HIGHLAND FUJITSU PART 24 FINAL
In this Part 24 of the Schedule (Third Party Licences and Third Party Support Contracts), the following terms shall (unless the context requires otherwise) have the following meanings: "Authority-Specific Software" means any third party software that is acquired under this Agreement and that is utilised by the Contractor exclusively in the provision of the Services to the Authority, which shall be identified as Authority-Specific Software in the CMDB;
"Specific Licence" means the licence agreement under which the relevant Authority-Specific Software is licensed to the Authority;
"Authority-Specific Support Contract" means any contract entered into by the Contractor with a third party in relation to the maintenance and/or support of any Software and/or Assets that is entered into solely in connection with the provision of the Services to the Authority;
"Existing Corporate Software" means the third party software that is, as at the Transfer of Responsibility Date, utilised by the Contractor in connection with the provision of services to the Authority under the Existing Services Agreement and will continue to be used by the Contractor in the provision of the Services following the Transfer of Responsibility Date, as identified as Existing Corporate Software in 4.2 of Part 23 of the Schedule (Software);
"Existing Corporate Licence" means the licence agreement under which the relevant Existing Corporate Software is licensed to the Authority;
"Existing Curriculum Licence" means the licence agreement under which the relevant Existing Curriculum Software is licensed;
"Existing Curriculum Software" means the software that is, as at the Transfer of Responsibility Date, utilised in connection with the provision of ICT services in relation to Curriculum and which the Contractor will continue to use after the Transfer of Responsibility Date in order to provide the Services in accordance with this Agreement, as identified as Existing Curriculum Software in Appendix 1 to this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts), as updated in accordance with paragraph 3.2 of this Part 24 of the Schedule (Third Party Licences and Support Contracts);
“Existing Corporate Support Contracts” means contracts that, as at the Transfer of Responsibility Date, are utilised in connection with the provision of ICT services in relation to Corporate and which the Contractor will continue to utilise after the Transfer of Responsibility Date in order to provide the Services in accordance with this Agreement, as identified in Appendix 3 to this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts); "Existing Curriculum Support Contracts" means the support contracts that, as at the Transfer of Responsibility Date, are utilised in connection with the provision of ICT services in relation to Curriculum and which the Contractor will continue to utilise after the Transfer of Responsibility Date in order to provide the Services in accordance with this Agreement, as identified in Appendix 2 to this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts), as updated in accordance with paragraph 9.2 of this Part 24 of the Schedule (Third Party Licences and Support Contracts);
“Non-Specific Software” means any third party software that is utilised by the Contractor in the provision of the Services but is also utilised by the Contractor and/or the relevant Contractor Party in order to provide services to its other customers;
"Non-Specific Support Contract" means any contract entered into by the Contractor with a third party in relation to the maintenance and/or support of any Software and/or Assets that has been entered into by the Contractor for the provision of the services to both the Authority and to its other customers;
"Third Party Software Licence" means, as the context requires, the Existing Corporate Licences, the Existing Curriculum Licences, the Authority-Specific Licences and/or the Non-Specific Licences;
“Third Party Software” means the third party software licensed under the relevant Third Party Licence(s);
"Third Party Support Contract" means, as the context requires, the Existing Curriculum Support Contracts, the Authority-Specific Support Contracts and/or the Non-Specific Support Contracts;
“Transferred Existing Licence” means any Existing Corporate Licence that is novated or assigned by the Contractor to the Authority pursuant to paragraphs 2.4 and 2.5 of this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts); and
“Transferred Existing Software” means any Existing Corporate Software licensed under the terms of a Transferred Existing Licence.
1. THIRD PARTY SOFTWARE - GENERAL General Obligations
1.1. Without prejudice to its obligations relating to the provision, maintenance and update of the CMDB pursuant to Clause 24 (Configuration Management Database) and Part of the Schedule (Core Services Description), the Contractor undertakes that it shall include the following information in the CMDB in relation to all Third Party Software: 1.1.1. the date of expiry of the relevant Third Party Software Licence;
1.1.2. whether or not the relevant Third Party Software Licence contains an express provision permitting assignation or novation to the Authority, and whether any such provision is subject to any conditions; and
1.1.3. brief details of any rights of extension or renewal of the relevant Third Party Software Licence.
