"Achieve"

in respect of a Test, to successfully pass a Test without any material issues and, in respect of a Milestone, the issue of a Milestone Achievement Certificate in respect of that Milestone in accordance with Schedule D.3 (Testing Procedures), and "Achieved" and "Achievement" shall be construed accordingly;

"Affected Party"

the party seeking to claim relief in respect of a Force Majeure Event;

"Affiliate"

in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time;

"Agreement"

the Clauses of this Agreement together with the Schedules and annexes to it and any documents referred to or attached to it;

"Assets"

means all assets, including hardware, computer and telecoms devices, infrastructure, equipment or other property supplied by the Contractor or its Sub-contractors to provide the Services in accordance with this Agreement but excluding the Authority Assets;

"ATP Milestone Date"

the Milestone Date on which the Contractor is granted Authority to Proceed to deliver the Transformed Services;

"Authority Assets"

means the Authority Materials, the Authority infrastructure and any other assets, equipment or other property owned or provided by the Authority and which is or may be used in connection with the provision or receipt of the Services;  

"Authority Cause"

any breach by the Authority of any of the Authority's Responsibilities (except to the extent that it is the result of any act or omission by the Authority to which the Contractor has given its prior consent);

"Authority Confidential Information"

all Personal Data and any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel, and suppliers of the Authority, including all IPRs, together with all information derived from any of the above, and any other information clearly designated as being confidential (whether or not it is marked "confidential") or which ought reasonably be considered to be confidential;

"Authority Data"

(a)  the data, text, drawings, diagrams, images or sounds (together with any database made up of any of these) which are embodied in any electronic, magnetic, optical or tangible media, and which are:

(i)  supplied to the Contractor by or on behalf of the Authority; or

(ii)  which the Contractor is required to generate, process, store or transmit pursuant to this Agreement;  or

(b)  any Personal Data for which the Authority is the Data Controller;

"Authority Materials"

means the Authority Data together with any materials, documentation, information, programs and codes supplied by the Authority to the Contractor, the IPR in which:

(i)  are owned or used by or on behalf of the Authority; and

(ii)  are or may be used in connection with the provision or receipt of the Services,

but excluding any specially written material, Contractor Material and Third Party Material;

"Authority Premises"

means premises owned, controlled or occupied by the Authority or its Affiliates which are made available for use by the Contractor or its Sub-contractors for provision of the Services (or any of them) on the terms set out in this Agreement or any separate agreement or licence;

"Authority's Responsibilities"

the responsibilities of the Authority specified in Schedule D.2 (Authority Responsibilities);

"Authority Representative"

the representative appointed by the Authority pursuant to Clause 21.1 (Representatives);

"Authority Software"

software which is owned by or licensed to the Authority, including software which is or will be used by the Contractor for the purposes of providing the Services but excluding the Contractor Software, Specially Written Software and Third Party Software;

"Authority System"

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

"Authority to Proceed"

the point at which the Contractor is authorised to provide the Transformed Services to the Authority provided in the form of a Milestone Achievement Certificate relating to the Milestone which is recorded as representing ATP in the Transition and Transformation Plan;

"BCDR Plan"

any plan prepared pursuant to Schedule B.2 (Business Continuity and Disaster Recovery Plan) as may be amended from time to time;

"Change"

any change to this Agreement;

"Change Control Procedure"

the procedure for changing this Agreement, as set out in ScheduleE.2 (Change Control Procedure);

"Change of Control"

a change in ownership of the Contractor;

"Change in Law"  

any change in Law, which impacts on the performance of the Services which comes into force after the Effective Date;

"Change Request"

means a written notice by the Authority and/or the Contractor to the other party requesting a Change;

"Charges"

the charges for the provision of the Services set out in and derived in accordance with ScheduleE.4 (Charges and Invoicing), including any Milestone Payment, Stage Payment or Service Charge;

"Commercially Sensitive Information"

the information listed in Schedule C.2 comprising the information of a commercially sensitive nature relating to the Contractor, its IPR or its business or which the Contractor has indicated to the Authority that, if disclosed by the Authority, would cause the Contractor significant commercial disadvantage or material financial loss;

"Comparable Supply"

the supply of services to another customer of the Contractor that are the same or similar to the Services;

["Compensation Payment"

the payment calculated in accordance with paragraph 3 of Schedule E.5 (Payments on Termination);]

"Confidential Information"

the Authority's Confidential Information and/or the Contractor's Confidential Information;

