PRO-FORMA CONTRACT (1) [insert customer name] and (2

PRO-FORMA CONTRACT

(1) [insert customer name] and

(2) ARKIVUM LIMITED

PRO FORMA SERVICES CONTRACT

THIS CONTRACT is dated

BETWEEN:

(1) [INSERT NAME OF CUSTOMER] (Company Number [ ]) whose [registered office]

[principal place of business] is at [insert address]("the Customer"); and

(2) ARKIVUM LIMITED (Company Number 7530353) whose registered office is at 24

Cornhill, London, EC3V 3ND ("the Contractor").

1. DEFINITIONS

1.1 In this Contract, the following words will have the following meanings:

"Bribery Legislation"

means the Bribery Act 2010 and any subordinate

legislation made under that Act from time to time

together with any guidance or codes of practice

issued by the relevant government department

concerning the Bribery Legislation;

"Business Day"

means any day excluding Saturdays, Sundays and

any national holidays throughout the United

Kingdom;

"Commercially Sensitive

Information"

means the subset of Confidential Information

listed in Schedule 3 that constitutes a trade secret;

"Confidential

Information"

means all information (in whatever format)

designated as such by the disclosing Party together

with such information which relates to the

business, affairs, networks, customers, products,

developments, trade secrets, know-how and

personnel of the disclosing Party or which may

reasonably be regarded as the confidential

information of the disclosing Party and, in the case

of information disclosed by the Contractor,

includes the Commercially Sensitive Information;

"Contract"

means this contract including the Schedules;

"Data"

means all data and information of the Customer

which is hosted or stored on the Contractor's

infrastructure and any other data and information

belonging to the Customer which may be

delivered to, or generated by, or otherwise come

into the possession or control of, the Contractor

including any associated set of data (such as log

files and statistics) that are derived from the

systems of the Customer or the systems and

infrastructure of the Contractor;

"Data Controller",

"Data Processor", "Data

Subject", "Personal

Data", "Process" and

"processing"

have the respective meanings given to them in the

DPA;

"Data Management Plan"

means a plan agreed by the Parties detailing the

tasks to be performed by the Contractor on the

Data from time to time as part of the Services;

"DPA"

means the Data Protection Act 1998 and the rules

and regulations made or having effect under it;

"Effective Date"

means [the date of this Contract];

"Environmental

Information Regulations"

means the Environmental Information Regulations

2004;

"Fix"

means a permanent resolution of an Incident;

"FOIA"

means the Freedom of Information Act 2000 or

the Freedom of Information (Scotland) Act 2002

(as applicable) and any subordinate legislation

made under these Acts from time to time

together with any guidance and/or codes of

practice issued by the Information Commissioner

in relation to such legislation;

"Force Majeure Event"

means any cause beyond a Party's reasonable

control affecting the performance of its obligations

under this Contract, including war, acts of

terrorism, governmental requirements, acts of

local or central Government or other competent

authorities, Acts of God and industrial disputes

(other than industrial disputes by the relevant

Party's employees). For the avoidance of doubt,

the failure or delay of any obligations of any

subcontractor will not be deemed to be beyond

the reasonable control of a Party unless the delay

or failure is a result of an event beyond the

reasonable control of the subcontractor;

"Framework Agreement"

means the framework agreement between (1) Jisc

Collections and Janet Limited; and (2) the

Contractor dated [INSERT];

"Good Industry Practice"

means in relation to any undertaking and any

circumstances, the exercise of that degree of

professionalism, skill, diligence, prudence and

foresight which would reasonably and ordinarily be

expected from a skilled and experienced person or

an internationally recognised company engaged in

the same type of activity under the same or similar

circumstances;

"Group"

means, in relation to a Party, the Party, its

subsidiaries, its holding companies and any

subsidiaries of such holding companies, "subsidiary"

and "holding company" having the meanings given

to them in section 1159 of the Companies Act

2006;

"Hardware"

means the hardware to be provided pursuant to

the terms of this Contract;

"Implementation Date"

means the date on or by which the Contractor

must have provided access to the Services, as

detailed in Schedule 1;

"Incident"

means any event that is not part of the standard

operation of the hardware or software used to

provide the Services and that causes, an

interruption to, or a reduction in the functionality

of such hardware or software or degradation in

resilience of such hardware or software;

"Information"

means information recorded in any form;

"Information Security

Plan"

means the information security plan prepared by

the Contractor pursuant to Clause 10.7;

"Intellectual Property

means all present or future intellectual property

rights, patents, patent applications, copyright,

Rights"

mask works, trade secrets and industrial property

rights in respect of any designs, formulas, technical

information and software, and any trademark,

trademark applications, service marks and trade

names, and other similar rights and obligations

whether they are registerable or not;

"Jisc"

means Jisc (co. number 05747339) (or any

successor body thereto);

["Payment Plan"

means the plan for the call off by the Contractor

of Prices paid by the Customer in advance and

held by the Contractor in escrow as set out at

Schedule 1;] [Drafting Note: delete if not

applicable]

"Prices"

means the prices or fees payable by the Customer

to the Contractor in consideration for the

performance of the Services, as set out in Schedule

1, as may be revised from time to time in

accordance with the terms of this Contract;

"Requests

for

Information"

shall have the meaning set out in FOIA or any

apparent request for information under the FOIA

or the Environmental Information Regulations;

"Resolution"

means either a Fix or a Workaround that has been

applied;

"Response"

means confirmation by the Contractor that it has

recorded (i) the date and time of the call which

notifies the Incident; (ii) the nature and location of

the Incident; and (iii) the severity level assigned to

the Incident;

