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SCHEDULE 1
DEFINITIONS
1.1
The expressions set out below shall have the meanings ascribed thereto:
"Account"
means the individual income and expenditure cash accounts
through which money flows in respect of the Teachers’ Pension
Scheme.
"Achieve"
means in respect of a Test, to successfully pass a Test without any
Test Issues and in respect of a Milestone, the issue of a Milestone
Achievement Certificate in respect of that Milestone in accordance
with Schedule 6.3 (Testing Procedures) and "Achieved" and
"Achievement" shall be construed accordingly.
"Additional Costs of
Mitigation"
has the meaning given in Clause 28.7.
“Additional Termination
Services”
means the services described in Paragraph 5.12 of Schedule 8.5
(Exit Management).
"Ad-hoc Services"
means such additional services related to the TPS as the
Department may request on an ad hoc basis from time to time in
accordance with Clause 21.7.
"Adverse Event"
has the meaning given in Paragraph 14.1 of Part 2 of Schedule 2.2
(Service Levels).
"Affected Party"
means the Party seeking to claim relief in respect of a Force
Majeure Event.
"Affiliate"
means 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.
"Agency"
has the meaning given in Paragraph 9.2 of Part 2 of Schedule 2.2
(Service Levels).
"Agreement"
means this agreement comprising the Clauses and the Schedules
(and any appendices to the Schedules), any Annexes and any
documents expressly incorporated by reference or attached to it.
"Ancillary Sub-contractor"
means a third party other than the Contractor who enters into a
subcontract with the Contractor for:
(a)
the supply of commodity items or consumable goods
(including hardware and software) of general application in
the Contractor's business and which are not specific to the
supply of the Services; or
(b)
the supply of services of general application in the
Contractor's business which are incidental to the Services
and are not provided directly to the Department, Members,
Employers or any other third party interfacing with the
Services;
and "Ancillary Sub-contract" shall be construed accordingly.
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"Acquired Rights Directive"
means the European Council Directive 77/187/EEC on the
approximation of laws of European member states relating to
safeguarding of employees' rights in the event of transfers of
undertakings, businesses or parts of undertakings or businesses, as
amended.
"Actuary"
means a Fellow of the Institute of Actuaries or a Fellow of the
Faculty of Actuaries.
"Actuary's Letter"
means the bulk transfer terms to be issued by the Contractor's
Actuary which specify the actuarial methods and assumptions for
calculating the Transfer Values.
“Allowable Resource Days”
has the meaning given in Clause 21.7.2.
"Assets"
means all assets supplied by the Contractor, any Sub-contractors or
other third parties in relation to the provision of the Services in
accordance with this Agreement but excluding the Department
Assets.
"Authorisation"
means the authorisation to be provided by the Department
substantially on the terms set out in Annex A of the Statement of
Service Requirements as amended from time to time.
"Authority to Proceed" or
"ATP"
means any point at which the Contractor is authorised to continue to
provide Transition or Implementation Activities (as appropriate to
the relevant Milestone), such authority will be provided in the form of
a Milestone Achievement Certificate relating to the Milestone which
is recorded as being linked to ATP in the Transition or
Implementation Plan.
"Availability"
has the meaning given to it in the relevant Service Level and/or KPI
set out in Appendix 1 of Schedule 2.2 (Service Levels), and
"Available" shall be construed accordingly.
"AVC"
means additional voluntary contributions.
"AVC Regulations"
means the Teachers Superannuation (Additional
Contributions) Regulations 1994 as amended.
"AVC Transfer Value"
means the cash amount available as a transfer value under the
Contractor's AVC Scheme in respect of the invested contributions
made by Transferring Employees to the Contractor's AVC Scheme
towards securing money purchase benefits (as defined in Section
181 of the Pension Schemes Act 1993) thereunder.
"Base Case Financial Model"
means the Financial Model projecting Costs and Charges in relation
to the provision of Services prepared by the Contractor as at the
date of this Agreement consistent with the requirements in Schedule
7.5 (Financial Model).
"Base Charges"
"Base Cost"
Voluntary
means the sums that can be charged by the Contractor to the
Department for delivering the Operational Services in each Contract
Year, as detailed in Table 3 in Paragraph 3.3.2 of Part A of
Schedule 7.1 (Charges and Invoicing).
means the direct cost to the Contractor, calculated per Man Day, of
employing the Contractor Personnel, expressed per individual, and
including (without limitation):
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(a) salary cost;
(b) staff training;
(c) work place accommodation;
(d) ICT equipment and tools;
(e) pension allowances;
(f) car allowances; and
(g) any other fringe benefits.
"BCDR Plan"
has the meaning set out in Paragraph 1.1 of Schedule 8.6
(Business Continuity and Disaster Recovery Plan).
"Benchmark Review"
means a review of part or all of the Services carried out in
accordance with Paragraph 1 of Part B of Schedule 7.3 (Value for
Money Provisions) to determine whether those Services represent
Good Value.
