Guidance Notes. This clause gives the Service Provider a licence to use the Purchaser Software, the Purchaser Background IPRs, the Purchaser Data and any specially created Intellectual Property Rights owned by the Purchaser in accordance with clause 36 (Specially Created Intellectual Property Rights). If the Purchaser will not own any specially created Intellectual Property Rights in accordance with clause 36 (Specially Created Intellectual Property Rights), the highlighted text should be deleted. If there is a need to amend these terms or a need for more detailed IPR provisions e.g. where multiple different types of IPR or software are involved, appropriate legal advice should be taken. Claims relating to Intellectual Property Rights The Service Provider must not infringe any Intellectual Property Rights of any third party in providing the Services or otherwise performing its obligations under this Contract and must ensure that the provision of the Services and the use or possession of the Deliverables does not infringe such Intellectual Property Rights. The Service Provider shall at all times, during and after the Term, on written demand indemnify the Purchaser and each other Indemnified Person, and keep the Purchaser and each other Indemnified Person indemnified, against all Losses incurred by, awarded against or agreed to be paid by an Indemnified Person arising from an IPR Claim. If an IPR Claim is made, or the Service Provider anticipates that an IPR Claim might be made, the Service Provider may, at its own expense and sole option, either: procure for the Purchaser and/or other relevant Indemnified Person the right to continue using the relevant item which is subject to the IPR Claim; or replace or modify the relevant item with non-infringing substitutes provided that: the performance and functionality of the replaced or modified item is at least equivalent to the performance and functionality of the original item; the replaced or modified item does not have an adverse effect on any other services, the Purchaser’s System and/or the Service Provider’s System; there is no additional cost to the Purchaser and/or relevant Indemnified Person (as the case may be); and the terms and conditions of this Contract shall apply to the replaced or modified Services. If the Service Provider elects to procure a licence in accordance with clause 37.9.1 or to modify or replace an item pursuant to clause 37.9.2, but this has not avoided or resolved the IPRs Claim, then: the Purchaser may terminate this Contract (if subsisting) with immediate effect by written notice to the Service Provider; and without prejudice to the indemnity set out in clause 37.8, the Service Provider shall be liable for all reasonable and unavoidable costs of the substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items. Guidance notes: The Purchaser should have comfort that no third party IPRs are infringed in the Services and Deliverables provided by the Service Provider. This clause seeks to ensure that. Escrow As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee.
Appears in 3 contracts
Samples: Services Contract, Services Contract, Services Contract
Guidance Notes. This clause gives the Service Provider a licence to use the Purchaser Software, the Purchaser Background IPRs, the Purchaser Data and any specially created Intellectual Property Rights owned by the Purchaser in accordance with is an optional clause 36 (Specially Created Intellectual Property Rights)where Key Individuals can be identified before contract award. If deleting this clause, delete the Purchaser will not own any specially created Intellectual Property Rights in accordance with clause 36 (Specially Created Intellectual Property Rights), the highlighted text should be deleted. If there is a need to amend these terms or a need for more detailed IPR provisions e.g. where multiple different types of IPR or software are involved, appropriate legal advice should be taken. Claims Key Individuals Schedule and all fields relating to Intellectual Property Rights The Key Individuals. Offers of Employment For the Term and for a period of twelve (12) months thereafter the Service Provider must not infringe employ or offer employment to any Intellectual Property Rights of any third party in providing the Services or otherwise performing its obligations under Purchaser’s employees who have been associated with this Contract and/or the contract management of this Contract without the Purchaser’s prior approval. This clause does not prevent the Service Provider from employing or offering employment to any person who has applied for employment in response to an advertisement placed in the normal course of business and must ensure not placed with the objective of soliciting the Purchaser’s employees. Guidance notes: This is a non-solicitation clause to prevent the Service Provider from “poaching” Purchaser employees. It does not prevent recruitment following an advertisement in the normal course. Staff transfer at commencement The Parties agree that the commencement of the provision of the Services and by the use or possession Service Provider does not involve a Relevant Transfer. However if a Relevant Transfer takes place the following provisions of this clause apply. OR (I.E. DELETE THE FOREGOING TWO SENTENCES OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE) The Parties agree that the commencement of the Deliverables does not infringe such Intellectual Property Rightsprovision of the Services by the Service Provider may constitute a Relevant Transfer in respect of the Incoming Employees. The Service Provider shall at is responsible for all timesemoluments and outgoings in respect of the Incoming Employees (including all wages, during bonuses, commission, premiums, subscriptions, pay as you earn and after national insurance contributions and pension contributions) which are attributable in whole or in part to the Termperiod from the date of the Relevant Transfer, including bonuses or commission which are payable on written demand indemnify or before the date of the Relevant Transfer but attributable in whole or in part to the period from the date of the Relevant Transfer. The Service Provider indemnifies the Purchaser and each the transferor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and any other Indemnified Person, and keep liabilities which the Purchaser and each other Indemnified Person indemnified, against all Losses incurred by, awarded against or agreed the transferor may incur in respect of the emoluments and outgoings referred to be paid in clause 30.2. The Service Provider indemnities the Purchaser and the Transferor for any failure by an Indemnified Person arising from an IPR Claim. If an IPR Claim is made, or the Service Provider anticipates to comply with its obligations under TUPE. Guidance notes: Please include optional first option clause 30.1 and delete second option if it is clear that there will be no TUPE transfer of staff from the Purchaser or from a previous service provider on commencement of the provision of the Services. Seek Employment advice if there is any doubt as to the position. “Incoming Employees” who become Service Provider employees are likely to be the employees of a previous service provider who is ceasing to carry out work for the Purchaser. The old service provider enjoys rights under this clause, but their obligations (if any) will be determined by the older contract that they are party to. Where two contracts based on this model contract follow each other, the obligations of the two service providers join up. If there is any prospect that the “Incoming Employees” are Purchaser employees (i.e. that Purchaser employees might transfer to the private sector) then Employment advice and assistance must be sought. Information about Service Provider Employees The Purchaser may by notice require the Service Provider to disclose such information as the Purchaser may require relating to any person wholly or mainly engaged or employed by the Service Provider or any other party in carrying out activities under or connected with this Contract. The Service Provider must disclose by notice all such information as is required by the Purchaser under clause 31.1, within such reasonable period specified by the Purchaser. The Service Provider acknowledges that the Data Protection Laws do not prevent the disclosure of anonymised data that is not Personal Data. The Service Provider consents to the disclosure by the Purchaser of all information provided by the Service Provider under this clause to other service providers that the Purchaser may invite to tender or appoint for services to be provided in substitution for the Services. Guidance notes: Irrespective of whether a TUPE transfer on expiry or termination is likely, it is desirable for the Purchaser to be able to pull together employee liability