"Contract Year"

a period of 12 months (or shorter period in the period immediately prior to the end of the Term) commencing on the Effective Date or on an anniversary of the Effective Date;

"Contracting Authority"

any contracting authority as defined in Regulation 5(2) of the Public Contracts (Works, Services and Supply) (Amendment) Regulations 2000 other than the Authority;

"Contractor's Background IPRs"

(a)  IPRs owned by the Contractor before the Effective Date, for example those subsisting in the Contractor's standard development tools, program components or standard code used in computer programming or in physical or electronic media containing the Contractor's Know-How or generic business methodologies; and/or

(b)  IPRs created by the Contractor independently of this Agreement,

but excluding IPRs owned by the Contractor subsisting in the Contractor Software;

"Contractor's Confidential Information"

any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel and suppliers of the Contractor, including IPRs, together with all information derived from the above, and any other information clearly designated as being confidential (whether or not it is marked as "confidential") or which ought reasonably to be considered to be confidential;

"Contractor Equipment"

the hardware, computer and telecoms devices and equipment supplied by the Contractor or its Sub-contractors (but not hired, leased or loaned from the Authority) for the provision of the Services;

"Contractor Materials"

means the Contractor Software together with the Documentation relating to the Contractor Software;

"Contractor Personnel"

all employees, agents, consultants and contractors of the Contractor and/or of any Sub-contractor;

"Contractor Representative"

the representative appointed by the Contractor pursuant to Clause 21.1 (Representatives);

"Contractor Software"

software which is proprietary to the Contractor, including software which is or will be used by the Contractor for the purposes of providing the Services including the software specified as such in ScheduleC.4 (Software);

"Contractor Solution"

the Contractor's solution for the Services attached to this Agreement at Schedule C.1 (Contractor Solution);

"Contractor System"

the information and communications technology system used by the Contractor in performing the Services including the Software, the Contractor Equipment and related cabling (but excluding the Authority System);

"Control"

means that a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, by contract or otherwise) and "Controls" and "Controlled" shall be interpreted accordingly;

"Correction Plan"

the Contractor's plan for the resolution of any non-conformities in any Deliverable to be agreed in accordance with Clause 5 (Delays - General Provisions);

"Crown Body"

any department, office or agency of the Crown;

"Data Controller"

shall have the same meaning as set out in the Data Protection Act 1998;

"Data Processor"

shall have the same meaning as set out in the Data Protection Act 1998;

"Data Protection Legislation"

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

"Data Subject"

shall have the same meaning as set out in the Data Protection Act 1998;

"Database"

the rights in or to the database developed and supplied by the Contractor to the Authority in accordance with the terms of this Agreement but excluding any database management system software used to create, store and retrieve data, Contractor's Background IPRs or IPRs owned by a third party that are embedded in or which are an integral part of the database;

"Default"

any breach of the obligations of the relevant party (including but not limited to fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or statement of the relevant party, its employees, servants, agents or Sub‑contractors in connection with or in relation to the subject-matter of this Agreement and in respect of which such party is liable to the other;

"Delay"

the period of time by which the implementation of the Services by reference to the Transition and Transformation Plan is delayed arising from a failure to Achieve a Milestone;

"Delay Payments"

the amounts payable by the Contractor to the Authority in respect of a Delay and specified in schedule 7.1 (Charges and Invoicing);

"Deliverable"

an item, feature or service associated with the provision of the Services or a change in the provision of the Services which is required to be delivered by the Contractor at a Milestone Date or at any other stage during in the performance of this Agreement;

"Dispute"

any dispute, difference or question of interpretation arising out of or in connection with this Agreement, including any dispute, difference or question of interpretation relating to the Services, failure to agree in accordance with the Change Control Procedure or any matter where this Agreement directs the parties to resolve an issue by reference to the Dispute Resolution Procedure;

"Dispute Resolution Procedure"

the dispute resolution procedure set out in Schedule E.3 (Dispute Resolution Procedure);

"Documentation"

means:

a)  descriptions of the Services and Service Levels;

b)  technical specifications;

c)  user manuals;

d)  operating manuals;

e)  process definitions and procedures; and

all such other documentation as is required to be supplied by the Contractor to the Authority under this Agreement;

"Effective Date"

the date on which this Agreement is signed by both parties;

