DATED 31 July 2009
BRACKNELL FOREST BOROUGH COUNCIL
and
[XXXX] LIMITED
FRAMEWORK AGREEMENT
relating to the provision of high bandwidth (Phase 3) services to the
members of the South East Grid for Learning
Restricted commercial
Lacon House
84 Theobald's Road
London WC1X 8RW
Tel: +44 (0)20 7524 6000
S4185/00001/57095828 v.1
CONTENTS
Clause Subject matter Page
1. DEFINITIONS 2
2. Interpretation 14
3. Commencement and Duration 15
4. Phase 3 Services 15
5. Provisions relating to the formation of Call-off contracts 17
6. requirements for CALL-OFF contracts 17
7. the SEGfL Consultancy 18
8. MINI-COMPETITION 18
9. CATALOGUE SERVICES 19
10. Effect of call-off contracts 20
11. Legacy Call-off Contracts 21
12. Exclusivity AND COMPETITION 21
13. records of statements of service requirements and Call-off contracts 21
14. security policy and standards 22
15. Designated Representatives 22
16. meeting and reporting 22
17. changes to the segfL membership 25
18. technology appraisal 25
19. Intellectual property rights 26
20. SEGfL Data 28
21. confidentiality 28
22. data protection and freedom of information 29
23. REGULATORY COMPLIANCE 29
24. warranties, UNDERTAKINGS and indemnities 29
25. audits 31
26. Payment OF MANAGEMENT CHARGE 33
27. Charges 34
28. change control 34
29. Dispute resolution 34
30. Termination 36
31. consequences of expiry or termination 37
32. limitation of liability 39
33. insurances 40
34. EmployEES 40
35. conflicting provisions 41
36. Assignment and sub-contracting 42
37. Variations 42
38. Notices and COmmunications 42
39. WAIVER 44
40. NO AGENCY 44
41. ENTIRE AGREEMENT 44
42. ANNOUNCEMENTS AND PUBLICITY 45
43. SEVERABILITY 45
44. COUNTERPARTS 45
45. COSTS AND EXPENSES 45
46. RIGHTS OF THIRD PARTIES 45
47. FURTHER ASSURANCE 46
48. GOVERNING LAW AND JURISDICTION 46
Schedule 1 47
Framework Holders 47
Schedule 2 48
Phase 3 Services Description 48
SEAN Catalogue Maintenance and Development 56
Catalogue Services 59
Monitored Service Components 60
Schedule 3 61
Security policy and standards 61
Schedule 4 63
Supplier Solution Summary 63
Schedule 5 64
Sub-Contractors 64
Schedule 6 65
Schedule 7 69
Change Control Procedure 69
Schedule 8 71
Template Call-off Contract 71
Schedule 9 92
General Terms and Conditions for Call-off Contracts 92
Schedule 10 93
The SEGfL Consultancy 93
schedule 11 97
Framework Holder Co-operation 97
ii
S4185/00001/57095828 v.1
FRAMEWORK AGREEMENT (the "Framework Agreement")
DATE
PARTIES
(1) BRACKNELL FOREST BOROUGH COUNCIL of Easthampstead House, Town Square, Bracknell RG12 1AQ (the "Council") acting for itself and on behalf of the other members of the South East Grid for Learning ("SEGfL") an unincorporated association that is not a separate legal entity and whose address for correspondence is SEGfL Project Office, Easthampstead Park, Wokingham RG40 3DF; and
(2) [XXXX LIMITED] (a company incorporated and registered in England and Wales under company registration number 03476733) the registered office of which is at [Address] ("Supplier") including, where the context permits, the Supplier's successors and permitted assigns.
RECITALS
(A) The SEGfL Members (as defined below) entered into a joint agreement dated 20 November 2000 ("Joint Agreement") to establish and record the constitution of SEGfL.
(B) Pursuant to the Joint Agreement, the Council on behalf of SEGfL entered into certain agreements with suppliers for the provision of broadband telecommunications networks and related services. These agreements were superseded by Framework Agreements entered into in 2004 between the Council on behalf of SEGfL and suppliers for the provision of the Phase 2 Services (the "Phase 2 Agreements").
(C) The SEGfL Members require further similar services including services after expiry of the Phase 2 Agreements and the Council has entered into this Framework Agreement for Phase 3 Services for and on behalf of the SEGfL Members.