information for inclusion in future ITTs. To the extent that it is desirable to include a requirement that the Service Provider provides information about other matters, this can be included in the Management Arrangements. Staff transfer on expiry or termination The Parties agree that the ceasing of the provision of the Services (whether in whole or in part) by the Service Provider will not constitute a Relevant Transfer. However in the event that a Relevant Transfer takes place the following provisions of this clause 32 apply. OR (I.E. DELETE THE FOREGOING OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE) The Parties agree that the ceasing of the provision of the Services by the Service Provider may constitute a Relevant Transfer in respect of the Outgoing Employees. The Service Provider agrees that within twenty (20) Working Days of the earliest of: receipt of a notification from the Purchaser of a Service Transfer or intended Service Transfer; receipt of the giving of notice of early termination or any partial termination of this Contract; the date which is twenty four (24) months before the end of the Initial Term; [Note: this period may require to be amended depending on the length of the Contract.] and receipt of a written request of the Purchaser at any time (provided that the Purchaser shall only be entitled to make one such request in any six (6) month period), it shall provide to the Purchaser in a suitably anonymised format so as to comply with the Data Protection Laws, the Service Provider’s Provisional Personnel List, together with the Staffing Information in relation to the Service Provider’s Provisional Personnel List and it shall provide an IPR Claim might be madeupdated Service Provider’s Provisional Personnel List at such intervals as are reasonably requested by the Purchaser. At least twenty eight (28) Working Days prior to the Relevant Transfer, the Service Provider may, at its own expense and sole option, either: procure for shall provide to the Purchaser and/or other relevant Indemnified Person or at the right to continue using the relevant item which is subject to the IPR Claim; or replace or modify the relevant item with non-infringing substitutes provided that: the performance and functionality direction of the replaced or modified item is at least equivalent Purchaser to the performance and functionality of the original item; the replaced or modified item does not have an adverse effect on any other services, the Purchaser’s System Replacement Service Provider and/or any Replacement Sub-contractor: the Service Provider’s System; there is no additional cost to the Purchaser and/or relevant Indemnified Person Final Personnel List (as the case may bewhich shall be complete and accurate in all material respects); and the Staffing Information in relation to the Service Provider’s Final Personnel List (insofar as such information has not previously been provided). The Purchaser shall be permitted to use and disclose information provided by the Service Provider under this clause 32 for the purpose of informing any prospective Replacement Service Provider and/or Replacement Sub-contractor. From the date of the earliest event referred to in clause 32.2, the Service Provider agrees that it shall not, and agrees to procure that any Sub-contractor shall not, assign any person to the provision of the Services (or the relevant part) which is the subject of a Relevant Transfer who is not listed on the Service Provider’s Provisional Personnel List and shall not without the prior written approval of the Purchaser (not to be unreasonably withheld or delayed): replace or re-deploy any person listed on the Service Provider’s Provisional 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; make, promise, propose or permit any material changes to the terms and conditions of this Contract employment of any person on the Service Provider’s Provisional Personnel List (including any payments connected with the termination of employment); increase the proportion of working time spent on the Services (or the relevant part of the Services) by any person on the Service Provider’s Provisional Personnel List save for fulfilling assignments and projects previously scheduled and agreed with the Purchaser; introduce any new contractual or customary practice concerning the making of any lump sum payment on the termination of employment of any persons listed on the Service Provider’s Provisional Personnel List; increase or reduce the total number of persons so engaged, or deploy any other person to perform the Services (or the relevant part of the Services); or terminate or give notice to terminate the employment or contracts of any persons on the Service Provider’s Provisional Personnel List save by due disciplinary process, and shall apply promptly notify, and procure that any Sub-contractor shall promptly notify the Purchaser or, at the direction of the Purchaser, any Replacement Service Provider of any notice to terminate the replaced employment given or modified Services. If received by the Service Provider elects to procure a licence in accordance with clause 37.9.1 or to modify or replace an item pursuant to clause 37.9.2, but this has not avoided or resolved the IPRs Claim, then: the Purchaser may terminate this Contract (if subsisting) with immediate effect by written notice to relevant Sub-contractor from any persons listed on the Service Provider’s Provisional Personnel List regardless of when such notice takes effect. The Service Provider indemnifies the Purchaser and any Replacement Service Provider and/or Replacement Sub-contractor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and other liabilities which the Purchaser and/or any Replacement Service Provider and/or Replacement Sub-contractor may suffer as a result of or in connection with: the provision of information pursuant to clauses 31 and/or 32; and without prejudice to the indemnity set out any claim or demand by any Outgoing Employee (whether in clause 37.8contract, delict, under statute or otherwise) arising directly or indirectly from any act, fault or omission of the Service Provider shall be liable for all reasonable and unavoidable costs in respect of any Outgoing Employee on or before the date of the substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items. Guidance notes: The Purchaser should have comfort that no third party IPRs are infringed in the Services and Deliverables provided Relevant Transfer; any claim or demand by any person employed or formerly employed by the Service Provider. This clause seeks to ensure that. Escrow As soon as reasonably practicable following Provider other than an Outgoing Employee for which it is alleged the Commencement Date, Purchaser or any Replacement Service Provider or Replacement Sub-contractor may be liable by virtue of this Contract and/or TUPE; any claim or demand arising from any act or omission of the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to any other Service Provider’s personnel who is not an Outgoing Employee during any period whether before, on or after the software and/or documentation agreed Relevant Transfer; any failure by the Parties that Service Provider to comply with its obligations under regulations 11, 12, 13 or 14 of TUPE or any award of compensation under regulation 13 or 15 of TUPE save where such failure arises from the failure of the Purchaser or any Replacement Service Provider and/or Replacement Sub-contractor to comply with its obligations under regulation 13 of TUPE; and any claim (including any individual employee entitlement under or consequent on such a claim) by any trade union or other body or person representing any Outgoing Employees arising from or connected with any failure by the Service Provider to comply with any legal obligation to such trade union, body or person. The Service Provider is responsible for all emoluments and outgoings in respect of the Outgoing Employees (including all wages, bonuses, commission, premiums, subscriptions, pay as you earn and national insurance contributions and pension contributions) which are attributable in whole or in part to be deposited the period up to and including the date of the Relevant Transfer (including bonuses or commission which are payable after the date of the Relevant Transfer but attributable in escrow (whole or in part to the “Escrowed Material”period on or before the date of the Relevant Transfer). The Service Provider shall deposit indemnifies the Escrowed Material with Purchaser and any Replacement Service Provider against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and any other liabilities which the Escrow Agent on the basis Purchaser and/or any Replacement Service Provider may incur in respect of the terms agreed emoluments and outgoings referred to in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release feeclause 32.7.