"Beneficiary"
"Benefits"
means any person who receives Benefits, or is eligible to receive
Benefits, under the Teachers Pensions Regulations 2010 as the
result of the death of a Member.
means pensions and other payments payable to Members and
Beneficiaries where entitlement exists under the Teachers Pensions
Regulations 2010, as amended.
"Best and Final Offer"
means the Best and Final Offer submitted by the Contractor to the
Department at the request of the Department. The Contractor's
Best and Final Offer has been superseded by the Schedules of this
Agreement.
"Board Member"
means the Department and Contractor Board appointments set out
in the Appendix to Schedule 8.1 (Governance).
"Board(s)"
means the Strategy Board, the Steering Board and the Operations
Board.
"Breach of Security"
means, in accordance with the security requirements in Schedule
2.1 (Statement of Service Requirements) and the Security Policy,
the occurrence of:
"Breakage Costs"
(a)
any unauthorised access to or use of the Services, the
Department Premises, the Sites, the Contractor System and/or
any ICT, information or data (including the Confidential
Information and the Department Data) used by the
Department and/or the Contractor in connection with this
Agreement; and/or
(b)
the loss and/or unauthorised disclosure of any information or
data (including the Confidential Information and the
Department Data), including any copies of such information or
data, used by the Department and/or the Contractor in
connection with this Agreement.
means any costs (such as the Contractor's own redundancy costs
(including pension related redundancy costs), and costs payable for
early termination of contracts entered into by the Contractor prior to
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receipt of the termination notice) incurred by the Contractor directly
as a result of the termination of this Agreement which:
(a)
would not have been incurred had this Agreement continued
until its natural expiry; and
(b)
relate directly to the termination of the Services; and
(c)
are unavoidable, proven, reasonable, and not capable of
recovery; and
(d)
are incurred under arrangements or agreements that are
consistent with terms that have been entered into in the
ordinary course of business and on reasonable commercial
terms; and
(e)
do not relate to contracts or subcontracts with Affiliates of the
Contractor (provided that this sub-paragraph shall not be
taken as excluding costs payable for early termination of subcontracts between Affiliates of the Contractor and third parties,
and which, for the avoidance of doubt, meet all the
requirements of sub-paragraphs (a) to (d) above).
"Business Continuity Plan"
has the meaning set out in Paragraph 1.2.2 of Schedule 8.6
(Business Continuity and Disaster Recovery Plan).
"Business Process Manual"
means a manual setting out a detailed definition of all the TPS
administration processes and procedures that are supported by the
Services.
"Capital Costs"
means those costs which would be treated as capital costs
according to generally accepted accounting principles within the UK
which shall include the cost to be charged in respect of Assets by
the Contractor to the Department or (to the extent that risk and title
in any Asset is not held by the Contractor) any cost actually incurred
by the Contractor in respect of those Assets.
"Case Summary"
means a concise summary of a Party's case in a Dispute subjected
to mediation.
"CEDR"
means the Centre for Effective Dispute Resolution of International
Dispute Resolution Centre, 70 Fleet Street, London, EC4Y 1EU.
"Change"
means any change to this Agreement effected in accordance with
the Change Control Procedure.
"Change Authorisation Note"
means the form used by the Parties to set out the agreed Contract
Change and which shall be substantially in the form of Appendix 3
to Schedule 8.2 (Change Control Procedure).
"Change Communication"
means any Change Request, Impact Assessment, Change
Authorisation Note or other communication sent or required to be
sent pursuant to Schedule 8.2 (Change Control Procedure).
"Change Control Procedure"
means the procedure for changing this Agreement as set out in
Schedule 8.2 (Change Control Procedure).
"Change in Law"
means any change in Law, which impacts the performance of the
Services, which comes into force after the Effective Date.
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"Change of Control"
means a change in Control of the Contractor for the purposes of
Clauses 44.4 and 46 or a change on Control of a Key Subcontractor for the purposes of Clause 62.14.
"Change Request"
means a written request for a Change which shall be substantially in
the form of Appendix 1 to Schedule 8.2 (Change Control
Procedure).
"Charges"
means the charges for the provision of the Services set out in and
derived in accordance with Schedule 7.1 (Charges and Invoicing),
including any Milestone Payment, Stage Payment, Service Charge
or Contract Extension Charges.
"Commercially Sensitive
Information"
means the information:
(a)
listed in Schedule 4.2 (Commercially Sensitive Information); or
(b)
notified to the Department in writing (prior to the
commencement of this Agreement) which has been clearly
marked as Commercially Sensitive Information;
comprising information of a commercially sensitive nature relating to
the Contractor, its IPR or its business or which the Contractor has
indicated to the Department that, if disclosed by the Department,
would cause the Contractor significant commercial disadvantage or
material financial loss.
"Common Data"
shall have the meaning set out in Section 08 (entitled Data
Management) of the Contractor Solution, response to question
DM8.
"Comparable Supply"
means the supply of services to another customer of the Contractor
that are the same or similar to the Services.
"Compensation Payment"
means the payment calculated in accordance with Paragraph 5 of
Schedule 7.2 (Payments on Termination).
"Conditional Data"
shall have the meaning set out in Section 08 (entitled Data
Management) of the Contractor Solution, response to question
DM8.