"Secure Access Control

Measures"

means the measures employed by the Contractor

to ensure that Data is only accessed by those who

are entitled to access that Data as set out in

Schedule 4;

"Services"

means the services described in Schedule 1,

including the Storage Services and the Support

Services (in each case as defined in Schedule 1),

which are to be provided to the Customer by the

Contractor;

"Service Credits"

means the credits (if any) which become payable to

the Customer where the Service Levels are not

achieved as set out in Schedule 1;

"Service Levels"

means the service levels set out in Appendix 3 of

Schedule 1;

"Seventh Data

Protection Principle"

means the seventh data protection principle set

out in Schedule 1 of the DPA;

"Software"

means any standalone software supplied pursuant

to the terms of this Contract;

"Specifications"

means the specifications for the Software and

Hardware to be supplied by the Contractor as set

out in Schedule 1;

"Term"

means the term of this Contract as set out in

Clause 14;

"Workaround"

means a temporary fix which restores the

resilience and functionality of the Hardware or

Software until a Fix is available.

1.2 References in this Contract to any statute or statutory provision include, unless the

context otherwise requires, references to that statute or provision as from time to time

amended, extended or re-enacted.

1.3 References in this Contract to a "Party" or the "Parties" mean a party or the parties to

this Contract.

1.4 Reference to words importing the singular only also includes the plural and vice versa

where the context requires.

1.5 The headings in this Contract are for reference only and shall not be taken into account

in the construction or interpretation of this Contract.

1.6 Unless otherwise stated, references in this Contract to Clauses, Schedules, Parts and

Appendices are references to the clauses or schedules of, or appendices or parts to a

schedule of, this Contract or the Framework Agreement as applicable.

1.7 any words introduced by the terms "including", "include", "in particular" or any

similar expression shall be construed as illustrative and the words following any of those

terms will not limit the sense of the words preceding those terms

1.8 The terms of the Framework Agreement are hereby incorporated into the terms of this

Contract provided that the following order of precedence shall apply in relation to any

conflict, inconsistency or contradiction between the various documents referred to in this

Contract:

1.8.1 the terms and conditions in the main body of this Contract;

1.8.2 the Schedules and Appendices to this Contract;

1.8.3 the Framework Agreement; and

1.8.4 the Schedules to the Framework Agreement.

2. THE SERVICES

2.1 In consideration for the payment of the Prices, the Contractor shall provide the Services

in accordance with the terms of this Contract, including the Service Levels and the

timescales for performance set out in Schedule 1 and the Secure Access Control

Measures.

2.2 Where Service Credits are specified in Schedule 1 to be payable, Service Credits shall be

due by the Contractor and recoverable by the Customer in accordance with the

provisions of Schedule 1 and without prejudice to any other rights and remedies available

to the Customer under this Contract or otherwise.

2.3 The Parties each acknowledge and agree that any Service Credits payable under Schedule

1 are a price adjustment to reflect the reduced level of Service and are not an estimate of

the loss or damage that may be suffered by the Customer as a result of a failure to meet

the relevant Service Level. Payment of a Service Credit by the Contractor or the fact that

a Service Credit is due by the Contractor, is without prejudice to, and will not limit, any

right the Customer may have to damages or non-monetary remedies at law or in equity

resulting from, or otherwise arising in respect of, a failure to achieve a Service Level

(including any rights of termination).

2.4 In performing its obligations under this Contract, the Contractor will at all times exercise

reasonable skill and care and will ensure that the Services are performed by staff that are

competent and skilled and experienced in the relevant subject areas.

2.5 The Parties may at any time during the Term agree a Data Management Plan which will

apply to the Contractor's performance of the Services.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 The Contractor shall ensure that, for the duration of this Contract, it will maintain all

licences and consents necessary to enable it to provide the Services and in particular shall

ensure that its provision of the Services does not infringe the Intellectual Property Rights

of any third party and, where necessary, it grants and/or shall procure for the benefit of

the Customer within the United Kingdom any licences necessary to enable the Customer

to receive the Services without infringing the Intellectual Property Rights of any third

party.

3.2 The Contractor shall indemnify and keep indemnified the Customer against any direct

losses, liabilities, costs, claims, damages, awards and expenses arising out of any claims

that the Services (or any part of the Services, including the use of a deliverable) infringe

the Intellectual Property Rights of whatever nature of a third party.

3.3 The Customer shall notify the Contractor promptly if the Customer becomes aware of

any claim being made or action being threatened or brought against the Customer, which

is likely to result in an indemnity claim against the Contractor pursuant to Clause 3.2.

3.4 The Customer shall:

3.4.1 not make any admissions or settlement of any claim of the kind referred to in

Clause 3.2 without the Contractor's prior written consent (such consent not to

be unreasonably withhold and/or delayed);

3.4.2 give the Contractor all such reasonable assistance and information as it may

reasonably require in order to respond to any claim of the kind described in

Clause 3.2; and

3.4.3 at the Contractor's cost and expense, allow the Contractor complete control

over the defence and/or settlement of any action or claim of the kind described

in Clause 3.2.

3.5 The Contractor shall give the Customer the earliest possible notice in writing of any

actual claims against the Contractor that the Services (or any part of them) infringe the

Intellectual Property Rights of whatever nature of a third party.

3.6 Without prejudice to the provisions of Clause 3.2, if a third party brings a claim that the

Services (or any part of them) infringes any Intellectual Property Rights of that third party,

of if the Contractor reasonably considers that such a claim may be made, the Contractor

may (at its own option and expense):

3.6.1 modify or replace the infringing element of the Services so as to avoid the

infringement provided that such modification or replacement shall not materially

affect the delivery of the Services, with the Contractor making good to the

Customer any direct losses suffered by the Customer during or as a result of the

modification or replacement; or

3.6.2 procure for the Customer the right to retain and continue to use the affected

article.

