Central Procurement Directorate
Supplies and Services Division
ICT Conditions of Contract
SERVICES
DFP- IT Assist – Maintenance and Support of the NICS Data Network and Telecom Equipment.
Project _13132
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CENTRAL PROCUREMENT DIRECTORATE
Supplies and Services Division
Conditions of Contract
For
ICT SERVICES
Relating to
Title:DFP- IT Assist – Maintenance and Support of the NICS Data Network and Telecom Equipment.
Project Ref No: 13132
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ContentsPage
1.GENERALPROVISIONS
1.1Definitions and Interpretation
1.2Initial ContractPeriod
1.3Contractor’sStatus
1.4Client’sObligations
1.5Notices
1.6Mistakes in Information
1.7Conflicts ofInterest
2SUPPLY OF SERVICES
2.1TheServices
2.2Provision and Removal of Equipment
2.3Manner of Carrying Out theServices
2.4KeyPersonnel
2.5Contractor’sStaff
2.6Contract Management
2.7Inspectionof Premises
2.8Licence to Occupy Premises
2.9Property
2.10Offers of Employment
2.11TUPE
3.PAYMENT ANDCONTRACT PRICE
3.1ContractPrice
3.2Paymentand VAT
3.3Recovery ofSums Due
3.4Price Adjustment on Extension of the Initial Contract Period
3.5Changeof Law
4STATUTORY OBLIGATIONS AND REGULATIONS
4.1Preventionof Corruption
4.2Prevention ofFraud
4.3Discrimination
4.3AEquality Policies and Practices
4.3BEquality
4.4The Contracts (Rights of Third Parties) Act 1999
4.5Sustainable Development Requirements &Social Clauses
4.6HealthandSafety
5PROTECTIONOFINFORMATION
5.1Data Protection Act
5.2Client Data
5.3Official Secrets Act 1911 to 1989, S182 of the Finance Act 1989
5,4Confidential Information
5.5Freedom of Information
5.6Publicity, Media and Official Enquiries
5.7Security
5.8Intellectual Property Rights
5.9Licence Terms
5.10Escrow
5.11Audit
6CONTROL OFTHE CONTRACT
6.1Transfer andSub-Contracting
6.2Waiver
6.3Variation
6.4Severability
6.5Remedies in the Event ofInadequate Performance
6.6Remedies Cumulative
6.7Monitoringof ContractPerformance
6.8Extension ofInitial Contract Period
6.9EntireAgreement
6.10Counterparts
7LIABILITIES
7.1Liability, IndemnityandInsurance
7.2Professional Indemnity
7.3Warrantiesand Representations
8DEFAULT, DISRUPTION AND TERMINATION
8.1Termination on Insolvency and Change ofControl
8.2TerminationonDefault
8.3Break
8.4Consequences of Expiry or Termination
8.4ATransfer of Operations to Successor Supplier
8.5Disruption
8.6Recovery uponTermination
8.7Force Majeure
9DISPUTES ANDLAW
9.1Governing Lawand Jurisdiction
9.2Dispute Resolution
SCHEDULES
SCHEDULE1–Specification Schedule
SCHEDULE 2 – The Service Levels and Service Credits
SCHEDULE 3 –Pricing Schedule
SCHEDULE 4 – Service Acceptance Procedures – Not Used
SCHEDULE 5 – Contract and Service Management
SCHEDULE 6 –Security Schedule
SCHEDULE 7 – Title and Risk
SCHEDULE 8 – Licence Terms
SCHEDULE 9 – Exit and Service Transfer Management Arrangements
SCHEDULE 10 – Form of Escrow Agreement – Not Used
SCHEDULE 11 – Social Clauses
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1.GENERAL PROVISIONS
1.1Definitions andInterpretation
1.1.1In this Contract unless the context otherwise requires the following provisions shall have the meanings given to them below:
“Access Northern Ireland” means the security clearance system managed by a third party supplier on behalf of the Department of Justice, a department of the Northern Ireland Executive
“Acquired Rights Directive” means the European Council Directive77/187/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.