"Confidence Level"
means a measure of how likely it is that the results of a Quantitative
Survey will be truly representative of the wider audience. It is
expressed as a percentage and represents how often the true
percentage of the population (i.e. the result of surveying the entire
population) would pick an answer that lies within the specified
“Confidence Interval” set for the relevant Quantitative Survey. The
“Confidence Level” for the Member and Employer Quantitative
Surveys outlined in Schedule 2.2 (Service Levels) is set at 95%
which means that it is possible to be 95% certain that a particular
measure falls within the specified “Confidence Interval”.
"Confidence Interval"
means a statistical range which has a specified probability that a
given parameter lies within that range. For the purposes of the
Quantitative Surveys outlined in Schedule 2.2 (Service Levels) the
“Confidence Interval” has been set at +/-3%. Accordingly, for the
purposes of Schedule 2.2 (Service Levels) when the “Confidence
Level” and the “Confidence Interval” are both met, it should be
possible to be confident that 95% of the true percentage of the
population (i.e. the result of surveying the entire population) is
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between +/-3% of the Quantitative Survey result.
"Confidential Information"
means the Department Confidential
Contractor Confidential Information.
“Continuous Improvement
and Service Innovations”
means the continuous improvement innovations identified by the
Contractor in accordance with Schedule 2.4 (Continuous
Improvement).
"Contract Change"
means any change to this Agreement other than an Operational
Change.
"Contract Extension Charges"
means the Charges payable by the Department if it exercises its
right to extend the term of this Agreement pursuant to Clause 3.3
calculated in accordance with Schedule 7.1 (Charges and
Invoicing).
"CPP" or "Contract
Performance Point"
means the date after the Secondary ATP Milestone Date on which
the Contractor is scheduled to transfer the Operational Services
from the Outgoing Contractor to the Contractor, as identified in the
Transition Plan.
"Contract Year"
means either:
Information
and/or
the
(a)
the period between the Effective Date and the Operational
Services Commencement Date;
(b)
a period of 12 months commencing on the Operational
Services Commencement Date or on an anniversary of the
Operational Services Commencement Date; or
(c)
the period between an anniversary of the Operational Services
Commencement Date and the date of termination or expiry of
this Agreement.
"Contract Year 0"
means the period from the Effective Date up to the Operational
Services Commencement Date.
"Contract Year 1"
means the twelve (12) month period commencing on the
Operational Services Commencement Date.
"Contract Year 2"
means the period of twelve (12) months commencing on the first
anniversary of the Operational Services Commencement Date.
"Contract Year 3"
means the period of twelve (12) months commencing on the second
anniversary of the Operational Services Commencement Date.
"Contract Year 4"
means the period of twelve (12) months commencing on the third
anniversary of the Operational Services Commencement Date.
"Contract Year 5"
means the period of twelve (12) months commencing on the fourth
anniversary of the Operational Services Commencement Date.
"Contract Year 6"
means the period of twelve (12) months commencing on the fifth
anniversary of the Operational Services Commencement Date.
"Contract Year 7"
means the period of twelve (12) months commencing on the sixth
anniversary of the Operational Services Commencement Date.
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"Contracting Authority"
means any contracting authority as defined in Regulation 5(2) of the
Public Contracts (Works, Services and Supply) (Amendment)
Regulations 2000 other than the Department.
"Contractor Background
IPRs"
means:
(a)
the IPRs owned by the Contractor before the Effective Date,
for example, those subsisting in the Contractor's standard
development tools, program components or standard codes
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 Confidential
Information"
means any information, which has been designated as confidential
by either Party in writing or that ought reasonably to be considered
as confidential, however it is conveyed, including information that
relates to the business, affairs, developments, trade secrets, knowhow, 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 Employees"
means those employees of the Contractor or of any of its subcontractors who are wholly or substantially engaged in the provision
of the Operational Services as at the date of the transfer of the
undertaking from the Contractor to the Employing Sub-Contractor.
"Contractor Final Staff List"
means the relevant list of all Contractor Personnel engaged in or
wholly or mainly assigned to, the provision of the Services or any
part of the services at the date of the Service Transfer.
"Contractor IPR"
means IPR owned by or licensed to the Contractor, any Subcontractor or Ancillary Sub-contractor (excluding any IPR licensed
from the Department) and used by the Contractor, any Subcontractor or Ancillary Sub-contractor in the provision of the
Services or otherwise provided by the Contractor, any Subcontractor or Ancillary Sub-contractor to the Department in the
fulfilment of the Contractor's obligations under this Agreement.
"Contractor Materials"
means the Contractor Software together with the Documentation
relating to the Contractor Software.
"Contractor Party"
means the Contractor's agents and contractors, including each
Sub-contractor.
"Contractor Personnel"
means all employees, agents, consultants and contractors of the
Contractor and/or of any Sub-contractor and any other Contractor
Party who are engaged in the provision of the Services or
performance of the Contractor's obligations under this Agreement.
"Contractor Representative"
means the representative appointed by the Contractor pursuant to
Clause 30 (Representatives).