Appears in 3 contracts
Samples: Services Contract, Services Contract, Services Contract
Guidance Notes. This is a non-solicitation clause gives to prevent the Service Provider a licence to use from “poaching” Purchaser employees. It does not prevent recruitment following an advertisement in the Purchaser Software, normal course. Staff transfer at commencement The Parties agree that the Purchaser Background IPRs, the Purchaser Data and any specially created Intellectual Property Rights owned by the Purchaser in accordance with clause 36 (Specially Created Intellectual Property Rights). If the Purchaser will not own any specially created Intellectual Property Rights in accordance with clause 36 (Specially Created Intellectual Property Rights), the highlighted text should be deleted. If there is a need to amend these terms or a need for more detailed IPR provisions e.g. where multiple different types commencement of IPR or software are involved, appropriate legal advice should be taken. Claims relating to Intellectual Property Rights The Service Provider must not infringe any Intellectual Property Rights of any third party in providing the Services or otherwise performing its obligations under this Contract and must ensure that the provision of the Services and by the use or possession Service Provider does not involve a Relevant Transfer. However if a Relevant Transfer takes place the following provisions of this clause apply. OR (I.E. DELETE THE FOREGOING TWO SENTENCES OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE) The Parties agree that the commencement of the Deliverables does not infringe such Intellectual Property Rightsprovision of the Services by the Service Provider constitutes a Relevant Transfer in respect of the Incoming Employees. The Service Provider shall at is responsible for all timesemoluments and outgoings in respect of the Incoming Employees (including all wages, during holiday pay, bonuses, commission, premiums, subscriptions, pay as you earn and after national insurance contributions and pension contributions) which are attributable in whole or in part to the Termperiod from the date of the Relevant Transfer, including bonuses, commission or holiday pay which are payable on written demand indemnify or before the date of the Relevant Transfer but attributable in whole or in part to the period from the date of the Relevant Transfer. The Service Provider indemnifies the Purchaser and each the Transferor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses (including reasonable legal expenses) and any other Indemnified Person, and keep liabilities which the Purchaser and each other Indemnified Person indemnified, against all Losses incurred by, awarded against or agreed the Transferor may incur in respect of the emoluments and outgoings referred to be paid in clause 30.2. The Service Provider indemnifies the Purchaser and the Transferor for any failure by an Indemnified Person arising from an IPR Claim. If an IPR Claim is made, or the Service Provider anticipates to comply with its obligations under TUPE. Guidance notes: Please include optional first option clause 30.1 and delete second option if it is clear that there will be no TUPE transfer of staff from the Purchaser or from a previous service provider on commencement of the provision of the Services. Seek Employment advice if there is any doubt as to the position. “Incoming Employees” who become Service Provider employees are likely to be the employees (note the wider definition of employee under TUPE) of a previous service provider who is ceasing to carry out work for the Purchaser. The old service provider enjoys rights under this clause, but their obligations (if any) will be determined by the older contract that they are party to. Where two contracts based on this model contract follow each other, the obligations of the two service providers join up. If there is any prospect that the “Incoming Employees” are Purchaser employees (i.e. that Purchaser employees might transfer to the private sector) then Employment advice and assistance must be sought. Information about Service Provider Employees The Purchaser may by notice require the Service Provider to disclose such information as the Purchaser may require relating to any person wholly or mainly engaged or employed by the Service Provider or any other party in carrying out activities under or connected with this Contract. The Service Provider must disclose by notice all such information as is required by the Purchaser under clause 31.1, within such reasonable period specified by the Purchaser. The Service Provider acknowledges that the Data Protection Laws do not prevent the disclosure of anonymised data that is not Personal Data. The Service Provider consents to the disclosure by the Purchaser of all information provided by the Service Provider under this clause to other service providers that the Purchaser may invite to tender or appoint for services to be provided in substitution for the Services. Guidance notes: Irrespective of whether a TUPE transfer on expiry or termination is likely, it is desirable for the Purchaser to be able to pull together employee liability information for inclusion in future ITTs. To the extent that it is desirable to include a requirement that the Service Provider provides information about other matters, this can be included in the Management Arrangements. Staff transfer on expiry or termination The Parties agree that the ceasing of the provision of the Services (whether in whole or in part) by the Service Provider will not constitute a Relevant Transfer. However in the event that a Relevant Transfer takes place the following provisions of this clause 32 apply. OR (I.E. DELETE THE FOREGOING OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE) The Parties agree that the ceasing of the provision of the Services by the Service Provider constitutes a Relevant Transfer in respect of the Outgoing Employees. The Service Provider agrees that within twenty (20) Working Days of the earliest of: receipt of a notification from the Purchaser of a Service Transfer or intended Service Transfer; receipt of the giving of notice of early termination or any partial termination of this Contract; the date which is twenty four (24) months before the end of the Initial Term; [Note: this period may require to be amended depending on the length of the Contract.] and receipt of a written request of the Purchaser at any time (provided that the Purchaser shall only be entitled to make one such request in any six (6) month period), it shall provide to the Purchaser in a suitably anonymised format so as to comply with the Data Protection Laws, the Service Provider’s Provisional Personnel List, together with the Staffing Information in relation to the Service Provider’s Provisional Personnel List and it shall provide an IPR Claim might be madeupdated Service Provider’s Provisional Personnel List at such intervals as are reasonably requested by the Purchaser. At least twenty eight (28) Working Days prior to the Relevant Transfer, the Service Provider may, at its own expense and sole option, either: procure for shall provide to the Purchaser and/or other relevant Indemnified Person or at the right to continue using the relevant item which is subject to the IPR Claim; or replace or modify the relevant item with non-infringing substitutes provided that: the performance and functionality direction of the replaced or modified item is at least equivalent Purchaser to the performance and functionality of the original item; the replaced or modified item does not have an adverse effect on any other services, the Purchaser’s System Replacement Service Provider and/or any Replacement Sub-contractor: the Service Provider’s System; there is no additional cost to the Purchaser and/or relevant Indemnified Person Final Personnel List (as the case may bewhich shall be complete and accurate in all material respects); and the Staffing Information in relation to the Service Provider’s Final Personnel List (insofar as such information has not previously been provided or requires to be updated). The Purchaser shall be permitted to use and disclose information provided by the Service Provider under this clause 32 for the purpose of informing any prospective Replacement Service Provider and/or Replacement Sub-contractor. From the date of the earliest event referred to in clause 32.2, the Service Provider agrees that it shall not, and agrees to procure that any Sub-contractor shall not, assign any person to the provision of the