“Affiliate” means in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time;
“Approval” means the written consent of the Client.
“Award Date” means the issue date of the Letter of Acceptance.
“Client” means Department of Finance and Personnel (DFP) IT Assist
“Client 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, and which are:
(i) supplied to the Contractor by or on behalf of the Client; or
(ii) which the Contractor is required to generate, process, store or transmit pursuant to this Contract; or
(b) any Personal Data for which the Client is the Data Controller.
“Client Furnished Items” means any items issued or otherwise furnished in connection with this Contract by or on behalf of the Client.
“Commencement Date” means the commencement datestated within the Specification for initiation of Services.
“Commercially Sensitive Information” means the information listed in the Freedom of Information Statement comprised of information:
a.which is provided by the Contractor to the Client in confidence for the period set out in the Freedom of Information Statement; and/or
b.that constitutes a trade secret.
“Confidential Information” means any information which has been designated as confidential by either Party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person, trade secrets, Intellectual Property Rights and know-how of either Party and all personal data and sensitive personal data within the meaning of the DPA. Confidential Information shall not include information which:
i.was public knowledge at the time of disclosure (otherwise than by breach of clause 5.3 (Confidential Information));
ii.was in the possession of the receiving Party, without restriction as to its disclosure, before receiving it from the disclosing Party;
iii.is received from a third party (who lawfully acquired it) without restriction as to its disclosure; or
iv.is independently developed without access to the Confidential Information.
“Contract” means the Specification, theseICT Conditions of Contract and any attached schedules, the Tender completed by the Contractor, the schedule of prices or rates submitted by the Contractor (as part of their Tender), the Letter of Acceptance issued on the Award Date and any written agreement between both parties to form part of the Contract in accordance with Clause 1.5.2.
“Contracting Authority” means any contracting authority as defined in Regulation 3 of the Public Contracts Regulations.
“Contractor” means the person, firm or company with whom the Client enters into the Contract as named in the Letter of Acceptance.
“Contractor Software” means the software which is proprietary to the Contractor (or an Affliate of the Contractor), including software which is or will be used by the Contractor for the purposes of providing the Services.
“Contract Period” means the period from the Commencement Date to:
(a)the end of the Initial Contract Period; or
(b)if the Client elects to extend the Initial Contract Period pursuant to clause 6.8.1 but not pursuant to clause 6.8.2, the end of the First Extension Period; or
(c)if the Client elects to extend the Initial Contract Period pursuant to clause 6.8.1 and clause 6.8.2 but not pursuant to clause 6.8.3the end of the Second Extension Period.
or such earlier date of termination or partial termination of the Contract in accordance with the Law or the provisions of the Contract.
“Contract Price” means the price (exclusive of any applicable VAT), payable to the Contractor by the Client under the Contract, as set out in the Contractor’s schedule of prices and rates included in the Contractor’s Tender, for the full and proper performance by the Contractor of its obligations under the Contract but before taking into account the effect of any adjustment of price in accordance with clause 3.4 (Price Adjustment on Extension of Initial Contract Period).
“Contract Generated Intellectual Property Rights” means any Intellectual Property Rights created by the Contractor as a result of the performance by the Contractor of its obligations under this Contract.
"Control" means that a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, by contract or otherwise) and "Controls" and "Controlled" shall be interpreted accordingly.
"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 the Rehabilitation of Offenders (Northern Ireland) Order 1978 by virtue of the exemptions specified in part II of schedule [1] of the Rehabilitation of Offenders (Exceptions) (Northern Ireland) Order 1979 or any replacement or amendment to that Order, or being placed on a list kept pursuant to section 2(1)(a) of the Safeguarding Vulnerable Groups Act 2006 and section 6(1)(a) of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 or being made the subject of a prohibition or restriction under section 218(6) of the Education Reform Act 1988 or the Education Reform (Northern Ireland) Order 1989);
“CPD” means the Central Procurement Directorate in Northern Ireland;
“Crown” means the government of the United Kingdom (including the Northern Ireland Executive Committee and Northern Ireland Departments, the Scottish Executive and the National Assembly for Wales), including, but not limited to, government ministers, government departments, government and particular bodies and government agencies.