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"Contractor Software"
means any software used by the Contractor in the provision of the
Services in respect of which the Intellectual Property Rights are
owned by the Contractor and/or any member of the Contractor's
Group (including but not limited to that software which is identified
as Contractor Software in Schedule 5.1 (Software) and including
any modifications, adaptations and/or enhancements of any works
existing at the date of this Agreement and all technical
specifications, user manuals and operating manuals in relation to
such software) but excluding any Specially Written Software.
"Contractor Solution"
means the Contractor's solution for the Services including detailing
how the Services will be delivered in order to meet the Statement of
Service Requirements (Schedule 2.1), as set out or referred to in
Schedule 4.1 (Contractor Solution).
"Contractor System"
means the information and communications technology system
used by the Contractor in performing the Services including the
Assets (but excluding the Department System).
"Contractor's AVC Scheme"
means any scheme operated by the Contractor for the provision of
additional voluntary contributions. A reference to the Contractor
AVC Scheme shall, where appropriate, include a reference to the
administrators thereof.
"Contractor's Change
Manager"
means the person appointed to that position by the Contractor from
time to time and notified in writing to the Department or, if no person
is notified, the Contractor’s Representative.
"Contractor's Group"
means the Contractor, its ultimate holding company and all
subsidiaries of its ultimate holding company, the definitions of
"holding company" and "subsidiary" being those set out in section
1159 of the Companies Act 2006.
"Contractor's Provisional
Staff List"
means a list prepared and updated by the Contractor of all
Contractor Personnel who are engaged in or wholly or mainly
assigned to, the provision of the Services or any part of the Services
as at the date of such list.
"Contractor's Scheme"
means the Capita Pension and Life Assurance Scheme, which
provides benefits for and in respect of Original Pension Employees.
A reference to the Contractor's Scheme shall where appropriate,
include a reference to the trustees or administrators thereof.
"Contractor's Scheme
Actuary"
means the Actuary appointed as scheme actuary by the trustees of
the Contractor's Scheme for the purposes of Section 47 of the
Pensions Act 1995.
"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.
"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
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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).
"Core Termination Services"
means the services described in Paragraphs 5.10 and 5.11 of
Schedule 8.5 (Exit Management).
"Correction Plan"
means the Contractor's plan for the remediation of any Test Issues
or the resolution of any non-conformities in any Deliverable or nonAchievement of a Milestone, such plan to be agreed in accordance
with Clauses 7.8 to 7.13 (Transition and Implementation Delays –
General Provisions).
"Costs"
means the costs to be incurred by the Contractor in providing the
Services including the Base Cost and the Overhead.
"Credit Members"
means those persons who have an entitlement under the TPS as a
result of a pension sharing order.
"Credit Rating Thresholds"
means the credit rating thresholds agreed with the Department in
accordance with Paragraph 2.1 of Schedule 7.4 (Financial Distress).
"Critical Service Failure"
means any of the following events:
(a)
the Contractor accruing a total of two thousand (2000) or
more Service Points (in terms of the number of points
allocated) in any period of two (2) consecutive months; or
(b)
the Contractor accruing in aggregate two thousand five
hundred (2500) or more Service Points (in terms of the
number of points allocated) in any period of three (3)
consecutive months.
"Crombie Regulations"
means the Colleges of Education (Compensation) Regulations
1975.
"Crown Body"
means any department, office or agency of the Crown.
"Customer(s)"
means all users and potential users of the Services administered
under the Statement of Service Requirements and this Agreement.
"Dashboard"
means a high level summary report view that focuses on a specific
area of information.
"Data Controller"
shall have the meaning ascribed to it under the Data Protection Act
1998.
"Data Processor"
shall have the meaning ascribed to it under the Data Protection Act
1998.
"Data Protection Legislation"
means 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
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Information Commissioner.
"Data Services Group"
means the division within the Department’s Corporate Service
Directorate, responsible for school data analysis and statistics.
"Data Subject"
shall have the meaning ascribed to it under the Data Protection Act
1998.
"Database(s)"
“Database of Teacher’s
Records”
means the Database maintained by the Contractor on behalf of the
Department that contains the Department's Data and any
information relating to a Beneficiary, Member, Credit Member,
Pensioner, Teacher or Employer of a Teacher.
"Data+ Tool"
means a data integrity tool (Data+), which has been specifically
tailored for use on the Contractor System and will be deployed to
validate and assure the process and control framework that has
been deployed in collecting data for TPS.
"Date Compliant"
means that no previous or future date change has had or will have
any adverse impact on the performance or functionality of the
Contractor System.
"Deductions"
means deductions from the Charges made by the Department in
accordance with Schedule 7.1 (Charging and Invoicing).
"Default"
means 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, 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"
means the period of time by which the implementation of the
Services by reference to the Transition Plan or Implementation Plan
is delayed arising from a failure to Achieve a Milestone.
"Deliverable"
means 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 and/or completed by the Contractor at a
Milestone Date or at any other stage during the performance of this
Agreement.
