority
shall provide written notice to the Supplier setting out:
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9.2.1 which, if any, of the Transferable Assets the Contracting Authority requires to be
transferred to the Contracting Authority and/or the Replacement Supplier (“Transferring
Assets”);
9.2.2 which, if any, of:
(a) the Exclusive Assets that are not Transferable Assets; and
(b) the Non-Exclusive Assets,
the Contracting Authority and/or the Replacement Supplier requires the
continued use of; and
9.2.3 which, if any, of Transferable Contracts the Contracting Authority requires to be
assigned or novated to the Contracting Authority and/or the Replacement Supplier (the
“Transferring Contracts”),
in order for the Contracting Authority and/or its Replacement Supplier to provide the
Services from the expiry of the Termination Assistance Period. Where requested by the
Contracting Authority and/or its Replacement Supplier, the Supplier shall provide all
reasonable assistance to the Contracting Authority and/or its Replacement Supplier to
enable it to determine which Transferable Assets and Transferable Contracts the
Contracting Authority and/or its Replacement Supplier requires to provide the Services
or the Replacement Services.
9.3 With effect from the expiry of the Termination Assistance Period, the Supplier shall sell
the Transferring Assets to the Contracting Authority and/or its nominated Replacement
Supplier for a consideration equal to their Net Book Value, except where the cost of the
Transferring Asset has been partially or fully paid for through the Call Off Contract Charges
at the Call Off expiry Date, in which case the Contracting Authority shall pay the Supplier
the Net Book Value of the Transferring Asset less the amount already paid through the Call
Off Contract Charges.
9.4 Risk in the Transferring Assets shall pass to the Contracting Authority or the
Replacement Supplier (as appropriate) at the end of the Termination Assistance Period
and title to the Transferring Assets shall pass to the Contracting Authority or the
Replacement Supplier (as appropriate) on payment for the same.
9.5 Where the Supplier is notified in accordance with paragraph 9.2.2 of this Call Off
Schedule 9 that the Contracting Authority and/or the Replacement Supplier requires
continued use of any Exclusive Assets that are not Transferable Assets or any Non-
Exclusive Assets, the Supplier shall as soon as reasonably practicable:
9.5.1 procure a non-exclusive, perpetual, royalty-free licence (or licence on such other terms
that have been agreed by the Contracting Authority) for the Contracting Authority and/or
the Replacement Supplier to use such assets (with a right of sub-licence or assignment on
the same terms); or failing which
9.5.2 procure a suitable alternative to such assets and the Contracting Authority or the
Replacement Supplier shall bear the reasonable proven costs of procuring the same.
9.6 The Supplier shall as soon as reasonably practicable assign or procure the novation to
the Contracting Authority and/or the Replacement Supplier of the Transferring Contracts.
The Supplier shall execute such documents and provide such other assistance as the
Contracting Authority reasonably requires to effect this novation or assignment.
9.7 The Contracting Authority shall:
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9.7.1 accept assignments from the Supplier or join with the Supplier in procuring a novation
of each Transferring Contract; and
9.7.2 once a Transferring Contract is novated or assigned to the Contracting Authority and/or
the Replacement Supplier, carry out, perform and discharge all the obligations and liabilities
created by or arising under that Transferring Contract and exercise its rights arising under
that Transferring Contract, or as applicable, procure that the Replacement Supplier does the
same.
9.8 The Supplier shall hold any Transferring Contracts on trust for the Contracting Authority
until such time as the transfer of the relevant Transferring Contract to the Contracting
Authority and/or the Replacement Supplier has been effected.
9.9 The Supplier shall indemnify the Contracting Authority (and/or the Replacement
Supplier, as applicable) against each loss, liability and cost arising out of any claims made
by a counterparty to a Transferring Contract which is assigned or novated to the
Contracting Authority (and/or Replacement Supplier) pursuant to paragraph 9.6 of this Call
Off Schedule 9 in relation to any matters arising prior to the date of assignment or
novation of such Transferring Contract.
10. SUPPLIER PERSONNEL
10.1 The Contracting Authority and Supplier agree and acknowledge that in the event of the
Supplier ceasing to provide the Services or part of them for any reason, Call Off
Schedule 10 (Staff Transfer) shall apply.
10.2 The Supplier shall not take any step (expressly or implicitly and directly or indirectly by
itself or through any other person) to dissuade or discourage any employees engaged in
the provision of the Services from transferring their employment to the Contracting
Authority and/or the Replacement Supplier.
10.3 During the Termination Assistance Period, the Supplier shall give the Contracting
Authority and/or the Replacement Supplier reasonable access to the Supplier’s personnel
to present the case for transferring their employment to the Contracting Authority and/or
the Replacement Supplier.
10.4 The Supplier shall immediately notify the Contracting Authority or, at the direction of
the Contracting Authority, the Replacement Supplier of any period of notice given by the
Supplier or received from any person referred to in the Staffing Information, regardless of
when such notice takes effect.
10.5 The Supplier shall not for a period of twelve (12) Months from the date of transfer re-
employ or re-engage or entice any employees, Suppliers or Sub-Contractors whose
employment or engagement is transferred to the Contracting Authority and/or the
Replacement Supplier, unless approval has been obtained from the Contracting Authority
which shall not be unreasonably withheld.
11. CHARGES
11.1 Except as otherwise expressly specified in this Call Off Contract, the Supplier shall not
make any charges for the services provided by the Supplier pursuant to, and the
Contracting Authority shall not be obliged to pay for costs incurred by the Supplier in
relation to its compliance with, this Call Off Schedule 9 including the preparation and
implementation of the Exit Plan, the Termination Assistance and any activities mutually
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agreed between the Parties to carry on after the expiry of the Termination Assistance
Period.
12. APPORTIONMENTS
12.1 All outgoings and expenses (including any remuneration due) and all rents, royalties and
other periodical payments receivable in respect of the Transferring Assets and Transferring
Contracts shall be apportioned between the Contracting Authority and the Supplier and/or
the Replacement Supplier and the Supplier (as applicable) as follows:
12.1.1 the amounts shall be annualised and divided by 365 to reach a daily rate;
12.1.2 the Contracting Authority shall be responsible for (or shall procure that the
Replacement Supplier shall be responsible for) or entitled to (as the case may be) that part of
the value of the invoice pro rata to the number of complete days following the transfer,
multiplied by the daily rate; and
12.1.3 the Supplier shall be responsible for or entitled to (as the case may be) the rest of the
invoice.
12.2 Each Party shall pay (and/or the Contracting Authority shall procure that the
Replacement Supplier shall pay) any monies due under paragraph 12.1 of this Call Off
Schedule 9 as soon as reasonably practicable.
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CALL OFF SCHEDULE 10: STAFF TRANSFER
1. DEFINITIONS
In this Call Off Schedule 10, the following definitions shall apply:
“Admission Agreement”
The agreement to be entered into by which the supplier agrees to
participate in the Schemes as amended from time to time;
“Eligible Employee”
any Fair Deal Employee who at the relevant time is an eligible
employee as defined in the Admission Agreement;
“Employee Liabilities”
all claims, actions, proceedings, orders, demands, complaints,
investigations (save for any claims for personal injury which are
covered by insurance) and any award, compensation, damages,
tribunal awards, fine, loss, order, penalty, disbursement, payment
made by way of settlement and costs, expenses and legal costs
reasonably incurred in connection with a claim or investigation
related to employment including in relation to the following:
(a) redundancy payments including contractual or enhanced
redundancy costs, termination costs and notice payments;
(b) unfair, wrongful or constructive dismissal compensation;
(c) compensation for discrimination on grounds of sex, race,
disability, age, religion or belief, gender reassignment,
marriage or civil partnership, pregnancy and maternity or
sexual orientation or claims for equal pay;
(d) compensation for less favourable treatment of part-time
workers or fixed term employees;
(e) outstanding employment debts and unlawful deduction of
wages including any PAYE and national insurance
contributions;
(f) employment claims whether in tort, contract or statute or
otherwise;
any investigation relating to employment matters by the Equality
and Human Rights Commission or other enforcement, regulatory
or supervisory body and of implementing any requirements which
may arise from such investigation;
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“Fair Deal Employees”
those Transferring Contracting Authority Employees who are on
the Relevant Transfer Date entitled to the protection of New Fair
Deal and any Transferring Former Supplier Employees who
originally transferred pursuant to a Relevant Transfer under the
Employment Regulations (or the predecessor legislation to the
Employment Regulations), from employment with a public sector
employer and who were once eligible to participate in the
Schemes and who at the Relevant Transfer Date become entitled
to the protection of New Fair Deal;
“Former Supplier”
a supplier supplying services to the Contracting Authority before
the Relevant Transfer Date that are the same as or substantially
similar to the Services (or any part of the Services) and shall
include any sub-contractor of such supplier (or any sub-contractor
of any such sub-contractor);
“New Fair Deal”
the revised Fair Deal position set out in the HM Treasury
guidance: “Fair Deal for staff pensions: staff transfer from central
government” issued in October 2013;
“Notified Sub-Contractor”
a Sub-Contractor identified in the Annex to this Call Off Schedule
10 to whom Transferring Contracting Authority Employees and/or
Transferring Former Supplier Employees will transfer on a
Relevant Transfer Date;
“Replacement Sub-Contractor”
a sub-contractor of the Replacement Supplier to whom
Transferring Supplier Employees will transfer on a Service Transfer
Date (or any sub-contractor of any such sub-contractor);
“Relevant Transfer”
a transfer of employment to which the Employment Regulations
applies;
“Relevant Transfer Date”
in relation to a Relevant Transfer, the date upon which the
Relevant Transfer takes place;
“Schemes”
the Principal Civil Service Pension Scheme available to employees
of the civil service and employees of bodies under the
Superannuation Act 1972, as governed by rules adopted by
Parliament; the Partnership Pension Account and its (i) Ill health
Benefits Scheme and (ii) Death Benefits Scheme; the Civil Service
Additional Voluntary Contribution Scheme; and the 2015 New
Scheme (with effect from a date to be notified to the Supplier by
the Minister for the Cabinet Office);
“Service Transfer”
any transfer of the Services (or any part of the Services), for
whatever reason, from the Supplier or any Sub-Contractor to a
Replacement Supplier or a Replacement Sub-Contractor;
“Service Transfer Date”
the date of a Service Transfer;
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“Staffing Information”
in relation to all persons identified on the Supplier’s Provisional
Supplier Personnel List or Supplier’s Final Supplier Personnel List,
as the case may be, such information as the Contracting Authority
may reasonably request (subject to all applicable provisions of the
DPA), but including in an anonymised format:
(a) their ages, dates of commencement of employment or
engagement and gender;
(b) details of whether they are employed, self employed
contractors or consultants, agency workers or otherwise;
(c) the identity of the employer or relevant contracting party;
(d) their relevant contractual notice periods and any other
terms relating to termination of employment, including
redundancy procedures, and redundancy payments;
(e) their wages, salaries and profit sharing arrangements as
applicable;
(f) details of other employment-related benefits, including
(without limitation) medical insurance, life assurance,
pension or other retirement benefit schemes, share
option schemes and company car schedules applicable to
them;
(g) any outstanding or potential contractual, statutory or
other liabilities in respect of such individuals (including in
respect of personal injury claims);
(h) details of any such individuals on long term sickness
absence, parental leave, maternity leave or other
authorised long term absence;
(i) copies of all relevant documents and materials relating to
such information, including copies of relevant contracts of
employment (or relevant standard contracts if applied
generally in respect of such employees); and
(j) any other “employee liability information” as such term is
defined in regulation 11 of the Employment Regulations;
“Supplier’s Final Supplier
Personnel List”
a list provided by the Supplier of all Supplier Personnel who will
transfer under the Employment Regulations on the Relevant
Transfer Date;
“Supplier’s Provisional Supplier
Personnel List”
a list prepared and updated by the Supplier of all Supplier
Personnel who are engaged in or wholly or mainly assigned to the
provision of the Services or any relevant part of the Services
which it is envisaged as at the date of such list will no longer be
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provided by the Supplier;
“Transferring Contracting
Authority Employees”
those employees of the Contracting Authority to whom the
Employment Regulations will apply on the Relevant Transfer Date;
“Transferring Former Supplier
Employees”
in relation to a Former Supplier, those employees of the Former
Supplier to whom the Employment Regulations will apply on the
Relevant Transfer Date; and
“Transferring Supplier
Employees”
those employees of the Supplier and/or the Supplier’s Sub-
Contractors to whom the Employment Regulations will apply on
the Service Transfer Date.
2. INTERPRETATION
Where a provision in this Call Off Schedule 10 imposes an obligation on the Supplier to provide
an indemnity, undertaking or warranty, the Supplier shall procure that each of its Sub-
Contractors shall comply with such obligation and provide such indemnity, undertaking or
warranty to the Contracting Authority, Former Supplier, Replacement Supplier or Replacement
Sub-Contractor, as the case may be.
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PART A
TRANSFERRING CONTRACTING AUTHORITY EMPLOYEES AT COMMENCEMENT OF SERVICES
1. RELEVANT TRANSFERS
1.1 The Contracting Authority and the Supplier agree that:
1.1.1 the commencement of the provision of the Services or of each relevant part of the
Services will be a Relevant Transfer in relation to the Transferring Contracting Authority
Employees; and
1.1.2 as a result of the operation of the Employment Regulations, the contracts of
employment between the Contracting Authority and the Transferring Contracting Authority
Employees (except in relation to any terms disapplied through operation of regulation 10(2)
of the Employment Regulations) will have effect on and from the Relevant Transfer Date as if
originally made between the Supplier and/or any Notified Sub-Contractor and each such
Transferring Contracting Authority Employee.