3.7 If the Contractor modifies or replaces the infringing element, the modified/replacement

item must comply with the terms of this Contract, including any warranties and any

specifications.

3.8 The Contractor shall have no liability to indemnify the Customer other against any claim

of the kind referred to in Clause 3.2 to the extent that any such claim is in respect of: (i)

any use in combination with the Services of any item not supplied by the Contractor

(except where such combination, connection, operation or use is recommended,

specified or approved by the Contractor) where such combined use directly gives rise to

the claim; or (ii) the Customer's unreasonable refusal to use modified Services provided

pursuant to Clause 3.6.1.

4. CHANGE PROCESS

4.1 Except as set out in this Clause 4, all changes to this Contract will be agreed in writing

between the Parties and set out in the Contractor's service order form ("Order Form").

The Services will be provided by the Contractor to the Customer on the terms of this

Contract. An example of the Order Form is attached at Schedule 2.

4.2 If there is any conflict between the terms of the Order Form and the terms of this

Contract, the terms of this Contract shall prevail unless the parties expressly state to the

contrary within the Order Form.

4.3 If a minor change to the Services is proposed by one of the Parties, the change will come

into effect if both Parties agree to that change in writing.

5. PRICES

5.1 The Prices to be paid by the Customer for the Services and the payment profile that will

apply are set out in Schedule 1.

5.2 [All invoices validly issued by the Contractor shall be payable by the Customer within 30

days of the date of a valid invoice.] [Drafting Note: to be updated, if required, following

agreement of charging structure with Contractor.]

5.3 [Any of the Prices which are paid by the Customer in advance shall be held by the

Contractor in a suitable escrow account and called off in accordance with the Payment

Plan.] [Drafting Note: to be updated, if required, following agreement of charging

structure with Contractor.]

5.4 All sums payable under this Contract are exclusive of VAT, which shall be charged in

accordance with the relevant regulations in force at the time of making the relevant

taxable supply and will be payable by the Customer.

6. PROGRESS MEETINGS

6.1 The Parties agree to meet as often as is reasonably necessary to facilitate the operation of

this Contract and the proper and timely delivery of the Services, such meetings to be the

forum for discussion between the Parties in connection with such operation and delivery.

6.2 The Parties will arrange for certain of its employees, agents or subcontractors to attend

from time to time as may be appropriate.

6.3 Progress meetings to discuss progress reports and other relevant issues will be held at

intervals which, in the Customer's reasonable opinion, are necessary to ensure the

proper and timely delivery of the Services.

6.4 The Contractor will prepare in advance of each such meeting a written progress report,

the contents of which shall be as the Customer may reasonably require.

6.5 The meetings will be held at the Customer's offices, or at any other location agreed

between the Parties.

7. WARRANTIES

7.1 The Contractor warrants that:

7.1.1 it will at all times have adequate levels of resource to allow the performance of

the Services in accordance with the terms of this Contract, including the

timescales for performance;

7.1.2 it has and will for the duration of this Contract have all necessary licences,

consents and authorisations or rights as may be provided for under any relevant

legislation, regulations or administrative orders to provide the Services to the

Customer;

7.1.3 the Services will (where relevant) meet or exceed the Service Levels set out in

Schedule 1 and any applicable industry standards (including ISO 27001 or its

replacement from time to time);

7.1.4 it will provide the Services in a timely, reliable and professional manner and will

carry out its obligations in this Contract in accordance with all applicable

telecommunications, data protection and other laws, licences and regulations in

force from time to time;

7.1.5 the Hardware and Software comply with the Specifications;

7.1.6 it has the full right, power and authority to enter into and perform this Contract

in accordance with its terms, and such entry and performance does not and will

not violate or infringe the Intellectual Property Rights or other rights of any

other persons; and

7.1.7 it is not knowingly engaged in, and will not knowingly during the Term engage in,

any business, relationship, contract or other activity which damages or tarnishes,

or is likely to damage or tarnish, the reputation of the Customer;

7.1.8 in relation to this Contract and/or its subject matter, neither the Contractor nor

any of its employees, sub-contractors or agents or others performing services on

behalf of the Contractor has done (or agreed to do) or will do (or agree to do)

anything which constitutes a breach by the Parties of any Bribery Legislation;

7.1.9 it has in place, and will at all times during the Term continue to have in place,

adequate procedures designed to prevent any person associated with the

Contractor from committing an offence under the Bribery Legislation and as a

minimum such procedures comply, and will at all times during the Term comply,

with the most recent guidance issued from time to time by the Secretary of State

pursuant to the Bribery Act 2010; and

7.1.10 it will throughout the Term comply with, monitor and enforce the procedures

referred to in Clause 7.1.8.

7.2 The Customer warrants that:

7.2.1 it has and will for the duration of this Contract have all necessary licences,

consents and authorisations or rights as may be provided for under any relevant

legislation, regulations or administrative orders required to perform its

obligations under this Contract; and

7.2.2 it has the full right, power and authority to enter into and perform this Contract

in accordance with its terms, and such entry and performance does not and will

not violate or infringe the Intellectual Property Rights or other rights of any

other persons.

7.3 Specific warranties regarding any Services to be provided by the Contractor (including in

relation to any software) are set out in the relevant Appendix of Parts 1 to 5 in Schedule

8. CONFIDENTIALITY

8.1 Subject to the following provisions of this Clause, each Party shall treat as confidential the

Confidential Information of the other Party.