"Employee Liabilities"

all claims, including claims for redundancy payments, unlawful deduction of wages, unfair, wrongful or constructive dismissal compensation, compensation for sex, race or disability discrimination, claims for equal pay, compensation for less favourable treatment of part-time workers, and any claims (whether in tort, contract or statute or otherwise), demands, actions, proceedings and any award, compensation, damages, tribunal awards, fine, loss, order, penalty, disbursement, payment made by way of settlement and costs and expenses reasonably incurred in connection with a claim or investigation (including any investigation by the Equal Opportunities Commission, the Disability Rights Commission, or the Commission for Racial Equality or other enforcement, regulatory or supervisory body and of implementing any requirements which may arise from such investigation), and any legal costs and expenses;

"Employment Regulations"

the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) as amended or replaced or any other Regulations implementing the Council Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses;

"Environmental Information Regulations"

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

"Exit Management"

the obligations and rights of the respective parties pertaining to managing a smooth transition from the provision of the Services by the Contractor to the provision of Replacement Services by the Authority or any Replacement Contractor, all as set out in Schedule D.4 (Exit Management);

"Exit Plan"

the written and agreed arrangements pertaining to the transition from the provision of the Services by the Contractor to the provision of Replacement Services by the Authority or any Replacement Contractor, as set out in Schedule D.4 (Exit Management);

"Extension Period"

the Authority's option to extend the Initial Term by a period [of [x] years][not exceeding [x] years];

"Force Majeure Event"

any event affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control, including acts of God, riots, war or armed conflict, acts of terrorism, acts of government, local government or Regulatory Bodies, fire, flood, storm or earthquake, or disaster but excluding any industrial dispute relating to the Contractor, the Contractor Personnel or any other failure in the Contractor or the Sub-contractor's supply chain;

"FOIA"

the Freedom of Information Act 2000 and any subordinate legislation made under this Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such legislation;

"General Change in Law"

a Change in Law where the change is of a general legislative nature (including taxation or duties of any sort affecting the Contractor) or which affects or relates to a Comparable Supply;

"Good Industry Practice"

Means that degree of skill, care, prudence and foresight and operating practice which would reasonably and ordinarily be expected from time to time of a skilled and experiences operator (engaged in the same type of undertaking as tht of the Contractor) or any sub-contractor under the same or similar circumstances;

"Information"

has the meaning given under section 84 of the Freedom of Information Act 2000;

"Information System"

means a system for generating, sending, receiving, storing or otherwise processing electronic communications;

"Initial Term"

the period of [x months or y years] from the [Effective Date][planned Service Commencement Date];

"Insolvency Event"

the occurrence of any of the following events (or any event analogous to any of the following in a jurisdiction other than England and Wales) in relation to the relevant entity:

(a)  the entity passing a resolution for its winding up or a court of competent jurisdiction making an order for the entity to be wound up or dissolved or the entity being otherwise dissolved;

(b)  the appointment of an administrator of or, the making of an administration order in relation to the entity or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or part of the entity's undertaking, assets, rights or revenue;

(c)  the entity entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of competent jurisdiction for protection from its creditors;

(d)  the entity being unable to pay its debts or being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

(e)  the entity entering into any arrangement, compromise or compromise or composition in satisfaction of its debts with its creditors;

However, a resolution by the relevant entity or a court order that such entity be wound up for the purpose of a bona fide reconstruction or amalgamation shall not amount to an Insolvency Event;

"Intellectual Property Rights" or "IPRs"

(a)  copyright, rights related to or affording protection similar to copyright, rights in databases, patents and rights in inventions, semi-conductor topography rights, trade marks, rights in Internet domain names and website addresses and other rights in trade names, designs, Know-How, trade secrets and other rights in Confidential Information;

(b)  applications for registration, and the right to apply for registration, for any of the rights listed at (a) that are capable of being registered in any country or jurisdiction; and

(c)  all other rights having equivalent or similar effect in any country or jurisdiction;

"IPR Claim"

any claim of infringement or alleged infringement (including the defence of such infringement or alleged infringement) of any IPR used to provide the Services or as otherwise provided by the Contractor (or to which the Contractor has provided access) to the Authority in the fulfilment of its obligations;

"Key Personnel"

those members of the Contractor Personnel described in Schedule C.4 (Key Personnel) as such is modified by agreement by the parties;

"Key Sub-contract"

means each Sub-contract with a Key Sub-Contractor;

"Key Sub-contractor"

(a)  each of the Sub-contractors listed in Schedule C.3 (Notified Sub-contractors);

(b)  any Sub-contract with a Sub-Contractor replacing any Key Sub-Contractor listed in Schedule C.3 (Notified Sub-Contractors);

(c)  any Sub-contractor which in the opinion of the Authority performs a business critical role in the provision of the Services;