1.2 The Contracting Authority shall comply with all its obligations under the Employment
Regulations and shall perform and discharge all its obligations in respect of the
Transferring Contracting Authority Employees in respect of the period arising up to (but
not including)the Relevant Transfer Date (including the payment of all remuneration,
benefits, entitlements and outgoings, all wages, accrued but untaken holiday pay,
bonuses, commissions, payments of PAYE, national insurance contributions and pension
contributions which in any case are attributable in whole or in part to the period up to
(but not including) the Relevant Transfer Date) and any necessary apportionments in
respect of any periodic payments shall be made between: (i) the Contracting Authority;
and (ii) the Supplier and/or any Notified Sub-Contractor (as appropriate).
2. AUTHORITY INDEMNITIES
2.1 Subject to Paragraph 2.2, the Contracting Authority shall indemnify the Supplier and any
Notified Sub-Contractor against any Employee Liabilities in respect of any Transferring
Contracting Authority Employee (or, where applicable any employee representative as
defined in the Employment Regulations) arising from or as a result of:
2.1.1 any act or omission by the Contracting Authority occurring before the Relevant Transfer
Date;
2.1.2 the breach or non-observance by the Contracting Authority before the Relevant
Transfer Date of:
(a) any collective agreement applicable to the Transferring Contracting
Authority Employees; and/or
(b) any custom or practice in respect of any Transferring Contracting
Authority Employees which the Contracting Authority is contractually
bound to honour;
2.1.3 any claim by any trade union or other body or person representing the Transferring
Contracting Authority Employees arising from or connected with any failure by the
Contracting Authority to comply with any legal obligation to such trade union, body or
person arising before the Relevant Transfer Date;
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2.1.4 any proceeding, claim or demand by HMRC or other statutory authority in respect of
any financial obligation including, but not limited to, PAYE and primary and secondary
national insurance contributions:
(a) in relation to any Transferring Contracting Authority Employee, to
the extent that the proceeding, claim or demand by HMRC or other
statutory authority relates to financial obligations arising before the
Relevant Transfer Date; and
(b) in relation to any employee who is not a Transferring Contracting
Authority Employee and in respect of whom it is later alleged or
determined that the Employment Regulations applied so as to
transfer his/her employment from the Contracting Authority to the
Supplier and/or any Notified Sub-Contractor as appropriate, to the
extent that the proceeding, claim or demand by the HMRC or other
statutory authority relates to financial obligations arising before the
Relevant Transfer Date.
2.1.5 a failure of the Contracting Authority to discharge, or procure the discharge of, all
wages, salaries and all other benefits and all PAYE tax deductions and national insurance
contributions relating to the Transferring Contracting Authority Employees arising before the
Relevant Transfer Date;
2.1.6 any claim made by or in respect of any person employed or formerly employed by the
Contracting Authority other than a Transferring Contracting Authority Employee for whom it
is alleged the Supplier and/or any Notified Sub-Contractor as appropriate may be liable by
virtue of the Employment Regulations and/or the Acquired Rights Directive; and
2.1.7 any claim made by or in respect of a Transferring Contracting Authority Employee or any
appropriate employee representative (as defined in the Employment Regulations) of any
Transferring Contracting Authority Employee relating to any act or omission of the
Contracting Authority in relation to its obligations under regulation 13 of the Employment
Regulations, except to the extent that the liability arises from the failure by the Supplier or
any Sub-Contractor to comply with regulation 13(4) of the Employment Regulations.
2.2 The indemnities in Paragraph 2.1 shall not apply to the extent that the Employee
Liabilities arise or are attributable to an act or omission of the Supplier or any Sub-
Contractor (whether or not a Notified Sub-Contractor) whether occurring or having its
origin before, on or after the Relevant Transfer Date including any Employee Liabilities:
2.2.1 arising out of the resignation of any Transferring Contracting Authority Employee before
the Relevant Transfer Date on account of substantial detrimental changes to his/her working
conditions proposed by the Supplier and/or any Sub-Contractor to occur in the period from
(and including) the Relevant Transfer Date; or
2.2.2 arising from the failure by the Supplier or any Sub-Contractor to comply with its
obligations under the Employment Regulations.
2.3 If any person who is not identified by the Contracting Authority as a Transferring
Contracting Authority Employee claims, or it is determined in relation to any person who is
not identified by the Contracting Authority as a Transferring Contracting Authority
Employee, that his/her contract of employment has been transferred from the Contracting
Authority to the Supplier and/or any Notified Sub-Contractor pursuant to the Employment
Regulations or the Acquired Rights Directive then:
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2.3.1 the Supplier shall, or shall procure that the Notified Sub-Contractor shall, within
5 Working Days of becoming aware of that fact, give notice in writing to the Contracting
Authority; and
2.3.2 the Contracting Authority may offer (or may procure that a third party may offer)
employment to such person within 15 Working Days of receipt of the notification by the
Supplier and/or any Notified Sub-Contractor, or take such other reasonable steps as the
Contracting Authority considers appropriate to deal with the matter provided always that
such steps are in compliance with Law.
2.4 If an offer referred to in Paragraph 2.3.2 is accepted, or if the situation has otherwise
been resolved by the Contracting Authority, the Supplier shall, or shall procure that the
Notified Sub-Contractor shall, immediately release the person from his/her employment
or alleged employment.
2.5 If by the end of the 15 Working Day period specified in Paragraph 2.3.2:
2.5.1 no such offer of employment has been made;
2.5.2 such offer has been made but not accepted; or
2.5.3 the situation has not otherwise been resolved,
the Supplier and/or any Notified Sub-Contractor may within 5 Working Days give notice
to terminate the employment or alleged employment of such person.
2.6 Subject to the Supplier and/or any Notified Sub-Contractor acting in accordance with
the provisions of Paragraphs 2.3 to 2.5 and in accordance with all applicable proper
employment procedures set out in applicable Law, the Contracting Authority shall
indemnify the Supplier and/or any Notified Sub-Contractor (as appropriate) against all
Employee Liabilities arising out of the termination pursuant to the provisions of
Paragraph 2.5 provided that the Supplier takes, or procures that the Notified Sub-
Contractor takes, all reasonable steps to minimise any such Employee Liabilities.
2.7 The indemnity in Paragraph 2.6:
2.7.1 shall not apply to:
(a) any claim for:
(i) discrimination, including on the grounds of sex, race, disability,
age, gender reassignment, marriage or civil partnership,
pregnancy and maternity or sexual orientation, religion or
belief; or
(ii) equal pay or compensation for less favourable treatment of
part-time workers or fixed-term employees,
in any case in relation to any alleged act or omission of the Supplier
and/or any Sub-Contractor; or
(b) any claim that the termination of employment was unfair because
the Supplier and/or Notified Sub-Contractor neglected to follow a
fair dismissal procedure; and
2.7.2 shall apply only where the notification referred to in Paragraph 2.3.1 is made by the
Supplier and/or any Notified Sub-Contractor (as appropriate) to the Contracting Authority
within 6 months of the Call Off Commencement Date.
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2.8 If any such person as is referred to in Paragraph 2.3 is neither re-employed by the
Contracting Authority nor dismissed by the Supplier and/or any Notified Sub-Contractor
within the time scales set out in Paragraph 2.5 such person shall be treated as having
transferred to the Supplier and/or any Notified Sub-Contractor and the Supplier shall, or
shall procure that the Notified Sub-Contractor shall, comply with such obligations as may
be imposed upon it under applicable Law.
3. SUPPLIER INDEMNITIES AND OBLIGATIONS
3.1 Subject to Paragraph 3.2 the Supplier shall indemnify the Contracting Authority against
any Employee Liabilities in respect of any Transferring Contracting Authority Employee (or,
where applicable any employee representative as defined in the Employment Regulations)
arising from or as a result of:
3.1.1 any act or omission by the Supplier or any Sub-Contractor whether occurring before, on
or after the Relevant Transfer Date;
3.1.2 the breach or non-observance by the Supplier or any Sub-Contractor on or after the
Relevant Transfer Date of:
(a) any collective agreement applicable to the Transferring Contracting
Authority Employees; and/or
(b) any custom or practice in respect of any Transferring Contracting
Authority Employees which the Supplier or any Sub-Contractor is
contractually bound to honour;
3.1.3 any claim by any trade union or other body or person representing any Transferring
Contracting Authority Employees arising from or connected with any failure by the Supplier
or any Sub-Contractor to comply with any legal obligation to such trade union, body or
person arising on or after the Relevant Transfer Date;
3.1.4 any proposal by the Supplier or a Sub-contractor made before the Relevant Transfer
Date to make changes to the terms and conditions of employment or working conditions of
any Transferring Contracting Authority Employees to their material detriment on or after
their transfer to the Supplier or the relevant Sub-Contractor (as the case may be) on the
Relevant Transfer Date, or to change the terms and conditions of employment or working
conditions of any person who would have been a Transferring Contracting Authority
Employee but for their resignation (or decision to treat their employment as terminated
under regulation 4(9) of the Employment Regulations) before the Relevant Transfer Date as a
result of or for a reason connected to such proposed changes;
3.1.5 any statement communicated to or action undertaken by the Supplier or any Sub-
Contractor to, or in respect of, any Transferring Contracting Authority Employee before the
Relevant Transfer Date regarding the Relevant Transfer which has not been agreed in
advance with the Contracting Authority in writing;
3.1.6 any proceeding, claim or demand by HMRC or other statutory authority in respect of
any financial obligation including, but not limited to, PAYE and primary and secondary
national insurance contributions:
(a) in relation to any Transferring Contracting Authority Employee, to
the extent that the proceeding, claim or demand by HMRC or other
statutory authority relates to financial obligations arising on or after
the Relevant Transfer Date; and
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(b) in relation to any employee who is not a Transferring Contracting
Authority Employee, and in respect of whom it is later alleged or
determined that the Employment Regulations applied so as to
transfer his/her employment from the Contracting Authority to the
Supplier or a Sub-Contractor, to the extent that the proceeding,
claim or demand by HMRC or other statutory authority relates to
financial obligations arising on or after the Relevant Transfer Date;
3.1.7 a failure of the Supplier or any Sub-Contractor to discharge or procure the discharge of
all wages, salaries and all other benefits and all PAYE tax deductions and national insurance
contributions relating to the Transferring Contracting Authority Employees in respect of the
period from (and including) the Relevant Transfer Date; and
3.1.8 any claim made by or in respect of a Transferring Contracting Authority Employee or any
appropriate employee representative (as defined in the Employment Regulations) of any
Transferring Contracting Authority Employee relating to any act or omission of the Supplier
or any Sub-Contractor in relation to their obligations under regulation 13 of the Employment
Regulations, except to the extent that the liability arises from the Contracting Authority's
failure to comply with its obligations under regulation 13 of the Employment Regulations.
3.2 The indemnities in Paragraph 3.1 shall not apply to the extent that the Employee
Liabilities arise or are attributable to an act or omission of the Contracting Authority
whether occurring or having its origin before, on or after the Relevant Transfer Date
including, without limitation, any Employee Liabilities arising from the Contracting
Authority’s failure to comply with its obligations under the Employment Regulations.
3.3 The Supplier shall comply, and shall procure that each Sub-Contractor shall comply, with
all its obligations under the Employment Regulations (including its obligation to inform
and consult in accordance with regulation 13 of the Employment Regulations) and shall
perform and discharge, and shall procure that each Sub-Contractor shall perform and
discharge, all its obligations in respect of the Transferring Contracting Authority
Employees, from (and including) the Relevant Transfer Date (including the payment of all
remuneration, benefits, entitlements and outgoings, all wages, accrued but untaken
holiday pay, bonuses, commissions, payments of PAYE, national insurance contributions
and pension contributions which in any case are attributable in whole or in part to the
period from and including the Relevant Transfer Date) and any necessary apportionments
in respect of any periodic payments shall be made between the Contracting Authority and
the Supplier.
4. INFORMATION
The Supplier shall, and shall procure that each Sub-Contractor shall, promptly provide to the
Contracting Authority in writing such information as is necessary to enable the Contracting
Authority to carry out its duties under regulation 13 of the Employment Regulations. The
Contracting Authority shall promptly provide to the Supplier and each Notified Sub-Contractor
in writing such information as is necessary to enable the Supplier and each Notified Sub-
Contractor to carry out their respective duties under regulation 13 of the Employment
Regulations.
5. PRINCIPLES OF GOOD EMPLOYMENT PRACTICE
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5.1 The Parties agree that the Principles of Good Employment Practice issued by the
Cabinet Office in December 2010 apply to the treatment by the Supplier of employees
whose employment begins after the Relevant Transfer Date, and the Supplier undertakes
to treat such employees in accordance with the provisions of the Principles of Good
Employment Practice.