2. EXISTING CORPORATE SOFTWARE
2.1. Except to the extent agreed otherwise pursuant to paragraphs 2.4 to 2.6 below, the Existing Corporate Licences will remain in the Contractor’s name during the term of this Agreement.
2.3. The provisions of paragraph 5 below shall apply in relation to all Transferred Existing Software.
2.4. As soon as reasonably practicable after the Transfer of Responsibility Date, the Parties shall meet to discuss the achievability and desirability of effecting an assignation or novation of the Existing Corporate Software from the Contractor to the Authority. The achievability and desirability of effecting such an assignation or novation shall be considered having regard to a number of factors, which shall include (without limitation) whether the relevant Existing Corporate Software will be utilised following the relevant Service Transformation Date (and, if so, for how long), the effort required to effect the assignation or novation, the charges that the relevant third party vendor would levy in connection with the assignation or novation and any other financial detriment that would be brought about as a result of effecting the assignation or novation.
2.5. In the event that the Parties agree to assign or novate any Existing Corporate Licence pursuant to paragraph 2.4, the Parties agree to use reasonable endeavours to forthwith execute such assignation or novation, utilising documentation that is acceptable to both Parties (acting reasonably).
2.6. In the event that the Contractor will incur costs (over and above its costs for providing the Core Services) in effecting any assignation or novation that the Parties agree to pursue under paragraph 2.4, then the Contractor must notify the Authority and the Parties (acting reasonably) shall agree any additional and justifiable charges payable to the Contractor in advance of engaging with the relevant third party. For the avoidance of any doubt, the Contractor shall not be entitled to claim any additional costs or expenses from the Authority in respect of preparing for and/or attended at the meeting(s) in relation to paragraph 2.4 above.
3. EXISTING CURRICULUM SOFTWARE
3.1. The Existing Curriculum Licences will remain in the Authority’s name during the term of this Agreement.
3.2. The Parties acknowledge and agree that the inventory of Existing Curriculum Software in the Appendix to this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts) reflects both Parties’ understanding of the Existing Curriculum Assets as at the Effective Date. The Contractor undertakes that it shall update the list of Existing Curriculum Software as part of the Curriculum Discovery Project and shall deliver to the Authority for approval an updated “List of Existing Curriculum Software” within two (2) months following completion of the Curriculum Discovery Project. When the updated List of Existing Curriculum Software and the impact of any changes to the List of Existing Curriculum Software is agreed in writing between the Parties or determined in accordance with Clause 2.9 and paragraph 2 of Annex C to Part 26 of the Schedule (Charges and Invoicing) it shall replace the list set out in Appendix 1 to this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts). Subject to paragraph 6 of Annex C to Part 26 of the Schedule (Charges and Invoicing), any Dispute in relation to the content of the List of Existing Curriculum Software shall be referred to the Expert Determination Procedure for resolution. 3.3. The Authority hereby permits the Contractor to use the Existing Curriculum Software
3.4. The Existing Curriculum Software will form part of the Contractor Managed Estate, meaning that, except as otherwise stated in the CMDB, the Contractor retains full responsibility for maintaining and supporting the Existing Curriculum Software (for as long as it is used in connection with the provision of the Services).
3.5. Subject to paragraph 3.2 above and paragraph 6 of Annex C to Part 26 of the Schedule (Charges and Invoicing), the Contractor acknowledges and agrees that all costs, fees and expenses associated with the licensing of the Existing Curriculum Software are included in the Core Services Charges (except as expressly stated to the contrary in the CMDB). The Contractor shall, prior to the Transfer of Responsibility Date, endeavour to put in place appropriate arrangements with the relevant third party to allow the payment by the Contractor to the relevant third party of all cost, fees and expenses properly due in relation to the licensing of the Existing Curriculum Software throughout the Term (the “payment arrangements”). The Authority shall provide such assistance as the Contractor may reasonably request in order to put in place the payment arrangements. In the event that the Contractor is not able to put the relevant arrangements by the Transfer of Responsibility Date, the Contractor shall reimburse the Authority for all sums that the Authority pays in relation the Existing Curriculum Support Contracts until the payment arrangements are put in place. The Authority shall follow the instructions of the Contractor as to whether or not any Existing Curriculum Software Licences shall be renewed upon expiry of the relevant licence. 4. AUTHORITY-SPECIFIC SOFTWARE (WHERE CONTRACTOR IS THE LICENSEE)
4.1. Where the Contractor is the licensee of any Authority-Specific Software, the Contractor shall ensure that the Authority has the right to Use the Authority-Specific Software on the Standard Licence Terms to the extent required in order for the Authority to receive the Services and the benefit of this Agreement. In this paragraph 4.1, all references to the Authority shall be deemed to include references to both the Authority and the relevant Authority External Customers as well as those of their respective advisers, consultants and/or contractors that require to use the relevant Authority-Specific Software from time to time in connection with the business of the Authority.