(d)  any Sub-contractor with a Sub-contract with a contract value in excess of [10%] of the aggregate Charges payable under this Agreement;

"Know-How"

all ideas, concepts, schemes, information, knowledge, techniques, methodology, and anything else in the nature of know how relating to the Services;

"Law"

any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any Regulatory Body, delegated or subordinate legislation or notice of any Regulatory Body;

"Legacy Services"

means the services described as such in the Services Description;

"Malicious Software"

any software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros, whether or not its operation is immediate or delayed, and whether the malicious software is introduced wilfully, negligently or without knowledge of its existence;  

"Management Information"

the management information specified in ScheduleB.3 (Service Levels), Schedule E.4 (Charges and Invoicing) and Schedule E.1 (Governance) to be provided by the Contractor to the Authority;

"Material Test Issue"

has the meaning given in Schedule D.3 (Testing Procedure);  

"Measurement Period"

has the meaning given in Schedule B.3 (Service Levels)

"Milestone"

an event or task described in the Transition and Transformation Plan which, if applicable, must be completed by the relevant Milestone Date, including a milestones in respect of Authority to Proceed;

"Milestone Achievement Certificate"

has the meaning given in Schedule D.3 (Testing Procedure);

"Milestone Date"

the date set against the relevant Milestone in the Transition and Transformation Plan;

"Milestone Payment"

a payment identified in Schedule E.4 (Charges and Invoicing) made following the issue of a Milestone Achievement Certificate;

"month"

a calendar month and "monthly" shall be interpreted accordingly;

"Non-conformance Report"

a report including detail of the reasons why any Test has failed or of any non-conformities in respect of any Milestone;

"Official Assurance Review"

a formal review of the Authority and/or its projects or programmes, or other reviews recommended or mandated by Local Partnerships and/or Her Majesty's Government.

"Operational Phase"

the phase in which the Contractor will deliver the Operational Services and commencing from the Service Commencement Date;

"Operational Services"

the Legacy Services and the Transformed Services;

"Personal Data"

shall have the same meaning as set out in the Data Protection Act 1998;

"Planned ATP Milestone Date"

the date set out in the Transition and Transformation Plan for the Achievement of the Milestone relating to Authority to Proceed;

"Process" and "Processing"

has the meaning given to it under the Data Protection Legislation but, for the purposes of this Agreement, it shall include both manual and automatic processing;

"Project Specific IPRs"

IPRs in items created by the Contractor (or by a third party on behalf of the Contractor) specifically for the purposes of this Agreement and updates and amendments of these items but which shall not include the Contractor's Background IPRs, Third Party Software or the Specially Written Software;

"Quality Plans"

the Contractor's plan that reflects the quality management systems as further described in Clause 13 (Quality Assurance and Performance Monitoring);

"Regulatory Bodies"

those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in this Agreement or any other affairs of the Authority and "Regulatory Body" shall be construed accordingly;

"Relevant Conviction"

a conviction that is relevant to the nature of the Services to be provided [or specify e.g. involving dishonesty, violence, sexual offence] other than for minor road traffic offences, any previous or pending prosecutions, convictions, cautions and binding-over orders (including any spent convictions as contemplated by section 1(1) of the Rehabilitation of Offenders Act 1974 by virtue of the exemptions specified in Part II of Schedule 1 of the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 (SI 1975/1023) or any replacement or amendment to that Order, [or being placed on a list kept pursuant to section 1 of the Protection of Children Act 1999 or being made the subject of a prohibition or restriction under section 218(6) of the Education Reform Act 1988);];

"Replacement Contractor"

any third party service provider of Replacement Services appointed by the Authority from time to time;

"Replacement Services"

any services which are substantially similar to any of the Services and which the Authority receives in substitution for any of the Services following the expiry or termination or Partial Termination of this Agreement, whether those services are provided by the Authority internally and/or by any third party;

"Representatives"

either or both of the Authority Representative and the Contractor Representative;

"Request for Information"

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

"Retail Prices Index"

a measure of inflation published monthly by the Office for National Statistics.

