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ICL PATHWAY / ITHACA PURCHASE AGREEMENT
REF. NO. ITH001 - VERSION - FINAL 2
CONTENTS
1 DEFINITIONS
2 DURATION
3 AGREEMENT
4 QUALITY AND DESCRIPTION
5 DELIVERY, TITLE AND RISK
6 TIME FOR DELIVERY OF THE SUPPLIES
7 COMPUTER PROGRAMS
8 PRICES
9 PAYMENT TERMS
10 WARRANTY AND SUPPORT
11 PROJECT MANAGEMENT
12 CHANGE CONTROL
13 STATUTORY REQUIREMENTS
14 INTELLECTUAL PROPERTY RIGHTS
15 ASSIGNMENT
16 OTHER SUPPLIERS TO PATHWAY
17 INSOLVENCY OR LIQUIDATION
18 CONFIDENTIALITY
19 PROTECTION OF PERSONAL DATA
20 SUPPLIER'S PERSONNEL
21 LIABILITY AND INSURANCE
22 AUDIT
23 CANCELLATION/TERMINATION
24 SET-OFF
25 GUARANTEE
26 GENERAL
APPENDIX 1 SCHEDULES
SCHEDULE A SPECIFICATION OF SUPPLIES
A1 SPECIFICATION
A2 QUALITY
A3 MODIFICATION OF SUPPLIES / CONFIGURATION MANAGEMENT
A4 SPARE PARTS AND MAINTENANCE
A5 REPAIRS/EXCHANGES
A6 CONSUMABLES
SCHEDULE B PLACING OF ORDERS
B1 DELIVERY REQUIREMENTS AND FORECASTS
B2 ORDERS
SCHEDULE C DELIVERY OF SUPPLIES
C1 DELIVERY REQUIREMENTS
C2 PACKAGING AND DELIVERY REQUIREMENTS
C3 CONTINUITY OF SUPPLY/STOCK LEVELS
SCHEDULE D PRICING TERMS
D1 PRICING
D2 PRICES
SCHEDULE E PROJECT MANAGEMENT
SCHEDULE F CHANGE CONTROL
F1 SCOPE
F2 PRINCIPLES
F3 PROCEDURE
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PATHWAY / ITHACA PURCHASE AGREEMENT - REF. NO. ITH001 - VERSION FINAL 2
This Purchase Agreement ("this Agreement") (ref no. ITH001) is made the 17th day
of October 1996
between ICL Pathway Limited ("Pathway")
of 0 Xxxx Xxxxxx, Xxxxxx, Xxxxxx, XX00 0XX, Xxxxxxx
and Ithaca Peripherals Limited ("the Supplier")
of Xxxx Xxxx Business Park, Xxxxx Xxx, Xxxxxxxxx, Xxxxxxx, XX0 0XX
and Transact Technologies Incorporated ("the Guarantor")
of 0, Xxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000, XXX.
WHEREAS Pathway has entered into a contract (hereinafter called "the Main
Agreement") with the Department of Social Security (hereinafter "the DSS") and
Post Office Counters Limited (hereinafter "POCL") to computerise and operate a
computerised service in respect of the DSS's benefits payment system and POCL's
counter infrastructure.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS
1.1 "Acceptance" shall be taken to have occurred when the relevant
Acceptance Procedure defined in Schedule A Clause A1.2 has been
successfully completed; "Accept" shall be construed accordingly.
1.2 NOT USED
1.3 "Change" means a change to this Agreement, or to an Order, or to the
specification of any of the Supplies.
1.4 "Computer Program" means a computer program in machine readable
object code.
1.5 "Confidential Information" means all information designated as such
by either party in writing together with all other information which
relates to the business, affairs, products, Supplies, developments,
trade secrets, know-how, personnel, customers and suppliers of either
party or the DSS or POCL, or information which may reasonably be
regarded as the confidential information of the disclosing party or
the DSS or POCL.
1.6 "Hardware" means any hardware to be supplied by the Supplier
hereunder or under an Order, including:
1.6.1 the physical media on which any Software is supplied; and
1.6.2 any tangible object.
1.7 "New Version" means a new release of a Computer Program (except for
enhancements, error correction, maintenance and emergency releases
which are provided under maintenance) which adds to the Computer
Program a significant new feature or function, or significant
improvement in performance and for which the Supplier makes extra
charges to its customers generally.
1.8 "Order" means an order placed by Pathway, in accordance with Schedule
B, for the Supplies from the Supplier under the terms of this
Agreement. "Order" constitutes a notification to deliver and does not
constitute a separate contractual offer or acceptance.
1.9 NOT USED
1.10 "Service" means a service to be performed by the Supplier hereunder
or under an Order.
1.11 "Software" means Computer Programs to be supplied by the Supplier
hereunder or under an Order.
1.12 "Specification" means the specification of the Supplies set out
and/or referred to in Schedule A.
1.13 NOT USED
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1.14 "Supplies" means the Hardware, Software, Services, articles or things
to be supplied by the Supplier hereunder or under an Order; a
"Supply" means a single item comprising one of the Supplies.
1.15 "Warranty Period" means a period of time lasting for the number of
months shown against individual product types in Schedule D2,
commencing for each Supply.
2 DURATION
2.1 This Agreement shall be effective from the date shown above and
shall, subject to the rights of termination herein, continue in
operation until 31st March 1999 and thereafter by mutual agreement.
3 AGREEMENT
3.1 The Supplier undertakes to supply Pathway and its authorised
maintainer with the Supplies under the terms of this Agreement.
This Agreement constitutes a legally binding and accepted order
(subject to the rights of cancellation contained herein) for a
minimum quantity of ****** of the Supplies, to be Ordered and
delivered in accordance with the arrangements detailed in Schedule B.
The Supplies shall only be delivered against Orders placed by Pathway
defining what and when given quantities of the Supplies should be
delivered. The Supplier shall comply with such Orders.
4 QUALITY AND DESCRIPTION
4.1 The Supplies shall
(a) be of sound workmanship and conform as to quality,
quantity, description and in all other respects with any
samples and with the particulars stated in the Order and
the Specification and any other document referred to in
Schedule A; and
(b) be new and of sound materials (this does not apply to
Supplies that are either Software or Services, although
does apply to the media that Software is supplied on, and
to any documentation supplied with the Software and
Services); and
(c) be provided with all due care and skill; and
(d) be subject to Pathway's Quality Assurance procedures where
Pathway's Specification so requires. The Supplier shall
afford Pathway all such facilities as may be necessary to
enable Pathway to implement those procedures, full details
of which are appended hereto or will have been
communicated to the Supplier before the Order is placed.
In default Pathway may without liability at any time prior to
acceptance reject and return all or any of the Supplies.
4.2 The Supplier shall be responsible for ensuring that the Supplies
achieve Acceptance in accordance with Schedule A Clause A1.2.
5 DELIVERY, TITLE AND RISK
5.1 The Supplier shall at its own expense deliver the Supplies, suitably
packed and marked with the relevant product name, code and serial
number in the case of Hardware and Software, to or at the place
specified in the Order or as may be agreed herein or subsequently.
All packages must be marked with the Supplier's name, the delivery
address as shown on the face of the Order or otherwise agreed, and
the number of separate packages must be identified.
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5.2 Title and property shall pass to Pathway on payment for the Supplies,
but without prejudice to any pre-existing intellectual property
rights of the Supplier. Risk shall pass to Pathway on delivery of the
Supplies.
5.3 The Supplies shall be delivered in conformance with any other
requirements stated in Schedule C which in the event of conflict
shall take precedence over this Clause 5.
6 TIME FOR DELIVERY OF THE SUPPLIES
6.1 The Supplier shall deliver the Supplies at the time or times
specified in any relevant Order or in this Agreement. The Supplies
may not without Pathway's agreement be delivered earlier than the due
delivery date or later than ************** after the due delivery
date, otherwise Pathway may reject such earlier or later Delivered
Supplies. Time for delivery, and keeping up with the roll-out
programme under the Main Agreement, shall be of the essence.
6.2 If the Supplies or any part thereof are not so delivered Pathway
shall be entitled to terminate the Order in respect of the Supplies
not delivered and of any other Supplies already delivered which
cannot be effectively and commercially used by reason of such
non-delivery.
6.3 If any of the Supplies are delivered after the time specified for
delivery in clause 6.1, Pathway reserves the right to charge the
Supplier liquidated damages as follows:
6.3.1 ********************************************************
********* for each day of delay.
Pathway and the Supplier acknowledge and confirm that the liquidated
damages referred to in this Clause reflect a genuine pre-estimate of
loss suffered by Pathway as a result of the Supplier's failure to
deliver on time, and shall not be regarded as onerous or a penalty.
6.4 The time for delivery shall be extended by a reasonable period if
delay is caused by act of God, refusal of licence (where the
application has been timely and appropriately filed) or other
governmental act, fire, explosion or by any other cause beyond the
Supplier's reasonable control; for the avoidance of doubt, a delay
caused by an industrial dispute between the Supplier and its own
workforce, and a delay caused by a dispute between the Supplier and
Pathway or a sub-contractor or supplier to the Supplier are deemed
not to be beyond the Supplier's reasonable control. Should the
Supplier experience any such cause then the Supplier shall promptly
notify Pathway in writing of the cause and the likely duration of
such delay. Pathway shall at its option be excused from accepting or
paying for the Supplies for the duration of such cause. Pathway may
cancel the Order or terminate this Agreement without liability in the
event of more than **************** delay in delivery of the Supplies
for any such cause and in such event the Supplier shall immediately
repay to Pathway any sums paid by Pathway for any Supplies not
retained by Pathway.
6.5 Where delivery is delayed by reason of delay in the granting of any
necessary import or export licence then the provisions of Clause 13.7
shall apply.
7 COMPUTER PROGRAMS (This refers to the windows NT 4.0 driver software
only)
7.1 Where the Supplies are or include Computer Programs then the Supplier
hereby grants Pathway an irrevocable, non-exclusive right and
licence, with authority to grant sub-licences directly or indirectly
to Pathway's customers, to use and modify each copy of each such
Computer Program supplied and to make such other copies as are
reasonably necessary to support such licensed use.
7.2 Where new or revised levels of Software are prepared by the Supplier
during the Warranty Period, or thereafter where Pathway has a support
agreement for the Software with the Supplier, the Supplier will
deliver free of charge any new or revised levels of the Software to
Pathway together with any consequent amendments to the documentation
for the Software.