“Data Protection Requirements” means means the Data Protection Act1998, the EU Data Protection Directive95/46/EC, the Regulation of Investigatory Powers Act2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations2000 (SI2000/2699), the Electronic Communications Data Protection Directive2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations2003 and all applicable laws and regulations relating to Processing of Personal Data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.
“Date Compliant” means that no previous or future date change has had or will have any adverse impact on the performance or functionality of the Contractor’ssystem and assets used in the performance of the Services.
“Days” means calendar days.
“Default” means any breach of the obligations of the relevant Party (including but not limited to fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or negligent statement of the relevant Party or the Staff in connection with or in relation to the subject-matter of the Contract and in respect of which such Party is liable to the other.
“DPA” means the Data Protection Act 1998 and any subordinate legislation made under such Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation.
“Enhanced Licence Terms” means the licence terms set out in Part B of Schedule 8 (Licence Terms).
“Environmental Information Regulations” means the Environmental Information Regulations 2004 and any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations.
“Equipment” means the Contractor’s equipment, plant, materials and such other items supplied and used by the Contractor in the performance of its obligations under the Contract including hardware and software.
“Exit and Service Transfer Arrangements” means the arrangements set out in Schedule9 which shall apply in the event of the expiry or termination of this Contract.
“Fees Regulations” means the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
“First Extension Period” means the period of 12 months immediately following the Initial Contract Period.
“FOIA” means the Freedom of Information Act 2000 and any subordinate legislation made under this Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation.
“Force Majeure” means any event or occurrence which is outside the reasonable control of the Party concerned and which is not attributable to any act or failure to take preventative action by that Party, including fire; flood; violent storm; pestilence; explosion; malicious damage; armed conflict; acts of terrorism; nuclear, biological or chemical warfare; or any other disaster, natural or man-made, but excluding:
a.any industrial action occurring within the Contractor’s or any sub-contractor’s organisation; or
b.the failure by any sub-contractor to perform its obligations under any sub-contract.
“Fraud” means any offence under Laws creating offences in respect of fraudulent acts or at common law in respect of fraudulent acts in relation to the Contract or defrauding or attempting to defraud or conspiring to defraud the Crown.
“Freedom of Information Statement” means the “Freedom of Information Statement” submitted by the Contractor as part of its Tender.
“General Change in Law” means a change in Law which comes into effect after the Commencement Date, where the change is of a general legislative nature (including taxation or duties of any sort affecting the Contractor) or which would affect or relate to a comparable supply of services of the same or a similar nature to the supply of the Services.
“Good Industry Practice” means standards, practices, methods and procedures conforming to the Law and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances.
"Health and Safety Regime" means the Food Safety Act 1990 (and associated regulations), the Health & Safety at Work etc. Act 1974 (and associated regulations), the Fire Precautions Act 1971, Health and Safety at Work (Northern Ireland) Order 1978, the Environmental Protection Act 1990, the Water Industry Act 1991, the Water Resources Act 1991, and any similar or analogous health, safety or environmental legislation in force from time to time;
“Information” has the meaning given under section 84 of the FOIA.
“Initial Contract Period” means the period of 3 years from the Commencement Date.