"Department Assets"
means the Department Materials, Department Software,
Department System, the Department infrastructure, Department
Data, Database(s), and any other data, software, assets, equipment
or other property owned by the Department and which is or may be
used in connection with the provision or receipt of the Services.
"Department Background
IPRs"
means:
(a)
the IPRs owned by the Department before the Effective Date,
for example, those subsisting in the Department's standard
development tools, program components or standard codes
used in computer programming or in physical or electronic
media containing the Department's Know How or generic
business methodologies; and/or
(b)
IPRs created by the Department independently of this
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Agreement.
"Department Cause"
means any breach by the Department of any of the Department
Responsibilities (except to the extent it is as a result of any act or
omission by the Department to which the Contractor has given its
prior consent).
"Department Confidential
Information"
means all Department Data and any information however it is
conveyed that relates to the business, affairs, developments, trade
secrets, know-how, personnel and suppliers of the Department
including all IPRs, together with all information derived from any of
the above and other information clearly designated as being
confidential (whether or not it is marked "confidential") or which
ought reasonably be considered to be confidential.
"Department Data"
means:
(a) any 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;
(b) any Personal Data for which the Department is the Data
Controller (including but not limited to any data or information
relating to a Beneficiary, Member, Credit Member, Pensioner,
Teacher or Employer); or
(c) any other data or information relating to the administration of
the TPS or the non-pensions statistical information relating to
the TPS;
in each case which:
(a) is supplied to the Contractor by or on behalf of the
Department; or
(b) the Contractor is required to generate, process, store or
transmit pursuant to this Agreement.
"Department IPR"
means IPR owned by or licensed to the Department (excluding any
IPR licensed from the Contractor) and which the Department has
licensed to the Contractor under this Agreement.
"Department Materials"
means the TPS Materials, Department Data together with any
materials, documentation, information, programs and codes
supplied by the Department to the Contractor, the IPR in which:
(a)
are owned or used by or on behalf of the Department; and
(b)
are or may be used in connection with the provision or receipt
of the Services,
but excluding any Contractor Materials and Third Party Materials.
"Department Premises"
means premises owned, controlled or occupied by the Department
or any other Crown Body which are made available for use by, or
visited by, the Contractor or its Sub-contractors from time to time for
provision of the Services (or any of them) on the terms set out in
this Agreement or any separate agreement or licence.
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"Department Representative"
means the representative appointed by the Department pursuant to
Clause 30 (Representatives).
"Department Responsibilities"
means the responsibilities of the Department specified in Schedule
3 (Department Responsibilities).
"Department Software"
means software which is owned by or licensed to the Department,
including software which is or will be used by the Contractor for the
purposes of providing the Services but excluding the Contractor
Software and Specially Written Software. For the avoidance of
doubt Department Software will include any software that was
assigned to the Department under the terms of the Previous
Agreement.
"Department System"
means the Department's computing environment (consisting of
hardware, software and/or telecommunications networks or
equipment) used by the Department or the Contractor in connection
with this Agreement which is owned by or licensed to the
Department by a third party and which interfaces with the Contractor
System or which is necessary for the Department to receive the
Services.
"Department's Change
Manager"
means the person appointed to that position by the Department
from time to time and notified in writing to the Contractor or, if no
person is notified, the Department Representative.
"Deposited Software"
means the Software, the Source Code of which is to be placed in
escrow as listed in Schedule 5.1 (Software).
"Depreciation Policy"
means the depreciation policy included at Appendix 3 to Schedule
7.1(Charges and Invoicing).
"Designated Bank Account(s)"
means the accounts referred to in Clause 20, details of which are
set out Appendix 2 to Schedule 7.1 (Charges and Invoicing) or such
other account as the Department may from time to time agree.
"Disaster"
means the occurrence of one or more events which, either
separately or cumulatively, mean that the Services, or a material
part of them are or will be unavailable.
"Disaster Recovery"
means the process of restoration of the Service by the provision of
the Disaster Recovery Services.
"Disaster Recovery Plan"
has the meaning set out in Paragraph 1.2.3 of Schedule 8.6
(Business Continuity and Disaster Recovery Plan).
"Disaster Recovery Services"
means the disaster recovery and/or business continuity services (as
the context may require) to be provided by the Contractor pursuant
to Schedule 8.6 (Business Continuity and Disaster Recovery Plan).
"Disaster Recovery System"
means the system identified by the Contractor in Schedule 4.1
(Contractor Solution) which shall be used for the purpose of
delivering the Disaster Recovery Services.
"Discretions Document"
means the document referred to as such in the Contractor Solution.
"Dispute"
means 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
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or any matter where this Agreement directs the Parties to resolve
an issue by reference to the Dispute Resolution Procedure.
"Dispute Resolution
Procedure"
means the dispute resolution procedure set out in Schedule 8.3
(Dispute Resolution Procedure).
"Dispute Resolution
Timetable"
means the Standard Dispute Timetable or the Expedited Dispute
Timetable.
"Documentary Deliverable"
means any Deliverable that takes the form of documentation
(whether electronic or paper-based) which sets out any information
or description in respect of any aspect of the provision of the
Operational Services.