7.3 If the Supplier releases a New Version of a Computer Program included
within the Supplies then subject to the provisions of the Change
control procedure defined in Schedule F the Supplier shall offer such
New Version to Pathway under this Agreement upon timescales to be
agreed. If the Supplier changes the list price of the New Version
from that of the previously existing version then Pathway and the
Supplier
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shall negotiate in good faith to reach agreement on a charge to
Pathway for the New Version, provided that the charge to Pathway for
the New Version as a percentage of the list price for the New Version
shall be no greater than the charge to Pathway as a percentage of the
list price at the date of this Agreement for the existing version of
the Computer Program.
8 PRICES
8.1 Pricing requirements and prices payable for the Supplies are set out
in Schedule D.
9 PAYMENT TERMS
9.1 The Supplier shall submit sufficiently detailed invoices in respect
of Supplies which will become due for payment by Pathway thirty (30)
days from the date of delivery of Supplies. Invoices must be sent to
Pathway two (2) working days before the scheduled date of delivery,
at the address designated on the face of the Order (or at such other
address as may be notified by Pathway) quoting the relevant Pathway
Order number and the number of this Agreement. If Pathway fails to
pay the Supplier by five (5) working days after the due date for
payment, the Supplier reserves the right to make a charge of 1% per
month on the outstanding balance (calculated on a daily basis) on
Pathway. In addition should Pathway pay earlier than the 30 days, a
credit shall be made on the next invoice/s as per the following :-
Payment by ************ days ** reduction / unit
as detailed in Schedule D clause D2.
9.2 After payment in full for the Supplies as required by clause 9.1,
neither the Supplier nor any sub-contractor or supplier to the
Supplier, nor any other person, shall have a lien on any Supplies
owned by or leased to Pathway or the DSS or POCL for any sum due to
the Supplier, sub-contractor or supplier to the Supplier or other
person, and the Supplier shall take all reasonable steps to ensure
that the title of Pathway, the DSS or POCL as appropriate and the
exclusion of any such lien are brought to the notice of all
sub-contractors, suppliers and other persons dealing with such
Supplies.
10 WARRANTY AND SUPPORT
10.1 If within the Warranty Period, or within a reasonable time after the
Warranty Period, Pathway gives notice in writing to the Supplier of
any defect in the Supplies which has arisen during the Warranty
Period under proper use, or any other non-conformance of the Supplies
with any applicable Order or this Agreement, then the Supplier shall
with all possible speed, repair or replace the Supplies so as to
remedy the defect or non-conformance without cost (including
transportation) to Pathway. Where the Supplier fails to provide such
remedy, Pathway shall be entitled to remedy or have remedied the
defect or non-conformance at the cost of the Supplier. Warranties do
not apply where Pathway or its customer do not use the Supplies in
accordance with user instructions nor where they are altered or
modified without the prior written consent of the Supplier.
10.2 If during the Warranty Period the Supplies are found to be defective
or not to conform as aforesaid, and if the Supplier is unable to
correct a defect or conform the Supplies within a reasonable period
of time, Pathway may alternatively and without liability cancel the
Order or the requirement for the relevant part of the Supplies and
reject any or all such defective or non-conforming Supplies and also
any other Supplies already delivered and the Supplier shall thereupon
repay any sums already paid by Pathway in respect of the Supplies so
rejected or not then delivered.
10.3 Without prejudice to Pathway's rights under Clauses 10.1 and 10.2
hereof, if during the Warranty Period ************************
expiry, there should develop an epidemic of defects or
non-conformances, the Supplier agrees to study and review such
failures or non-conformances with Pathway and to indicate steps or
recommendations which, in the Supplier's reasonable judgement would
remedy the same. Subject to mutual agreement on a plan of action, the
Supplier shall at its own cost effect the remedy of the defects and
non-conformances of the Supplies. Where the Supplier fails to provide
such remedy, Pathway shall be entitled to remedy or have remedied the
defect or non-conformance at the cost of the Supplier. Pathway will
be entitled to reject any further deliveries of the Supplies until
the source of the defects and non-conformances has been cured. For
the purposes of this clause 10.3 "epidemic" means an
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occurrence of a particular defect or a failure to meet the written
Specification of more than ** of the field population of Supplies at
any time (and which in the case of a defect is caused by or results
from the design or manufacture of the Supplies).
11 PROJECT MANAGEMENT
11.1 Schedule E defines the minimum project management and reporting
requirements for the performance of the Supplier's obligations under
this Agreement.
12 CHANGE CONTROL
12.1 In the event that either party wishes to propose a Change or
modification, or Pathway fails to fulfil an obligation hereunder, the
provisions of Schedule A Clause A3 and Schedule F shall apply, as
detailed in Clauses 12.2 and 12.3.
12.2 Modifications to the Supplies which affect the form, fit, function,
safety, spare parts stock-holding or the Modification State (as
defined in Schedule A Clause A3.1) of the Supplies shall be governed
by Schedule A Clause A3 and Schedule F.
12.3 Proposed Changes, and cases of Pathway failing to fulfil an
obligation hereunder, shall be governed by Schedule F but not
Schedule A Clause A3.
13 STATUTORY REQUIREMENTS
13.1 The Supplier warrants that the Supplies:
(a) Comply with all relevant statutory requirements and with
any relevant standards for the time being laid down by the
International Standards Organisation. In particular and
not by way of limitation, the Supplier and the Supplies
shall respectively comply with and conform to the
requirements of all relevant health and safety legislation
including without limitation the Health and Safety at Work
Xxx 0000 and any additions or amendments thereto.
(b) Conform to the essential protection and conformity
assessment requirements of the Electromagnetic
Compatibility Regulations 1992 and any additions or
amendments thereto, including the affixing of CE marking
and the issuing of an EC declaration of conformity. The
Supplier shall, upon request, provide Pathway with
evidence of EC declaration of conformity.
The Supplier shall ensure that the Supplies used properly in
accordance with the Supplier's instructions will not present a health
or safety risk, and that Supplies that are potentially dangerous or
unsafe are delivered only in suitable protective packing or
containers and that the external surfaces of such packing and/or
containers are clearly labelled so as to indicate any hazards to
health and safety involved in handling and using the Supplies and as
to the method of safe handling of the Supplies.
The Supplier hereby agrees to indemnify Pathway against all
proceedings, costs, expenses, liabilities, injury, death, loss or
damage incurred by Pathway if the Supplier is in breach of its
warranties or commitments under this Clause 13.1.
13.2 A copy of any information relating to the safety aspects or to the
proper use of the Supplies should be sent to Pathway under separate
cover, quoting the reference number of this Agreement.
13.3 The Supplier shall be responsible for ensuring that any of its
employees or other persons performing this Agreement or carrying out
an Order who enter Pathway's premises or pursuant to this Agreement
the premises of any other supplier or customer of Pathway are
suitably clothed and issued with correct and safe protective
equipment, that they are duly warned of hazards which they may
encounter on the relevant premises and that they adhere to all health
and safety rules and regulations which are applicable from time to
time.
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13.4 The Supplier shall not unlawfully discriminate within the meaning and
scope of any law, enactment, order, regulation or other similar
instrument relating to discrimination (whether in relation to race,
gender, religion or otherwise) in employment.
13.5 The Supplier shall take all reasonable steps to ensure the observance
of the provisions of Clause 13.4 by all servants, employees, agents
and consultants of the Supplier and all sub-contractors and suppliers
to the Supplier.
13.6 The Supplier shall be responsible for obtaining any import or export
licence or government consents which may be necessary for delivery of
the Supplies, including but not limited to those required by the UK
Export of Goods (Control) Order and the USA Export Administration
Regulations.
13.7 If the delivery of the Supplies is delayed by reason of delay in the
granting of any necessary import or export licence (where the
application has been timely and appropriately filed), the delivery
date for the Supplies shall be extended for such period as may be
reasonable in all the circumstances and the parties shall consult in
order to establish such extension.
13.8 If application for a necessary import or export licence has been
finally rejected, following the taking of all reasonable steps by way
of representations or appeals, the requirement for the relevant part
of the Supplies or the Order for the Supplies concerned may be
cancelled without liability, by either party giving written notice to
the other party.
13.9 The Supplier must inform Pathway immediately of the licensing details
of any Supplies which are subject to any export controls including
but not limited to those of the UK Export of Goods (Control) Order
and the USA Export Administration Regulations (including where
appropriate the Export Control Commodity Number, Munition List entry
etc.). The Supplier will indemnify Pathway against all losses and
expenses incurred by Pathway as a result of the Supplier's failure to
inform Pathway as aforesaid.
14 INTELLECTUAL PROPERTY RIGHTS
14.1 The Supplier shall fully indemnify Pathway and its customers against
all liabilities, losses, costs and expenses including, but not
limited to legal fees, arising from any infringement, or alleged
infringement, of any patent, copyright, design, trade xxxx, trade
name or other intellectual property right of any third party by the
possession, use, performance, sale, sub-licensing or other
exploitation of the Supplies.
In the event of any such infringement the Supplier shall promptly
either procure the right for Pathway and its customers to carry on
possessing, using, selling, sub-licensing or otherwise exploiting the
Supplies, or shall modify or replace the Supplies (at no cost or
inconvenience to Pathway or its customers) by alternative products or
services that are agreed by Pathway and that have at least equal
performance and functionality to the infringing Supplies.
15 ASSIGNMENT
15.1 Subject to Clause 15.2, neither this Agreement nor any Order shall be
assignable by either party without the written consent of the other
except that Pathway may assign this Agreement or any Order to any
company controlled directly or indirectly by ICL Pathway Limited or
its direct or ultimate parent company or to any person, firm or
corporation that may purchase or take an assignment of the business
relating to the Supplies or any of them, always provided such
purchaser or assignee shall assume the obligations of Pathway
hereunder.
15.2 In the event that the Main Agreement expires or is terminated, then
this Agreement, and all Orders, and any equipment rental or lease
agreements which are entered into by Pathway and the Supplier
pursuant to this Agreement, and any licences of intellectual property
rights granted to Pathway, and all other (non-employment) contracts
between Pathway and the Supplier which are necessary to the
performance of this Agreement, are assignable by Pathway to the DSS
or POCL or a third party selected by the DSS or POCL to replace
Pathway and perform substantially the same functions as Pathway under
the Main Agreement or a replacement thereof.
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Furthermore in the event of expiry or termination of the Main
Agreement, Pathway may at no cost to itself, the DSS, POCL or the
said third party release to the DSS or POCL or the said third party a
copy of all Software and all other software, data, tools, utilities,
documentation and anything else necessary to provide the Services.
Such items shall be subject to any applicable licence terms, provided
that such terms shall not detract from the DSS's or POCL's or the
said third party's ability to perform such substantially the same
functions.