8.2 Subject to Clauses 8.3, 8.4 and 8.5, each Party will:

8.2.1 only use Confidential Information for the purposes of this Contract or the

Framework Agreement;

8.2.2 only disclose Confidential Information to a third party with the prior written

consent of the other Party (except that each Party may disclose Confidential

Information to companies in its Group or to its professional advisors or auditors

to the extent necessary to exercise its rights or fulfil its obligations under this

Contract); and

8.2.3 ensure that any third party to whom Confidential Information is disclosed is

subject to a confidentiality undertaking in terms no less onerous than those of

this Clause.

8.3 The provisions of Clause 8.1 will not apply to any Confidential Information which:

8.3.1 is in or comes into the public domain other than by breach of this Clause 8; or

8.3.2 a Party can show (i) has been independently generated by the recipient Party's

employees who have neither had any involvement in the performance of the

recipient Party's obligations under this Contract nor access to such Confidential

Information or (ii) was in the possession of the recipient Party prior to the date

of the disclosure, free from any obligations of confidentiality.

8.4 The Customer may disclose the Confidential Information of the Contractor to the

relevant Funding Councils and the Jisc and in relation to any examination pursuant to

Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness

with which the Customer has used its resources.

8.5 Each Party may disclose the Confidential Information of the other Party pursuant to a

statutory, legal or parliamentary obligation, an order of a court of competent jurisdiction

or the requirement of a competent regulatory body, including any requirements for

disclosure under the FOIA or the Environmental Information Regulations. Without

prejudice to Clauses 8.7 to 8.11, each Party will notify (where it is legally able to do so)

the other Party of the disclosure (or proposed disclosure) as soon as is reasonably

possible and will use its reasonable endeavours to ensure that any such disclosure is made

in a manner which ensures the confidentiality of the Confidential Information.

8.6 Subject to the above provisions of this Clause 8, each Party receiving Confidential

Information will take the same precautions and exercise the same degree of care to

protect Confidential Information as it takes and exercises in relation to its own

confidential information. In any event, the receiving Party will take all reasonable care to

protect said Confidential Information.

8.7 The Contractor acknowledges that where the Customer is subject to the requirements

of the FOIA and the Environmental Information Regulations it shall assist and cooperate

with the Customer (at the Contractor's expense) to enable the Customer to comply with

the Information disclosure requirements set out in Clauses 8.8 to 8.14 below.

8.8 The Contractor shall:

8.8.1 notify the Customer and transfer the Request for Information to the Customer

as soon as practicable after receipt and in any event within 2 Business Days of

receiving a Request for Information;

8.8.2 provide the Customer with a copy of all Information in its possession or power

in the form that the Customer requires within 5 Business Days (or such other

period as the Customer may specify) of the Customer requesting that

Information; and

8.8.3 provide all necessary assistance as reasonably requested by the Customer to

enable the Customer to respond to a Request for Information within the time

for compliance set out in section 10 of the FOIA or regulation 5 of the

Environmental Information Regulations.

8.9 The Customer shall be responsible for determining at its absolute discretion whether the

Commercially Sensitive Information and/or any other Information:

8.9.1 is to be disclosed in response to a Request for Information, and

8.9.2 in no event shall the Contractor respond directly to a Request for Information

unless expressly authorised to do so by the Customer.

8.10 The Contractor acknowledges that notwithstanding Clause 8.4 the Customer may, acting

in accordance with the Department for Constitutional Affairs' Code of Practice on the

Discharge of Functions of Public Authorities under Part I of the Freedom of Information

Act 2000, be obliged under the FOIA, or the Environmental Information Regulations to

disclose Information:

8.10.1 without consulting with the Contractor, or

8.10.2 following consultation with the Contractor and having taken its views into

account.

8.11 Without prejudice to Clause 8.9, in the event that the Customer receives a request

under the FOIA or Environmental Information Regulations which encompasses any

Information held by the Customer which was provided to the Customer by the

Contractor in connection with this Contract, the Customer will notify the Contractor of

the request and allow the Contractor to make timely representations in relation to the

impact any such disclosure may, in the Contractor's opinion, have on the confidentiality

obligations under the Contract and any other representation it may have in relation to

the disclosure of that Information.

8.12 The Contractor shall ensure that all information produced in the course of the Contract

or relating to the Contract is retained for disclosure and shall permit the Customer to

inspect such records as requested from time to time.

8.13 The Contractor acknowledges that any lists or schedules provided by it outlining

Confidential Information are of indicative value only and that the Customer may

nevertheless be obliged to disclose Confidential Information in accordance with Clause

8.4 or Clause 8.5.

8.14 At all times the Customer shall ensure that its disclosure of any information which has

been provided to the Customer by the Contractor is limited to the minimum extent

necessary for the Customer to comply with its obligations under this Clause 8.

9. DATA PROTECTION

9.1 If and to the extent that the Contractor (for the purpose of this Clause 9, the "Data

Processor") Processes any Personal Data on behalf of the Customer (for the purpose of

this Clause 9, the "Data Controller"), the Data Processor undertakes to the Data

Controller that the Data Processor shall:

9.1.1 comply with the obligations imposed on the Data Controller by the Seventh

Data Protection Principle, namely:

(a) to maintain technical and organisational security measures sufficient to

comply at least with the obligations imposed on the Data Controller by

the Seventh Data Protection Principle; and

(b) to take reasonable steps to ensure the reliability of any employees of

the Data Processor who have access to Personal Data;

Personal Data have undertaken appropriate data protection and

information security training; and

(d) only to Process Personal Data for and on behalf of the Data Controller

for the purpose of performing and in accordance with this Contract

(and only on instructions from the Data Controller, including those in

this Contract, to ensure compliance with the DPA); and

(e) to allow representatives of the Data Controller (or a regulator where

applicable) to audit the Data Processor's compliance with the

requirements of this Clause 9 on reasonable notice, including:

(i) if requested, before any Services commence; and/or

(ii) no more than once during any subsequent year of the

Contract; and/or

(iii) at any time if any regulator of the Customer requests or

requires an audit of the Customer and/or any of its service

providers;

(f) at the option of the Data Controller, on request, to provide the Data

Controller with evidence of the Data Controller's compliance with the

Data Processor's obligations under this Clause 9;

9.1.2 only store Data within the European Economic Area and not transfer any

Personal Data outside the European Economic Area without the prior written

consent of the Customer, and in granting consent to the transfer, the Customer

may impose such terms on the Processing of the Personal Data and on the

Contractor and/or any overseas processor of the data as the Customer requires

to ensure that the Personal Data is adequately protected (as required by the

eighth data protection principle set out in Schedule 1 of the DPA); and

9.1.3 assist the Data Controller to comply with any obligations imposed on the Data

Controller by the DPA in relation to any Personal Data Processed by the Data

Processor including:

(a) providing the Data Controller with reasonable assistance in complying

with any subject access request served on the Data Controller under

the DPA;

(b) as soon as possible (and in any event within 24 hours) notifying the Data

Controller of any unauthorised access to, or any loss or destruction of,

or damage to, any Personal Data;

access request received by the Data Processor in relation to Personal

Data Processed pursuant to this Contract; and

(d) not disclosing any Personal Data in response to a subject access request

without first consulting with and obtaining the consent of the Data

Controller.

9.2 In the following circumstances, the Contractor shall cease immediately to use or Process

any such Personal Data received from, or on behalf of, the Customer under this Contract

and shall return to the Customer on demand (or at the request of the Customer destroy

or permanently erase) all Personal Data and copies of those Personal Data in its

possession or control:

9.2.1 on termination of this Contract (or upon expiry of any termination assistance

period); or

9.2.2 upon written request at any time.

9.3 The Contractor shall give the Customer a certificate signed by one of its senior managers

confirming that it has fully complied with Clause 9.2.

9.4 The Contractor acknowledges and agrees that the Customer owns the Intellectual

Property Rights in the Personal Data and such data remains the property of the

Customer. To the extent strictly necessary, the Customer hereby grants the Contractor

a non-exclusive, royalty-free license to use the Intellectual Property Rights in the Personal

Data solely for the purposes of this Contract.

9.5 The Contractor will promptly notify the Customer about any matter which may cause the

Customer to become non-compliant with the any relevant legislation applicable to the

Processing in respect of the Personal Data and provide such information about

remediation as the Customer shall reasonably require. The Customer may require the

Contractor to suspend the Processing until the breach is remedied to the satisfaction of

the Customer.

9.6 If the Contractor appoints subcontractors, as may be approved by the Customer from

time to time, as further Data Processors on behalf of the Customer, such further Data

Processors shall be engaged on terms providing equivalent protections in relation to the

Personal Data to those set out in this Contract and provide equivalent rights to the

Customer against the further Data Processors.

9.7 The Contractor shall indemnify the Customer against any loss or damage suffered by the

Customer, including any fines imposed on the Customer by the Information

Commissioner or other regulator of the Customer, in relation to any breach by the

Contractor of its obligations under this Clause 9.

10. INFORMATION SECURITY

10.1 The Contractor undertakes to comply with industry best IT security practice in providing

the Services, which shall include compliance with ISO 27001 or its replacement from time

to time.

10.2 The Contractor will ensure that it implements and maintains appropriate security

controls to ensure the confidentiality and integrity of all Data, including any security

measures set out in Schedule 1 and the Secure Access Control Measures. The

Contractor shall not downgrade the security configuration of any system processing any

Data without the prior written consent of the Customer.

10.3 Without prejudice to the generality of Clauses 10.1 and 10.2, the Contractor shall ensure

that all Data is protected at all times, in such manner as is consistent with the data

security classification agreed between the parties as applicable to such data, from

corruption, and from unauthorised access and interference, both while such Data is

within the possession and control of the Contractor and while (if transmission is

consistent with the classification of such Data and is strictly required for the purpose of

performing the Services) it is in transit across a network (whether public or private).

10.4 Unless instructed otherwise by the Customer, the Contractor shall not:

10.4.1 disclose, use, modify, store, copy or adapt the Data, unless specifically and

expressly required for the purposes of complying with its obligations under this

Contract;

10.4.2 merge or combine the Data with other data; or

10.4.3 remove any proprietary or copyright notices contained within or relating to the

Data, except as may be necessary for the performance by the Contractor of its

obligations under this Agreement or as otherwise expressly authorised by the

Customer.

10.5 In the event that the Data is corrupted or lost or sufficiently degraded as to be unusable,

the Contractor shall:

10.5.1 immediately notify the Customer of the occurrence of the loss or corruption of

the Data;

10.5.2 restore, or procure the restoration of, the Data to the extent required by, and

in accordance with, the Contractor's Information Security Plan;

10.5.3 provide the Customer with a full refund in respect of any charges levied by the

Contractor in respect of the collection, processing, storage and/or transmission

of the proportion of the Data which has been corrupted, lost or become

unusable; and

10.5.4 indemnify the Customer against all losses, costs and expenses incurred by the

Customer as a result of such corruption to or loss of Data.