"Revised Milestone Date"

any revised date which is set for the Achievement of a Milestone;

"Security Management Plan"

the Contractor's security plan prepared pursuant to paragraph [  ] of Schedule B.1 (Services Description);

"Security Policy"

the Authority's security policy annexed to Schedule B.1 (Services Description) as updated from time to time;

"Service Commencement Date"

The date on which the Legacy Services commence as identified in the Transition and Transformation Plan;

"Service Credits"

the sums payable in respect of the failure by the Contractor to meet one or more Service Levels as specified in ScheduleE.4 (Charges and Invoicing);

"Service Failure"

a failure to deliver any part of the Services in accordance with the Service Levels;

"Service Levels"

the levels of service as prescribed in Schedule B.3 (Service Levels);

"Service Threshold"

the level below which the quality of any Services becomes unacceptable to the Authority as set out in Schedule B.3 (Service Levels);

"Services"

any and all of the services to be provided by the Contractor under this Agreement including those set out in Schedule B.1 (Services Description);

"Services Description"

the description of the Services set out in Schedule B.1 (Services Description);

"Sites"

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

"Software"

Specially Written Software, Contractor Software and Third Party Software;

"Specially Written Software"

any software created by the Contractor (or by a third party on behalf of the Contractor) specifically for the purposes of this Agreement;

"Specific Change in Law"

a Change in Law that relates specifically to the business of the Authority and which would not affect a Comparable Supply;

"Staff Transfer"

the transfer of staff pursuant to the Employment Regulations under this Agreement;

"Staff Vetting Procedures"

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

"Standards"

[the British or international standards][Authority's internal policies and procedures] [Government codes of practice] and [guidance] referred to in Schedule B.4 (Standards) together with any other specified policies or procedures identified in Schedule B.4 (Standards);

"Sub-contract"

any contract or agreement or proposed contract or agreement between the Contractor and any third party whereby that third party agrees to provide to the Contractor the Services or any part thereof or facilities or services necessary for the provision of the Services or any part thereof or necessary for the management, direction or control of the Services or any part thereof;

"Sub-contractor"

the third party with whom the Contractor enters into a Sub-contract or its servants or agents and any third party with whom that third party enters into a Sub-contract or its servants or agents;

"Term"

the period commencing on the Effective Date and ending on the expiry of the Initial Term or any Extension Period or on earlier termination of this Agreement;

"Termination Assistance Period"

has the meaning given in Schedule D.4 (Exit Management);

"Termination Date"

means any date of early termination of this Contract and will be the date on which formal written notice is given by one party to the other;

"Termination Notice"

a notice to terminate this Agreement or part of the Services either immediately or at a date specified in the notice;

["Termination Payment"

the payment calculated in accordance with the formula set out in paragraph 2 of Schedule E.5 (Payments on Termination);]

"Termination Services"

The services described in Schedule D.4 (Exit Management);

"Tests" and "Testing"

any tests required to be carried out under this Agreement, as further described in Schedule D.3 (Testing Procedure);

"Testing Procedures"

the applicable testing procedures and Test Success Criteria set out in Schedule D.3 (Testing Procedure);

"Test Issues"

the issues as described in the Testing Procedures;

"Test Success Criteria"

the test success criteria referred to in paragraph 13 of Schedule D.3 (Testing Procedure);

"Third Party Materials"

the Third Party Software together with the Documentation relating to the Third Party Software;

"Third Party Software"

software which is proprietary to any third party which is or will be used by the Contractor for the purposes of providing the Services, including the software specified as such in Schedule C.4 (Software);

"Transformation Activities"

means the transformation activities, as set out in paragraphs [   ] of the Transition and Transformation Plan to be undertaken by the Contractor in order to commence provision of Transformed Services;

"Transformed Services"

the services described as such in the Services Description;

" Transition and Transformation Plan"

means the plan prepared and updated from time to time by the Contractor in accordance with Clause 3 and Schedule D.1 (Transition and Transformation Plan);

"Transition Activities"

means the transition activities, as set out in paragraphs [   ] of the Transition and Transformation Plan to be undertaken by the Contractor in order to commence provision of Legacy Services;

"Use"

(a)  with respect to the Contractor Software, Third Party Software and Contractor Background IPRs , the right to load, execute, store, transmit, display and copy (for the purposes of loading, execution, storage, transmission or display) that Software;

(b)  with respect to Specially Written Software, the right to load, execute, store, transmit, display, copy (for the purposes of loading, execution, storage, transmission or display), modify, adapt, enhance, reverse compile, decode, translate, or otherwise utilise that Specially Written Software; and

(c)  with respect to Project Specific IPRs, the right to copy, adapt, publish, distribute or otherwise use the Project Specific IPR;

"VAT"

value added tax as provided for in the Value Added Tax Act 1994; and

"Working Day"

any day other than a Saturday, Sunday or public holiday in England and Wales.