Services (or the relevant part) which is the subject of a Relevant Transfer who is not listed on the Service Provider’s Provisional Personnel List and shall not without the prior written approval of the Purchaser (not to be unreasonably withheld or delayed): replace or re-deploy any person listed on the Service Provider’s Provisional 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; make, promise, propose or permit any material changes to the terms and conditions of this Contract employment of any person on the Service Provider’s Provisional Personnel List (including any payments connected with the termination of employment); increase the proportion of working time spent on the Services (or the relevant part of the Services) by any person on the Service Provider’s Provisional Personnel List save for fulfilling assignments and projects previously scheduled and agreed with the Purchaser; introduce any new contractual or customary practice concerning the making of any lump sum payment on the termination of employment of any persons listed on the Service Provider’s Provisional Personnel List; increase or reduce the total number of persons so engaged, or deploy any other person to perform the Services (or the relevant part of the Services); or terminate or give notice to terminate the employment or contracts of any persons on the Service Provider’s Provisional Personnel List save by due disciplinary process, and shall apply promptly notify, and procure that any Sub-contractor shall promptly notify the Purchaser or, at the direction of the Purchaser, any Replacement Service Provider of any notice to terminate the replaced employment given or modified Services. If received by the Service Provider elects to procure a licence in accordance with clause 37.9.1 or to modify or replace an item pursuant to clause 37.9.2, but this has not avoided or resolved the IPRs Claim, then: the Purchaser may terminate this Contract (if subsisting) with immediate effect by written notice to relevant Sub-contractor from any persons listed on the Service Provider’s Provisional Personnel List regardless of when such notice takes effect. The Service Provider indemnifies the Purchaser and any Replacement Service Provider and/or Replacement Sub-contractor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses (including reasonable legal expenses) and other liabilities which the Purchaser and/or any Replacement Service Provider and/or Replacement Sub-contractor may suffer as a result of or in connection with: the provision of information pursuant to clauses 31 and/or 32; and without prejudice to the indemnity set out any claim or demand by any Outgoing Employee (whether in clause 37.8contract, delict, under statute or otherwise) arising directly or indirectly from any act, fault or omission of the Service Provider shall be liable for all reasonable and unavoidable costs in respect of any Outgoing Employee on or before the date of the substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items. Guidance notes: The Purchaser should have comfort that no third party IPRs are infringed in the Services and Deliverables provided Relevant Transfer; any claim or demand by any person employed or formerly employed by the Service Provider. This clause seeks to ensure that. Escrow As soon as reasonably practicable following Provider other than an Outgoing Employee for which it is alleged the Commencement Date, Purchaser or any Replacement Service Provider or Replacement Sub-contractor may be liable by virtue of this Contract and/or TUPE; any claim or demand arising from any act or omission of the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to any other Service Provider’s personnel who is not an Outgoing Employee during any period whether before, on or after the software and/or documentation agreed Relevant Transfer; any failure by the Parties that Service Provider to comply with its obligations under regulations 11, 12, 13 or 14 of TUPE or any award of compensation under regulation 13 or 15 of TUPE save where such failure arises from the failure of the Purchaser or any Replacement Service Provider and/or Replacement Sub-contractor to comply with its obligations under regulation 13 of TUPE; and any claim (including any individual employee entitlement under or consequent on such a claim) by any trade union or other body or person representing any Outgoing Employees arising from or connected with any failure by the Service Provider to comply with any legal obligation to such trade union, body or person. The Service Provider is responsible for all emoluments and outgoings in respect of the Outgoing Employees (including all wages, holiday pay, bonuses, commission, premiums, subscriptions, pay as you earn and national insurance contributions and pension contributions) which are attributable in whole or in part to be deposited the period up to and including the date of the Relevant Transfer (including bonuses ,commission or holiday pay) which are payable after the date of the Relevant Transfer but attributable in escrow (whole or in part to the “Escrowed Material”period on or before the date of the Relevant Transfer). The Service Provider shall deposit indemnifies the Escrowed Material with Purchaser and any Replacement Service Provider against all actions, suits, claims, demands, losses, charges, damages, costs and expenses (including reasonable legal expenses) and any other liabilities which the Escrow Agent on the basis Purchaser and/or any Replacement Service Provider may incur in respect of the terms agreed emoluments and outgoings referred to in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release feeclause 32.7.
Appears in 1 contract
Samples: Services Contract
Guidance Notes. This clause gives the Service Provider a licence to use the Purchaser Software, the Purchaser Background IPRs, the Purchaser Data and any specially created Intellectual Property Rights owned by the Purchaser in accordance with is an optional clause 36 (Specially Created Intellectual Property Rights)where Key Individuals can be identified before contract award. If deleting this clause, delete the Purchaser will not own any specially created Intellectual Property Rights in accordance with clause 36 (Specially Created Intellectual Property Rights), the highlighted text should be deleted. If there is a need to amend these terms or a need for more detailed IPR provisions e.g. where multiple different types of IPR or software are involved, appropriate legal advice should be taken. Claims Key Individuals Schedule and all fields relating to Intellectual Property Rights The Key Individuals. Offers of Employment For the Term and for a period of twelve (12) months thereafter the Service Provider must not infringe employ or offer employment to any Intellectual Property Rights of any third party in providing the Services or otherwise performing its obligations under Purchaser’s employees who have been associated with this Contract and/or the contract management of this Contract without the Purchaser’s prior approval. This clause does not prevent the Service Provider from employing or offering employment to any person who has applied for employment in response to an advertisement placed in the normal course of business and must ensure not placed with the objective of soliciting the Purchaser’s employees. Guidance notes: This is a non-solicitation clause to prevent the Service Provider from “poaching” Purchaser employees. It does not prevent recruitment following an advertisement in the normal course. Staff transfer at commencement The Parties agree that the commencement of the provision of the Services and by the use or possession Service Provider does not involve a Relevant Transfer. However if a Relevant Transfer takes place the following provisions of this clause apply. OR (I.E. DELETE THE FOREGOING TWO SENTENCES OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE) The Parties agree that the commencement of the Deliverables does not infringe such Intellectual Property Rightsprovision of the Services by the Service Provider constitutes a Relevant Transfer in respect of the Incoming Employees. The Service Provider shall at is responsible for all timesemoluments and outgoings in respect of the Incoming Employees (including all wages, during holiday pay, bonuses, commission, premiums, subscriptions, pay as you earn and after national insurance contributions and pension contributions) which are attributable in whole or in part to the Termperiod from the date of the Relevant Transfer, including