10.6 The Contractor shall ensure:

10.6.1 the logical segregation of the Data from any data of any third party;

10.6.2 it has in place appropriate measures to protect against any virus or malicious

attack (including denial of service attacks) which may impact on the Data;

10.6.3 it has in place appropriate physical and technical access control measures,

including physical access restrictions to its data centres to ensure that only those

persons who require access to the Data for the purposes of this Contract are

able to access the Data; and

10.6.4 it implements, and complies at all times with, the Secure Access Control

Measures.

10.7 Within 1 month after the Effective Date, the Contractor shall develop an Information

Security Plan that will ensure the confidentiality and security of the Customer's

Confidential Information and shall submit the plan to the Customer for review and

approval. The Customer may require that amendments are made to the Information

Security Plan before it can be approved by the Customer. Once the Information Security

Plan has been approved by the Customer, the Contractor shall implement the

Information Security Plan in accordance with its terms.

10.8 The Contractor shall ensure that it has in place a facility for off-line back up with a

reputable data and software escrow provider which has either been chosen or approved

by the Customer. The Contractor shall ensure that:

10.8.1 its agreement with the escrow provider ensures the release of the Data to the

Customer on termination or expiry of this Contract for any reason;

10.8.2 its arrangements with the escrow provider enable the Contractor to provide

fully the exit services described in Schedule 1;

10.8.3 the performance by the Contractor of the exit services described in Schedule 1

shall enable the Customer to access and gain control, and take possession, of all

Data.

11. DISASTER RECOVERY AND BUSINESS CONTINUITY

11.1 As a minimum and to ensure the resilience of the Services, the Contractor shall ensure

that the Services are provided from two synchronised data centres (in addition to the

back up facility provided in accordance with Clause 10.8).

11.2 The Contractor shall deliver to the Customer a copy of its disaster recovery and business

continuity plan on request. The Contractor shall maintain and test its disaster recovery

and business continuity plan on a regular basis (no less than once in every 12 month

period). Any changes the Contractor makes to its disaster recovery and business

continuity plan will provide at least the same level of disaster recovery and business

continuity as the then current disaster recovery and business continuity plan. The

Contractor will notify the Customer when any material changes are made to its disaster

recovery and business continuity plan and shall, on request, provide a copy of such

updated plan to the Customer.

11.3 Each Party shall notify the other Party as soon as reasonably possible if it believes that

there has been, or is likely to be, a material disruption to business continuity that requires

the implementation of the Contractor's disaster recovery and business continuity plan. In

the event of any such material disruption the Contractor shall promptly implement its

disaster recovery and business continuity plan in accordance with its terms and using

Good Industry Practice.

11.4 The Contractor will ensure that any system on which the Contractor holds Data,

including backup data, is a secure system that ensures complete data integrity in

accordance with Good Industry Practice.

12. LIABILITY

12.1 Nothing in this Contract will limit or exclude the liability of either Party for death or

personal injury arising out of its negligence, or for its fraud or for any other loss which

cannot by law be excluded or limited.

12.2 Subject to Clause 12.1:

12.2.1 in no circumstances will either Party be liable to the other Party for any loss of

business, revenue, profits, anticipated savings or goodwill (whether direct or

indirect) or for any indirect, special or consequential loss arising out of or in

connection with this Contract;

12.2.2 each Party's maximum aggregate liability under or in connection this Contract or

its subject matter will not exceed £[ ]. [To be negotiated between the

Contractor and the Customer on a contract by contract basis.]

12.3 The exclusions and limitations in Clause 12.2 shall not apply to:

12.3.1 any liability of the Contractor in respect of:

(a) the indemnities in Clauses 9.7 and 10.5.4; or

(b) breach of its obligations in Clause 10 (Information Security);

12.3.2 any liability of either Party for breach of that Party's obligations in Clause 8

(Confidentiality).

12.4 The exclusions and limitations in Clause 12.2.2 shall not apply to any liability of the

Contractor in respect of the indemnity in Clause 3.2.

13. INSURANCE

13.1 The Contractor undertakes that for the duration of this Contract, it will be covered

against employee misfeasance, accident, third party injury, defective products, fire and

other risks normally covered by insurance by persons supplying services which are the

same or similar to the Services, with the minimum levels of insurance as set out below:

13.1.1 [insert]

13.2 The Contractor will produce to the Customer, at its reasonable request, satisfactory

evidence of the insurance arrangements described in Clause 13.1.

14. TERM, TERMINATION AND EXIT

14.1 Unless terminated by either Party in accordance with the terms and conditions of this

Contract, this Contract will commence on the Effective Date and will continue for the

term set out in Schedule 1 ("the Initial Term"). This Contract shall continue after the

Initial Term unless and until terminated by either Party giving not less than 3 months prior

written notice to the other, such notice to expire at the end of the Initial Term or at any

point thereafter ("the Extended Term").

14.2 Without prejudice to the rights and remedies of the Contractor and any Customer,

either the Customer or the Contractor may terminate this Contract immediately by

giving the other Party written notice:

14.2.1 in the event of a material breach by the other Party which is incapable of

remedy;

14.2.2 in the event of a material breach by the other Party which is capable of remedy

but which the other Party fails to remedy within 20 Business Days of having been

notified of such breach; or

14.2.3 if the other Party has a receiver, administrative receiver, administrator or other

similar officer appointed over it or over any part of its undertaking or assets or

passes a resolution for winding up (other than for the purpose of a bona fide

scheme of solvent amalgamation or reconstruction) or a court of competent

jurisdiction makes an order to that effect or if the other Party becomes subject

to an administration order or enters into any voluntary arrangement with its

creditors or ceases or threatens to cease to carry on business or is unable to

pay its debts or is deemed by section 123 of the Insolvency Act 1986 to be

unable to pay its debts, or undergoes or is subject to any analogous acts or

proceedings under any foreign law.