"Insolvency Event" means the occurrence of any of the following events (or any event analogous to any of the following in a jurisdiction other than Northern Ireland) in relation to the relevant entity:
(a)the entity passing a resolution for its winding up or a court of competent jurisdiction making an order for the entity to be wound up or dissolved or the entity being otherwise dissolved;
(b)the appointment of an administrator of or, the making of an administration order in relation to the entity or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or part of the entity's undertaking, assets, rights or revenue;
(c)the entity entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of competent jurisdiction for protection from its creditors;
(d)the entity being unable to pay its debts or being [capable of being] deemed unable to pay its debts within the meaning of Article 103 of the Insolvency (Northern Ireland) Order 1989; or
(e)the entity entering into any arrangement, compromise or compromise or composition in satisfaction of its debts with its creditors;
However, a resolution by the relevant entity or a court order that such entity be wound up for the purpose of a bona fide reconstruction or amalgamation shall not amount to an Insolvency Event.
“Intellectual Property Rights” means patents, inventions, trade marks, service marks, logos, design rights (whether registerable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, trade or business names, moral rights and other similar rights or obligations whether registerable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off.
“Invoicing Procedure” means the procedure by which the Contractor invoices the Client, as set out in Schedule3.
“Key Personnel” mean those persons identifiedin the Tenderas being key personnel.
“Law” means any applicable Act of Parliament, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, any statutory provision as defined by the Interpretation Act (Northern Ireland) 1954,exercise of the royal prerogative, enforceable community right within the meaning of Section 2 of the European Communities Act 1972, regulatory policy, guidance or industry code, judgment of a relevant court of law, or directives or requirements or any Regulatory Body of which the Contractor is bound to comply.
“Letter of Acceptance” means the letter of acceptance issued by the Client to the Contractor informing the Contractor that their Tender had been accepted.
“Licensed Materials” means the Contractor Software, Contractor's Background IPR, Third Party Software, Specially Written Software, Project Specific IPR or any of them.
“Licensor” means the Contractor or the owner of the Third Party Software as applicable.
“Milestone” means an event or task described in paragraph 3 of Schedule 5, which must be completed by the relevant Milestone Date.
“Milestone Date” means the date set against the relevant Milestone in paragraph 3 of Schedule 5.
“Month” means calendar month.
“Party” means a party to the Contract.
“Payment Profile” means the profile of payments to be made by the Client to the Contractor under the terms of this Contract as set out in Schedule3.
“Pre-Existing Intellectual Property Rights” shall mean any Intellectual Property rights vested in or licensed to the Contractor or Client prior to or independently of the performance by the Contractor or Client of their obligations under this Contract.
“Premises” means the Client’s premises where the Services are to be supplied, as set out in the Specification.
“Project Specific IPRs” means:-
(a)IPRs in items created by the Contractor (or by a third party on behalf of the Contractor) specifically for the purposes of this Contract and updates and amendments of these items; and/or
(b) IPRs arising as a result of the performance of the Contractor's obligations under this Contract;
but which shall not include the Contractor's Background IPRs or the Specially Written Software.
“Property” means the property, other than real property, issued or made available to the Contractor by the Client in connection with the Contract, which for the avoidance of doubt shall include any Client Furnished Items and other equipment made available by the Client.
“Quality Standards” means the quality standards published by BSI British Standards, the National Standards Body of the United Kingdom, the International Organisation for Standardisation or other reputable or equivalent body, (and their successor bodies) that a skilled and experienced operator in the same type of industry or business sector as the Contractor would reasonably and ordinarily be expected to comply with, and as may be further detailed in the Specification.
“Quarter” means a three (3) month period beginning on 1st January, 1st April, 1st July or 1st October. The term ‘Quarterly’ shall be similarly construed.
“Regulatory Bodies” means those government departments and regulatory, statutory and other entities, committees, ombudsmen and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in the Contract or any other affairs of the Client and “Regulatory Body” shall be construed accordingly.
"Relevant Convictions" means a conviction that is relevant to the nature of the Services or as listed by the Client and/or relevant to the work of the Client
“Replacement Contractor” means any third party service provider appointed by the Client to supply any services which are substantially similar to any of the Services and which the Client receives in substitution for any of the Services following the expiry, termination or partial termination of the Contract.