16 OTHER SUPPLIERS TO PATHWAY
16.1 The Supplier acknowledges that a variety of suppliers will be
supplying goods and services to Pathway pursuant to the Main
Agreement, and that Pathway will need to integrate such goods and
services with the Supplies in order to fulfil the terms of the Main
Agreement. Such integration may be done directly by Pathway or at
Pathway's discretion by one or more third parties, or both.
Additionally Pathway may engage other suppliers for other aspects of
fulfilling the terms of the Main Agreement.
16.2 The Supplier shall fully and free of charge co-operate and liaise
with Pathway and with all other relevant suppliers to Pathway in
order to achieve the satisfactory working and performance pursuant to
the Main Agreement of the Supplies and to assist such other suppliers
to Pathway to achieve the satisfactory working and performance
pursuant to the Main Agreement of the products and services that they
are supplying. Such co-operation and liaison shall include the
provision of direct access by Pathway and its suppliers to the
Supplier's technical staff.
In the event that such satisfactory working and performance requires
a Change, the provisions of Schedule F shall apply.
17 INSOLVENCY OR LIQUIDATION
17.1 If either party becomes insolvent or goes into liquidation or passes
a resolution for its winding-up (other than solely for the purpose of
amalgamation or reconstruction) or if a receiver, manager or
administrator is appointed in respect of the whole or any part of
either party's business then the other party may without liability
cancel this Agreement or any Order summarily by notice in writing to
the other and all Supplies and other items at either party's premises
which are owned by the other party or have been paid for by the other
party shall be returned promptly to that other party and that other
party may enter any premises to recover and remove such Supplies and
other items.
18 CONFIDENTIALITY
18.1 All specifications, patterns, drawings and information supplied by,
or at the expense of, either party shall remain the supplying party's
property and shall be returned in good order and condition on request
or on termination or expiry or completion of this Agreement or the
relevant Order and shall not be copied or used for any purpose other
than as allowed under this Agreement or the Order.
18.2 Each party hereto undertakes not to disclose Confidential Information
obtained from the other unless it is in the public domain or, as
evidenced by its written records, is either already in the party's
possession without restriction in relation to disclosure prior to
disclosure by the other party, or is received from a third party who
lawfully acquired it and who is under no obligation restricting its
disclosure, or is subsequently independently developed by it by
persons having no access to the Confidential Information of the other
party provided that Pathway may make such disclosure if it is
reasonably required in connection with the maintenance, operation,
supply, potential supply, performance or potential performance of the
Supplies to its customers.
18.3 The Supplier undertakes not to release any public statements
mentioning Pathway or quoting the opinion of any of its employees
regarding Pathway, this Agreement, the Main Agreement, the DSS, POCL
or any of Pathway's other suppliers or sub-contractors without the
prior written approval of Pathway.
18.4 Supplier and Pathway agree that the existence and terms of this
Agreement are Confidential Information. Supplier further agrees not
to make any public announcements regarding this Agreement, it being
understood that if the Supplier is advised by counsel that it is
required by law or the rules of any stock
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exchange to make such announcements it will immediately contact and
consult with Pathway regarding the form and substance of such
announcement prior thereto.
18.5 Each of the Supplier and Pathway shall ensure the observance of the
provisions of Clause 18.4 by all its servants, employees, agents,
consultants, sub-contractors and suppliers.
18.6 The Supplier shall have no right to use the brand or logo of any Post
Office Group member, or of any part of the DSS, or of the DSS and
POCL jointly, or of Pathway, without Pathway's prior written consent.
The Supplier shall do nothing to injure such logos and brands or the
reputation of POCL or the DSS or Pathway and, if it uses such brands
and logos, shall take all reasonable steps to enable the DSS and POCL
to protect such logos and brands and the reputation of Pathway, POCL
and the DSS and Pathway but in no event less than the steps it would
take in relation to its own logos, brands and reputation.
18.7 This Clause 18 shall not preclude Pathway from referring to the
Supplies in advertising literature and elsewhere as Pathway's
products or part thereof.
18.8 This Clause 18 shall not preclude any disclosure concerning this
Agreement or any Orders hereunder which is required by applicable
law, governmental rule or regulation, or judicial order or process or
which either party considers necessary under applicable competition
laws provided that prior written notice thereof is given to the other
party.
19 PROTECTION OF PERSONAL DATA
19.1 The Supplier's attention is hereby drawn to the Data Protection Xxx
0000.
19.2 Both parties warrant that they will duly observe all their
obligations under the Data Protection Act which arise in connection
with this Agreement.
19.3 Section 123 of the Social Security Administration Act 1992 shall
apply to this Agreement. It is an offence for any person to disclose
any information obtained while carrying out administrative work where
that information relates to a particular person. Both parties warrant
that they will duly observe all their obligations under the Social
Security Administration Act 1992 which arise in connection with this
Agreement.
20 SUPPLIER'S PERSONNEL
20.1 The Supplier hereby acknowledges and accepts that both the DSS and
POCL reserve the right to refuse to admit:
(a) (in the DSS's case) to any premises occupied by or on behalf
of the Crown (which terms shall in this clause include all
persons employed or engaged by the Crown and all persons
providing services to the Crown); or
(b) (in POCL's case) to any premises occupied by or on behalf of
any member of the Post Office Group or to any post office
any person employed or engaged by the Supplier, or by a
sub-contractor or supplier to the Supplier, whose admission would be,
in the reasonable opinion of either the DSS or POCL as appropriate,
undesirable.
20.2 If and when directed by Pathway, the Supplier shall provide a list of
the names and addresses of all persons who it is expected may require
admission in connection with the performance of this Agreement to any
premises occupied by or on behalf of the Crown or by or on behalf of
any member of the Post Office Group or to any post office (as
appropriate), specifying the capacities in which they are concerned
with this Agreement and giving such other particulars as Pathway may
reasonably require. The Supplier shall comply with any reasonable
directions issued by the designated representative of the DSS, POCL
or Pathway as to which persons may be admitted to such premises and
at what times.
20.3 If and when directed by Pathway, the Supplier shall secure that any
person employed or engaged by the Supplier or by a sub-contractor or
supplier to the Supplier, who is specified in the direction or is one
of a class of persons who may be so specified, shall sign a statement
that he understands that the Official
October 1996 COMMERCIAL IN CONFIDENCE page 9 of 00
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Secrets Acts 1911 to 1989 apply to him both during the term of and
after the expiry or termination of this Agreement.
20.4 The Supplier's representatives, engaged within the boundaries of a
Crown or Post Office Group establishment or post office, shall comply
with such rules, regulations and requirements (including those
relating to security arrangements) as may be in force from time to
time for the conduct of personnel when at that establishment or post
office and when outside that establishment or post office.
20.5 NOT USED
20.6 The decision of the DSS or POCL as appropriate as to whether any
person is to be refused admission to any premises occupied by or on
behalf of the Crown or the Post Office Group or to a post office (as
appropriate) shall be final and conclusive.
20.7 The Supplier hereby acknowledges and accepts that the DSS or POCL as
appropriate will be responsible for maintaining in accordance with
its standard security requirements the security of any land or
premises (including temporary buildings) made available to Pathway or
the Supplier by the DSS or POCL as appropriate. The Supplier shall
comply with all reasonable security requirements of the DSS or POCL
as appropriate while on the premises, and shall procure that all of
its employees, agents, sub-contractors and suppliers shall likewise
comply with such requirements. Pathway shall provide the Supplier
upon request copies of the DSS's and POCL's written security
procedures and shall use reasonable endeavours to procure from the
DSS and POCL upon request an opportunity to inspect the DSS's and
POCL's security arrangements.
21 LIABILITY AND INSURANCE
21.1 If this Agreement or an Order requires that the Supplier sends its
employees to Pathway's premises or the premises of any other supplier
or customer of Pathway for any purpose in connection with this
Agreement or the Order then, notwithstanding any degree of technical
supervision exercised by Pathway or the relevant supplier or customer
or any instructions issued by Pathway or the relevant supplier or
customer, such employees will remain the Supplier's employees alone.
Accordingly, it is an express condition that the Supplier effects and
maintains in force for the benefit of Pathway, Pathway's customers
and itself full employer's liability insurance in respect of such
employees. The Supplier will provide Pathway with written evidence of
such insurance at any time on request and will notify Pathway in
writing of any change in this insurance.
21.2 The Supplier shall indemnify Pathway against liability resulting from
any claim or action in respect of death, illness or bodily injury to
any person caused by or arising out of the Supplies or work performed
by the Supplier, its employees, agents or sub-contractors under this
Agreement or an Order and the Supplier shall further indemnify
Pathway against any loss of or damage to property caused by the
Supplies or by the act or default of the Supplier or such employees,
agents or sub-contractors. No death illness or bodily injury to any
person and no loss of or damage to property shall be deemed to be
"caused by the Supplies" if the supplies involved have been modified,
altered, other than by prior written agreement of the Supplier, or
improperly maintained or subjected to improper use since their
delivery by the Supplier.
21.3 The maximum liability of the Supplier for any one event or series of
connected events relating to this Agreement shall be four (4) million
pounds sterling, except in relation to death or personal injury,
where the maximum liability shall be unlimited.
21.4 The Supplier shall in respect of its liabilities arising out of or
associated with this Agreement and each Order and the provision of
Supplies thereunder maintain the following insurance cover with
reputable insurers acceptable to Pathway:
(a) public liability insurance of at least five (5) million pounds
sterling per occurrence;
(b) product liability insurance of at least five (5) million
pounds sterling per occurrence;
(c) financial loss insurance of at least one (1) million pounds
sterling per occurrence.
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The Supplier shall provide Pathway with written evidence of the
existence of such insurance at any time on request, and shall notify
Pathway in writing of any change in this insurance.
21.5 The Supplier's personnel shall at all times when on Pathway's
premises or pursuant to this Agreement on the premises of any other
supplier or customer of Pathway carry an identity pass supplied by
the Supplier and approved by Pathway.
21.6 All risk of loss of or damage to any property of the Supplier or of
the Supplier's personnel while at Pathway's premises or pursuant to
this Agreement at the premises of any other supplier or customer of
Pathway for any reason whatsoever shall be and remain the sole risk
and responsibility of the Supplier which shall indemnify Pathway
against all liability in respect of all such loss or damage except
where loss is caused by Pathway's own negligence.
22 AUDIT
22.1 The Supplier shall keep or cause to be kept full and accurate records
("the Records") of all Supplies supplied.