14.3 The Customer may terminate this Contract in accordance with paragraph 1.2 of

Appendix 4 to this Contract.

14.4 Termination of this Contract will be without prejudice to the Parties' accrued rights and

obligations.

14.5 On termination or expiry of this Contract, the Parties shall perform any and all

termination and/or exit obligations set out in Schedule 1. In particular, the Contractor

shall ensure that all Data is returned to the Customer or, at the Customer's election,

securely destroyed in accordance with Good Industry Practice and shall perform the exit

services described in Schedule 1. Unless otherwise stated in Schedule 1, each Party shall

perform its post termination obligations at its own cost and expense.

14.6 Clauses 1 (Definitions), 3 (Intellectual Property Rights), 8 (Confidentiality), 12 (Liability);

13 (Insurance), 14.3 to 14.6 (Termination), 15 (Audit), 16 (Severability), 18 (Third

Party Rights), 19 (Counterparts), 20 (No Partnership), 21 (Assignment), 23 (No

Waiver), 24 (Notices), 25 (Entire Agreement), 26 (Dispute Resolution), 27 (Variation) and

28 (Governing Law) of this Contract will continue notwithstanding termination of this

Contract.

14.7 In addition to any particular exit services identified in Schedule 1, the Contractor shall

develop and prepare a draft high level exit plan (the "Exit Plan") no later than 1 month

following the Effective Date for review and approval by the Customer.

14.8 The Parties shall review the Exit Plan annually throughout the Term. The Contractor

shall, where required, prepare drafts of updates and amendments to the Exit Plan for

approval by the Parties following such reviews.

14.9 Within 10 Business Days of sending or receiving notice of termination in respect of all or

part of this Agreement, the Parties shall meet and use all reasonable endeavours to agree

the contents of revisions to the Exit Plan required at the date of termination. The

Contractor shall implement the Exit Plan at the relevant time.

15. AUDIT

15.1 In addition to the rights contained at Clause 9.1.1(e), the Customer shall have the right

during normal business hours and on reasonable notice to inspect and take copies of all

relevant records and/or information, and/or to authorise agents or representatives

appointed by the Customer to do so, in relation to any matter in connection with the

Services or this Contract including:

15.1.1 to assess the delivery of the Services in accordance with this Contract (including

against the Milestones and the Service Levels);

15.1.2 investigation of any fraudulent or negligent activity;

15.1.3 to verify the calculation of the Prices.

15.2 The Customer's right in Clause 15.1 shall continue in force for 1 year after termination or

expiry of this Contract.

15.3 The Customer shall use its reasonable endeavours to ensure that the conduct of an audit

under this Clause 15 does not unreasonably disrupt the Contractor's business.

15.4 The Contractor shall on demand provide the Customer (and/or its agents or

representatives) with all reasonable co-operation and assistance in relation to each audit

including without limitation all information requested by the Customer (and/or its agents

or representatives) within the scope of the audit and access to the Contractor's

personnel and/or the Contractor's systems and/or premises.

15.5 Each Party shall bear its own costs of any audit provided that where audit shows that the

Contractor has over-charged the Customer by more than 4%, the Contractor shall bear

the Customer's costs of the audit and shall promptly reimburse the Customer the

amount of such overpayment.

15.6 If any agent or representative of the Customer is authorised to conduct an audit on

behalf of the Customer, such agent or representative shall undertake in advance to the

Contractor to keep all information obtained strictly confidential and not to use or

disclose any such information except for the purpose of reporting the results of its audit

to the Customer.

16. SEVERABILITY

16.1 If any provision of this Contract, including in particular any limitation, is held by a court or

any governmental agency or authority to be invalid, void, or unenforceable, the remainder

of this Contract will nevertheless remain legal, valid, and enforceable.

17. FORCE MAJEURE

17.1 Notwithstanding anything herein to the contrary but subject to Clause 17.2, neither Party

will be liable for any delay or failure in performance of any of its obligations under this

Contract, to the extent such delay or failure is attributable to a Force Majeure Event.

17.2 Each Party which is prevented from carrying out its obligations as a result of a Force

Majeure Event will promptly notify the other Party and will agree an action plan with the

other Party, at the cost of the Party prevented from carrying out its obligations as a result

of the Force Majeure Event, to mitigate the effects of the Force Majeure Event.

17.3 If performance of the obligations of the Contractor is substantially prevented for a

continuous period of 15 Business Days or more by virtue of any of the aforesaid events

then the Customer may terminate this Contract, without any liability, by giving the

Contractor written notice.

18. THIRD PARTY RIGHTS

18.1 A person who is not a Party to this Contract shall not have any rights under or in

connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 or

otherwise.

19. COUNTERPARTS

19.1 This Contract may be executed in counterparts, each of which will be deemed an original,

but all of which will constitute the same instrument.

20. NO PARTNERSHIP

20.1 Nothing in this Contract and no action taken by the Parties pursuant to this Contract will

constitute or be deemed to constitute between the Parties a partnership, association,

joint venture, or other co-operative entity.

21. ASSIGNMENT

21.1 Subject to Clause 21.2 below, neither Party may assign its rights and/or obligations under

this Contract without the prior written consent of the other Party, such consent not to

be unreasonably withheld or delayed.

21.2 The Contractor may assign any of its rights and/or obligations under this Contract to a

member of its Group. In such cases:

21.2.1 the Contractor shall promptly inform the Customer in writing of the identity of

the assignee;

21.2.2 the Contractor shall remain liable for any acts and/or omissions under this

Contract irrespective of the assignment; and

21.2.3 if the relevant assignee ceases to be a member of the Contractor's Group then

the Contractor shall ensure that this Contract is promptly transferred back to

the Contractor and/or a member of its Group.