5.2 The Supplier shall, and shall procure that each Sub-Contractor shall, comply with any
requirement notified to it by the Contracting Authority relating to pensions in respect of
any Transferring Contracting Authority Employee as set down in:
5.2.1 the Cabinet Office Statement of Practice on Staff Transfers in the Public Sector of
January 2000, revised 2007;
5.2.2 HM Treasury's guidance “Staff Transfers from Central Government: A Fair Deal for Staff
Pensions of 1999;
5.2.3 HM Treasury's guidance “Fair deal for staff pensions: procurement of Bulk Transfer
Agreements and Related Issues” of June 2004; and/or
5.2.4 the New Fair Deal.
5.3 Any changes embodied in any statement of practice, paper or other guidance that
replaces any of the documentation referred to in Paragraphs 5.1 or 5.2 shall be agreed in
accordance with the Variation Procedure.
6. PENSIONS
The Supplier shall, and shall procure that each of its Sub-Contractors shall, comply with the
pensions provisions in the following Annex.
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ANNEX TO PART A: PENSIONS
1. PARTICIPATION
1.1 The Supplier undertakes to enter into the Admission Agreement.
1.2 The Supplier and the Contracting Authority:
1.2.1 undertake to do all such things and execute any documents (including the Admission
Agreement) as may be required to enable the Supplier to participate in the Schemes in
respect of the Fair Deal Employees;
1.2.2 agree that the Contracting Authority is entitled to make arrangements with the body
responsible for the Schemes for the Contracting Authority to be notified if the Supplier
breaches the Admission Agreement;
1.2.3 notwithstanding Paragraph 1.2.2 of this Annex, the Supplier shall notify the Contracting
Authority in the event that it breaches the Admission Agreement; and
1.2.4 agree that the Contracting Authority may terminate this Call Off Contract for material
default in the event that the Supplier breaches the Admission Agreement.
1.3 The Supplier shall bear its own costs and all costs that the Contracting Authority
reasonably incurs in connection with the negotiation, preparation and execution of
documents to facilitate the Supplier participating in the Schemes.
2. FUTURE SERVICE BENEFITS
2.1 The Supplier shall procure that the Fair Deal Employees, shall be either admitted into, or
offered continued membership of, the relevant section of the Schemes that they currently
contribute to, or were eligible to join immediately prior to the Relevant Transfer Date and
the Supplier shall procure that the Fair Deal Employees continue to accrue benefits in
accordance with the provisions governing the relevant section of Schemes for service from
(and including) the Relevant Transfer Date.
2.2 The Supplier undertakes that should it cease to participate in the Schemes for whatever
reason at a time when it has Eligible Employees, that it will, at no extra cost to the
Contracting Authority, provide to any Fair Deal Employee who immediately prior to such
cessation remained an Eligible Employee with access to an occupational pension scheme
certified by the Government Actuary’s Department or any actuary nominated by the
Contracting Authority in accordance with relevant guidance produced by the Government
Actuary’s Department as providing benefits which are broadly comparable to those
provided by the Schemes at the relevant date.
2.3 The Parties acknowledge that the Civil Service Compensation Scheme and the Civil
Service Injury Benefit Scheme (established pursuant to section 1 of the Superannuation
Act 1972) are not covered by the protection of New Fair Deal.
3. FUNDING
3.1 The Supplier undertakes to pay to the Schemes all such amounts as are due under the
Admission Agreement and shall deduct and pay to the Schemes such employee
contributions as are required by the Schemes.
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3.2 The Supplier shall indemnify and keep indemnified the Contracting Authority on
demand against any claim by, payment to, or loss incurred by, the Schemes in respect of
the failure to account to the Schemes for payments received and the non-payment or the
late payment of any sum payable by the Supplier to or in respect of the Schemes.
4. PROVISION OF INFORMATION
The Supplier and the Contracting Authority respectively undertake to each other:
4.1 to provide all information which the other Party may reasonably request concerning
matters referred to in this Annex and set out in the Admission Agreement, and to supply
the information as expeditiously as possible; and
4.2 not to issue any announcements to the Fair Deal Employees prior to the Relevant
Transfer Date concerning the matters stated in this Annex without the consent in writing
of the other Party (not to be unreasonably withheld or delayed).
5. INDEMNITY
The Supplier undertakes to the Contracting Authority to indemnify and keep indemnified the
Contracting Authority on demand from and against all and any Losses whatsoever arising out of
or in connection with any liability towards the Fair Deal Employees arising in respect of service
on or after the Relevant Transfer Date which relate to the payment of benefits under an
occupational pension scheme (within the meaning provided for in section 1 of the Pension
Schemes Act 1993) or the Schemes.
6. EMPLOYER OBLIGATION
The Supplier shall comply with the requirements of the Pensions Act 2008 and the Transfer of
Employment (Pension Protection) Regulations 2005.
7. SUBSEQUENT TRANSFERS
The Supplier shall:
7.1 not adversely affect pension rights accrued by any Fair Deal Employee in the period
ending on the date of the relevant future transfer;
7.2 provide all such co-operation and assistance as the Schemes and the Replacement
Supplier and/or the Contracting Authority may reasonably require to enable the
Replacement Supplier to participate in the Schemes in respect of any Eligible Employee
and to give effect to any transfer of accrued rights required as part of participation under
New Fair Deal; and
7.3 for the period either:
7.3.1 after notice (for whatever reason) is given, in accordance with the other provisions of
this Call Off Contract, to terminate the Agreement or any part of the Services; or
7.3.2 after the date which is two (2) years prior to the date of expiry of this Call Off Contract,
ensure that no change is made to pension, retirement and death benefits provided for
or in respect of any person who will transfer to the Replacement Supplier or the
Contracting Authority, no category of earnings which were not previously pensionable
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are made pensionable and the contributions (if any) payable by such employees are not
reduced without (in any case) the prior approval of the Contracting Authority (such
approval not to be unreasonably withheld). Save that this sub-paragraph shall not apply
to any change made as a consequence of participation in an Admission Agreement.
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PART B
TRANSFERRING FORMER SUPPLIER EMPLOYEES AT COMMENCEMENT OF SERVICES
1. RELEVANT TRANSFERS
1.1 The Contracting Authority and the Supplier agree that:
1.1.1 the commencement of the provision of the Services or of any relevant part of the
Services will be a Relevant Transfer in relation to the Transferring Former Supplier
Employees; and
1.1.2 as a result of the operation of the Employment Regulations, the contracts of
employment between each Former Supplier and the Transferring Former Supplier Employees
(except in relation to any terms disapplied through the operation of regulation 10(2) of the
Employment Regulations) shall have effect on and from the Relevant Transfer Date as if
originally made between the Supplier and/or Notified Sub-Contractor and each such
Transferring Former Supplier Employee.
1.2 Subject to Paragraph 6, the Contracting Authority shall procure that each Former
Supplier shall comply with all its obligations under the Employment Regulations and shall
perform and discharge all its obligations in respect of all the Transferring Former Supplier
Employees in respect of the period up to (but not including) the Relevant Transfer Date
(including the payment of all remuneration, benefits, entitlements and outgoings, all
wages, accrued but untaken holiday pay, bonuses, commissions, payments of PAYE,
national insurance contributions and pension contributions which in any case are
attributable in whole or in part in respect of the period up to (but not including) the
Relevant Transfer Date) and the Supplier shall make, and the Contracting Authority shall
procure that each Former Supplier makes, any necessary apportionments in respect of any
periodic payments.
2. FORMER SUPPLIER INDEMNITIES
2.1 Subject to Paragraphs 2.2 and 6, the Contracting Authority shall procure that each
Former Supplier shall indemnify the Supplier and any Notified Sub-Contractor against any
Employee Liabilities in respect of any Transferring Former Supplier Employee (or, where
applicable any employee representative as defined in the Employment Regulations) arising
from or as a result of:
2.1.1 any act or omission by the Former Supplier arising before the Relevant Transfer Date;
2.1.2 the breach or non-observance by the Former Supplier arising before the Relevant
Transfer Date of:
(a) any collective agreement applicable to the Transferring Former
Supplier Employees; and/or
(b) any custom or practice in respect of any Transferring Former Supplier
Employees which the Former Supplier is contractually bound to
honour;
2.1.3 any proceeding, claim or demand by HMRC or other statutory authority in respect of
any financial obligation including, but not limited to, PAYE and primary and secondary
national insurance contributions:
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(a) in relation to any Transferring Former Supplier Employee, to the
extent that the proceeding, claim or demand by HMRC or other
statutory authority relates to financial obligations arising before the
Relevant Transfer Date; and
(b) in relation to any employee who is not a Transferring Former
Supplier Employee and in respect of whom it is later alleged or
determined that the Employment Regulations applied so as to
transfer his/her employment from the Former Supplier to the
Supplier and/or any Notified Sub-Contractor as appropriate, to the
extent that the proceeding, claim or demand by HMRC or other
statutory authority relates to financial obligations in respect of the
period to (but excluding) the Relevant Transfer Date;
2.1.4 a failure of the Former Supplier to discharge or procure the discharge of all wages,
salaries and all other benefits and all PAYE tax deductions and national insurance
contributions relating to the Transferring Former Supplier Employees in respect of the period
to (but excluding) the Relevant Transfer Date;
2.1.5 any claim made by or in respect of any person employed or formerly employed by the
Former Supplier other than a Transferring Former Supplier Employee for whom it is alleged
the Supplier and/or any Notified Sub-Contractor as appropriate may be liable by virtue of
this Call Off Contract and/or the Employment Regulations and/or the Acquired Rights
Directive; and
2.1.6 any claim made by or in respect of a Transferring Former Supplier Employee or any
appropriate employee representative (as defined in the Employment Regulations) of any
Transferring Former Supplier Employee relating to any act or omission of the Former
Supplier in relation to its obligations under regulation 13 of the Employment Regulations,
except to the extent that the liability arises from the failure by the Supplier or any Sub-
Contractor to comply with regulation 13(4) of the Employment Regulations.
2.2 The indemnities in Paragraph 2.1 shall not apply to the extent that the Employee
Liabilities arise or are attributable to an act or omission of the Supplier or any Sub-
Contractor whether occurring or having its origin before, on or after the Relevant Transfer
Date including, without limitation, any Employee Liabilities:
2.2.1 arising out of the resignation of any Transferring Former Supplier Employee before the
Relevant Transfer Date on account of substantial detrimental changes to his/her working
conditions proposed by the Supplier or any Sub-Contractor to occur in the period from (and
including) the Relevant Transfer Date; or
2.2.2 arising from the failure by the Supplier and/or any Sub-Contractor to comply with its
obligations under the Employment Regulations.
2.3 If any person who is not identified by the Contracting Authority as a Transferring Former
Supplier Employee claims, or it is determined in relation to any person who is not
identified by the Contracting Authority as a Transferring Former Supplier Employee, that
his/her contract of employment has been transferred from a Former Supplier to the
Supplier and/or any Notified Sub-Contractor pursuant to the Employment Regulations or
the Acquired Rights Directive then:
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2.3.1 the Supplier shall, or shall procure that the Notified Sub-Contractor shall, within
5 Working Days of becoming aware of that fact, give notice in writing to the Contracting
Authority and, where required by the Contracting Authority, to the Former Supplier; and
2.3.2 the Former Supplier may offer (or may procure that a third party may offer)
employment to such person within 15 Working Days of the notification by the Supplier
and/or the Notified Sub-Contractor or take such other reasonable steps as the Former
Supplier considers appropriate to deal with the matter provided always that such steps are
in compliance with applicable Law.
2.4 If an offer referred to in Paragraph 2.3.2 is accepted, or if the situation has otherwise
been resolved by the Former Supplier and/or the Contracting Authority, the Supplier shall,
or shall procure that the Notified Sub-Contractor shall, immediately release the person
from his/her employment or alleged employment.
2.5 If by the end of the 15 Working Day period specified in Paragraph 2.3.2:
2.5.1 no such offer of employment has been made;
2.5.2 such offer has been made but not accepted; or
2.5.3 the situation has not otherwise been resolved,
the Supplier and/or any Notified Sub-Contractor may within 5 Working Days give notice
to terminate the employment or alleged employment of such person.
2.6 Subject to the Supplier and/or any Notified Sub-Contractor acting in accordance with
the provisions of Paragraphs 2.3 to 2.5 and in accordance with all applicable proper
employment procedures set out in Law, the Contracting Authority shall procure that the
Former Supplier indemnifies the Supplier and/or any Notified Sub-Contractor (as
appropriate) against all Employee Liabilities arising out of the termination pursuant to the
provisions of Paragraph 2.5 provided that the Supplier takes, or shall procure that the
Notified Sub-Contractor takes, all reasonable steps to minimise any such Employee
Liabilities.
2.7 The indemnity in Paragraph 2.6:
2.7.1 shall not apply to:
(a) any claim for:
(i) discrimination, including on the grounds of sex, race, disability,
age, gender reassignment, marriage or civil partnership,
pregnancy and maternity or sexual orientation, religion or
belief; or
(ii) equal pay or compensation for less favourable treatment of
part-time workers or fixed-term employees,
in any case in relation to any alleged act or omission of the Supplier
and/or any Sub-Contractor; or
(b) any claim that the termination of employment was unfair because
the Supplier and/or Notified Sub-Contractor neglected to follow a
fair dismissal procedure; and
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2.7.2 shall apply only where the notification referred to in Paragraph 2.3.1 is made by the
Supplier and/or any Notified Sub-Contractor (as appropriate) to the Contracting Authority
and, if applicable, the Former Supplier, within 6 months of the Call Off Commencement Date.