bonuses, commission or holiday pay which are payable on written demand indemnify or before the date of the Relevant Transfer but attributable in whole or in part to the period from the date of the Relevant Transfer. The Service Provider indemnifies the Purchaser and each the Transferor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses (including reasonable legal expenses) and any other Indemnified Person, and keep liabilities which the Purchaser and each other Indemnified Person indemnified, against all Losses incurred by, awarded against or agreed the Transferor may incur in respect of the emoluments and outgoings referred to be paid in clause 30.2. The Service Provider indemnifies the Purchaser and the Transferor for any failure by an Indemnified Person arising from an IPR Claim. If an IPR Claim is made, or the Service Provider anticipates to comply with its obligations under TUPE. Guidance notes: Please include optional first option clause 30.1 and delete second option if it is clear that there will be no TUPE transfer of staff from the Purchaser or from a previous service provider on commencement of the provision of the Services. Seek Employment advice if there is any doubt as to the position. “Incoming Employees” who become Service Provider employees are likely to be the employees (note the wider definition of employee under TUPE) of a previous service provider who is ceasing to carry out work for the Purchaser. The old service provider enjoys rights under this clause, but their obligations (if any) will be determined by the older contract that they are party to. Where two contracts based on this model contract follow each other, the obligations of the two service providers join up. If there is any prospect that the “Incoming Employees” are Purchaser employees (i.e. that Purchaser employees might transfer to the private sector) then Employment advice and assistance must be sought. Information about Service Provider Employees The Purchaser may by notice require the Service Provider to disclose such information as the Purchaser may require relating to any person wholly or mainly engaged or employed by the Service Provider or any other party in carrying out activities under or connected with this Contract. The Service Provider must disclose by notice all such information as is required by the Purchaser under clause 31.1, within such reasonable period specified by the Purchaser. The Service Provider acknowledges that the Data Protection Laws do not prevent the disclosure of anonymised data that is not Personal Data. The Service Provider consents to the disclosure by the Purchaser of all information provided by the Service Provider under this clause to other service providers that the Purchaser may invite to tender or appoint for services to be provided in substitution for the Services. Guidance notes: Irrespective of whether a TUPE transfer on expiry or termination is likely, it is desirable for the Purchaser to be able to pull together employee liability information for inclusion in future ITTs. To the extent that it is desirable to include a requirement that the Service Provider provides information about other matters, this can be included in the Management Arrangements. Staff transfer on expiry or termination The Parties agree that the ceasing of the provision of the Services (whether in whole or in part) by the Service Provider will not constitute a Relevant Transfer. However in the event that a Relevant Transfer takes place the following provisions of this clause 32 apply. OR (I.E. DELETE THE FOREGOING OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE) The Parties agree that the ceasing of the provision of the Services by the Service Provider constitutes a Relevant Transfer in respect of the Outgoing Employees. The Service Provider agrees that within twenty (20) Working Days of the earliest of: receipt of a notification from the Purchaser of a Service Transfer or intended Service Transfer; receipt of the giving of notice of early termination or any partial termination of this Contract; the date which is twenty four (24) months before the end of the Initial Term; [Note: this period may require to be amended depending on the length of the Contract.] and receipt of a written request of the Purchaser at any time (provided that the Purchaser shall only be entitled to make one such request in any six (6) month period), it shall provide to the Purchaser in a suitably anonymised format so as to comply with the Data Protection Laws, the Service Provider’s Provisional Personnel List, together with the Staffing Information in relation to the Service Provider’s Provisional Personnel List and it shall provide an IPR Claim might be madeupdated Service Provider’s Provisional Personnel List at such intervals as are reasonably requested by the Purchaser. At least twenty eight (28) Working Days prior to the Relevant Transfer, the Service Provider may, at its own expense and sole option, either: procure for shall provide to the Purchaser and/or other relevant Indemnified Person or at the right to continue using the relevant item which is subject to the IPR Claim; or replace or modify the relevant item with non-infringing substitutes provided that: the performance and functionality direction of the replaced or modified item is at least equivalent Purchaser to the performance and functionality of the original item; the replaced or modified item does not have an adverse effect on any other services, the Purchaser’s System Replacement Service Provider and/or any Replacement Sub-contractor: the Service Provider’s System; there is no additional cost to the Purchaser and/or relevant Indemnified Person Final Personnel List (as the case may bewhich shall be complete and accurate in all material respects); and the Staffing Information in relation to the Service Provider’s Final Personnel List (insofar as such information has not previously been provided or requires to be updated). The Purchaser shall be permitted to use and disclose information provided by the Service Provider under this clause 32 for the purpose of informing any prospective Replacement Service Provider and/or Replacement Sub-contractor. From the date of the earliest event referred to in clause 32.2, the Service Provider agrees that it shall not, and agrees to procure that any Sub-contractor shall not, assign any person to the provision of the Services (or the relevant part) which is the subject of a Relevant Transfer who is not listed on the Service Provider’s Provisional Personnel List and shall not without the prior written approval of the Purchaser (not to be unreasonably withheld or delayed): replace or re-deploy any person listed on the Service Provider’s Provisional 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; make, promise, propose or permit any material changes to the terms and conditions of this Contract employment of any person on the Service Provider’s Provisional Personnel List (including any payments connected with the termination of employment); increase the proportion of working time spent on the Services (or the relevant part of the Services) by any person on the Service Provider’s Provisional Personnel List save for fulfilling assignments and projects previously scheduled and agreed with the Purchaser; introduce any new contractual or customary practice concerning the making of any lump sum payment on the termination of employment of any persons listed on the Service Provider’s Provisional Personnel List; increase or reduce the total number of persons so engaged, or deploy any other person to perform the Services (or the relevant part of the Services); or terminate or give notice to terminate the employment or contracts of any persons on the Service Provider’s Provisional Personnel List save by due disciplinary process, and shall apply promptly notify, and procure that any Sub-contractor shall promptly notify the Purchaser or, at the direction of the Purchaser, any Replacement Service Provider of any notice to terminate the replaced employment given or modified Services. If received by the Service Provider elects to procure a licence in accordance with clause 37.9.1 or to modify or replace an item pursuant to clause 37.9.2, but this has not avoided or resolved the IPRs Claim, then: the Purchaser may terminate this Contract (if subsisting) with immediate effect by written notice to relevant Sub-contractor from any persons listed on the Service Provider’s Provisional Personnel List regardless of when such notice takes effect. The Service Provider indemnifies the Purchaser