22. SUBCONTRACTING

22.1 The Contractor shall be entitled to subcontract parts of the Services to subcontractors

without notice (subject to Clause 9.6) provided that the Contractor shall ensure that its

contracts with such subcontractors contain terms equivalent to Clauses 8

(Confidentiality), 9 (Data Protection) and 10 (Information Security). The Contractor shall

be liable for the acts and omissions of its subcontractors.

23. NO WAIVER

23.1 Failure by either Party to exercise or enforce any right or benefit conferred by this

Contract will not be deemed to be a waiver of any such right or benefit nor operate so as

to bar the exercise or enforcement thereof or of any other right or benefit on any later

occasion.

24. NOTICES

24.1 Any notice required or authorised to be given under this Contract will be delivered by

hand or by post to the relevant address stated at the start of this Contract or to such

other address as notified (in accordance with this Clause 24) by one Party to the other

during the Term.

24.2 Any notice will be deemed to have been served:

24.2.1 immediately if delivered by hand; or

24.2.2 48 hours after posting if delivered by post.

24.3 Notices may also be delivered by email to such email address as notified (in accordance

with this Clause 24) by one Party to the other during the Term, provided that the sender

is able to verify that the email reached the recipient's servers without error. Service of a

notice by email will be deemed to have occurred upon reaching the recipient's server

without error.

24.4 Where notices are to be served by email, the email must contain the following wording in

the subject matter field: "Notice served in accordance with the terms of the Contract

between [the Customer's name] and [insert Contractor's name]".

25. ENTIRE AGREEMENT

25.1 This Contract contains the entire agreement and understanding of the Parties and

supersedes all prior agreements, understandings or arrangements (both oral and written)

relating to the subject matter of this Contract, other than as may be set out in the

Framework Agreement. Each of the Parties acknowledges and agrees that it does not

enter into this Contract on the basis of and does not rely, and has not relied upon, and

will have no remedy in respect of, any statement or representation or warranty or other

provision made, given or agreed to by the other Party to this Contract (whether

negligently or innocently made) except those expressly repeated or referred to in this

Contract and/or the Framework Agreement. Nothing in this Clause will operate to limit

or exclude liability for fraud.

26. DISPUTE RESOLUTION

26.1 Without prejudice to Clause 14, in the event of a dispute between the Parties concerning

this Agreement, each of the Parties will, in the first instance, endeavour to reach an

agreement in respect of the dispute by following the escalation process set out in Clauses

26.2 to 26.8 below.

26.2 The aggrieved Party shall provide the other Party with written notice and the problem

will initially be referred to the first level contact given in the table below (the "First

Level").

26.3 If the problem is not resolved at the First Level or a corrective plan of action has not

been mutually agreed upon within 10 Business Days of giving the dispute notice then

either Party shall have the option to escalate the matter to the second level contact given

in the table below (the "Second Level").

26.4 If the problem is not resolved at the Second Level or a corrective plan of action has not

been mutually agreed upon within 5 Business Days of giving the dispute notice then either

Party shall have the option to escalate the matter to the third level contact given in the

table below (the "Third Level").

26.5 If the problem is not resolved at the Third Level or a corrective plan of action has not

been mutually agreed upon within 5 Business Days of giving the dispute notice then either

Party shall have the option to escalate the matter to the final level contact given in the

table below (the "Final Level").

26.6 The Final Level representatives agree to use all reasonable efforts to meet within 10

Business Days at a mutually agreeable time and place in order to resolve the dispute.

Escalation Points

Escalation

Level

Contractor Contacts

Customer Contacts

First Level

Cathy Brode

[email protected]

+44 7768 041 174

[ ]

Second Level

None

[ ]

Third Level

Mark Ellis

[email protected]

+44 7788 871052

[ ]

Final Level

Jim Cook

[email protected]

+44 7785 558 432

[ ]

26.7 Without prejudice to each Party’s rights to terminate the Agreement, if the Parties are

unable to reach agreement on the disputed matter through the process as specified in

Clauses 26.1 to 26.6, they may agree to settle it by mediation in accordance with the

Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless

otherwise agreed between the Parties, the mediator will be nominated by CEDR. To

initiate the mediation the Parties will send a joint notice in writing ("ADR notice") to

CEDR requesting mediation.

26.8 The mediation will start not later than 30 days after the date of the ADR notice, or such

later date as the mediator is available. The commencement of mediation will not prevent

the Parties commencing or continuing court proceedings, unless the parties agree

otherwise.

27. VARIATION

27.1 Without prejudice to Clause 4.3, no variation of this Contract will be valid unless

recorded in writing and signed by or on behalf of each of the parties.

28. GOVERNING LAW AND JURISDICTION

28.1 This Contract and all matters arising out of it (whether of a contractual or a tortious

nature) will be governed and construed in accordance with the laws of England and the

Parties irrevocably agree to the exclusive jurisdiction of the Courts of England and Wales.

IN WITNESS WHEREOF, the Parties, intending hereby to be legally bound, by their

authorised officers, have executed this Contract on the date first here written.

………………………………………………………………………………………….

Signed for and on behalf of

[INSERT CUSTOMER DETAILS]

Name: Position:

Date:

………………………………………………………………………………………….

Signed for and on behalf of

[INSERT CONTRACTOR DETAILS]

Name: Position:

Date:

Janet Data Archive to Tape Framework

PR/DOC/020

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PRO-FORMA CONTRACT – SCHEDULE 1

CONTRACT TERM

Initial Term

[

To be

inserted

]

Implementation Date

[

To be

inserted

]