(D) Accordingly the Council has conducted a procurement in accordance with the Public Contracts Regulations 2006 as a result of which this Framework Agreement was awarded to the Supplier.
(E) Under this Framework Agreement SEGfL Members may call off Phase 3 Services by entering into specific contracts with the Supplier.
1. DEFINITIONS
For the purpose of this Framework Agreement, except where the context requires to the contrary the words and phrases below shall have the following meanings:
"Acquired Rights Directive"
means the European Council Directive 77/187/EEC on the approximation of laws of European member states relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, as amended;
"Annual Total Management Charge"
means the aggregate sum payable in each Year to SEGfL to be apportioned between the Framework Holders in the manner set out in clause 26 to cover the running costs of SEGfL associated with the co-ordination and management of the Project;
"Associate Membership"
means the class of members of SEGfL (as more particularly described in the Joint Agreement) that shall be treated as SEGfL Members for the purpose of this Framework Agreement and "Associate Members" shall be interpreted accordingly;
"Background IPR"
means Intellectual Property Rights owned by the Supplier or a Supplier Party before the start of the Project or created independently of the Project;
"Becta
means the Government agency that is responsible for leading the national drive to ensure the effective and innovative use of technology throughout learning;
"Best Value Law"
means the duty imposed on all local government bodies by the Local Government Act 1999 to secure continuous improvement in the way they carry out their functions and therefore to achieve either or both of the optimum combination of whole life cost and quality or fitness for purpose to meet the user's requirements and/or the optimum combination of economy, efficiency and effectiveness;
"Best Value"
has the meaning given to it in Schedule 2, part 2A;
"Best Value Solution"
means that any Monitored Service Components of Call-off Services are supplied at the optimum combination of economy, efficiency and effectiveness when compared to Equivalent Service Components;
"Business Day"
means a day other than a Saturday or Sunday or bank holiday or public holiday in England;
"Buyer"
means a SEGfL Member that enters into a Call-off Contract with the Supplier for any or all of the Phase 3 Services;
"Buyer Board"
means a group for each Buyer consisting of the Supplier Representative and that Buyer's Representative;
"Buyer's Representative"
means the representative appointed by each Buyer and named in the SSR;
"Call-off Contract"
means each contract for Call-off Services entered into in accordance with clause 5.4;
"Call-off Period"
means the period of 4 (four) years from the Effective Date during which Call-off Contracts may be entered into pursuant to this Framework Agreement;
"Call-off Services"
means the Phase 3 Services that are required pursuant to an SSR and are to be provided under a Call-off Contract;
"Cancellation Costs"
means the direct cost incurred by the Supplier in terminating a sub-contract for a Monitored Service Component in order to implement a New Service Offering excluding Margin;
"Catalogue Services"
means the pre-specified Phase 3 Services within the categories described in Part 2B of Schedule 2 to be added to the SEAN Catalogue and updated in accordance with Part 2A of Schedule 2. The Catalogue Services as at the Framework Commencement Date are set out in Part 2B of Schedule 2;
"Catalogue Services Proposal"
has the meaning given to it in Schedule 2, part 2A;
"Certificate of Value"
means a statement certified by the Supplier's independent auditors or accountants as being a true, accurate and complete record of the information required in clause25.2.2 calculated in accordance with generally accepted accounting principles and consistent with the Supplier's normal accounting policies;
"Change Control Procedure"
means the procedure set out in Schedule 7;
"Change in Law"
means the coming into effect or repeal in England and Wales of any legislation, or any amendment or variation to any legislation, any judgment or a relevant court of law which changes binding precedent in England and Wales and/or any Standards or Good Industry Practice in each case after the Framework Commencement Date;
"Change of Control"
means that a person or group of connected persons who or which does not, at the Effective Date, have control of the relevant party (as the context requires) acquires control of that party. (For these purposes "control" has the meaning set out in section 416 and "connected persons" has the meaning set out in section 839 of the Income and Corporation Taxes Act 1988);
"Charges"
means the charges to be paid by the Buyer under each Call-off Contract as agreed between the Buyer and the Supplier calculated in a way that is consistent with the Charging Principles;
"Charging Principles"
means the tables, rates and charging methodologies set out in Schedule 6 from which the Charges that apply to a particular Call-off Contract are derived as may be varied from time to time in accordance with Clause 27;