2.8 If any such person as is described in Paragraph 2.3 is neither re-employed by the Former
Supplier nor dismissed by the Supplier and/or any Notified Sub-Contractor within the time
scales set out in Paragraph 2.5, such person shall be treated as having transferred to the
Supplier or Notified Sub-Contractor and the Supplier shall, or shall procure that the
Notified Sub-Contractor shall, comply with such obligations as may be imposed upon it
under the Law.
3. SUPPLIER INDEMNITIES AND OBLIGATIONS
3.1 Subject to Paragraph 3.2, the Supplier shall indemnify the Contracting Authority and/or
the Former Supplier against any Employee Liabilities in respect of any Transferring Former
Supplier Employee (or, where applicable any employee representative as defined in the
Employment Regulations) arising from or as a result of:
3.1.1 any act or omission by the Supplier or any Sub-Contractor whether occurring before, on
or after the Relevant Transfer Date;
3.1.2 the breach or non-observance by the Supplier or any Sub-Contractor on or after the
Relevant Transfer Date of:
(a) any collective agreement applicable to the Transferring Former
Supplier Employee; and/or
(b) any custom or practice in respect of any Transferring Former Supplier
Employees which the Supplier or any Sub-Contractor is contractually
bound to honour;
3.1.3 any claim by any trade union or other body or person representing any Transferring
Former Supplier Employees arising from or connected with any failure by the Supplier or a
Sub-Contractor to comply with any legal obligation to such trade union, body or person
arising on or after the Relevant Transfer Date;
3.1.4 any proposal by the Supplier or a Sub-Contractor prior to the Relevant Transfer Date to
make changes to the terms and conditions of employment or working conditions of any
Transferring Former Supplier Employees to their material detriment on or after their transfer
to the Supplier or a Sub-Contractor (as the case may be) on the Relevant Transfer Date, or to
change the terms and conditions of employment or working conditions of any person who
would have been a Transferring Former Supplier Employee but for their resignation (or
decision to treat their employment as terminated under regulation 4(9) of the Employment
Regulations) before the Relevant Transfer Date as a result of or for a reason connected to
such proposed changes;
3.1.5 any statement communicated to or action undertaken by the Supplier or a Sub-
Contractor to, or in respect of, any Transferring Former Supplier Employee before the
Relevant Transfer Date regarding the Relevant Transfer which has not been agreed in
advance with the Contracting Authority and/or the Former Supplier in writing;
3.1.6 any proceeding, claim or demand by HMRC or other statutory authority in respect of
any financial obligation including, but not limited to, PAYE and primary and secondary
national insurance contributions:
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(a) in relation to any Transferring Former Supplier Employee, to the
extent that the proceeding, claim or demand by HMRC or other
statutory authority relates to financial obligations arising on or after
the Relevant Transfer Date; and
(b) in relation to any employee who is not a Transferring Former
Supplier Employee, and in respect of whom it is later alleged or
determined that the Employment Regulations applied so as to
transfer his/her employment from the Former Supplier to the
Supplier or a Sub-Contractor, to the extent that the proceeding,
claim or demand by the HMRC or other statutory authority relates to
financial obligations arising on or after the Relevant Transfer Date;
3.1.7 a failure of the Supplier or any Sub-Contractor to discharge or procure the discharge of
all wages, salaries and all other benefits and all PAYE tax deductions and national insurance
contributions relating to the Transferring Former Supplier Employees in respect of the period
from (and including) the Relevant Transfer Date; and
3.1.8 any claim made by or in respect of a Transferring Former Supplier Employee or any
appropriate employee representative (as defined in the Employment Regulations) of any
Transferring Former Supplier Employee relating to any act or omission of the Supplier or any
Sub-Contractor in relation to obligations under regulation 13 of the Employment
Regulations, except to the extent that the liability arises from the Former Supplier’s failure to
comply with its obligations under regulation 13 of the Employment Regulations.
3.2 The indemnities in Paragraph 3.1 shall not apply to the extent that the Employee
Liabilities arise or are attributable to an act or omission of the Former Supplier whether
occurring or having its origin before, on or after the Relevant Transfer Date including,
without limitation, any Employee Liabilities arising from the Former Supplier’s failure to
comply with its obligations under the Employment Regulations.
3.3 The Supplier shall comply, and shall procure that each Sub-Contractor shall comply, with
all its obligations under the Employment Regulations (including without limitation its
obligation to inform and consult in accordance with regulation 13 of the Employment
Regulations) and shall perform and discharge, and shall procure that each Sub-Contractor
shall perform and discharge, all its obligations in respect of all the Transferring Former
Supplier Employees, on and from the Relevant Transfer Date (including the payment of all
remuneration, benefits, entitlements and outgoings, all wages, accrued but untaken
holiday pay, bonuses, commissions, payments of PAYE, national insurance contributions
and pension contributions which in any case are attributable in whole or in part to the
period from (and including) the Relevant Transfer Date) and any necessary
apportionments in respect of any periodic payments shall be made between the Supplier
and the Former Supplier.
4. INFORMATION
The Supplier shall, and shall procure that each Sub-Contractor shall, promptly provide to the
Contracting Authority and/or at the Contracting Authority’s direction, the Former Supplier, in
writing such information as is necessary to enable the Contracting Authority and/or the Former
Supplier to carry out their respective duties under regulation 13 of the Employment Regulations.
Subject to Paragraph 6, the Contracting Authority shall procure that the Former Supplier shall
promptly provide to the Supplier and each Notified Sub-Contractor in writing such information
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as is necessary to enable the Supplier and each Notified Sub-Contractor to carry out their
respective duties under regulation 13 of the Employment Regulations.
5. PRINCIPLES OF GOOD EMPLOYMENT PRACTICE
5.1 The Supplier shall, and shall procure that each Sub-Contractor shall, comply with any
requirement notified to it by the Contracting Authority relating to pensions in respect of
any Transferring Former Supplier Employee as set down in:
5.1.1 the Cabinet Office Statement of Practice on Staff Transfers in the Public Sector of
January 2000, revised 2007;
5.1.2 HM Treasury's guidance “Staff Transfers from Central Government: A Fair Deal for Staff
Pensions of 1999;
5.1.3 HM Treasury's guidance: “Fair deal for staff pensions: procurement of Bulk Transfer
Agreements and Related Issues” of June 2004; and/or
5.1.4 the New Fair Deal.
5.2 Any changes embodied in any statement of practice, paper or other guidance that
replaces any of the documentation referred to in Paragraph 5.1 shall be agreed in
accordance with the Variation Procedure.
6. PROCUREMENT OBLIGATIONS
Notwithstanding any other provisions of this Part B, where in this Part B the Contracting
Authority accepts an obligation to procure that a Former Supplier does or does not do
something, such obligation shall be limited so that it extends only to the extent that the
Contracting Authority's contract with the Former Supplier contains a contractual right in that
regard which the Contracting Authority may enforce, or otherwise so that it requires only that
the Contracting Authority must use reasonable endeavours to procure that the Former Supplier
does or does not act accordingly.
7. PENSIONS
The Supplier shall, and shall procure that each Sub-Contractor shall, comply with the pensions
provisions in the following Annex in respect of any Transferring Former Supplier Employees who
transfer from the Former Supplier to the Supplier.
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ANNEX TO PART B: PENSIONS
1. PARTICIPATION
1.1 The Supplier undertakes to enter into the Admission Agreement.
1.2 The Supplier and the Contracting Authority:
1.2.1 undertake to do all such things and execute any documents (including the Admission
Agreement) as may be required to enable the Supplier to participate in the Schemes in
respect of the Fair Deal Employees;
1.2.2 agree that the Contracting Authority is entitled to make arrangements with the body
responsible for the Schemes for the Contracting Authority to be notified if the Supplier
breaches the Admission Agreement;
1.2.3 notwithstanding Paragraph 1.2.2 of this Annex, the Supplier shall notify the Contracting
Authority in the event that it breaches the Admission Agreement; and
1.2.4 agree that the Contracting Authority may terminate this Call Off Contract for material
default in the event that the Supplier breaches the Admission Agreement.
1.3 The Supplier shall bear its own costs and all costs that the Contracting Authority
reasonably incurs in connection with the negotiation, preparation and execution of
documents to facilitate the Supplier participating in the Schemes.
2. FUTURE SERVICE BENEFITS
2.1 If the Supplier is rejoining the Schemes for the first time, the Supplier shall procure that
the Fair Deal Employees shall be either admitted to or offered continued membership of
the relevant section of the Schemes that they became eligible to join on the Relevant
Transfer Date and shall continue to accrue or accrue benefits in accordance with the
provisions governing the relevant section of the Schemes for service from (and including)
the Relevant Transfer Date.
2.2 If staff have already been readmitted to the Schemes, the Supplier shall procure that the
Fair Deal Employees, shall be either admitted into, or offered continued membership of,
the relevant section of the Schemes that they currently contribute to, or were eligible to
join immediately prior to the Relevant Transfer Date and the Supplier shall procure that
the Fair Deal Employees continue to accrue benefits in accordance with the provisions
governing the relevant section of the Schemes for service from (and including) the
Relevant Transfer Date.
2.3 The Supplier undertakes that should it cease to participate in the Schemes for whatever
reason at a time when it has Eligible Employees, that it will, at no extra cost to the
Contracting Authority, provide to any Fair Deal Employee who immediately prior to such
cessation remained an Eligible Employee with access to an occupational pension scheme
certified by the Government Actuary’s Department or any actuary nominated by the
Contracting Authority in accordance with relevant guidance produced by the Government
Actuary’s Department as providing benefits which are broadly comparable to those
provided by the Schemes at the relevant date.
The Parties acknowledge that the Civil Service Compensation Scheme and the Civil Service
Injury Benefit Scheme (established pursuant to section 1 of the Superannuation Act 1972) are
not covered by the protection of New Fair Deal.
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3. FUNDING
3.1 The Supplier undertakes to pay to the Schemes all such amounts as are due under the
Admission Agreement and shall deduct and pay to the Schemes such employee
contributions as are required by the Schemes.
3.2 The Supplier shall indemnify and keep indemnified the Contracting Authority on
demand against any claim by, payment to, or loss incurred by the Schemes in respect of
the failure to account to the Schemes for payments received and the non-payment or the
late payment of any sum payable by the Supplier to or in respect of the Schemes.
4. PROVISION OF INFORMATION
The Supplier and the Contracting Authority respectively undertake to each other:
4.1 to provide all information which the other Party may reasonably request concerning
matters (i) referred to in this Annex and (ii) set out in the Admission Agreement, and to
supply the information as expeditiously as possible; and
4.2 not to issue any announcements to the Fair Deal Employees prior to the Relevant
Transfer Date concerning the matters stated in this Annex without the consent in writing
of the other Party (not to be unreasonably withheld or delayed).
5. INDEMNITY
The Supplier undertakes to the Contracting Authority to indemnify and keep indemnified the
Contracting Authority on demand from and against all and any Losses whatsoever arising out of
or in connection with any liability towards the Fair Deal Employees arising in respect of service
on or after the Relevant Transfer Date which relate to the payment of benefits under an
occupational pension scheme (within the meaning provided for in section 1 of the Pension
Schemes Act 1993) or the Schemes.
6. EMPLOYER OBLIGATION
The Supplier shall comply with the requirements of the Pensions Act 2008 and the Transfer of
Employment (Pension Protection) Regulations 2005.
7. SUBSEQUENT TRANSFERS
The Supplier shall:
7.1 not adversely affect pension rights accrued by any Fair Deal Employee in the period
ending on the date of the relevant future transfer;
7.2 provide all such co-operation and assistance as the Schemes and the Replacement
Supplier and/or the Contracting Authority may reasonably require to enable the
Replacement Supplier to participate in the Schemes in respect of any Eligible Employee
and to give effect to any transfer of accrued rights required as part of participation under
the New Fair Deal; and
7.3 for the period either
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7.3.1 after notice (for whatever reason) is given, in accordance with the other provisions of
this Call Off Contract, to terminate the Agreement or any part of the Services; or
7.3.2 after the date which is two (2) years prior to the date of expiry of this Call Off Contract,
ensure that no change is made to pension, retirement and death benefits provided for
or in respect of any person who will transfer to the Replacement Supplier or the
Contracting Authority, no category of earnings which were not previously pensionable
are made pensionable and the contributions (if any) payable by such employees are not
reduced without (in any case) the prior approval of the Contracting Authority (such
approval not to be unreasonably withheld). Save that this sub-paragraph shall not apply
to any change made as a consequence of participation in an Admission Agreement.
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PART C
NO TRANSFER OF EMPLOYEES AT COMMENCEMENT OF SERVICES
1. PROCEDURE IN THE EVENT OF TRANSFER
1.1 The Contracting Authority and the Supplier agree that the commencement of the
provision of the Services or of any part of the Services will not be a Relevant Transfer in
relation to any employees of the Contracting Authority and/or any Former Supplier.