22.2 The Supplier shall grant or procure the grant to Pathway, the DSS,
POCL, any statutory or regulatory auditors of the DSS and POCL and
their respective authorised agents the right of reasonable access to
the Records and shall provide all reasonable assistance at all times
during the currency of the Main Agreement and for six (6) years after
the creation of the relevant Records for the purposes of carrying out
an audit of the Supplier's compliance with this Agreement and
Pathway's compliance with the Main Agreement, including all
activities, charges, prices, performance, security and integrity in
connection therewith. Each party shall bear its own expenses incurred
pursuant to this clause. On termination of this Agreement, the
Supplier shall within a reasonable period to be agreed by the parties
transfer a complete copy of the Records to Pathway. The Supplier
shall thereafter be relieved from any further liabilities under this
clause in relation to such Records. Pathway may subsequently, on
expiry of the Main Agreement, transfer the Records to the DSS or POCL
or a third party selected by the DSS or POCL to replace Pathway and
perform substantially the same functions as Pathway under the Main
Agreement or a replacement thereof.
22.3 Without prejudice to the foregoing, in the event of an investigation
into suspected fraudulent activity or other impropriety by Pathway,
the Supplier or any third party, Pathway (save where Pathway is
allegedly party to the suspected fraudulent activity or other
impropriety) the DSS and POCL reserve for themselves, any statutory
or regulatory auditors of the DSS and POCL and their respective
authorised agents or (in the case of DSS) any Crown Body the right of
access to the Records after being given reasonably sufficient notice
described in Clauses 22.1 and 22.2 above and the Supplier agrees to
render all reasonably necessary assistance to the conduct of such
investigation at all times during the currency of the Main Agreement
or at any time thereafter. Supplier shall be re-imbursed for any of
its incremental costs associated with an investigation into suspected
fraudulent activity or impropriety of a party other than the
Supplier.
22.4 Whenever the DSS requires it, and for the purposes of enabling DSS's
accounting officer to meet his obligations under the Exchequer and
Audit Departments Xxx 0000, the Supplier:
22.4.1 shall disclose to the DSS to the extent known and
available to the Supplier whatever information the DSS
requires concerning the prices the DSS has paid or may
have to pay under the Main Agreement; and
22.4.2 shall produce whatever evidence is in possession of the
Supplier in support of the information provided under
Clause 22.4.1 above.
For the avoidance of doubt, such information shall not include
information concerning the prices paid by Pathway to the Supplier
under this Agreement.
22.5 In connection with this Agreement, the Supplier must not enter into
any other contract or agreement with any person solely in connection
with this agreement, unless that contract or agreement contains a
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provision equivalent to Clause 22.4.1 allowing the DSS to obtain
price information and evidence from that person. This Clause 22.5
does not apply if the Supplier has entered into a contract or
agreement following a competitive tendering exercise in which the
Supplier accepted the tender with the lowest price.
22.6 The Supplier is hereby informed that the DSS must use information
provided under Clauses 22.4 and 22.5 for the purposes of the
Exchequer and Audit Departments Xxx 0000 and for no other purpose.
22.7 The Supplier shall provide Pathway at no additional cost with copies
of its annual and interim audited accounts within fourteen (14) days
of such accounts having been lodged at Companies House or its local
equivalent to Companies House.
22.8 Without in any way limiting the application of the other clauses of
this Agreement, the Supplier acknowledges that for the purpose of
examining and certifying the DSS's accounts or for examining
(pursuant to Section 6(1) of the National Audit Act 1983) the
economy, efficiency and effectiveness with which the DSS has used its
resources, the Comptroller and Auditor General may examine such
documents as he may reasonably require which are owned, held or are
otherwise within the control of the Supplier and may require the
Supplier to produce such oral and written explanations as he
considers necessary.
22.9 The Supplier shall use reasonable endeavours to ensure that the terms
of its contracts with its sub-contractors and suppliers require the
sub-contractors and suppliers to permit examination by, and provide
explanation to, the Comptroller and Auditor General in the manner
described in Clause 22.8.
22.10 All information obtained by Pathway, the DSS or POCL pursuant to this
clause shall be treated as Confidential Information.
23 CANCELLATION/TERMINATION
23.1 NOT USED
(a) Where there has been no breach of contract or default by the
Supplier, in the event that the DSS or POCL terminates all or
part of the main agreement or all or part of Pathway's
obligations thereunder by giving Pathway not less than twelve
(12) months' notice cancel any Order (or part thereof) or any
outstanding Supplies (or part thereof), or terminate this
Agreement, or both.
(b) Additionally where there has been no breach of contract or
default by the Supplier, Pathway may by giving immediate
notice cancel any Order (or part thereof) or any outstanding
Supplies (or part thereof), or terminate this Agreement, or
both, in either of the following events:
(i) that the DSS or POCL terminates all or part of the Main
Agreement or all or part of Pathway's obligations
thereunder for breach of contract or default by Pathway;
(ii) that Pathway, the DSS or POCL terminates the Main
Agreement, or the Main Agreement lapses, as a result of
failure of Pathway and the DSS and POCL to reach
agreement on those schedules to the Main Agreement that
were still to be agreed when the Main Agreement was
signed by Pathway, the DSS and POCL.
(c) NOT USED
(d) A notice given to the Supplier by Pathway pursuant to Clause
23.2(a) or 23.2(b) or 23.2(c) is hereinafter referred to as a
"Cancellation/Termination Notice".
23.2.1 In the event of a Cancellation/Termination Notice being given
by Pathway, the Supplier shall take all reasonable steps to
the extent practicable :
(a) cancel all capital and recurring cost commitments;
(b) arrange more favourable financing terms;
(c) terminate all contracts with sub-contractors and
suppliers on the best possible terms;
(d) reduce labour costs by the redeployment or release of
staff; and
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(e) redeploy hardware, software and other resources used for
the provision of the Supplies.
23.2.2 In the event of a Cancellation/Termination Notice being given
by Pathway the Supplier shall within one month (or longer
where agreed in writing by Pathway and the Supplier) after the
date of the notice provide Pathway with a statement showing
the sum of:
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Pathway shall have the right to audit the Supplier's
internal records and information (confidential or
otherwise) in order to verify the statement. In the event
of a dispute regarding such statement, Pathway and the
Supplier shall use an independent arbitration process.
23.2.3 In the event of a Cancellation/Termination Notice being given
by Pathway, Pathway shall within thirty (30) days after
receipt of a termination sum from the DSS and POCL (if any),
or within thirty (30) days after the effective date of
termination of this Agreement or Order (whichever occurs
later) pay the Supplier a sum equal to the net present value
of the cost profile shown on any statement submitted by the
Supplier pursuant to Clause 23.2.2 within the period
prescribed by Clause 23.2.2 ("the prescribed period") for
submission of such statement. Pathway will be under no
obligation to pay the Supplier in respect of any statement
submitted after the prescribed period, or in respect of any
costs not contained in a statement submitted during the
prescribed period.
The annual effective discount rate to be used for calculating
the net present value shall be five (5) per cent over the
Barclays Bank Base Rate in force at the time Pathway makes the
payment.
Upon receipt by the Supplier of the aforementioned net present
value Pathway will have no further liability to the Supplier.
23.2.4 Pathway shall not in any event be liable to pay under the
provisions of Clause 23.2.3 any sum which, when taken together
with any sums paid or due or becoming due to the Supplier
under this Agreement, shall exceed the total net present value
(calculated using the rate referred to in Clause 23.2.3) of
the sums due to the Supplier had the Supplier supplied ******
** the Supplies.
23.2.5 NOT USED.
23.3 Pathway may also forthwith by notice in writing to the Supplier
cancel any Order or part thereof or the requirement for the relevant
part of the Supplies and/or terminate this Agreement if the Supplier
is in material breach of this Agreement or any Order and fails to
remedy such breach within thirty (30) days of Pathway's written
demand.
October 1996 COMMERCIAL IN CONFIDENCE page 13 of 36
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23.4 Pathway reserves the right to immediately terminate this Agreement
without further liability to the Supplier in the event of the
following occurrence:
the Supplier becomes affiliated through acquisition or
otherwise to any company or organisation whose controlling
interest is regarded by Pathway to be hostile or otherwise
against Pathway's technical, commercial or trading
interests.
Pathway will not exercise its rights under Clause 23.4 where Supplier
has notified Pathway in advance of the proposed acquisition or change
of control, and Pathway has agreed to it in writing, and the
acquisition or change of control takes place as proposed.
23.5 Notwithstanding anything contained in this Agreement the following
obligations will survive termination of this Agreement:
(a) The obligations of the parties under Clause 10 "Warranty
and Support", Clause 14 "Intellectual Property Rights",
Clause 18 "Confidentiality", Clause 19 "Protection of
Personal Data", Clause 21 "Liability and Insurance",
Clause 22 "Audit" and Clause 23 "Cancellation/
Termination";
(b) All other rights and/or obligations under this Agreement
which are expressed to apply after termination or which
are by necessary implication to apply after termination.
24 SET-OFF
24.1 If at any time any sum of money becomes recoverable by or due to
Pathway from the Supplier under or in connection with this Agreement
(including Orders placed hereunder) or any breach thereof by the
Supplier or under or in connection with any other agreement (whether
of sale or purchase or on any other account) between Pathway and the
Supplier, Pathway shall be entitled, without prejudice to any other
rights or remedies of Pathway by law, subject to mutual agreement
between Pathway and Supplier to deduct such sum from any amount then
due, or which may at any time thereafter become due, to the Supplier
under this Agreement (including Orders placed hereunder) or under any
other agreement between Pathway and the Supplier.
25 GUARANTEE
The Guarantor gives its guarantee and undertakes that, if the
Supplier fails to fully and punctually perform all its obligations
under this Agreement, or commits any breach of its obligations under
this Agreement which is not remedied in accordance herewith, upon
written demand by Pathway the Guarantor will:
(a) provide all resources and facilities necessary to fulfil the
Supplier's obligations under this Agreement; and
(b) reimburse to Pathway any amounts paid under this Agreement
which the Supplier is not entitled hereunder to retain; and
(c) indemnify Pathway against all losses, damages, cost and
expenses (including court costs and legal fees on a
solicitor and own client basis) which Pathway may incur
due to all and any such failures or breaches.
This Guarantee shall be a continuing security and accordingly it
shall not be discharged by any partial performance of this Agreement
and shall extend to cover the unperformed part of the obligations of
the Supplier under this Agreement.
Pathway shall not be obliged before taking steps to enforce this
Guarantee against the Guarantor to obtain judgement against the
Supplier or the Guarantor or any third party in any court, or to make
or file any claim in a bankruptcy or liquidation of the Supplier or
any third party, or to take any action whatsoever against the
Supplier or any third party other than serving a written demand upon
the Guarantor as stated above.
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26 GENERAL
26.1 This Agreement constitutes and expresses the entire agreement between
the parties relating to the subject matter hereof. The provisions of
this Agreement apply to the exclusion of any other standard terms and
conditions of Pathway or of the Supplier.