"Documentation Matrix"
means a table setting out all Documentary Deliverables which
indicates whether they have met the Test Success Criteria and
which co-relates the relationship between documents showing all
the dependencies between documents.
"Earned Expenses"
means all amounts recognised as costs and/or expenses in the
Financial Model which shall be treated in accordance with generally
accepted accounting principles within the United Kingdom and in
accordance with the relevant policies and treatments documented
in the databook within the Financial Model. Such costs and/or
expenses shall be those incurred by the Contractor in respect of
this Agreement in the applicable Gain Share Period for which the
relevant Gain Share Calculation is to be made.
"Earned Gain"
means Earned Revenue less Earned Expenses.
“Earned Gain Margin”
means Earned Gain divided by Earned Revenue and expressed as
a percentage.
"Earned Revenue"
means all Charges received by the Contractor from the Department
under this Agreement in the applicable Gain Share Period for which
the relevant Gain Share Calculation is to be made excluding (for the
avoidance of doubt) any Deductions, Service Credits, write offs or
other sums withheld from the Contractor by the Department or paid
to the Department by the Contractor in the relevant Gain Share
Period.
"EBITA"
means, in respect of a Financial Ratio’s Calculation Period,
earnings before interest, taxes and amortisation.
"EBITDA"
means, in respect of a Financial Ratio’s Calculation Period,
earnings before interest, taxes, depreciation and amortisation.
"Effective Date"
means the date on which this Agreement is signed by both Parties.
"Emergency Exit"
means any termination of this Agreement which is a (i) termination
of the whole or part of this Agreement in accordance with
Clause 44, except where the period of notice given under that
Clause is greater than or equal to six (6) months; (ii) termination of
the provision of the Services for any reason prior to the expiry of
any period of notice of termination served pursuant to Clause 44; or
(iii) wrongful termination or repudiation of this Agreement by either
Party.
"Emergency Maintenance"
means ad hoc and unplanned maintenance provided by the
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Contractor where either:
(a)
the Department reasonably suspects that the Contractor
System or other technology necessary to carry out the
Services for which the Contractor or a Sub-contractor is
responsible, or any part thereof, has or may have
developed a fault, and notifies the Contractor of the same;
or
(b)
the Contractor reasonably suspects that the Contractor
System or other technology necessary to carry out the
Services for which the Contractor or a Sub-contractor is
responsible, or any part thereof, has or may have
developed a fault.
"Employee Liabilities"
means all claims, including claims for redundancy payments,
unlawful deduction of wages, unfair, wrongful or constructive
dismissal compensation, compensation for discrimination on the
grounds of sex, race, disability, age, religion or belief and/or sexual
orientation, 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 Commission for Equality and Human Rights or other
enforcement, regulatory or supervisory body and of implementing
any requirements which may arise from such investigation), and
any legal costs and expenses.
"Employer and Member
Engagement Strategy"
means the Contractor’s strategy for engaging with Employers and
Members and implementing marketing campaigns in order to bring
about a more positive attitude and increased awareness amongst
Employers and Members of the benefits of the Teacher’s Pension
Scheme.
"Employing Sub-Contractor"
means any sub-contractor of the Contractor who is or is to be the
employer of the Contractor Employees.
"Employing Sub-Contractor's
Scheme"
means the one or more retirement benefits schemes established by
a relevant Employing Sub-Contractor or in which it participates for
the purposes of Part 2 of this Schedule. A reference to the
Employing Sub-Contractor's Scheme shall, where appropriate,
include a reference to the trustees or administrators thereof.
"Employment Regulations"
means the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (SI 2006/246) as amended or replaced or any
other Regulations implementing the Acquired Rights Directive.
"Employer"
has the meaning set out in the regulations governing the Teachers'
Pension Scheme (as from time to time amended).
"Employer Associations"
means those associations on the Teachers Superannuation
Working Party, the Teachers' Pensions Administration Forum (or as
otherwise superseded or as subsequently referred to during the
Term) and other consultative bodies who represent Employers in
England and Wales.
"Environmental Information
means the Environmental Information Regulations 2004 together
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Regulations"
with any guidance and/or codes of practice issued by the
Information Commissioner or relevant Government department in
relation to such regulations.
"Escalation Process"
means the initial stages of the process for dealing with Disputes
without the intervention of third parties as set out in Paragraph 2 of
Schedule 8.3 (Dispute Resolution Procedure).
"eShare"
means the data sharing tool referred to and described in the
Contractor Solution.