1.2 If any employee of the Contracting Authority and/or a Former Supplier claims, or it is
determined in relation to any employee of the Contracting Authority and/or a Former
Supplier, that his/her contract of employment has been transferred from the Contracting
Authority and/or the Former Supplier to the Supplier and/or any Sub-Contractor pursuant
to the Employment Regulations or the Acquired Rights Directive then:
1.2.1 the Supplier shall, and shall procure that the relevant Sub-Contractor shall, within five
(5) Working Days of becoming aware of that fact, give notice in writing to the Contracting
Authority and, where required by the Contracting Authority, give notice to the Former
Supplier; and
1.2.2 the Contracting Authority and/or the Former Supplier may offer (or may procure that a
third party may offer) employment to such person within fifteen (15) Working Days of the
notification by the Supplier or the Sub-Contractor (as appropriate) or take such other
reasonable steps as the Contracting Authority or Former Supplier (as the case may be)
considers appropriate to deal with the matter provided always that such steps are in
compliance with applicable Law.
1.3 If an offer referred to in Paragraph 1.2.2 is accepted (or if the situation has otherwise
been resolved by the Contracting Authority and/or the Former Supplier), the Supplier
shall, or shall procure that the Sub-Contractor shall, immediately release the person from
his/her employment or alleged employment.
1.4 If by the end of the fifteen (15) Working Day period specified in Paragraph 1.2.2:
1.4.1 no such offer of employment has been made;
1.4.2 such offer has been made but not accepted; or
1.4.3 the situation has not otherwise been resolved,
the Supplier and/or the Sub-Contractor may within five (5) Working Days give notice to
terminate the employment or alleged employment of such person.
2. INDEMNITIES
2.1 Subject to the Supplier and/or the relevant Sub-Contractor acting in accordance with
the provisions of Paragraphs 1.2 to 1.4 and in accordance with all applicable employment
procedures set out in applicable Law and subject also to Paragraph 2.4, the Contracting
Authority shall:
2.1.1 indemnify the Supplier and/or the relevant Sub-Contractor against all Employee
Liabilities arising out of the termination of the employment of any employees of the
Contracting Authority referred to in Paragraph 1.2 made pursuant to the provisions of
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Paragraph 1.4 provided that the Supplier takes, or shall procure that the Notified Sub-
Contractor takes, all reasonable steps to minimise any such Employee Liabilities; and
2.1.2 subject to paragraph 3, procure that the Former Supplier indemnifies the Supplier
and/or any Notified Sub-Contractor against all Employee Liabilities arising out of termination
of the employment of the employees of the Former Supplier made pursuant to the
provisions of Paragraph 1.4 provided that the Supplier takes, or shall procure that the
relevant Sub-Contractor takes, all reasonable steps to minimise any such Employee
Liabilities.
2.2 If any such person as is described in Paragraph 1.2 is neither re employed by the
Contracting Authority and/or the Former Supplier as appropriate nor dismissed by the
Supplier and/or any Sub-Contractor within the fifteen (15) Working Day period referred to
in Paragraph 1.4 such person shall be treated as having transferred to the Supplier and/or
the Sub-Contractor (as appropriate) and the Supplier shall, or shall procure that the Sub-
Contractor shall, comply with such obligations as may be imposed upon it under Law.
2.3 Where any person remains employed by the Supplier and/or any Sub-Contractor
pursuant to Paragraph 2.2, all Employee Liabilities in relation to such employee shall
remain with the Supplier and/or the Sub-Contractor and the Supplier shall indemnify the
Contracting Authority and any Former Supplier, and shall procure that the Sub-Contractor
shall indemnify the Contracting Authority and any Former Supplier, against any Employee
Liabilities that either of them may incur in respect of any such employees of the Supplier
and/or employees of the Sub-Contractor.
2.4 The indemnities in Paragraph 2.1:
2.4.1 shall not apply to:
(a) any claim for:
(i) discrimination, including on the grounds of sex, race, disability,
age, gender reassignment, marriage or civil partnership,
pregnancy and maternity or sexual orientation, religion or
belief; or
(ii) equal pay or compensation for less favourable treatment of
part-time workers or fixed-term employees,
in any case in relation to any alleged act or omission of the Supplier
and/or any Sub-Contractor; or
(b) any claim that the termination of employment was unfair because
the Supplier and/or any Sub-Contractor neglected to follow a fair
dismissal procedure; and
2.4.2 shall apply only where the notification referred to in Paragraph 1.2.1 is made by the
Supplier and/or any Sub-Contractor to the Contracting Authority and, if applicable, Former
Supplier within 6 months of the Call Off Commencement Date.
3. PROCUREMENT OBLIGATIONS
Where in this Part C the Contracting Authority accepts an obligation to procure that a Former
Supplier does or does not do something, such obligation shall be limited so that it extends only
to the extent that the Contracting Authority's contract with the Former Supplier contains a
contractual right in that regard which the Contracting Authority may enforce, or otherwise so
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that it requires only that the Contracting Authority must use reasonable endeavours to procure
that the Former Supplier does or does not act accordingly.
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PART D
EMPLOYMENT EXIT PROVISIONS
1. PRE-SERVICE TRANSFER OBLIGATIONS
1.1 The Supplier agrees that within twenty (20) Working Days of the earliest of:
1.1.1 receipt of a notification from the Contracting Authority of a Service Transfer or intended
Service Transfer;
1.1.2 receipt of the giving of notice of early termination or any Partial Termination of this Call
Off Contract;
1.1.3 the date which is twelve (12) Months before the end of the Term; and
1.1.4 receipt of a written request of the Contracting Authority at any time (provided that the
Contracting Authority shall only be entitled to make one such request in any six (6) month
period),
it shall provide in a suitably anonymised format so as to comply with the DPA, the
Supplier’s Provisional Supplier Personnel List, together with the Staffing Information in
relation to the Supplier’s Provisional Supplier Personnel List and it shall provide an
updated Supplier’s Provisional Supplier Personnel List at such intervals as are reasonably
requested by the Contracting Authority.
1.2 At least thirty (30) Working Days prior to the Service Transfer Date, the Supplier shall
provide to the Contracting Authority or at the direction of the Contracting Authority to any
Replacement Supplier and/or any Replacement Sub-Contractor:
1.2.1 the Supplier’s Final Supplier Personnel List, which shall identify which of the Supplier
Personnel are Transferring Supplier Employees; and
1.2.2 the Staffing Information in relation to the Supplier’s Final Supplier Personnel List (insofar
as such information has not previously been provided).
1.3 The Contracting Authority shall be permitted to use and disclose information provided
by the Supplier under Paragraphs 1.1 and 1.2 for the purpose of informing any prospective
Replacement Supplier and/or Replacement Sub-Contractor.
1.4 The Supplier warrants, for the benefit of the Contracting Authority, any Replacement
Supplier, and any Replacement Sub-Contractor that all information provided pursuant to
Paragraphs 1.1 and 1.2 shall be true and accurate in all material respects at the time of
providing the information.
1.5 From the date of the earliest event referred to in Paragraph 1.1, the Supplier agrees,
that it shall not, and agrees to procure that each Sub-Contractor shall not, assign any
person to the provision of the Services who is not listed on the Supplier’s Provisional
Supplier Personnel List and shall not without the approval of the Contracting Authority
(not to be unreasonably withheld or delayed):
1.5.1 replace or re-deploy any Supplier Personnel listed on the Supplier Provisional Supplier
Personnel List other than where any replacement is of equivalent grade, skills, experience
and expertise and is employed on the same terms and conditions of employment as the
person he/she replaces;
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1.5.2 make, promise, propose or permit any material changes to the terms and conditions of
employment of the Supplier Personnel (including any payments connected with the
termination of employment);
1.5.3 increase the proportion of working time spent on the Services (or the relevant part of
the Services) by any of the Supplier Personnel save for fulfilling assignments and projects
previously scheduled and agreed;
1.5.4 introduce any new contractual or customary practice concerning the making of any
lump sum payment on the termination of employment of any employees listed on the
Supplier’s Provisional Supplier Personnel List;
1.5.5 increase or reduce the total number of employees so engaged, or deploy any other
person to perform the Services (or the relevant part of the Services); or
1.5.6 terminate or give notice to terminate the employment or contracts of any persons on
the Supplier’s Provisional Supplier Personnel List save by due disciplinary process,
and shall promptly notify, and procure that each Sub-Contractor shall promptly notify,
the Contracting Authority or, at the direction of the Contracting Authority, any
Replacement Supplier and any Replacement Sub-Contractor of any notice to terminate
employment given by the Supplier or relevant Sub-Contractor or received from any
persons listed on the Supplier’s Provisional Supplier Personnel List regardless of when
such notice takes effect.
1.6 During the Term, the Supplier shall provide, and shall procure that each Sub-Contractor
shall provide, to the Contracting Authority any information the Contracting Authority may
reasonably require relating to the manner in which Services are organised, which shall
include:
1.6.1 the numbers of employees engaged in providing the Services;
1.6.2 the percentage of time spent by each employee engaged in providing the Services; and
1.6.3 a description of the nature of the work undertaken by each employee by location.
1.7 The Supplier shall provide, and shall procure that each Sub-Contractor shall provide, all
reasonable cooperation and assistance to the Contracting Authority, any Replacement
Supplier and/or any Replacement Sub-Contractor to ensure the smooth transfer of the
Transferring Supplier Employees on the Service Transfer Date including providing sufficient
information in advance of the Service Transfer Date to ensure that all necessary payroll
arrangements can be made to enable the Transferring Supplier Employees to be paid as
appropriate. Without prejudice to the generality of the foregoing, within five (5) Working
Days following the Service Transfer Date, the Supplier shall provide, and shall procure that
each Sub-Contractor shall provide, to the Contracting Authority or, at the direction of the
Contracting Authority, to any Replacement Supplier and/or any Replacement Sub-
Contractor (as appropriate), in respect of each person on the Supplier’s Final Supplier
Personnel List who is a Transferring Supplier Employee:
1.7.1 the most recent month's copy pay slip data;
1.7.2 details of cumulative pay for tax and pension purposes;
1.7.3 details of cumulative tax paid;
1.7.4 tax code;
1.7.5 details of any voluntary deductions from pay; and
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1.7.6 bank/building society account details for payroll purposes.
2. EMPLOYMENT REGULATIONS EXIT PROVISIONS
2.1 The Contracting Authority and the Supplier acknowledge that subsequent to the
commencement of the provision of the Services, the identity of the provider of the
Services (or any part of the Services) may change (whether as a result of termination or
Partial Termination of this Call Off Contract or otherwise) resulting in the Services being
undertaken by a Replacement Supplier and/or a Replacement Sub-Contractor. Such
change in the identity of the Supplier of such Services may constitute a Relevant Transfer
to which the Employment Regulations and/or the Acquired Rights Directive will apply. The
Contracting Authority and the Supplier further agree that, as a result of the operation of
the Employment Regulations, where a Relevant Transfer occurs, the contracts of
employment between the Supplier and the Transferring Supplier Employees (except in
relation to any contract terms disapplied through operation of regulation 10(2) of the
Employment Regulations) will have effect on and from the Service Transfer Date as if
originally made between the Replacement Supplier and/or a Replacement Sub-Contractor
(as the case may be) and each such Transferring Supplier Employee.
2.2 The Supplier shall, and shall procure that each Sub-Contractor shall, comply with all its
obligations in respect of the Transferring Supplier Employees arising under the
Employment Regulations in respect of the period up to (but not including) the Service
Transfer Date and shall perform and discharge, and procure that each Sub-Contractor shall
perform and discharge, all its obligations in respect of all the Transferring Supplier
Employees arising in respect of the period up to (and including) the Service Transfer Date
(including the payment of all remuneration, benefits, entitlements and outgoings, all
wages, accrued but untaken holiday pay, bonuses, commissions, payments of PAYE,
national insurance contributions and pension contributions which in any case are
attributable in whole or in part to the period ending on (and including) the Service
Transfer Date) and any necessary apportionments in respect of any periodic payments
shall be made between: (i) the Supplier and/or the Sub-Contractor (as appropriate); and
(ii) the Replacement Supplier and/or Replacement Sub-Contractor.
2.3 Subject to Paragraph 2.4, where a Relevant Transfer occurs the Supplier shall indemnify
the Contracting Authority and/or the Replacement Supplier and/or any Replacement Sub-
Contractor against any Employee Liabilities in respect of any Transferring Supplier
Employee (or, where applicable any employee representative as defined in the
Employment Regulations) arising from or as a result of:
2.3.1 any act or omission of the Supplier or any Sub-Contractor whether occurring before, on
or after the Service Transfer Date;
2.3.2 the breach or non-observance by the Supplier or any Sub-Contractor occurring on or
before the Service Transfer Date of:
(a) any collective agreement applicable to the Transferring Supplier
Employees; and/or
(b) any other custom or practice with a trade union or staff association
in respect of any Transferring Supplier Employees which the Supplier
or any Sub-Contractor is contractually bound to honour;
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2.3.3 any claim by any trade union or other body or person representing any Transferring
Supplier Employees arising from or connected with any failure by the Supplier or a Sub-
Contractor to comply with any legal obligation to such trade union, body or person arising on
or before the Service Transfer Date;
2.3.4 any proceeding, claim or demand by HMRC or other statutory authority in respect of
any financial obligation including, but not limited to, PAYE and primary and secondary
national insurance contributions:
(a) in relation to any Transferring Supplier Employee, to the extent that
the proceeding, claim or demand by HMRC or other statutory
authority relates to financial obligations arising on and before the
Service Transfer Date; and
(b) in relation to any employee who is not a Transferring Supplier
Employee, and in respect of whom it is later alleged or determined
that the Employment Regulations applied so as to transfer his/her
employment from the Supplier to the Contracting Authority and/or
Replacement Supplier and/or any Replacement Sub-Contractor, to
the extent that the proceeding, claim or demand by HMRC or other
statutory authority relates to financial obligations arising on or
before the Service Transfer Date;
2.3.5 a failure of the Supplier or any Sub-Contractor to discharge or procure the discharge of
all wages, salaries and all other benefits and all PAYE tax deductions and national insurance
contributions relating to the Transferring Supplier Employees in respect of the period up to
(and including) the Service Transfer Date);
2.3.6 any claim made by or in respect of any person employed or formerly employed by the
Supplier or any Sub-Contractor other than a Transferring Supplier Employee for whom it is
alleged the Contracting Authority and/or the Replacement Supplier and/or any Replacement
Sub-Contractor may be liable by virtue of this Call Off Contract and/or the Employment
Regulations and/or the Acquired Rights Directive; and
2.3.7 any claim made by or in respect of a Transferring Supplier Employee or any appropriate
employee representative (as defined in the Employment Regulations) of any Transferring
Supplier Employee relating to any act or omission of the Supplier or any Sub-Contractor in
relation to its obligations under regulation 13 of the Employment Regulations, except to the
extent that the liability arises from the failure by the Contracting Authority and/or
Replacement Supplier to comply with regulation 13(4) of the Employment Regulations.