26.2 This Agreement shall in all respects be deemed to be made under, and
interpreted in accordance with, English law, and the parties hereby
submit to the non-exclusive jurisdiction of the English courts.
26.3 No provision hereof shall be deemed waived and no breach or default
excused unless such waiver or excuse is in writing signed by the
party issuing it.
26.4 This Agreement may not be varied or amended in any way except in
writing signed on behalf of Pathway and the Supplier.
26.5 The rights and remedies of Pathway under this Agreement are
cumulative and without prejudice and in addition to any rights or
remedies which it may have at law or in equity.
26.6 The headings in this document are inserted for convenience only and
shall not constitute a part of or be referred to in its
interpretation.
Signed for and on behalf of: Signed for and on behalf of:
SUPPLIER GUARANTOR
Signed: ......................... Signed: ...............................
Name: ......................... Name: ...............................
Position: ......................... Position:...............................
Date: ......................... Date: .................................
Signed for and on behalf of:
ICL PATHWAY LIMITED
Signed: .........................
Name: .........................
October 1996 COMMERCIAL IN CONFIDENCE page 15 of 00
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Position: .........................
Date: .........................
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APPENDIX 1 - SCHEDULES
CONTENTS OF SCHEDULES
SCHEDULE A SPECIFICATION OF SUPPLIES
A1 SPECIFICATION
A1.1 Specification
A1.2 Acceptance Procedure
A1.3 Equipment Documentation
A1.4 Development And Technical Support
A2 QUALITY
A2.1 Quality Assurance
A2.2 Risks
A2.3 Reliability
A3 MODIFICATION OF SUPPLIES / CONFIGURATION MANAGEMENT
A3.1 Modification State
A3.2 Modifications Procedure
A4 SPARE PARTS AND MAINTENANCE
A4.1 Spare Parts List
A4.2 Spare Parts And Tools Availability
A4.3 Spares Kits
A4.4 Maintenance
A5 REPAIRS/EXCHANGES
A6 CONSUMABLES
SCHEDULE B PLACING OF ORDERS
B1 DELIVERY REQUIREMENTS AND FORECASTS
B2 ORDERS
SCHEDULE C DELIVERY OF SUPPLIES
C1 DELIVERY REQUIREMENTS
C1.1 Trade Terms
C1.2 Delivery Instructions
C2 PACKAGING AND DELIVERY REQUIREMENTS
C3 CONTINUITY OF SUPPLY/STOCK LEVELS
SCHEDULE D PRICING TERMS
D1 PRICING
D2 PRICES
SCHEDULE E PROJECT MANAGEMENT
SCHEDULE F CHANGE CONTROL
F1 SCOPE
F2 PRINCIPLES
F3 PROCEDURE
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SCHEDULE A - SPECIFICATION OF SUPPLIES
A1.1 SPECIFICATION
TYPE
9-pin dot matrix, impact type. Bi-
directional, unidirectional, logic
seeking
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PRINTING SPEED
8 CPI (22 Char/Line) 250 cps
10 CPI (28 Char/Line) 270 cps
15 CPI (42 Char/Line) 300 cps
receipt feed speed 127 mm/sec.
Form feed speed 101.6 mm/sec.
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RESOLUTION (H X V)
Letter 17 x 17
Utility 9 x 7
High speed draft 7 x 7
Graphics (single) 60 x 72 dpi
(Double) 120 x 72 dpi
(Quad) 240 x 72 dpi
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RECEIPT PAPER
Width 82.5 mm.
Diameter 88.9 mm.
Paper thickness up to .0089 mm
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INTERFACES
Centronics Parallel / IEE1284
or RS-232C
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MEMORY
1 line, 256 byte to 6144 byte
input buffer (user selectable)
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PRINT LINE
22 characters at 8 cpi
28 characters at 10 cpi
32 characters at 12 cpi
42 characters at 15 cpi
48 characters at 17.1 cpi
56 characters at 20 cpi
66 characters at 24 cpi
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RESIDENT FONTS
Draft, Utility, NLQ Courier, NLQ
Sans Serif
Barcodes: Code 39, UPC-A, UPC-E,
EAN8, EAN13, Interleaved 2 of 5, Code
128
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CHARACTER SETS
IBM character sets 1 and 2(code pages 437, 850, 860,
863, 865, 866)
National character sets: American,
French, German, British, Danish 1/2,
Swedish, Italian, Spanish 1/2, Japanese,
Norwegian, Latin American, French
Canadian, Dutch, and Publisher
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EMULATIONS
IBM
Epson ESC-POS
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FORMS
October 1996 COMMERCIAL IN CONFIDENCE page 18 of 00
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Validation (Top Width: 127 to 228.6 mm.
Insertion) Length: 85.7 to 279.4 mm.
Max. # of sheets: 4 (1 original &
3 copies)
Max. forms thickness: .406 mm.
Max. # of print lines: 17 (@ 2.99
mm/Line)
Slip (Front Width: 63.5 mm. minimum
Insertion) Length: 85.7 mm. minimum
Max. # of sheets: 4 (1 original &
3 copies)
Max. forms thickness: .406 mm.
No Max. # of print lines
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NOISE LEVEL
57.3 dBA Ave. (Sound Pressure
Level)
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RELIABILITY AND ESTIMATED USAGE
MCBF 5 million Print Lines
Print head 200 million characters (Utility mode)
Workload: Receipt: 1,200,000 Print lines/year
Slip: 50,000 Print Lines/year
Ribbon life Black: Up to 3,000,000 Characters
Purple: Up to 5,000,000 Characters
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OPERATING CONDITIONS
Power Maximum 55 W, Idle 10 W
consumption
Power 100 - 240 VAC (+/- 10%),
requirements
Operating +0 degree C to +50 degree C
temperature
Relative humidity 10% - 90% (non condensing)
Storage -10 degree C to +60 degree C
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DIMENSIONS AND WEIGHT
Height 152.4 mm
Width 185.4 mm
Depth 311.12 mm
Weight 4.54 kilos
Shipping Weight 5.9 kilos
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CONFIGURATION
The Supplies shall consist of the following:
Product: Ithaca Model 94 printer (with serial interface)
(designated for the purposes of this Agreement as
MOD94-01)
Colour: Outer casing colour to be RAL7021 (charcoal grey)
Keypad colour to be Pantone 555C (green) Legend
colour to be white
Keypad Label: Artwork to be provided by Pathway by 15th
November 1996; if Pathway have not provided it by
then, the Supplier may use a design of its own
choosing, to be agreed by Pathway, such agreement
not to be unreasonably withheld.
Packaging: Standard Ithaca packaging (including bar code
identification) conforming to NSTA.
ProductIdentification: Each printer to have a barcode identification
label which contains a product identification
code and serial number.
Ancilliary Items to be Included with each printer:
1 ribbon cassette (black or purple to be
decided by Pathway by 1st January 1997)
1 single ply paper roll
1 UK power cord 2.5 metres in length
October 1996 COMMERCIAL IN CONFIDENCE page 19 of 36
20
No manuals will be supplied (Ithaca's user
instructions (already supplied electronically) are
to be incorporated by Pathway in the system manual
being provided by Pathway to its customers).
A1.2 Acceptance Procedure
The Supplies are deemed to be automatically Accepted on completion of
delivery. Pathway may nevertheless within one (1) month after
delivery reject such Accepted Supplies by giving notice in writing in
the event that they are found to be defective or not to conform to
their Specification; such notice to provide a reasonably detailed
description of the defect, in the event of such rejection, the
Supplier shall promptly repair or replace the relevant Supplies.
Pathway shall not be obliged to pay for any such rejected Supplies
until such rejected supplies are repaired or replaced. Risk and
property in the relevant Supplies shall revert to the Supplier, upon
collection of any rejected Supplies.
Acceptance of Supplies shall occur notwithstanding that Pathway does
not notify the Supplier of such Acceptance; pathway shall not be
obliged to notify the Supplier of such Acceptance.
A1.3 Equipment Documentation
The Supplier will supply to Pathway in respect of the Supplies the
following:
(a) Within five (5) working days after a request from pathway, and
where the Supplies are hardware:
(i) diagnostic information;
(ii) circuit, logic and wiring diagrams;
(iii) a xxxx of materials covering all the components and
materials in the Supplies;
(iv) installation drawings and instructions;
(v) instructions for routine maintenance including a list
of all tools required, excluding general tools such as
standard screwdrivers, pliers, etc.;
(vi) names, addresses and phone numbers of the Supplier's
suppliers of components and materials for the Supplies;
(vii) the list described in Clause A3.1(a), in draft form if
not required by Clause A3.1(a) to be complete; in which
case the final version to be supplied by the Supplier
to Pathway within five (5) working days after the date
of completion of development;
(viii) details of all items (e.g. consumables) for which there
is a limited shelf life, or where the predicted
operational life of the Supplies is less than that of
the equipment as a whole.
(b) Details of any special environmental controls which are
required to ensure the Supplies meet the Specification;
(c) Operating instructions.
A1.4 Development and Technical Support
The Supplier will provide Pathway free of charge with all reasonably
necessary technical and application support (including direct access
to the Supplier's technical staff) in order to enable Pathway to
incorporate the Supplies in Pathway's products and to carry out
associated development activities.
A2 QUALITY
A2.1 Quality Assurance
(a) The Supplier will assume overall responsibility for the
quality of the Supplies.
(b) The Supplier will employ a Quality Management System, which
will be documented in the Supplier's Quality Manual which will
be available to Pathway on request.
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(c) The Supplier will produce a Quality Plan as a part of the
Project Management Plan (defined in Schedule E) within one (1)
month of the date of this Agreement that will describe the
organisation, the methods and the standards by which the
requirements of this Agreement will be carried out. The
Quality Plan will be available for regular review by Pathway.
(d) The Supplier will appoint a Quality Manager responsible for
the application of the Quality Management System and for
auditing achieved quality against the Quality Plan.
(e) Pathway may audit, and may permit Pathway, POCL and the DSS to
audit, the quality system applicable to any operation carried
out by the Supplier pursuant to delivering the Supplies, and
the Supplier shall procure that its suppliers and
sub-contractors shall grant Pathway the same right of audit in
respect of their operations. Audits may take place at any time
during normal working hours provided at least two (2) days'
prior written notice is given by Pathway. Such audits may at
Pathway's option include the witnessing of, or participation
in, tests and inspections of the Supplies whether completed or
not. The Supplier will promptly take appropriate corrective
action with regard to any non-conformances identified, and
will within thirty (30) days after the audit supply Pathway
with details of corrective action taken.