and any Replacement Service Provider and/or Replacement Sub-contractor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses (including reasonable legal expenses) and other liabilities which the Purchaser and/or any Replacement Service Provider and/or Replacement Sub-contractor may suffer as a result of or in connection with: the provision of information pursuant to clauses 31 and/or 32; and without prejudice to the indemnity set out any claim or demand by any Outgoing Employee (whether in clause 37.8contract, delict, under statute or otherwise) arising directly or indirectly from any act, fault or omission of the Service Provider shall be liable for all reasonable and unavoidable costs in respect of any Outgoing Employee on or before the date of the substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items. Guidance notes: The Purchaser should have comfort that no third party IPRs are infringed in the Services and Deliverables provided Relevant Transfer; any claim or demand by any person employed or formerly employed by the Service Provider. This clause seeks to ensure that. Escrow As soon as reasonably practicable following Provider other than an Outgoing Employee for which it is alleged the Commencement Date, Purchaser or any Replacement Service Provider or Replacement Sub-contractor may be liable by virtue of this Contract and/or TUPE; any claim or demand arising from any act or omission of the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to any other Service Provider’s personnel who is not an Outgoing Employee during any period whether before, on or after the software and/or documentation agreed Relevant Transfer; any failure by the Parties that Service Provider to comply with its obligations under regulations 11, 12, 13 or 14 of TUPE or any award of compensation under regulation 13 or 15 of TUPE save where such failure arises from the failure of the Purchaser or any Replacement Service Provider and/or Replacement Sub-contractor to comply with its obligations under regulation 13 of TUPE; and any claim (including any individual employee entitlement under or consequent on such a claim) by any trade union or other body or person representing any Outgoing Employees arising from or connected with any failure by the Service Provider to comply with any legal obligation to such trade union, body or person. The Service Provider is responsible for all emoluments and outgoings in respect of the Outgoing Employees (including all wages, holiday pay, bonuses, commission, premiums, subscriptions, pay as you earn and national insurance contributions and pension contributions) which are attributable in whole or in part to be deposited the period up to and including the date of the Relevant Transfer (including bonuses ,commission or holiday pay) which are payable after the date of the Relevant Transfer but attributable in escrow (whole or in part to the “Escrowed Material”period on or before the date of the Relevant Transfer). The Service Provider shall deposit indemnifies the Escrowed Material with Purchaser and any Replacement Service Provider against all actions, suits, claims, demands, losses, charges, damages, costs and expenses (including reasonable legal expenses) and any other liabilities which the Escrow Agent on the basis Purchaser and/or any Replacement Service Provider may incur in respect of the terms agreed emoluments and outgoings referred to in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release feeclause 32.7.
Appears in 1 contract
Samples: Services Contract
Guidance Notes. This Conventionally, a single “confidential information” clause gives covers both Parties. Policy and practice (particularly concerning proactive disclosure of information by public bodies) has however moved to a degree that it is appropriate to distinguish the non-disclosure obligations of both parties. The non-disclosure requirements on the Service Provider a licence are stricter than those applicable to use the Purchaser Softwarebut if the Service Provider wishes to make a disclosure prohibited by this clause it can always seek the approval of the Purchaser. Please note that clause 68.3 (Consequences of Expiry or Termination) requires the return/destruction of all Purchaser Protected Information at the end of the Contract period Service Provider Sensitive Information The Purchaser must: treat all Service Provider Sensitive Information as confidential and safeguard it accordingly; and not disclose any Service Provider Sensitive Information to any other person without the prior written consent of the Service Provider. Clause 17.1 does not apply to the extent that: disclosure is required by Law or by order of any competent court or tribunal; or information is in the possession of the Purchaser without restriction as to its disclosure prior to its disclosure by the Service Provider; or information is obtained from a third party (who lawfully acquired it) without restriction as to its disclosure; or information is already in the public domain at the time of disclosure otherwise than by a breach of this Contract; or information is independently developed without access to the Service Provider Sensitive Information. Nothing in this Contract prevents the Purchaser from disclosing any Service Provider Sensitive Information or any other information concerning the Service Provider or this Contract: pursuant to a Request for Information concerning the information (see clause 14 (Transparency and Freedom of Information)); or in accordance with the Purchaser’s publication scheme (within the meaning of section 23 of FOISA) as reviewed from time to time; or in accordance with the requirements of Part 3 of the Public Services Reform (Scotland) Xxx 0000; or in accordance with any future policies of the Purchaser concerning the routine disclosure of government information in the interests of transparency; or to any consultant, service provider or other person engaged by the Purchaser, for example to conduct a gateway review; or in response to a Parliamentary Question from a Member of the Scottish Parliament, a member of the United Kingdom Parliament, or any other department, office or agency of Her Majesty’s Government in Scotland or the United Kingdom, and their servants or agents, and when disclosing such information to either the Scottish Parliament or the United Kingdom Parliament it is recognised and agreed by both Parties that the Purchaser shall if the Purchaser sees fit disclose such information but is unable to impose any restrictions upon the information that the Purchaser provides to Members of the Scottish Parliament or Members of the United Kingdom Parliament; or for the purpose of any examination by any auditors of the Purchaser (including Audit Scotland, the Auditor General for Scotland and the Scottish Parliament) of the economy, efficiency and effectiveness with which the Purchaser Background IPRshas used its resources. The Service Provider consents to the publication of this Contract by the Purchaser, subject to such redactions as the Purchaser may decide to make. The Purchaser may consult with the Service Provider to inform its decisions concerning redaction (for example to exclude any Service Provider Sensitive Information) but any decisions taken by the Purchaser are final and conclusive. Guidance notes: Given FOI and transparency considerations, the non-disclosure requirements on the Purchaser Data are much less extensive than those applicable to the Service Provider. Nothing that the Purchaser has to proactively publish will breach this clause. Previously clauses have tended to include a tension between “all Purchaser information is confidential” and “everything can nonetheless be disclosed” so this clause attempts to set a fair balance taking into account transparency requirements. The Purchaser may consider that some of the exemptions highlighted in Clause 17.3 will not apply. If so, they can be deleted. Audit and Financial Reports The Service Provider must retain and maintain until five (5) years after the end of the Term full and accurate records of this Contract including the Services provided and payments made and reimbursed under it. The Service Provider must on request, and without any specially created Intellectual Property Rights owned charge to the Purchaser, afford the Purchaser, or the Purchaser’s representatives, such access to those records as may reasonably be requested by the Purchaser in accordance connection with clause 36 (Specially Created Intellectual Property Rights). If the Purchaser will not own any specially