2.4 The indemnities in Paragraph 2.3 shall not apply to the extent that the Employee
Liabilities arise or are attributable to an act or omission of the Replacement Supplier
and/or any Replacement Sub-Contractor whether occurring or having its origin before, on
or after the Service Transfer Date, including any Employee Liabilities:
2.4.1 arising out of the resignation of any Transferring Supplier Employee before the Service
Transfer Date on account of substantial detrimental changes to his/her working conditions
proposed by the Replacement Supplier and/or any Replacement Sub-Contractor to occur in
the period on or after the Service Transfer Date; or
2.4.2 arising from the Replacement Supplier’s failure, and/or Replacement Sub-Contractor’s
failure, to comply with its obligations under the Employment Regulations.
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2.5 If any person who is not a Transferring Supplier Employee claims, or it is determined in
relation to any person who is not a Transferring Supplier Employee, that his/her contract
of employment has been transferred from the Supplier or any Sub-Contractor to the
Replacement Supplier and/or Replacement Sub-Contractor pursuant to the Employment
Regulations or the Acquired Rights Directive, then:
2.5.1 the Contracting Authority shall procure that the Replacement Supplier shall, or any
Replacement Sub-Contractor shall, within five (5) Working Days of becoming aware of that
fact, give notice in writing to the Supplier; and
2.5.2 the Supplier may offer (or may procure that a Sub-Contractor may offer) employment to
such person within fifteen (15) Working Days of the notification by the Replacement Supplier
and/or any and/or Replacement Sub-Contractor or take such other reasonable steps as it
considers appropriate to deal with the matter provided always that such steps are in
compliance with Law.
2.6 If such offer is accepted, or if the situation has otherwise been resolved by the Supplier
or a Sub-Contractor, the Contracting Authority shall procure that the Replacement
Supplier shall, or procure that the Replacement Sub-Contractor shall, immediately release
or procure the release of the person from his/her employment or alleged employment.
2.7 If after the fifteen (15) Working Day period specified in Paragraph 2.5.2 has elapsed:
2.7.1 no such offer of employment has been made;
2.7.2 such offer has been made but not accepted; or
2.7.3 the situation has not otherwise been resolved
the Contracting Authority shall advise the Replacement Supplier and/or Replacement
Sub-Contractor, as appropriate that it may within five (5) Working Days give notice to
terminate the employment or alleged employment of such person.
2.8 Subject to the Replacement Supplier and/or Replacement Sub-Contractor acting in
accordance with the provisions of Paragraphs 2.5 to 2.7, and in accordance with all
applicable proper employment procedures set out in applicable Law, the Supplier shall
indemnify the Replacement Supplier and/or Replacement Sub-Contractor against all
Employee Liabilities arising out of the termination pursuant to the provisions of
Paragraph 2.7 provided that the Replacement Supplier takes, or shall procure that the
Replacement Sub-Contractor takes, all reasonable steps to minimise any such Employee
Liabilities.
2.9 The indemnity in Paragraph 2.8:
2.9.1 shall not apply to:
(a) any claim for:
(i) discrimination, including on the grounds of sex, race, disability,
age, gender reassignment, marriage or civil partnership,
pregnancy and maternity or sexual orientation, religion or
belief; or
(ii) equal pay or compensation for less favourable treatment of
part-time workers or fixed-term employees,
in any case in relation to any alleged act or omission of the
Replacement Supplier and/or Replacement Sub-Contractor; or
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(b) any claim that the termination of employment was unfair because
the Replacement Supplier and/or Replacement Sub-Contractor
neglected to follow a fair dismissal procedure; and
2.9.2 shall apply only where the notification referred to in Paragraph 2.5.1 is made by the
Replacement Supplier and/or Replacement Sub-Contractor to the Supplier within six
(6) months of the Service Transfer Date.
2.10 If any such person as is described in Paragraph 2.5 is neither re-employed by the
Supplier or any Sub-Contractor nor dismissed by the Replacement Supplier and/or
Replacement Sub-Contractor within the time scales set out in Paragraphs 2.5 to 2.7, such
person shall be treated as a Transferring Supplier Employee and the Replacement Supplier
and/or Replacement Sub-Contractor shall comply with such obligations as may be imposed
upon it under applicable Law.
2.11 The Supplier shall comply, and shall procure that each Sub-Contractor shall comply, with
all its obligations under the Employment Regulations and shall perform and discharge, and
shall procure that each Sub-Contractor shall perform and discharge, all its obligations in
respect of the Transferring Supplier Employees before and on the Service Transfer Date
(including the payment of all remuneration, benefits, entitlements and outgoings, all
wages, accrued but untaken holiday pay, bonuses, commissions, payments of PAYE,
national insurance contributions and pension contributions which in any case are
attributable in whole or in part in respect of the period up to (and including) the Service
Transfer Date) and any necessary apportionments in respect of any periodic payments
shall be made between:
2.11.1 the Supplier and/or any Sub-Contractor; and
2.11.2 the Replacement Supplier and/or the Replacement Sub-Contractor.
2.12 The Supplier shall, and shall procure that each Sub-Contractor shall, promptly provide to
the Contracting Authority and any Replacement Supplier and/or Replacement Sub-
Contractor, in writing such information as is necessary to enable the Contracting
Authority, the Replacement Supplier and/or Replacement Sub-Contractor to carry out
their respective duties under regulation 13 of the Employment Regulations. The
Contracting Authority shall procure that the Replacement Supplier and/or Replacement
Sub-Contractor, shall promptly provide to the Supplier and each Sub-Contractor in writing
such information as is necessary to enable the Supplier and each Sub-Contractor to carry
out their respective duties under regulation 13 of the Employment Regulations.
2.13 Subject to Paragraph 2.14, where a Relevant Transfer occurs the Contracting Authority
shall procure that the Replacement Supplier indemnifies the Supplier on its own behalf
and on behalf of any Replacement Sub-Contractor and its sub-contractors against any
Employee Liabilities in respect of each Transferring Supplier Employee (or, where
applicable any employee representative (as defined in the Employment Regulations) of
any Transferring Supplier Employee) arising from or as a result of:
2.13.1 any act or omission of the Replacement Supplier and/or Replacement Sub-Contractor;
2.13.2 the breach or non-observance by the Replacement Supplier and/or Replacement Sub-
Contractor on or after the Service Transfer Date of:
(a) any collective agreement applicable to the Transferring Supplier
Employees; and/or
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(b) any custom or practice in respect of any Transferring Supplier
Employees which the Replacement Supplier and/or Replacement
Sub-Contractor is contractually bound to honour;
2.13.3 any claim by any trade union or other body or person representing any Transferring
Supplier Employees arising from or connected with any failure by the Replacement Supplier
and/or Replacement Sub-Contractor to comply with any legal obligation to such trade union,
body or person arising on or after the Relevant Transfer Date;
2.13.4 any proposal by the Replacement Supplier and/or Replacement Sub-Contractor to
change the terms and conditions of employment or working conditions of any Transferring
Supplier Employees on or after their transfer to the Replacement Supplier or Replacement
Sub-Contractor (as the case may be) on the Relevant Transfer Date, or to change the terms
and conditions of employment or working conditions of any person who would have been a
Transferring Supplier Employee but for their resignation (or decision to treat their
employment as terminated under regulation 4(9) of the Employment Regulations) before the
Relevant Transfer Date as a result of or for a reason connected to such proposed changes;
2.13.5 any statement communicated to or action undertaken by the Replacement Supplier or
Replacement Sub-Contractor to, or in respect of, any Transferring Supplier Employee on or
before the Relevant Transfer Date regarding the Relevant Transfer which has not been
agreed in advance with the Supplier in writing;
2.13.6 any proceeding, claim or demand by HMRC or other statutory authority in respect of
any financial obligation including, but not limited to, PAYE and primary and secondary
national insurance contributions:
(a) in relation to any Transferring Supplier Employee, to the extent that
the proceeding, claim or demand by HMRC or other statutory
authority relates to financial obligations arising after the Service
Transfer Date; and
(b) in relation to any employee who is not a Transferring Supplier
Employee, and in respect of whom it is later alleged or determined
that the Employment Regulations applied so as to transfer his/her
employment from the Supplier or Sub-Contractor, to the
Replacement Supplier or Replacement Sub-Contractor to the extent
that the proceeding, claim or demand by HMRC or other statutory
authority relates to financial obligations arising after the Service
Transfer Date;
2.13.7 a failure of the Replacement Supplier or Replacement Sub-Contractor to discharge or
procure the discharge of all wages, salaries and all other benefits and all PAYE tax deductions
and national insurance contributions relating to the Transferring Supplier Employees in
respect of the period from (and including) the Service Transfer Date; and
2.13.8 any claim made by or in respect of a Transferring Supplier Employee or any appropriate
employee representative (as defined in the Employment Regulations) of any Transferring
Supplier Employee relating to any act or omission of the Replacement Supplier or
Replacement Sub-Contractor in relation to obligations under regulation 13 of the
Employment Regulations.
2.14 The indemnities in Paragraph 2.13 shall not apply to the extent that the Employee
Liabilities arise or are attributable to an act or omission of the Supplier and/or any Sub-
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Contractor (as applicable) whether occurring or having its origin before, on or after the
Relevant Transfer Date, including any Employee Liabilities arising from the failure by the
Supplier and/or any Sub-Contractor (as applicable) to comply with its obligations under
the Employment Regulations.
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ANNEX TO SCHEDULE 10: LIST OF NOTIFIED SUB-CONTRACTORS
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CALL OFF SCHEDULE 11: DISPUTE RESOLUTION PROCEDURE
1. DEFINITIONS
1.1 In this Call Off Schedule 11, the following definitions shall apply:
"CEDR"
the Centre for Effective Dispute Resolution of
International Dispute Resolution Centre, 70
Fleet Street, London, EC4Y 1EU;
"Counter Notice"
has the meaning given to it in paragraph 6.2 of
this Call Off Schedule 11;
"Exception"
a deviation of project tolerances in accordance
with PRINCE2 methodology in respect of this
Call Off Contract or in the supply of the
Services;
"Expert"
the person appointed by the Parties in
accordance with paragraph 5.2 of this Call Off
Schedule 11; and
"Mediation Notice"
has the meaning given to it in paragraph 3.2 of
this Call Off Schedule 11;
"Mediator"
the independent third party appointed in
accordance with paragraph 4.2 of this Call Off
Schedule 11.
2. INTRODUCTION
2.1 If a Dispute arises then:
2.1.1 the representative of the Contracting Authority and the Supplier Representative shall
attempt in good faith to resolve the Dispute; and
2.1.2 if such attempts are not successful within a reasonable time either Party may give to the
other a Dispute Notice.
2.2 The Dispute Notice shall set out:
2.2.1 the material particulars of the Dispute;
2.2.2 the reasons why the Party serving the Dispute Notice believes that the Dispute has
arisen; and
2.2.3 if the Party serving the Dispute Notice believes that the Dispute should be dealt with
under the Expedited Dispute Timetable as set out in paragraph 2.6 of this Call Off Schedule
11, the reason why.
2.3 Unless agreed otherwise in writing, the Parties shall continue to comply with their
respective obligations under this Call Off Contract regardless of the nature of the Dispute
and notwithstanding the referral of the Dispute to the Dispute Resolution Procedure.
2.4 Subject to paragraph 3.2 of this Call Off Schedule 11, the Parties shall seek to resolve
Disputes:
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2.4.1 first by commercial negotiation (as prescribed in paragraph 3 of this Call Off Schedule
11);
2.4.2 then by mediation (as prescribed in paragraph 4 of this Call Off Schedule 11); and
2.4.3 lastly by recourse to arbitration (as prescribed in paragraph 6 of this Call Off Schedule
11) or litigation (in accordance with Clause 57 of this Call Off Contract (Governing Law and
Jurisdiction)).
2.5 Specific issues shall be referred to Expert Determination (as prescribed in paragraph 5 of
this Call Off Schedule 11) where specified under the provisions of this Call Off Contract and
may also be referred to Expert Determination where otherwise appropriate as specified in
paragraph 5 of this Call Off Schedule 11.