4.2. The Authority-Specific Software will form part of the Contractor Managed Estate, meaning that the Contractor retains full responsibility for maintaining and supporting the Authority-Specific Software (for as long as it is used in connection with the provision of the Services).
4.3. The Contractor acknowledges and agrees that all costs, fees and expenses associated with the licence and use of the Authority-Specific Software are included in the Charges.
4.4. The Parties acknowledge and agree that the provisions of paragraphs 2.3, 2.4 and 7 of Part 36 of the Schedule (Exit Management) shall apply in relation to the Authority-Specific Licences in respect of which the Contractor is the licensee in the event of termination, Partial Termination and/or expiry of this Agreement.
5. AUTHORITY-SPECIFIC SOFTWARE (WHERE AUTHORITY IS THE LICENSEE)
5.2. The Authority-Specific Software will form part of the Contractor Managed Estate, meaning that the Contractor retains full responsibility for maintaining and supporting the Authority-Specific Software (for as long as it is used in connection with the provision of the Services).
5.3. The Contractor acknowledges and agrees that all costs, fees and expenses associated with the licensing of the Authority-Specific Software are included in the Charges.
6. NON-SPECIFIC SOFTWARE
6.1. Unless the Parties expressly agree otherwise in writing in relation to any particular Non-Specific Software, the Non-Specific Licences shall be held in the Contractor’s name during the term of this Agreement.
6.2. The Contractor shall ensure that the Authority has the right to Use all Non-Specific Software on the Standard Licence Terms to the extent required in order for the Authority to receive the Services and the benefit of this Agreement. In this paragraph 6.2, all references to the Authority shall be deemed to include references to both the Authority and the relevant Authority External Customers as well as those of their respective advisers, consultants and/or contractors that require to use the relevant Non-Specific Software from time to time in connection with the business of the Authority.
6.3. The Non-Specific Software will form part of the Contractor Managed Estate, meaning that the Contractor retains full responsibility for maintaining and supporting the Non-Specific Software (for as long as it is used in connection with the provision of the Services).
6.4. The Contractor acknowledges and agrees that all costs, fees and expenses associated with the licence and use of the Non-Specific Software are included in the Core Services Charges.
7. THIRD PARTY SUPPORT CONTRACTS - GENERAL
7.1. Without prejudice to its obligations relating to the provision, maintenance and update of the CMDB pursuant to Clause 24 (CMDB) and Part 1 of the Schedule (Core Services Description), the Contractor undertakes that it shall include the following information in the CMDB in relation to all Third Party Support Contracts:
7.1.1. the date of expiry of the relevant Third Party Support Contract;
7.1.2. whether or not the relevant Third Party Support Contract contains an express provision permitting assignation or novation to the Authority, and whether any such provision is subject to any conditions; and
7.1.3. brief details of any rights of extension or renewal of the relevant Third Party Support Contract.
8. EXISTING CORPORATE SUPPORT CONTRACTS
8.2. The Contractor agrees that it shall, as soon as reasonably practicable after the Transfer of Responsibility Date, notify the Authority whether or not the Existing Corporate Support Contracts contain an express provision permitting assignation or novation to the Authority, and whether any such provision is subject to any conditions. The Parties shall then discuss the appropriate action to be taken, which, where the Authority (acting reasonably) so directs, may include the Contractor seeking an alternative Sub-contractor, the appointment of which alternative Sub-contractor, including any additional costs arising or other effect on the Financial Model, will require to be agreed with the Authority through the Change Control Procedure.