(f) Where applicable the Supplier will ensure that all
electrostatic sensitive devices are at all times, as
applicable, manufactured, stored, packed, repaired, installed,
transported and handled under electrostatically safe
conditions as defined by a recognised standard. Pathway has
the right of veto over the standard to be used, such right not
to be unreasonably exercised.
A2.2 Risks
The Supplier will produce and maintain a Risk Analysis and Management
Plan which will be available for regular review by Pathway, and will
monitor and manage risk in a formal and structured manner. Risks and
risk mitigations which could affect the performance of the Supplier's
obligations under this Agreement, or the performance of the
obligations of other suppliers and sub-contractors to Pathway
pursuant to the Main Agreement, or the performance of Pathway's
obligations under the Main Agreement, will be reviewed at the
progress meetings that will take place pursuant to Clause E4 of
Schedule E.
A2.3 Reliability
(a) If, *************************************************** of
the Supplies fail to comply with the Mean Cycles Between
Failure (MCBF) stated in the Specification for any reason
other than (unless attributable to default of the
Supplier) mistreatment, misuse or failure to observe the
Supplier's maintenance instructions, the Supplier will at
its own expense take such immediate action as is agreed by
Pathway in writing to repair or replace equipment or
relevant part/s under the procedures for an "epidemic" as
detailed in clause 10.3.
Any Supplies which have printed more than ***********
********************* characters will not be used in the
calculation of MCBF, and this clause A2.3(a) will no
longer apply to such Supplies.
(b) The Supplier will give Pathway at least sixteen (16) weeks
prior written notice before developing, manufacturing or
repairing any Supplies to be supplied hereunder at any
premises other than those described to Pathway prior to
the date of this Agreement as the place(s) of development,
manufacture or repair, unless otherwise agreed in writing
by Pathway.
A3 MODIFICATION OF SUPPLIES / CONFIGURATION MANAGEMENT
This Clause A3 does not apply to Services.
A3.1 Modification State
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(a) All products comprising the Supplies shall be of precisely the
same manufacturing and design build level ("the Modification
State") as each other. The Supplier shall within five (5)
working days after the date of this Agreement, or five (5)
working days after the date of completion of development of
the Supplies (whichever is later) notify Pathway of the
Modification State. This notification shall include provision
of a list which identifies all assemblies, parts and
components in equipment by part or catalogue number, stating
modification levels and dates.
(b) The Supplier will not deliver the Supplies with modifications
to them which affect their form, fit, function, safety, spare
parts stock-holding or Modification State without the prior
written agreement of Pathway obtained in accordance with the
procedure described in Clause A3.2 hereof. All Supplies will
have an appropriate marker attached both to the Supplies
themselves and to their outer packaging, showing the
Modification State.
(c) The Supplier will employ formal configuration management of
the Supplies in accordance with a Configuration Management
Plan which the Supplier shall produce as part of the Project
Management Plan in accordance with Schedule E.
(d) The Configuration Management Plan shall define the
configuration management procedures and responsibilities and
the configuration management system which the Supplier will
use to control the delivery of the Supplies. Prior to the
delivery of the Supplies the Supplier will carry out
configuration audits to ensure that the Supplies fully conform
to the requirements of this Agreement. The Supplier will at
the time of delivery of the Supplies provide the data used in
these audits to Pathway.
The Configuration Management Plan will be available for
regular review by Pathway.
A3.2 Modifications Procedure
In the event that either Pathway or the Supplier wishes a
modification of the kind addressed by Clause A3.1(b) hereof to be
made to the Supplies, then the provisions of Schedule F shall apply,
and Clauses A3.2(a) to A3.2(i) shall also apply. For the avoidance of
doubt, Clauses A3.2(a) to A3.2(i) shall not apply to proposed Changes
that do not include modifications of the kind addressed by Clause
A3.1(b).
(a) The Supplier will forward written details to Pathway of the
following:
(i) In what respect the modification has any of the effects
specified in Clause A3.1(b) hereof;
(ii) The Supplier's new part number for the proposed
modification;
(iii) The Supplier's identification of the item to be
modified;
(iv) Date and Supplier's serial number from which the
Supplier proposes to implement the modification;
(v) Whether retrospective action is proposed and if so the
availability of sets of parts and details of necessary
service action. Additionally the Supplier will advise
the effect on outstanding spare parts Orders and
equipment which at the time of the change are in the
repair loop and the next batch of equipment to be
supplied by the Supplier;
(vi) Alterations to spare parts lists, manuals, tools, test
equipment and other relevant material supplied or to be
supplied to Pathway or its nominated service
provider(s);
(vii) Evidence of validation of the proposal by the Supplier's
Quality Control organisation.
(b) Where modification kits are required, the Supplier will
provide on a free of charge basis, enough kits to bring all
reference machines up to the latest level in order to:
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(i) Maintain reference machines at "state of the art" with
respect to modification;
(ii) Enable Pathway to validate the change.
(c) Without prejudice to the terms of Schedule F hereof should the
Supplier request modification of equipment already despatched
to Pathway for correction of any defect for reasons of safety,
Pathway will not unreasonably withhold its consent.
(d) The supply of materials and labour for modification of
Supplies already delivered to Pathway will be carried out on a
module placement basis and, if the modification has been
requested by the Supplier (or by Pathway for correction of any
defect or for reasons of safety), all costs thereof will be
borne by the Supplier. Where the costs are initially incurred
by Pathway, Pathway shall provide written notice to the
Supplier as such costs are incurred, the Supplier will pay
Pathway's invoice (which will include a detailed statement as
to the value of each cost item and the basis of cost
calculation) within forty five (45) days of the date thereof.
(e) Where the Supplier is liable for the cost of modification in
Clause A3.2(d) it will provide fully tested exchangeable
sub-assemblies (for example printed circuit boards, microcode,
power supply units) that are fitted with the modification in
sufficient quantities and at agreed intervals to allow
replacement to be undertaken in a reasonable time. Pathway may
scrap the modules which have been replaced, unless the
Supplier chooses to collect them at its expense, giving notice
in writing before they are replaced.
(f) Where the Supplier is not liable for the cost of modification
in Clause A3.2(d) the size, and arrangements for the return or
disposal of the base stock will be determined by mutual
written agreement. The Supplier will also deliver to Pathway
parts and modification instructions, to enable Pathway to
implement a change programme in such quantity and timescales
as are determined by mutual written agreement.
(g) The Supplier will replace free of charge to Pathway any
Supplies held by Pathway and made redundant by the
modification pursuant to Clause A3.2(d) hereof. The Supplier
also warrants to Pathway that it will offer to replace free of
charge any items that are the same as the Supplies and that
are held by any other supplier or sub-contractor to Pathway in
support of that supplier's or sub-contractor's business with
Pathway and that are made redundant by the modification
pursuant to Clause A3.2(d) hereof.
(h) The Supplier will supply "information" copy details of all
changes (excluding Changes) not governed by Clause A3.1(b)
hereof. Such changes do not require Pathway's prior approval
but must not be incorporated in the Supplies to be delivered
to Pathway before Pathway has acknowledged receipt of the
change in writing. All such changes should be clearly marked
"Information Only".
(i) The Supplier will effect and incorporate in all Supplies
repaired or replaced by it under this Clause A3 any
modifications or additions necessary to bring the Supplies
into conformance with the then current Modification State. The
costs thereof will be borne by the party liable under this
Agreement for the costs of the repair or replacement.
A4 SPARE PARTS AND MAINTENANCE
This Clause A4 does not apply to Services.
A4.1 Spare Parts List
The Supplier will at Pathway's request provide to Pathway or its
nominated repairer and maintainer, a full assembly, sub-assembly and
component parts list and a recommended list of spare parts which will
include the Supplier's part number or where the Supplier does not
furnish its part number on the parts list, its supplier's part
number. The recommended list of spare parts must detail cost and
reliability figures, and must include parts at assembly, sub-assembly
and component level.
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A4.2 Spare Parts and Tools Availability
(a) The Supplier will supply against Pathway's Order or Pathway's
nominated maintainer's order or nominated repairer's order
spare parts (which shall be able to include any items listed
on the recommended list of spare parts) and maintenance tools
during the period of this Agreement or until 28th February
2005, whichever is later. The Supplier will use its best
endeavours to ensure that adequate spare parts and tools are
available from the date of delivery of the first production
unit.
(b) If Pathway requires spare parts and/or maintenance tools
beyond the period specified in A4.2(a) above and the Supplier
(or an alternative source identified by the Supplier) is
unable to deliver the Supplier will at the request of Pathway
use its best endeavours to transfer or secure the transfer to
Pathway of all information and rights to the extent necessary
to enable Pathway, on a world-wide and free of charge basis,
to make and/or maintain the spare parts or have them made and
to sell them. The Supplier reserves the right to request
re-imbursement from Pathway for costs incurred to fulfil its
obligation under this clause A4.2.(b)
(c) The delivery lead time for spare parts and maintenance tools
excluding emergency orders under Clause A4.2(d) below, will be
thirty (30) days, from the Supplier's receipt of the Order,
unless the Supplier accepts an earlier date.
(d) If Pathway requests the Supplier to ship spare parts on an
emergency basis the Supplier will despatch such items subject
to availability of such parts by the method requested by
Pathway within one (1) working day of receipt of Pathway's
faxed order. Pathway will confirm the emergency order by
eventual submission of an Order in the usual way. The Supplier
will notify Pathway of the consignment route and details and
any other information reasonably required by Pathway, as soon
as such information is available.
A4.3 Spares Kits
(a) The Supplier agrees, at the request of Pathway, to supply
spare parts in the combination required by Pathway from time
to time. Each Spares Kit will be accompanied by an itemised
contents list.
(b) The Supplier agrees, on receipt of an Order from Pathway at
the lead time specified in A4.2(c), to make delivery of the
initial Spares Kits no later than, and in the same
Modification State as, the first production unit deliveries to
Pathway.
A4.4 Maintenance
The Supplier will supply to Pathway or a third party nominated by
Pathway all technical support and information necessary for efficient
maintenance and field repairs by Pathway or such third party. Pathway
or a third party receiving such technical support and information
shall receive training as deemed appropriate by the Supplier, Pathway
agrees to pay reasonable costs for such training.
A5 REPAIRS/EXCHANGES
A5.1 The Supplier or on the Supplier's behalf its sub-contractor will
provide to Pathway and its nominated repairer and maintainer
repair/exchange facilities within the United Kingdom for the Supplies
for the period stated in Schedule A4.2(a) hereof.
A5.2 Pathway will provide an Order covering any items that it submits for
repair or exchange.
A5.3 Each item sent by Pathway to the Supplier for repair/exchange will be
either exchanged within ******* working days from receipt of the
item, or will be repaired and returned to Pathway within *********
days of receipt.