2.6 In exceptional circumstances where the use of the times in this Call Off Schedule 11
would be unreasonable, including (by way of example) where one Party would be
materially disadvantaged by a delay in resolving the Dispute, the Parties may agree to use
the Expedited Dispute Timetable. If the Parties are unable to reach agreement on whether
to use of the Expedited Dispute Timetable within five (5) Working Days of the issue of the
Dispute Notice, the use of the Expedited Dispute Timetable shall be at the sole discretion
of the Contracting Authority.
2.7 If the use of the Expedited Dispute Timetable is determined in accordance with
paragraph 2.5 or is otherwise specified under the provisions of this Call Off Contract, then
the following periods of time shall apply in lieu of the time periods specified in the
applicable paragraphs:
2.7.1 in paragraph 3.2.3, ten (10) Working Days;
2.7.2 in paragraph 4.2, ten (10) Working Days;
2.7.3 in paragraph 5.2, five (5) Working Days; and
2.7.4 in paragraph 6.2, ten (10) Working Days.
2.8 If at any point it becomes clear that an applicable deadline cannot be met or has passed,
the Parties may (but shall be under no obligation to) agree in writing to extend the
deadline. Any agreed extension shall have the effect of delaying the start of the
subsequent stages by the period agreed in the extension.
3. COMMERCIAL NEGOTIATIONS
3.1 Following the service of a Dispute Notice, the Contracting Authority and the Supplier
shall use reasonable endeavours to resolve the Dispute as soon as possible, by discussion
between the Contracting Authority Representative and the Supplier Representative.
3.2 If:
3.2.1 either Party is of the reasonable opinion that the resolution of a Dispute by commercial
negotiation, or the continuance of commercial negotiations, will not result in an appropriate
solution;
3.2.2 the Parties have already held discussions of a nature and intent (or otherwise were
conducted in the spirit) that would equate to the conduct of commercial negotiations in
accordance with this paragraph 3 of this Call Off Schedule 11; or
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3.2.3 the Parties have not settled the Dispute in accordance with paragraph 3.1 of this Call Off
Schedule 11 within thirty (30) Working Days of service of the Dispute Notice,
either Party may serve a written notice to proceed to mediation (a “Mediation Notice”) in
accordance with paragraph 4 of this Call Off Schedule 11.
4. MEDIATION
4.1 If a Mediation Notice is served, the Parties shall attempt to resolve the dispute in
accordance with CEDR's Model Mediation Agreement which shall be deemed to be
incorporated by reference into this Call Off Contract.
4.2 If the Parties are unable to agree on the joint appointment of a Mediator within thirty
(30) Working Days from service of the Mediation Notice then either Party may apply to
CEDR to nominate the Mediator.
4.3 If the Parties are unable to reach a settlement in the negotiations at the mediation, and
only if the Parties so request and the Mediator agrees, the Mediator shall produce for the
Parties a non-binding recommendation on terms of settlement. This shall not attempt to
anticipate what a court might order but shall set out what the Mediator suggests are
appropriate settlement terms in all of the circumstances.
4.4 Any settlement reached in the mediation shall not be legally binding until it has been
reduced to writing and signed by, or on behalf of, the Parties (in accordance with the
Variation Procedure where appropriate). The Mediator shall assist the Parties in recording
the outcome of the mediation.
5. EXPERT DETERMINATION
5.1 If a Dispute relates to any aspect of the technology underlying the provision of the
Services or otherwise relates to a financial technical or other aspect of a technical nature
(as the Parties may agree) and the Dispute has not been resolved by discussion or
mediation, then either Party may request (which request will not be unreasonably
withheld or delayed) by written notice to the other that the Dispute is referred to an
Expert for determination.
5.2 The Expert shall be appointed by agreement in writing between the Parties, but in the
event of a failure to agree within ten (10) Working Days, or if the person appointed is
unable or unwilling to act, the Expert shall be appointed on the instructions of the relevant
professional body.
5.3 The Expert shall act on the following basis:
5.3.1 he/she shall act as an expert and not as an arbitrator and shall act fairly and impartially;
5.3.2 the Expert's determination shall (in the absence of a material failure to follow the
agreed procedures) be final and binding on the Parties;
5.3.3 the Expert shall decide the procedure to be followed in the determination and shall be
requested to make his/her determination within thirty (30) Working Days of his appointment
or as soon as reasonably practicable thereafter and the Parties shall assist and provide the
documentation that the Expert requires for the purpose of the determination;
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5.3.4 any amount payable by one Party to another as a result of the Expert's determination
shall be due and payable within twenty (20) Working Days of the Expert's determination
being notified to the Parties;
5.3.5 the process shall be conducted in private and shall be confidential; and
5.3.6 the Expert shall determine how and by whom the costs of the determination, including
his/her fees and expenses, are to be paid.
6. ARBITRATION
6.1 The Contracting Authority may at any time before court proceedings are commenced
refer the Dispute to arbitration in accordance with the provisions of paragraph 6.4 of this
Call Off Schedule 11.
6.2 Before the Supplier commences court proceedings or arbitration, it shall serve written
notice on the Contracting Authority of its intentions and the Contracting Authority shall
have fifteen (15) Working Days following receipt of such notice to serve a reply (a
“Counter Notice”) on the Supplier requiring the Dispute to be referred to and resolved by
arbitration in accordance with paragraph 6.4 of this Call Off Schedule 11 or be subject to
the jurisdiction of the courts in accordance with Clause 57 of this Call Off Contract
(Governing Law and Jurisdiction). The Supplier shall not commence any court proceedings
or arbitration until the expiry of such fifteen (15) Working Day period.
6.3 If:
6.3.1 the Counter Notice requires the Dispute to be referred to arbitration, the provisions of
paragraph 6.4 of this Call Off Schedule 11 shall apply;
6.3.2 the Counter Notice requires the Dispute to be subject to the exclusive jurisdiction of the
courts in accordance with Clause 61 of this Call Off Contract (Governing Law and
Jurisdiction), the Dispute shall be so referred to the courts and the Supplier shall not
commence arbitration proceedings;
6.3.3 the Contracting Authority does not serve a Counter Notice within the fifteen
(15) Working Days period referred to in paragraph 6.2 of this Call Off Schedule 11, the
Supplier may either commence arbitration proceedings in accordance with paragraph 6.4 of
this Call Off Schedule 11 or commence court proceedings in the courts in accordance with
Clause 57 of this Call Off Contract (Governing Law and Jurisdiction) which shall (in those
circumstances) have exclusive jurisdiction.
6.4 In the event that any arbitration proceedings are commenced pursuant to
paragraphs 6.1 to 6.3 of this Call Off Schedule 11, the Parties hereby confirm that:
6.4.1 all disputes, issues or claims arising out of or in connection with this Call Off Contract
(including as to its existence, validity or performance) shall be referred to and finally
resolved by arbitration under the Rules of the London Court of International Arbitration
(“LCIA”) (subject to paragraphs 6.4.5 to 6.4.7 of this Call Off Schedule 11);
6.4.2 the arbitration shall be administered by the LCIA;
6.4.3 the LCIA procedural rules in force at the date that the Dispute was referred to
arbitration shall be applied and are deemed to be incorporated by reference into this Call Off
Contract and the decision of the arbitrator shall be binding on the Parties in the absence of
any material failure to comply with such rules;
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6.4.4 if the Parties fail to agree the appointment of the arbitrator within ten (10) days from
the date on which arbitration proceedings are commenced or if the person appointed is
unable or unwilling to act, the arbitrator shall be appointed by the LCIA;
6.4.5 the chair of the arbitral tribunal shall be British;
6.4.6 the arbitration proceedings shall take place in London and in the English language; and
6.4.7 the seat of the arbitration shall be London.
7. URGENT RELIEF
7.1 Either Party may at any time take proceedings or seek remedies before any court or
tribunal of competent jurisdiction:
7.1.1 for interim or interlocutory remedies in relation to this Call Off Contract or infringement
by the other Party of that Party’s Intellectual Property Rights; and/or
7.1.2 where compliance with paragraph 2.1 of this Call Off Schedule 11 and/or referring the
Dispute to mediation may leave insufficient time for that Party to commence proceedings
before the expiry of the limitation period.
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CALL OFF SCHEDULE 12: VARIATION FORM
No of Call Off Order Form being varied:
……………………………………………………………………
Variation Form No:
……………………………………………………………………………………
BETWEEN:
[insert name of Contracting Authority] ("the Contracting Authority")
and
[insert name of Supplier] ("the Supplier")
1. This Call Off Contract is varied as follows and shall take effect on the date signed by both
Parties:
[Insert details of the Variation]
2. Words and expressions in this Variation shall have the meanings given to them in this Call Off
Contract.
3. This Call Off Contract, including any previous Variations, shall remain effective and unaltered
except as amended by this Variation.
Signed by an authorised signatory for and on behalf of the Contracting Authority
Signature
Date
Name (in
Capitals)
Address
Signed by an authorised signatory to sign for and on behalf of the Supplier
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Signature
Date
Name (in
Capitals)
Address
203
CALL OFF SCHEDULE 13: TRANSPARENCY REPORTS
1.1 Within three (3) months from the Call Off Commencement Date or the date so specified by
the Contracting Authority in the Call Off Order Form the Supplier shall provide to the
Contracting Authority for Approval (the Contracting Authority’s decision to approve or not
shall not be unreasonably withheld or delayed) draft Transparency Reports consistent with
the content and format requirements in Annex 1 below.
1.2 If the Contracting Authority rejects any proposed Transparency Report, the Supplier shall
submit a revised version of the relevant report for further Approval by the Contracting
Authority within five (5) days of receipt of any notice of rejection, taking account of any
recommendations for revision and improvement to the report provided by the Contracting
Authority. This process shall be repeated until the Parties have agreed versions of each
Transparency Report.
1.3 The Supplier shall provide accurate and up-to-date versions of each Transparency Report to
the Contracting Authority at the frequency referred to in Annex 1 of this Call Off Schedule 13
below.
1.4 Any Dispute in connection with the preparation and/or approval of Transparency Reports
shall be resolved in accordance with the Dispute Resolution Procedure.
1.5 The requirements in this Schedule 13 are in addition to any other reporting requirements in
this Call Off Contract.
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ANNEX 1: LIST OF TRANSPARENCY REPORTS
Title of Report
Content
Format
Frequency
[Headline service
performance]
[ ]
[ ]
[ ]
[Call Off Contract Charges]
[ ]
[ ]
[ ]
[Key Sub-Contractors]
[ ]
[ ]
[ ]
[Technical]
[ ]
[ ]
[ ]
[Performance management
arrangements]
[ ]
[ ]
[ ]
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CALL OFF SCHEDULE 14: ALTERNATIVE AND/OR ADDITIONAL CLAUSES
1. INTRODUCTION
1.1 This Call Off Schedule 14 specifies the range of Alternative Clauses and Additional
Clauses that may be requested in the Call Off Order Form and, if requested in the Call Off
Order Form, shall apply to this Call Off Contract.
2. CLAUSES SELECTED
2.1 The Customer may, in the Call Off Order Form, request the following Alternative
Clauses:
2.1.1 Scots Law (see paragraph 4.1 of this Call Off Schedule 14);
2.1.2 Northern Ireland Law (see paragraph 4.2 of this Call Off Schedule 14);
2.1.3 Non-FOIA Public Bodies (see paragraph Error! Reference source not found. of this Call
Off Schedule 14).
2.2 The Customer may, in the Call Off Order Form, request the following Additional Clauses
should apply:
2.2.1 Security Measures (see paragraph 5.1 of this Call Off Schedule 14).
3. IMPLEMENTATION
3.1 The appropriate changes have been made in this Call Off Contract to implement the
Alternative and/or Additional Clauses specified in paragraph 2.1 of this Call Off Schedule
14 and the Additional Clauses specified in paragraphs 2.2 and 2.2.1 of this Call Off
Schedule 14 shall be deemed to be incorporated into this Call Off Contract.
4. ALTERNATIVE CLAUSES
4.1 SCOTS LAW
4.1.1 Law and Jurisdiction (Clause 57)
(a) References to “England and Wales” in the original Clause 57 of this
Call Off Contract (Law and Jurisdiction) shall be replaced with
“Scotland”.
(b) Where legislation is expressly mentioned in this Call Off Contract the
adoption of Clause 4.1.1 (a) shall have the effect of substituting the
equivalent Scots legislation.
4.2 NORTHERN IRELAND LAW
4.2.1 Law and Jurisdiction (Clause 57)
(a) References to “England and Wales” in the original Clause 57 of this
Call Off Contract (Law and Jurisdiction) shall be replaced with
“Northern Ireland”.
(b) Where legislation is expressly mentioned in this Call Off Contract the
adoption of Clause 4.1.1(a) shall have the effect of substituting the
equivalent Northern Ireland legislation.
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4.2.2 Insolvency Event
In Call Off Schedule 1 (Definitions), reference to “section 123 of the
Insolvency Act 1986" in limb f) of the definition of Insolvency Event shall be
replaced with “Article 103 of the Insolvency (NI) Order 1989”.