"Euro Compliant"
means that: (i) the introduction of the euro within England and Wales
shall not affect the performance or functionality of any relevant items
nor cause such items to malfunction, end abruptly, provide invalid
results or adversely affect the Department's business; (ii) all
currency-reliant and currency-related functions (including all
calculations concerning financial data) of any relevant items enable
the introduction and operation of the euro; and (iii) in particular each
and every relevant item shall, to the extent it performs or relies upon
currency-related functions (including all calculations concerning
financial data):
(a)
be able to perform all such functions in any number of
currencies and/or in euros;
(b)
during any transition phase applicable to England and Wales
be able to deal with multiple currencies and in relation to the
euro and the national currency of England and Wales dual
denominations;
(c)
recognise accept, display and print all the euro currency
symbols and alphanumeric codes which may be adopted by
any government and other European Union body in relation to
the euro;
(d)
incorporate protocols for dealing with rounding and currency
conversion;
(e)
recognise data irrespective of the currency in which it is
expressed (which includes the euro) and express any output
data in the national currency of England and Wales and/or the
euro; and
(f)
permit the input of data in euro and display an outcome in euro
where such data, supporting the Department's normal business
practices, operates in euro and/or the national currency of
England and Wales.
"Exception"
means a deviation of project tolerances in accordance with
PRINCE2 methodology in respect of the Agreement or in the supply
of the Services.
"Executive Review"
means the review described in Paragraph 2.4 of Schedule 8.1
(Governance).
"Exit Management"
means 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
Department or any Replacement Contractor(s), all as set out in
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Schedule 8.5 (Exit Management).
"Exit Manager"
means the person appointed by each Party pursuant to Paragraph
2.8 of Schedule 8.5 (Exit Management) for managing the Parties'
respective obligations under Schedule 8.5 (Exit Management).
"Exit Plan"
means the plan produced and updated by the Contractor during the
Term in accordance with Paragraph 4 of Schedule 8.5 (Exit
Management).
"Expedited Dispute Timetable"
means the reduced timetable for the resolution of Disputes set out
in the Appendix to Schedule 8.3 (Dispute Resolution Procedure) to
be used in accordance with the provisions of Paragraph 1.6 of
Schedule 8.3 (Dispute Resolution Timetable).
"Expert"
means the person appointed by the Parties in accordance with
Paragraph 4.2 of Schedule 8.3 (Dispute Resolution Procedure).
"Extension Period(s)"
means any of the First Extension Period, Second Extension Period
or Third Extension Period, in each case as defined in Clause 3.
"Fast-track Change"
means any Contract Change which the Parties agree to expedite in
accordance with Paragraph 8.2 of Schedule 8.2 (Change Control
Procedure).
"Final Reconciliation"
means the Reconciliation that is made at the end of each Gain
Share Period in order to calculate the Gain Share Amount.
"Financial Distress Escrow
Account"
means an escrow account established in accordance with Schedule
7.4 (Financial Distress) in the joint names of the Contractor and the
Department with a bank approved by the Department.
"Financial Distress Event"
means the occurrence of one or more of the events listed in
Paragraphs 3.1, 4.1 and/or 5.1 of Schedule 7.4 (Financial Distress).
"Financial Distress Service
Continuity Plan"
means a plan setting out how the Contractor (together with the
Guarantor and/or Key Sub-contractors, where appropriate) will
ensure the continued performance and delivery of the Services in
accordance with this Agreement in the event that the Contractor, the
Guarantor and/or a Key Sub-contractor suffers a Financial Distress
Event.
"Financial Model"
means the Base Case Financial Model or where an Updated
Financial Model exists, the most recent Updated Financial Model.
"Financial Ratio"
means Net Total Interest Cover Ratio or Total Net Debt to EBITDA
Ratio, as applicable.
"Financial Ratio Calculation
Period"
means a period of twelve (12) consecutive months ending on the
last day of the Guarantor’s (or any Key Sub-contractor’s if
applicable) financial year or half year, as applicable.
"First Draft Delivery Date"
means in respect of each Documentary Deliverable the date by
which the Contractor shall submit an initial draft Documentary
Deliverable to the Department as agreed within the Review Plan.
"Fixed Charges"
means the sums set out in the Table 2 in Paragraph 3.3 of Part A of
Schedule 7.1 (Charges and Invoicing). These represent the sum of
the Base Charges plus the Outcome Charges for each Contract
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Year.
"FOIA"
means the Freedom of Information Act 2000 and any subordinate
legislation made under this Act from time to time together with any
guidance and codes of practice issued by the Information
Commissioner or relevant Government department in relation to
such legislation.
"Forecast Expenses"
means all amounts recognised as costs and/or expenses in the
Updated Financial Model which shall be treated in accordance with
generally accepted accounting principles within the United Kingdom
and in accordance with the relevant policies and treatments
documented in the databook within the Financial Model. Such costs
and/or expenses shall be as forecast by the Contractor in the
Financial Model to be incurred in each Gain Share Period and over
the Term in respect of the Agreement. At the Effective Date, these
costs and/or expenses are shown in the Financial Model within the
worksheet entitled “Model” but for the avoidance of doubt, any
margin shown in the worksheet entitled “Model” is not applicable for
the purposes of Forecast Expenses.
"Forecast Gain"
means Forecast Revenue less Forecast Expenses. At the Effective
Date the Forecast Gain is shown in the Financial Model within the
worksheet entitled “Model”.
"Forecast Gain Margin"
means Forecast Gain divided by Forecast Revenue and expressed
as a percentage.
"Forecast Profits"
has the same meaning as Forecast Gain.