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A5.4 All Supplies returned to Pathway or its nominated repairer and
maintainer after repair or supplied to Pathway or its nominated
repairer and maintainer on an exchange basis will be in accordance
with the current Modification State unless otherwise agreed by
Pathway in writing.
A5.5 Any item of Supplies repaired/exchanged by the Supplier will be
warranted until the later of the expiration of the original term of
the warranty or for a further *********** days after the delivery of
the repaired or exchanged item of Supplies to Pathway. All repaired
Supplies shall bear a label stating the revised warranty expiry date.
If any repaired or exchanged item is or becomes defective during such
warranty period, the Supplier will, at Pathway's request, promptly
supply a replacement item at no charge.
A5.6 The Supplier will xxxx both the item and the outer carton of
repaired/exchanged Supplies in such a way as to distinguish them from
other Supplies.
A5.7 Pathway may provide with each item of Supplies sent to the Supplier
for repair/exchange an individual part repair form. The Supplier will
complete such form and return it with the repaired/exchanged item.
A5.8 Where the Supplier repairs or exchanges equipment containing media or
disc drives, the Supplier agrees that any information or data
contained in the media or the disc drives returned by Pathway for
repair or replacement is proprietary and/or confidential to Pathway
and/or Pathway's customer. The Supplier will keep confidential and
not use the information or disclose or publish the same to any third
party.
A5.9 The Supplier or on the Supplier's behalf its sub-contractor shall
furnish Pathway or its nominated repairer and maintainer with monthly
reports detailing the following:
(a) All Supplies received for repair, indicating warranty status
and date received;
(b) All Supplies repaired, indicating date returned;
(c) Current work in progress;
(d) Current repairs overdue to agreed lead time;
(e) Incidence of "No fault found";
(f) Incidence of component failure by item reference.
A5.10 In the event of Pathway wishing to conduct its own repairs or have a
third party conduct repairs or in the event of the Supplier's
inability to provide repair/exchange facilities prior to or after
expiration of the period stated in Clause A4.2(a), the Supplier shall
supply Pathway ************ with all necessary technical
documentation and information to enable Pathway to repair or have
repaired such Supplies which shall include:
(a) Copies of all the necessary functional test and Acceptance
specifications for the Supplies;
(b) Full assembly documentation including engineering drawings,
parts lists, and parts lists detailing second source
components;
(c) Test and Repair procedures and methods;
(d) Component firmware and associated software.
A5.11 The Supplier will give Pathway one (1) year's prior notice of
cessation of repair/exchange facilities as per the provisions in
Clause A5.1 of this Agreement.
In addition, the Supplier will supply Pathway at reasonable cost,
such test equipment and tools as may be necessary or convenient for
repairing and testing such Supplies.
A6 CONSUMABLES
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A6.1 The Supplier agrees to supply all consumables for the period stated
in Clause A4.2(a) hereof.
A6.2 The prices payable for consumables, together with such discounts as
are applicable, are set out in Schedule D to this Agreement.
A6.3 The Supplier shall provide a full list of consumables which shall
include:
(a) The Supplier's part number;
(b) Manufacturer's name and part number, where consumables are not
manufactured by the Supplier;
(c) Consumables usage figures.
A6.4 The Supplier agrees to use its best endeavours to ensure that
adequate consumables are available from the date of the first
delivery of production units of equipment under this Agreement.
A6.5 Delivery lead time for further consumables shall be ******** days
unless the Supplier accepts an earlier date.
A6.6 Pathway's use of commercially available alternative consumables/media
will not negate the warranty of the Supplies. This is only to apply
where the alternatives have received the Suppliers written approval
which will not be with-held unduly.
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SCHEDULE B - PLACING OF ORDERS
B1 DELIVERY REQUIREMENTS AND FORECASTS
B1.1 By the end of the fifth (5th) working day of each month, Pathway will
send the Supplier a statement showing:
(a) the quantity of Supplies that are to be delivered during the
calendar month commencing in one month's time (a "One Month
Firm Commitment"), and the exact required delivery dates
during that month; this quantity is not subject to change
without the Supplier's agreement, such agreement not to be
unreasonably withheld; and
(b) the likely quantity of Supplies that Pathway forecasts will be
required to be delivered during the calendar month commencing
in two months' time (a "One Month Firm Uncommitted Forecast");
and
(c) the best view of the quantity of Supplies that Pathway
forecasts will be required to be delivered during the calendar
month commencing in three months' time (a "One Month Flat
Uncommitted Forecast").
This statement is called the "Delivery Forecast".
This is a rolling process such that each month the previous month's
One Month Flat Uncommitted Forecast becomes a One Month Firm
Uncommitted Forecast, and the previous month's One Month Firm
Uncommitted Forecast becomes a One Month Firm Commitment.
Each time a One Month Flat Uncommitted Forecast becomes a One Month
Firm Uncommitted Forecast (i.e. when a new Delivery Forecast is
issued) the quantity can at Pathway's sole discretion change by up to
+/- 20%, or more with the Supplier's agreement, such agreement not to
be unreasonably withheld.
Each time a One Month Firm Uncommitted Forecast becomes a One Month
Firm Commitment (i.e. when a new Delivery Forecast is issued) the
quantity can at Pathway's sole discretion change by up to +/- 12%, or
more with the Supplier's agreement, such agreement not to be
unreasonably withheld.
All shipments will consist of approximately 672 printers, this being
the quantity necessary to fill a forty (40) foot container. Any
requirement by Pathway to ship other quantities (other than by whole
container loads) may result in a different price per unit to that
specified in Schedule D.
******************************** of the Supplies will be delivered by
3rd February 1997 for the "Live Trials", the remainder of the
Supplies will be delivered approximately evenly spread over the
period May 1997 to calendar quarter 4 1998.
B2 ORDERS
B2.1 The One Month's Firm Commitment contained within the Delivery
Forecast issued each month in accordance with Clause B1 above shall
constitute an Order.
B2.2 Subject to Clause B1.1 above, forecasts of requirements which may be
given by Pathway to the Supplier will be given for information
purposes only and the Supplier will have no claim against Pathway in
respect of any reliance placed by the Supplier on such forecasts.
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SCHEDULE C - DELIVERY OF SUPPLIES
C1 DELIVERY REQUIREMENTS
C1.1 Trade Terms
Delivered Duty Paid, Named Place of Destination (DDP) as defined in
the International Chamber of Commerce Publication No. 460 Incoterms
dated 1st July 1990 (hereinafter "Incoterms") will apply to the
delivery of the Supplies hereunder and all associated terms and
conditions used in this Agreement will, except to the extent
specified to the contrary, have the meanings given to them in
Incoterms. If there is any conflict between the terms and conditions
of this Agreement and Incoterms then this Agreement will take
priority.
C1.2 Delivery Instructions
(a) The Supplier will immediately after delivery of the
Supplies send to the Pathway Purchasing Officer by
facsimile a copy of an advice note showing the Agreement
reference and (where applicable) the Order number, the
number of packages and the method and route of
transportation. The Supplier will ensure that one copy of
such advice note accompanies the Supplies and a further
copy is supplied to the carrier. The Supplier will notify
Pathway by facsimile or similar method on the day of
despatch of Supplies despatched from the Supplier's
premises.
(b) The Supplier will furnish Pathway with a status report
issued by the first Monday of each month detailing new
Orders received, shipments made, backlog if applicable and
projected date for clearance and other matters
specifically requested by Pathway. Where delivery is
likely to be delayed the Supplier will notify Pathway of
relevant facts and circumstances as soon as possible.
(c) If delivery is effected in contravention of this Agreement
or any Order the Supplier will be liable to Pathway for
any additional loss, expense, cost or damage incurred or
arising in consequence thereof.
(d) Pathway will not be liable in respect of any failure to
give notice to the Supplier's carriers of loss, damage,
mis-delivery, delay, detention in transit, non-delivery or
other matters affecting transit.
C2 PACKAGING AND DELIVERY REQUIREMENTS
C2.1 The Supplier will ensure that any Supplies and spare parts are
packaged and delivered in accordance with any reasonable requirements
of Pathway or a designated third party acting on Pathway's behalf
that are notified to the Supplier in writing; these requirements will
include inter alia packaging, labelling, bar coding and stacking on
pallets.
C3 CONTINUITY OF SUPPLY/STOCK LEVELS
This Clause C3 does not apply to Services.
C3.1 The Supplier accepts that Pathway requires continuity of supply of
the Supplies for the period of this Agreement and undertakes to
continue the manufacture of the Supplies for that period and to use
all reasonable endeavours to maintain such stocks of the Supplies as
may be reasonably necessary to meet Pathway's anticipated forecast
requirements for the Supplies.
C3.2 The Supplier will give Pathway ************** prior notice of
cessation of production of the Supplies or any maintenance tools and
will provide Pathway with the opportunity to purchase on terms no
less favourable than those granted or to be granted to any other
customer of the Supplier such quantity of spare parts and tools as
Pathway considers sufficient for its future needs. The provision of
this paragraph will survive termination of this Agreement.
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C3.3 Without prejudice to any other remedy of Pathway for breach of the
Supplier's obligations, if the Supplier for any reason is unable to
provide the Supplies in accordance with this Agreement, the Supplier
will ********************************************** transfer to
Pathway, the Supplier's manufacturing inventory, and all information
and rights, to the extent necessary to enable Pathway to make the
Supplies or have them made and to sell them. Furthermore the Supplier
will grant to or obtain the grant for Pathway of a world-wide free of
charge licence so to do until such time as Pathway's entitlement to
obtain such Supplies pursuant to this Agreement is rightfully
terminated in accordance with its terms.
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SCHEDULE D - PRICING TERMS
D1 PRICING
D1.1 The prices for the Supplies are contained in Clause D2 and will in
the event of conflict supersede any prices appearing in any other
Schedule.
D1.2 The prices will be valid in respect of all Orders dated after the
date of this Agreement.
D1.3 It is anticipated that prices will change during the life of this
agreement in line with market forces and as a result of volume
economies.
D1.4 The prices for spare parts (if any) ordered after termination of this
Agreement will be subject to the limitations of no more than ***
increase ******** in any twelve month period and no increase to
exceed **** percent **** of the immediately preceding prices of the
Supplies at issue.
D1.5 The Supplier warrants that at the date of this Agreement the prices
set out in this Schedule do not exceed those charged to any other
customer of the Supplier or the Supplier's parent company purchasing
the Supplies. If at any time the Supplier or the Supplier's parent
company offers lower prices to any other customer for the Supplies,
then such lower prices will be charged to Pathway on subsequent
invoices of the Supplier.