5. ADDITIONAL CLAUSES: GENERAL
5.1 SECURITY MEASURES
5.1.1 The following definitions to be added to Call Off Schedule 1 (Definitions) to the Call Off
Order Form and the Call Off Terms:
"Document" includes specifications, plans, drawings, photographs and
books;
"Secret Matter" means any matter connected with or arising out of the
performance of this Call Off Contract which has been, or may hereafter be,
by a notice in writing given by the Customer to the Supplier be designated
'top secret', 'secret', or 'confidential';
"Servant" where the Supplier is a body corporate shall include a director of
that body and any person occupying in relation to that body the position of
director by whatever name called.
5.1.2 The following new Clause [58] shall apply:
58. [SECURITY MEASURES]
58.1. The Supplier shall not, either before or after the completion or termination
of this Call Off Contract, do or permit to be done anything which it knows
or ought reasonably to know may result in information about a secret
matter being:
58.1.1. without the prior consent in writing of the Customer, disclosed to
or acquired by a person who is an alien or who is a British subject
by virtue only of a certificate of naturalisation in which his name
was included;
58.1.2. disclosed to or acquired by a person as respects whom the
Customer has given to the Supplier a notice in writing which has
not been cancelled stating that the Customer requires that secret
matters shall not be disclosed to that person;
58.1.3. without the prior consent in writing of the Customer, disclosed to
or acquired by any person who is not a servant of the Supplier; or
58.1.4. disclosed to or acquired by a person who is an employee of the
Supplier except in a case where it is necessary for the proper
performance of this Call Off Contract that such person shall have
the information.
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58.2. Without prejudice to the provisions of Clause 58.1, the Supplier shall, both
before and after the completion or termination of this Call Off Contract,
take all reasonable steps to ensure:
58.2.1. no such person as is mentioned in Clauses 58.1, 58.1.1 or 58.1.2
hereof shall have access to any item or document under the
control of the Supplier containing information about a secret
matter except with the prior consent in writing of the Customer;
58.2.2. that no visitor to any premises in which there is any item to be
supplied under this Call Off Contract or where Goods and/or
Services are being supplied shall see or discuss with the Supplier or
any person employed by him any secret matter unless the visitor is
authorised in writing by the Customer so to do;
58.2.3. that no photograph of any item to be supplied under this Call Off
Contract or any portions of the Goods and/or Services shall be
taken except insofar as may be necessary for the proper
performance of this Call Off Contract or with the prior consent in
writing of the Customer, and that no such photograph shall,
without such consent, be published or otherwise circulated;
58.2.4. that all information about any secret matter and every document
model or other item which contains or may reveal any such
information is at all times strictly safeguarded, and that, except
insofar as may be necessary for the proper performance of this
Call Off Contract or with the prior consent in writing of the
Customer, no copies of or extracts from any such document,
model or item shall be made or used and no designation of
description which may reveal information about the nature or
contents of any such document, model or item shall be placed
thereon; and
58.2.5. that if the Customer gives notice in writing to the Supplier at any
time requiring the delivery to the Customer of any such document,
model or item as is mentioned in Clause 58.2.3, that document,
model or item (including all copies of or extracts therefrom) shall
forthwith be delivered to the Customer who shall be deemed to be
the owner thereof and accordingly entitled to retain the same.
58.3. The decision of the Customer on the question whether the Supplier has
taken or is taking all reasonable steps as required by the foregoing
provisions of Clause 58 shall be final and conclusive.
58.4. If and when directed by the Customer, the Supplier shall furnish full
particulars of all people who are at any time concerned with any secret
matter.
58.5. If and when directed by the Customer, the Supplier shall secure that any
person employed by it who is specified in the direction, or is one of a class
208
of people who may be so specified, shall sign a statement that he
understands that the Official Secrets Act, 1911 to 1989 and, where
applicable, the Atomic Energy Act 1946, apply to the person signing the
statement both during the carrying out and after expiry or termination of a
Call Off Contract.
58.6. If, at any time either before or after the expiry or termination of this Call
Off Contract, it comes to the notice of the Supplier that any person acting
without lawful authority is seeking or has sought to obtain information
concerning this Call Off Contract or anything done or to be done in
pursuance thereof, the matter shall be forthwith reported by the Supplier
to the Customer and the report shall, in each case, be accompanied by a
statement of the facts, including, if possible, the name, address and
occupation of that person, and the Supplier shall be responsible for making
all such arrangements as it may consider appropriate to ensure that if any
such occurrence comes to the knowledge of any person employed by it,
that person shall forthwith report the matter to the Supplier with a
statement of the facts as aforesaid.
58.7. The Supplier shall place every person employed by it, other than a Sub-
Contractor, who in its opinion has or will have such knowledge of any
secret matter as to appreciate its significance, under a duty to the Supplier
to observe the same obligations in relation to that matter as are imposed
on the Supplier by Clauses 58.1 and 58.2 and shall, if directed by the
Customer, place every person who is specified in the direction or is one of
a class of people so specified, under the like duty in relation to any secret
matter which may be specified in the direction, and shall at all times use its
best endeavours to ensure that every person upon whom obligations are
imposed by virtue of Clause 58 observes the said obligations, and the
Supplier shall give such instructions and information to every such person
as may be necessary for that purpose, and shall, immediately upon
becoming aware of any act or omission which is or would be a breach of
the said obligations, report the facts to the Supplier with all necessary
particulars.
58.8. The Supplier shall, if directed by the Customer, include in the Sub-Contract
provisions in such terms as the Customer may consider appropriate for
placing the Sub-Contractor under obligations in relation to secrecy and
security corresponding to those placed on the Supplier by Clause 58, but
with such variations (if any) as the Customer may consider necessary.
Further the Supplier shall:
58.8.1. give such notices, directions, requirements and decisions to its
Sub-Contractors as may be necessary to bring the provisions
relating to secrecy and security which are included in Sub-
Contracts under Clause 58 into operation in such cases and to such
extent as the Customer may direct;
58.8.2. if there comes to its notice any breach by the Sub-Contractor of
the obligations of secrecy and security included in their Sub-
209
Contracts in pursuance of Clause 58, notify such breach forthwith
to the Customer; and
58.8.3. if and when so required by the Customer, exercise its power to
determine the Sub-Contract under the provision in that Sub-
Contract which corresponds to Clause 58.11.
58.9. The Supplier shall give the Customer such information and particulars as
the Customer may from time to time require for the purposes of satisfying
the Customer that the obligations imposed by or under the foregoing
provisions of Clause 58 have been and are being observed and as to what
the Supplier has done or is doing or proposes to do to secure the
observance of those obligations and to prevent any breach thereof, and
the Supplier shall secure that a representative of the Customer duly
authorised in writing shall be entitled at reasonable times to enter and
inspect any premises in which anything is being done or is to be done
under this Call Off Contract or in which there is or will be any item to be
supplied under this Call Off Contract, and also to inspect any document or
item in any such premises or which is being made or used for the purposes
of this Call Off Contract and that any such representative shall be given all
such information as he may require on the occasion of, or arising out of,
any such inspection.
58.10. Nothing in Clause 58 shall prevent any person from giving any information
or doing anything on any occasion when it is, by virtue of any enactment,
the duty of that person to give that information or do that thing.
58.11. If the Customer shall consider that any of the following events has
occurred:
58.11.1. that the Supplier has committed a breach of, or failed to comply
with any of, the foregoing provisions of Clause 58; or
58.11.2. that the Supplier has committed a breach of any obligations in
relation to secrecy or security imposed upon it by any other
contract with the Customer, or with any department or person
acting on behalf of the Crown; or
58.11.3. that by reason of an act or omission on the part of the Supplier, or
of a person employed by the Supplier, which does not constitute
such a breach or failure as is mentioned in 58.11.2, information
about a secret matter has been or is likely to be acquired by a
person who, in the opinion of the Customer, ought not to have
such information;
and shall also decide that the interests of the State require the
termination of this Call Off Contract, the Customer may by notice in
writing terminate this Call Off Contract forthwith.
210
58.12. A decision of the Customer to terminate this Call Off Contract in
accordance with the provisions of Clause 58.11 shall be final and
conclusive and it shall not be necessary for any notice of such termination
to specify or refer in any way to the event or considerations upon which
the Customer's decision is based.
58.13. Suppliers notice
58.13.1. The Supplier may within five (5) Working Days of the termination
of this Call Off Contract in accordance with the provisions of
Clause 58.11, give the Customer notice in writing requesting the
Customer to state whether the event upon which the Customer's
decision to terminate was based is an event mentioned in Clauses
58.11, 58.11.1 or 58.11.2 and to give particulars of that event; and
58.13.2. the Customer shall within ten (10) Working Days of the receipt of
such a request give notice in writing to the Supplier containing
such a statement and particulars as are required by the request.
58.14. Matters pursuant to termination
58.14.1. The termination of this Call Off Contract pursuant to Clause 58.11
shall be without prejudice to any rights of either party which shall
have accrued before the date of such termination;
58.14.2. The Supplier shall be entitled to be paid for any work or thing done
under this Call Off Contract and accepted but not paid for by the
Customer at the date of such termination either at the price which
would have been payable under this Call Off Contract if this Call
Off Contract had not been terminated, or at a reasonable price;
58.14.3. The Customer may take over any work or thing done or made
under this Call Off Contract (whether completed or not) and not
accepted at the date of such termination which the Customer may
by notice in writing to the Supplier given within thirty (30) Working
Days from the time when the provisions of Clause 58 shall have
effect, elect to take over, and the Supplier shall be entitled to be
paid for any work or thing so taken over a price which, having
regard to the stage which that work or thing has reached and its
condition at the time it is taken over, is reasonable. The Supplier
shall in accordance with directions given by the Customer, deliver
any work or thing taken over under this Clause, and take all such
other steps as may be reasonably necessary to enable the
Customer to have the full benefit of any work or thing taken over
under this Clause; and
58.14.4. Save as aforesaid, the Supplier shall not be entitled to any
payment from the Customer after the termination of this Call Off
Contract
211
58.15. If, after notice of termination of this Call Off Contract pursuant to the
provisions of 58.11:
58.15.1. the Customer shall not within ten (10) Working Days of the receipt
of a request from the Supplier, furnish such a statement and
particulars as are detailed in Clause 58.13.1; or
58.15.2. the Customer shall state in the statement and particulars detailed
in Clause 58.13.2. that the event upon which the Customer's
decision to terminate this Call Off Contract was based is an event
mentioned in Clause 58.11.3,
the respective rights and obligations of the Supplier and the Customer
shall be terminated in accordance with the following provisions:
58.15.3. the Customer shall take over from the Supplier at a fair and
reasonable price all unused and undamaged materials, bought-out
parts and components and articles in course of manufacture in the
possession of the Supplier upon the termination of this Call Off
Contract under the provisions of Clause 58.11 and properly
provided by or supplied to the Supplier for the performance of this
Call Off Contract, except such materials, bought-out parts and
components and articles in course of manufacture as the Supplier
shall, with the concurrence of the Customer, elect to retain;
58.15.4. the Supplier shall prepare and deliver to the Customer within an
agreed period or in default of agreement within such period as the
Customer may specify, a list of all such unused and undamaged
materials, bought-out parts and components and articles in course
of manufacture liable to be taken over by or previously belonging
to the Customer and shall deliver such materials and items in
accordance with the directions of the Customer who shall pay to
the Supplier fair and reasonable handling and delivery charges
incurred in complying with such directions;
58.15.5. the Customer shall indemnify the Supplier against any
commitments, liabilities or expenditure which are reasonably and
properly chargeable by the Supplier in connection with this Call Off
Contract to the extent to which the said commitments, liabilities
or expenditure would otherwise represent an unavoidable loss by
the Supplier by reason of the termination of this Call Off Contract;
58.15.6. if hardship to the Supplier should arise from the operation of
Clause 58.15 it shall be open to the Supplier to refer the
circumstances to the Customer 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 Customer on any matter
arising out of this Clause 58.15 shall be final and conclusive; and
212
58.15.7. subject to the operation of Clauses 58.15.3, 58.15.4, 58.15.5 and
58.15.6 termination of this Call Off Contract shall be without
prejudice to any rights of either party that may have accrued
before the date of such termination.
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CALL OFF SCHEDULE 15: CALL OFF TENDER
[TO BE INSERTED FOLLOWING RECEIPT OF TENDER.]
214
CALL OFF SCHEDULE 16: DATA PROCESSING
1. FURTHER INSTRUCTIONS
1.1 The Supplier shall comply with any further written instructions with respect to
processing by the Supplier.
1.2 Any such further instructions shall be deemed to be incorporated into this Schedule.
2. PROCESSING PERSONAL DATA
Description
Details
Subject matter of the
processing
High level, short description of what the processing is
about i.e. its subject matter
Duration of the
processing
Duration of the processing including dates
Nature and purposes of the
processing
E.g. The nature of the processing means any operation
such as collection, recording, organisation, structuring,
storage, adaptation or alteration, retrieval, consultation,
use, disclosure by transmission, dissemination or
otherwise making available, alignment or combination,
restriction, erasure or destruction of data (whether or not
by automated means) etc.
The purpose might include: employment
processing, statutory obligation, recruitment
assessment etc
Type of Personal Data
Name, address, date of birth, NI number, telephone number,
pay, images, biometric data etc.
Categories of Data
Subject
Staff (including volunteers, agents, and temporary workers),
customers clients, suppliers, patients, students pupils,
members of the public, users of a particular website etc.
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Plan for return and
destruction of the data
once the processing is
complete UNLESS
requirement under union
or member state law to
preserve that type of
data
How long the data will be retained for, and how it will be
returned or destroyed