created Intellectual Property Rights in accordance with clause 36 (Specially Created Intellectual Property Rights), the highlighted text should be deleted. If there is a need to amend these terms or a need for more detailed IPR provisions e.g. where multiple different types of IPR or software are involved, appropriate legal advice should be taken. Claims relating to Intellectual Property Rights The Service Provider must not infringe any Intellectual Property Rights of any third party in providing the Services or otherwise performing its obligations under this Contract and must ensure that the provision of the Services and the use or possession of the Deliverables does not infringe such Intellectual Property RightsContract. The Service Provider shall at all times, during comply with the provisions of Part A of Schedule 4 (Financial Reports and after the Term, on written demand indemnify the Purchaser and each other Indemnified Person, and keep the Purchaser and each other Indemnified Person indemnified, against all Losses incurred by, awarded against or agreed to be paid by an Indemnified Person arising from an IPR Claim. If an IPR Claim is made, or the Service Provider anticipates that an IPR Claim might be made, the Service Provider may, at its own expense and sole option, either: procure for the Purchaser and/or other relevant Indemnified Person the right to continue using the relevant item which is subject to the IPR Claim; or replace or modify the relevant item with non-infringing substitutes provided that: the performance and functionality of the replaced or modified item is at least equivalent to the performance and functionality of the original item; the replaced or modified item does not have an adverse effect on any other services, the Purchaser’s System and/or the Service Provider’s System; there is no additional cost to the Purchaser and/or relevant Indemnified Person (as the case may be); and the terms and conditions of this Contract shall apply to the replaced or modified Services. If the Service Provider elects to procure a licence in accordance with clause 37.9.1 or to modify or replace an item pursuant to clause 37.9.2, but this has not avoided or resolved the IPRs Claim, then: the Purchaser may terminate this Contract (if subsistingModel) with immediate effect by written notice to the Service Provider; and without prejudice to the indemnity set out in clause 37.8, the Service Provider shall be liable for all reasonable and unavoidable costs of the substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items. Guidance notes: The Purchaser should have comfort that no third party IPRs are infringed in the Services and Deliverables provided by the Service Provider. This clause seeks to ensure that. Escrow As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”)maintenance of Open Book Data. The Service Provider Parties shall deposit the Escrowed Material comply with the Escrow Agent on provisions of Part B of Schedule 4 (Financial Reports and Model) in relation to the basis provision of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release feeFinancial Reports.
Appears in 1 contract
Samples: Services Contract
Guidance Notes. This is a non-solicitation clause gives to prevent the Service Provider a licence to use from “poaching” Purchaser employees. It does not prevent recruitment following an advertisement in the Purchaser Software, normal course. Staff transfer at commencement The Parties agree that the Purchaser Background IPRs, the Purchaser Data and any specially created Intellectual Property Rights owned by the Purchaser in accordance with clause 36 (Specially Created Intellectual Property Rights). If the Purchaser will not own any specially created Intellectual Property Rights in accordance with clause 36 (Specially Created Intellectual Property Rights), the highlighted text should be deleted. If there is a need to amend these terms or a need for more detailed IPR provisions e.g. where multiple different types commencement of IPR or software are involved, appropriate legal advice should be taken. Claims relating to Intellectual Property Rights The Service Provider must not infringe any Intellectual Property Rights of any third party in providing the Services or otherwise performing its obligations under this Contract and must ensure that the provision of the Services and by the use or possession Service Provider does not involve a Relevant Transfer. However if a Relevant Transfer takes place the following provisions of this clause apply. OR (I.E. DELETE THE FOREGOING TWO SENTENCES OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE.) The Parties agree that the commencement of the Deliverables does not infringe such Intellectual Property Rightsprovision of the Services by the Service Provider may constitute a Relevant Transfer in respect of the Incoming Employees. The Service Provider shall at is responsible for all timesemoluments and outgoings in respect of the Incoming Employees (including all wages, during bonuses, commission, premiums, subscriptions, pay as you earn and after national insurance contributions and pension contributions) which are attributable in whole or in part to the Termperiod from the date of the Relevant Transfer, including bonuses or commission which are payable on written demand indemnify or before the date of the Relevant Transfer but attributable in whole or in part to the period from the date of the Relevant Transfer. The Service Provider indemnifies the Purchaser and each the transferor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and any other Indemnified Person, and keep liabilities which the Purchaser and each other Indemnified Person indemnified, against all Losses incurred by, awarded against or agreed the transferor may incur in respect of the emoluments and outgoings referred to be paid in clause 30.2. The Service Provider indemnities the Purchaser and the Transferor for any failure by an Indemnified Person arising from an IPR Claim. If an IPR Claim is made, or the Service Provider anticipates to comply with its obligations under TUPE. Guidance notes: Please include optional first option clause 30.1 and delete second option if it is clear that there will be no TUPE transfer of staff from the Purchaser or from a previous service provider on commencement of the provision of the Services. Seek Employment advice if there is any doubt as to the position. “Incoming Employees” who become Service Provider employees are likely to be the employees of a previous service provider who is ceasing to carry out work for the Purchaser. The old service provider enjoys rights under this clause, but their obligations (if any) will be determined by the older contract that they are party to. Where two contracts based on this model contract follow each other, the obligations of the two service providers join up. If there is any prospect that the “Incoming Employees” are Purchaser employees (i.e. that Purchaser employees might transfer to the private sector) then Employment advice and assistance must be sought. Information about Service Provider Employees The Purchaser may by notice require the Service Provider to disclose such information as the Purchaser may require relating to any person wholly or mainly engaged or employed by the Service Provider or any other party in carrying out activities under or connected with this Contract. The Service Provider must disclose by notice all such information as is required by the Purchaser under clause 31.1, within such reasonable period specified by the Purchaser. The Service Provider acknowledges that the Data Protection Laws do not prevent the disclosure of anonymised data that is not Personal Data. The Service Provider consents to the disclosure by the Purchaser of all information provided by the Service Provider under this clause to other service providers that the Purchaser may invite to tender or appoint for services to be provided in substitution for the Services. Guidance notes: Irrespective of whether a TUPE transfer on expiry or termination is likely, it is desirable for the Purchaser to be able to pull together employee liability information for inclusion in future ITTs. To the extent that it is desirable to include a requirement that the Service Provider provides information about other matters, this can be included in the Management Arrangements. Staff transfer on expiry or termination The Parties agree that the ceasing of the provision of the Services (whether in whole or in part) by the Service Provider will not constitute a Relevant