D1.6 ********************************************************************
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**********.
D1.7 Prices will be reviewed by Pathway and the Supplier in accordance
with the provisions of this Schedule. There will be no price increase
unless related to a Change.
D1.8 ******************************************************************
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***********.
D1.9 The price for all Orders in so far as they relate to Supplies with a
delivery date on or after the price review date shall be altered to
reflect any price adjustment agreed by Pathway and the Supplier as
part of the price review.
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D2 PRICES
Printer Model Price
FRONT OFFICE PRODUCTS
Ithaca Model 94 ****
Warranty: 25 months from date of despatch from factory
OR ** Million Characters ***********************
But in no case beyond 28th February 2005.
Both of these are on a return for repair, parts and labour
basis.
The prices above will be reduced if Pathway can obtain a reduction in
the freight and duty costs and any other component / parts costs. In
addition, if payment is received within ************ days of the date
of delivery of any Supplies a ** credit per Supply will apply to such
Supplies.
ALL prices are exclusive of VAT, and include delivery to a single
nominated point within the UK.
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SCHEDULE E - PROJECT MANAGEMENT
E1 The Supplier will appoint a Programme Director who will have
executive responsibility and authority for all contracted activities
of the Supplier.
E2 The Supplier will produce a Project Management Plan ("PMP") defining
how the Supplier will perform its obligations under this Agreement,
and what overall approach it will adopt. The Supplier will supply the
PMP to Pathway within thirty (30) days of the date of this Agreement,
for agreement by Pathway. Once agreed, the PMP will be maintained by
the Supplier, with any changes being submitted to Pathway for
approval.
The PMP will:
(a) define the management organisation and controls; and
(b) contain a Quality Plan, as defined by Clause A2.1(c) of
Schedule A; and
(c) contain a Configuration Management Plan, as defined by Clause
A3.1(c) of Schedule A; and
(d) contain a Risk Analysis and Management Plan; and
(e) define the process to be used for the monitoring and
management of issues that arise in the performance of this
Agreement.
E3 Until the completion by Pathway of the roll-out of the Pathway system
to all post offices, the Supplier shall present formal written
reports in a reasonable format and to a reasonable schedule to be
defined by Pathway. These will cover inter alia:
(a) actual and forecast progress against milestones
(b) analysis of the status of the Supplies
(c) status summary of Change Requests and Change Proposals (as
defined in Schedule F)
(d) recommended changes to plans (if any)
(e) issues requiring resolution by Pathway
(f) risks requiring input by Pathway, and Supplier internal risks
that could impact the performance by Pathway of its
obligations under the Main Agreement
(g) activities planned for next reporting period.
E4 The Supplier shall attend regular progress meetings, chaired by
Pathway, to a reasonable schedule to be determined by Pathway. This
will typically be on a two (2) weekly basis, and not less frequently
than monthly.
These progress meetings will review progress against this Agreement
and will follow through any actions arising.
The progress meetings will be attended by the Supplier's Programme
Director and other relevant Supplier personnel with the necessary
information, knowledge and authority to act on progress reports, to
resolve issues and to ensure the achievement of the full performance
of the Supplier's obligations under this Agreement.
E5 The Supplier will ensure that the Supplier's Programme Director and
other relevant Supplier staff participate in progress and review
meetings with the DSS and POCL where such attendance is requested by
Pathway.
E6 The Supplier shall control the schedule and delivery of the Supplies
using standard project planning techniques; the Supplier shall also
manage and control the delivery of Supplies and the performance of
its obligations using standard project planning techniques, including
PERT plans (critical path analysis) and shall be able to demonstrate
actual progress against the plans.
E7 Pathway has the right at any time to inspect the plans maintained by
the Supplier pursuant to Xxxxxx X0, and the processes surrounding the
maintenance of such plans. In support of such a right the Supplier
shall allow Pathway full and unrestricted access to such plans,
processes and Supplier staff involved in the maintenance of such
plans, within one (1) working day after each occasion of being
notified by Pathway in writing of Pathway's desire to carry out such
an inspection.
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E8 The Supplier will monitor and manage and keep Pathway fully informed
of issues affecting the performance of its obligations under this
Agreement. The Supplier will also promptly notify Pathway of any
issues that it becomes aware of that affect the performance of the
obligations of other suppliers and sub-contractors to Pathway
pursuant to the Main Agreement, or the performance of Pathway's
obligations under the Main Agreement.
E9 At Pathway's request, the Supplier will provide Pathway with any
other information that is relevant to the Supplier's obligations and
responsibilities under this Agreement, in support of Pathway's
performance of its obligations under the Main Agreement and issues
arising thereunder, and the resolution of change proposals and
requests thereunder.
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SCHEDULE F - CHANGE CONTROL
F1 SCOPE
This Schedule defines the Change control procedure to be followed in
respect of proposed Changes. The Schedule also defines the management
processes and procedures for reviewing and evaluating Change
proposals.
F2 PRINCIPLES
F2.1 Pathway may at any time request or suggest and the Supplier may at
any time recommend or suggest a Change. In all cases the Change
control procedure described in this Schedule must be followed.
F2.2 The Supplier shall not unreasonably withhold its agreement to any
proposed Change. Until such time as a Change is accepted and
implemented in accordance with the Change control procedure, the
Supplier shall, unless otherwise agreed in writing, continue to
discharge its obligations under this Agreement as if the request or
recommendation had not been made.
F2.3 Where a Change is requested by Pathway in connection with a change or
proposed change to the Main Agreement or the requirements thereof,
the Supplier shall use its best endeavours to accept the requested
Change.
F2.4 The price and time (if any) for making a Change, and the price and
delivery time for the Supplies after a Change has been made, will be
fair and reasonable and proportionate to the direct cost and
availability to the Supplier of the extra or reduced work, labour
resource, capital resource, componentry, materials and other inputs
resulting from the Change.
F2.5 Any discussions which take place between Pathway and the Supplier in
connection with a request or recommendation for a Change before the
authorisation of the Change shall be without prejudice to the rights
of either party.
F2.6 Any work undertaken by the Supplier or its agents outside the agreed
requirements contained in this Agreement and which has not been
authorised in advance by a Change and which has not been otherwise
agreed in accordance with this Schedule shall be undertaken entirely
at the expense and liability of the Supplier.
F2.7 Each party shall bear its own costs in respect of the preparation and
submission of Change Requests and Change Proposals.
F3 PROCEDURE
F3.1 In the event that either party wishes to suggest a Change or is
considering requesting or recommending a Change, that party shall
promptly initiate a discussion with the other party. Such discussion
shall result in one of the following:
(a) no further action being taken; or
(b) a written request by Pathway to make a Change (a "Change
Request"); or
(c) a written recommendation by the Supplier to make a Change (a
"Change Proposal" or "CP").
F3.2 Where a Change Request is received from Pathway, the Supplier shall,
unless otherwise agreed, submit two signed copies of a CP to Pathway
within ten (10) working days of the receipt of the request (or such
other period as the parties may agree).
If Pathway considers that a Change needs to be made urgently, it can
designate its Change Request as a "Red Star" Change Request, in which
case the Supplier shall submit two signed copies of a CP to Pathway
within two (2) working days of the receipt of the Change Request.
If the Supplier wishes to recommend a Change it shall do so by
submitting to Pathway two signed copies of a CP.
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F3.3 The Change control procedure described herein shall also apply where
Pathway fails to fulfil an obligation hereunder. In such a case, the
Supplier shall submit a CP within twenty (20) working days after the
failure of Pathway to fulfil the obligation. If the Supplier does not
submit a CP within such period, the Supplier shall be deemed to have
accepted that no Change is necessary as a result of Pathway's failure
to meet the obligation.
F3.4 Each Change Request shall contain:
(a) a sequentially generated reference number;
(b) a title;
(c) the originator and date;
(d) the reason(s) and objectives;
(e) full details of the requirement;
(f) reference to any other Change Requests or CPs if appropriate;
(g) impact on Pathway if the Change is not implemented.
F3.5 Each Change Proposal shall contain:
(a) a sequentially generated reference number with the prefix
"Pathway";
(b) a title;
(c) the originator and date;
(d) the reason(s) and objectives;
(e) full details including any specifications and sufficient
engineering detail and validation data to enable the proposal
to be assessed;
(f) reference to any other Change Requests or CPs if appropriate;
(g) the price, if any, for making the proposed Change;
(h) the change, if any, to the price of the relevant Supplies
after the proposed Change has been implemented;
(i) a schedule of payments if appropriate;
(j) a timetable for implementation;
(k) a proposed method of acceptance for the proposed Change, if
appropriate;
(l) details of the likely impact, if any, on other aspects of this
Agreement or the Main Agreement including but not limited to:
(i) the terms of this Agreement,
(ii) timescales for delivery of other Supplies,
(iii) risk and security,
(iv) the personnel to be provided,
(v) the price of other Supplies,
(vi) the payment profile,
(vii) the documentation to be provided,
(viii) the training to be provided,
(ix) working arrangements,
(x) provision of spare parts,
(xi) repair arrangements,
(xii) compatibility of the affected Supplies with other
Supplies or with products supplied to or by Pathway
pursuant to the Main Agreement,
(xiii) other contractual issues;
(m) details of any other likely or reasonably possible and
foreseeable impact;
(n) the date of expiry of validity of the CP;
(o) provision for signature by Pathway and by the Supplier.
F3.6 The Supplier will on Pathway's request supply Pathway with the data
and tools used to carry out the assessment of the above impacts of
proposed Changes. Supplying such data and tools shall not be
construed to mean that Pathway has or ought to have actual or
constructive knowledge, warning or suspicion of any difference or
potential difference between the actual impacts and those notified to
Pathway by the Supplier.
F3.7 For each CP received, Pathway shall, within the period of the
validity of the CP, or ten (10) working days, whichever is longer
(except for Red Star Change Proposals, where the deadline shall be
two (2) working days):
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(a) in conjunction with the Supplier, evaluate the CP and, as
appropriate:
(i) request further information; or
(ii) agree an extension to the evaluation period; or
(iii) approve and sign two copies of the CP and return one
copy to the Supplier; or
(iv) reject the CP and notify the Supplier in writing of the
rejection of the CP;
F3.8 A CP signed by both parties shall constitute a Change, and shall be
implemented according to the details contained within the approved
CP. If after approval of the CP either Pathway or the Supplier wishes
to amend any of the details contained within the CP then a further CP
must be raised.
F3.9 The Supplier will produce a listing on the first working day of each
month of all the CPs issued during the previous month with enough
detail to enable Pathway to identify whether any CPs have been
mislaid during transmission/posting. Nil returns are also required.
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