9. EXISTING CURRICULUM SUPPORT CONTRACTS
9.1. Unless the Parties expressly agree otherwise in writing in relation to any particular Existing Curriculum Support Contracts, the Existing Curriculum Support Contracts shall remain in the Authority's name during the term of this Agreement.
9.2. The Parties acknowledge and agree that the inventory of Existing Curriculum Support Contracts in Appendix 2 to this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts) reflects both Parties’ understanding of the Existing Curriculum Support Contracts as at the Effective Date. The Contractor undertakes that it shall update the list of Existing Curriculum Support Contracts as part of the Curriculum Discovery Project and shall deliver to the Authority for approval an updated “List of Existing Curriculum Support Contracts” within two (2) months of completion of the Curriculum Discovery Project. When the updated List of Existing Curriculum Support Contracts and the impact of any changes to the List of Existing Curriculum Support Contract is agreed in writing between the Parties or determined in accordance with Clause 2.9 and paragraph 2 of Annex C to Part 26 of the Schedule (Charges and Invoicing) it shall replace the list set out in Appendix 2 to this Part 14 of the Schedule (Assets and Leased Equipment). Subject to paragraph 6 of Annex C to Part 26 of the Schedule (Charges and Invoicing), any Dispute in relation to the content of the List of Existing Curriculum Support Contracts shall be referred to the Expert Determination Procedure for resolution.
9.3. The Authority hereby permits the Contractor to receive services under the Existing Curriculum Support Contracts on the Authority's behalf in accordance with the terms of the Existing Curriculum Support Contracts and to the extent required in order for the Authority to receive the Services and the benefit of this Agreement. The Authority agrees to provide such assistance as the Contractor may reasonably require in order to secure the provision of services by the relevant third pursuant to any Existing Curriculum Support Contract.
Contractor as to whether or not any Existing Curriculum Support Contracts shall be renewed on expiry of the relevant contract.
9.5. For the avoidance of doubt, the Existing Curriculum Support Contracts shall constitute Authority Mandated Items for the purposes of Part 8 of the Schedule (Service Levels and Service Credits).
10. AUTHORITY-SPECIFIC CONTRACTS
10.1. Unless the Parties expressly agree otherwise in writing in relation to any particular Authority-Specific Support Contracts, the Authority-Specific Support Contracts shall be held in the Contractor’s name during the term of this Agreement.
10.2. The Contractor acknowledges and agrees that all third party costs, fees and expenses associated with the Authority-Specific Support Contracts are included in the Core Services Charges.
10.3. The Parties acknowledge and agree that the provisions of paragraphs 2.3, 2.4 and 7 of Part 36 of the Schedule (Exit Management) shall apply in relation to the Authority-Specific Support Contracts in the event of termination, Partial Termination or expiry of this Agreement.
11. NON-SPECIFIC SUPPORT CONTRACTS
11.1. The Non-Specific Support Contracts shall be held in the Contractor’s name during the term of this Agreement.
11.2. The Contractor acknowledges and agrees in respect of the period after the Effective Date that all costs, fees and expenses associated with the Non-Specific Support Contracts are included in the Core Services Charges.
11.3. The Parties acknowledge and agree that the provisions of paragraph 7 of Part 36 of the Schedule (Exit Management) shall apply in relation to the Non-Specific Support Contracts in the event of termination, Partial Termination or expiry of this Agreement. 12. INDEMNITIES
12.1. Excepting any liability covered by the indemnity set out in paragraph 12.2 below in relation to an Existing Curriculum Licence or an Existing Curriculum Support Contract, the Contractor shall indemnify and keep the Authority fully and effectively indemnified from and against all losses, liabilities, claims, actions, demands, proceedings, damages, costs, charges and expenses made against or incurred by the Authority in respect of any breach by the Contractor, any Contractor Party and/or any Contractor Personnel of the terms of this Part 24 of the Schedule (Third Party Software and Third Party Support Contracts) and/or the terms of any Third Party Software Licence or Third Party Support Contract.
APPENDIX 1
LIST OF EXISTING CURRICULUM SOFTWARE
APPENDIX 2
LIST OF EXISTING CURRICULUM SUPPORT CONTRACTS
APPENDIX 3
LIST OF EXISTING CORPORATE SUPPORT CONTRACTS