"Confidential Information"
means any and all:
(a) information, technical, commercial, financial or otherwise (including data, know-how, methodologies, formulae, processes, designs, photographs, drawings, specifications, samples, programmes, materials, records, business plans, consumer research, analysis or experience) that is confidential in nature or expressed in any way to be confidential by the party disclosing it (whether or not it is marked "confidential") and whether disclosed in writing, orally, pictorially, by demonstration, by viewing, in machine readable form or other means including on electromagnetic or CD media or via telephone lines or radio or microwave and whether stored electronically or otherwise relating to either party (or in the case of SEGfL, to any SEGfL Member); and
(b) notes, reports, analysis and reviews of the information referred to in paragraph (a) above;
"Contract Number"
means the unique number assigned to each Call-off Contract by the Supplier pursuant to clause 5.4;
"Conviction"
means, other than for minor road traffic offences, any previous or pending prosecutions, convictions, cautions and binding-over orders (including any spent convictions as contemplated by section 1(1) of The Rehabilitation of Offenders Act 1974 by virtue of the exemptions specified in 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);
"Criminal Records Bureau"
means an executive agency of the Home Office, which provides organisations in the public, private and voluntary sectors with wider access to criminal record information;
"Data Protection Legislation"
means the Data Protection Act 1998, the Telecommunications (Data Protection and Privacy) Regulations 1999 (SI 1999/2093), 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), and the Electronic Communications Data Protection Directive 2002/58/EC, and all other applicable Laws and regulations relating to processing of personal data and privacy;
"DCSF"
means the Department for Children, Schools and Families (and any successor body performing substantially the same functions);
"Deed of Guarantee"
means the guarantee in the form set out at Schedule 8 Appendix 11 to be entered into by the Guarantor in favour of the Buyer before signature of a Call-off Contract;
"Dispute"
means any dispute, controversy or claim which arises or occurs between the parties in relation to any thing or matter arising out of or in connection with this Framework Agreement;
"Documentation"
means operational and instruction manuals, user guides, reports, training materials, use policies, plans, maintenance handbooks and other documents relating to the Phase 3 Services supplied or developed by the Supplier or any Supplier Party for the effective provision, receipt and use of the Phase 3 Services or any equipment or software used in the performance of the Phase 3 Services;
"Effective Date"
means the date when this Agreement is signed;
"Equivalent Service Components"
means in relation to a Monitored Service Component that a service offered by a different provider is substantially equivalent in terms of specification and risk with due regard to the term of the contract for that service;
"Force Majeure Event"
means an event beyond the reasonable control of a party (and in the case of the Supplier an event that is also beyond the reasonable control of the Supplier Parties) including acts of God, acts of terrorism or a public enemy, fires, floods, explosions or other catastrophes, epidemics, or strikes, slowdowns, lockouts or other labour stoppages affecting third parties (except that strikes, slowdowns, lockouts or other labour stoppages of any Supplier Party shall not constitute a Force Majeure Event);
"Framework Commencement Date"
means the date of signature of this Framework Agreement by both parties;
"Framework Holders"
means the Supplier and all other supplier entities listed in Schedule 1;
"General Terms and Conditions"
means the terms and conditions that apply to Call-off Contracts set out in Schedule 9;
"Generic Change"
means any variation, amendment, change, addition or deletion to this Framework Agreement, the General Terms and Conditions or any part of them, which:
(a) amends the description and/or application of the Phase 3 Services;
(b) impacts on the Service Levels;
(c) impacts on the Service Deductions;
(d) affects more than one Buyer and/or more than one of the Framework Holders;
(e) alters the General Terms and Conditions provisions or the effect thereof;
(f) alters the provisions of this Framework Agreement; or
(g) is a necessary result of a Change in Law;
"Generic Change Notice"
shall have the meaning set out in Schedule 7 paragraph 1;
"Good Industry Practice"
means using procedures, practices, methods and national and industry standards conforming to the Law and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances;
"Group"
means the subsidiary undertakings and holding undertakings from time to time of a company (including its ultimate holding company) or subsidiary undertakings from time to time of a holding company (in each case within the meaning of section 736 Companies Act 1985);