Transfer. However in the event that a Relevant Transfer takes place the following provisions of this clause 32. apply. OR (I.E. DELETE THE FOREGOING OR THE FOLLOWING DEPENDING ON WHAT IS APPLICABLE.) The Parties agree that the ceasing of the provision of the Services by the Service Provider may constitute a Relevant Transfer in respect of the Outgoing Employees. The Service Provider agrees that within twenty (20) Working Days of the earliest of: receipt of a notification from the Purchaser of a Service Transfer or intended Service Transfer; receipt of the giving of notice of early termination or any partial termination of this Contract; the date which is twenty four (24) months before the end of the Initial Term; [Note: this period may require to be amended depending on the length of the Contract.] and receipt of a written request of the Purchaser at any time (provided that the Purchaser shall only be entitled to make one such request in any six (6) month period), it shall provide to the Purchaser in a suitably anonymised format so as to comply with the Data Protection Laws, the Service Provider’s Provisional Personnel List, together with the Staffing Information in relation to the Service Provider’s Provisional Personnel List and it shall provide an IPR Claim might be madeupdated Service Provider’s Provisional Personnel List at such intervals as are reasonably requested by the Purchaser. At least twenty eight (28) Working Days prior to the Relevant Transfer, the Service Provider may, at its own expense and sole option, either: procure for shall provide to the Purchaser and/or other relevant Indemnified Person or at the right to continue using the relevant item which is subject to the IPR Claim; or replace or modify the relevant item with non-infringing substitutes provided that: the performance and functionality direction of the replaced or modified item is at least equivalent Purchaser to the performance and functionality of the original item; the replaced or modified item does not have an adverse effect on any other services, the Purchaser’s System Replacement Service Provider and/or any Replacement Sub-contractor: the Service Provider’s System; there is no additional cost to the Purchaser and/or relevant Indemnified Person Final Personnel List (as the case may bewhich shall be complete and accurate in all material respects); and the Staffing Information in relation to the Service Provider’s Final Personnel List (insofar as such information has not previously been provided). The Purchaser shall be permitted to use and disclose information provided by the Service Provider under this clause 32. for the purpose of informing any prospective Replacement Service Provider and/or Replacement Sub-contractor. From the date of the earliest event referred to in clause 32.2, the Service Provider agrees that it shall not, and agrees to procure that any Sub-contractor shall not, assign any person to the provision of the Services (or the relevant part) which is the subject of a Relevant Transfer who is not listed on the Service Provider’s Provisional Personnel List and shall not without the prior written approval of the Purchaser (not to be unreasonably withheld or delayed): replace or re-deploy any person listed on the Service Provider’s Provisional 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; make, promise, propose or permit any material changes to the terms and conditions of this Contract employment of any person on the Service Provider’s Provisional Personnel List (including any payments connected with the termination of employment); increase the proportion of working time spent on the Services (or the relevant part of the Services) by any person on the Service Provider’s Provisional Personnel List save for fulfilling assignments and projects previously scheduled and agreed with the Purchaser; introduce any new contractual or customary practice concerning the making of any lump sum payment on the termination of employment of any persons listed on the Service Provider’s Provisional Personnel List; increase or reduce the total number of persons so engaged, or deploy any other person to perform the Services (or the relevant part of the Services); or terminate or give notice to terminate the employment or contracts of any persons on the Service Provider’s Provisional Personnel List save by due disciplinary process, and shall apply promptly notify, and procure that any Sub-contractor shall promptly notify the Purchaser or, at the direction of the Purchaser, any Replacement Service Provider of any notice to terminate the replaced employment given or modified Services. If received by the Service Provider elects to procure a licence in accordance with clause 37.9.1 or to modify or replace an item pursuant to clause 37.9.2, but this has not avoided or resolved the IPRs Claim, then: the Purchaser may terminate this Contract (if subsisting) with immediate effect by written notice to relevant Sub-contractor from any persons listed on the Service Provider’s Provisional Personnel List regardless of when such notice takes effect. The Service Provider indemnifies the Purchaser and any Replacement Service Provider and/or Replacement Sub-contractor against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and other liabilities which the Purchaser and/or any Replacement Service Provider and/or Replacement Sub-contractor may suffer as a result of or in connection with: the provision of information pursuant to clauses 31. and/or 32.; and without prejudice to the indemnity set out any claim or demand by any Outgoing Employee (whether in clause 37.8contract, delict, under statute or otherwise) arising directly or indirectly from any act, fault or omission of the Service Provider shall be liable for all reasonable and unavoidable costs in respect of any Outgoing Employee on or before the date of the substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items. Guidance notes: The Purchaser should have comfort that no third party IPRs are infringed in the Services and Deliverables provided Relevant Transfer; any claim or demand by any person employed or formerly employed by the Service Provider. This clause seeks to ensure that. Escrow As soon as reasonably practicable following Provider other than an Outgoing Employee for which it is alleged the Commencement Date, Purchaser or any Replacement Service Provider or Replacement Sub-contractor may be liable by virtue of this Contract and/or TUPE; any claim or demand arising from any act or omission of the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to any other Service Provider’s personnel who is not an Outgoing Employee during any period whether before, on or after the software and/or documentation agreed Relevant Transfer; any failure by the Parties that Service Provider to comply with its obligations under regulations 11, 12, 13 or 14 of TUPE or any award of compensation under regulation 13 or 15 of TUPE save where such failure arises from the failure of the Purchaser or any Replacement Service Provider and/or Replacement Sub-contractor to comply with its obligations under regulation 13 of TUPE; and any claim (including any individual employee entitlement under or consequent on such a claim) by any trade union or other body or person representing any Outgoing Employees arising from or connected with any failure by the Service Provider to comply with any legal obligation to such trade union, body or person. The Service Provider is responsible for all emoluments and outgoings in respect of the Outgoing Employees (including all wages, bonuses, commission, premiums, subscriptions, pay as you earn and national insurance contributions and pension contributions) which are attributable in whole or in part to be deposited the period up to and including the date of the Relevant Transfer (including bonuses or commission which are payable after the date of the Relevant Transfer but attributable in escrow (whole or in part to the “Escrowed Material”period on or before the date of the Relevant Transfer). The Service Provider shall deposit indemnifies the Escrowed Material with Purchaser and any Replacement Service Provider against all actions, suits, claims, demands, losses, charges, damages, costs and expenses and any other liabilities which the Escrow Agent on the basis Purchaser and/or any Replacement Service Provider may incur in respect of the terms agreed emoluments and outgoings referred to in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release feeclause 32.7.
Appears in 1 contract
Samples: Services Contract