"Forecast Revenue"
means all Charges forecast to be paid or payable to the Contractor
by the Department as shown in the Updated Financial Model in
respect of each Gain Share Period. At the Effective Date, these
Charges are shown in the Financial Model within the worksheet
entitled “SP-Cost Summary” in the row entitled “Grand Total”.
"Force Majeure Event"
means any cause affecting the performance by a Party of its
obligations arising from acts, events, omissions, happenings or nonhappenings 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's, Sub-contractor's or Ancillary Sub-contractor's
supply chain.
"Future Services"
means any new services that the Parties might agree should be
performed under the terms of this Agreement and which are not
contemplated in Schedule 2.1 (Statement of Service Requirements).
"GAD"
means the Government Actuary's Department.
"Gain Share Amount"
means the amount by which the Earned Gain Margin exceeds the
Threshold Gain Margin for the applicable Gain Share Period for
which the relevant Gain Share Calculation is made.
"Gain Share Calculation"
means the calculation of the Gain Share Amount for the relevant
Gain Share Period as prepared from time to time in accordance with
Part A of Schedule 7.3 (Value for Money Provisions).
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“Gain Share Period”
means the period over which the Gain Share Calculation shall be
undertaken, being the period from the Effective Date to the end of
the latest Contract Year or the end of the Term, as appropriate.
"General Change in Law"
means 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.
"General Principles"
has the meaning set out in Paragraph 1.2.1 of Schedule 8.6
(Business Continuity and Disaster Recovery Plan).
"General Teaching Councils
(GTCs)"
means the General Teaching Councils of England and of Wales.
"Good Industry Practice"
means the exercise of that degree of skill, care, prudence,
efficiency, foresight and timeliness as would be expected from a
leading company within the relevant industry or business sector.
"Good Value"
means that the Charges attributable to a benchmarked Service are,
having taken into account the Service Levels, less than or equal to
the average price for services that are identical or materially similar
to the benchmarked Services (including in terms of scope,
specification, volume and quality of performance), as offered by a
sample group of similarly sized or structured organisations,
provided that if no identical or materially similar services exist in the
market, the benchmarker shall propose an approach for developing
a comparable service benchmark.
"Guarantee"
means the deed of guarantee in favour of the Department entered
into by the Guarantor on or about the date of this Agreement (which
is in the form set out in Schedule 10 (Guarantee), or any guarantee
acceptable to the Department that replaces it from time to time.
"Guarantor"
means The Capita Group plc, a company registered in England and
Wales with number 2081330 whose registered office is at 71
Victoria Street, Westminster, London, SW1H 0XA.
"Health and Safety Regime"
means the Food Safety Act 1990 (and associated regulations), the
Health & Safety at Work etc. Act 1974 (and associated regulations),
the Fire Precautions Act 1971, the Environmental Protection Act
1998, the Water Industry Act 1991, the Water Resources Act 1991
and any similar or analogous health, safety or environmental
legislation in force from time to time.
"HR Policies"
means the Department's human resources policies as attached as
Annex B to Schedule 2.1 (Statement of Service Requirements).
"ICT"
means information and communications technology.
"ICT Environment"
means the Contractor System and all interfaces and mediums and
channels of entry and access to the Contractor System, Databases,
Department Data and any third party system that the Contractor is
required to interface with under this Agreement.
"Impact Assessment"
means an assessment of a Change Request substantially in the
form of Appendix 2 of Schedule 8.2 (Change Control Procedure).
"Implementation Activities"
means the implementation activities, as set out or referred to in the
Implementation Plan or the Statement of Service Requirements, to
be undertaken by the Contractor in respect of implementation of
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aspects of the Operational Services which are new or enhanced as
compared to the administration services previously carried out by
the Outgoing Contractor.
"Implementation Milestone"
means an event or task described as a Milestone in the
Implementation Plan which must be completed by the relevant
Implementation Milestone Date.
"Implementation Plan"
means the plan and timetable (including Implementation Milestones)
for the Implementation Activities including testing as detailed in
Appendix 1 to Schedule 6.2 (Implementation Plan).
"Information"
has the meaning ascribed to it 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"
means the period from the Effective Date until 30 September 2018.
"Insolvency Event"
means 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 taking steps to obtain a moratorium or making
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
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 "IPR"
means:
(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
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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.
"Internal Dispute Resolution
Procedure"
means the procedure referred to in CA16 and CA17 of the
Statement of Service Requirements.
"IPR Claim"
means 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
Department in the fulfilment of its obligations.
"ISMS"
means the Information Security Management System as defined by
ISO/IEC 27001. The scope of the ISMS will be as agreed by the
Parties and will directly reflect the scope of the Services.
"ITPD"
shall have the meaning ascribed to it in recital D.
"Key Performance Indicators
(KPIs)"
means the key performance indicators (as may change from time to
time in accordance with the provisions of Schedule 2.2 (Service
Levels)) applicable to the Services, as set out in Table 1 of Part 2 of
Appendix 1 of Schedule 2.2 (Service Levels).
"Key Personnel"
means those members of the Contractor Personnel described in
Schedule 9.3 (Key Personnel) as such is modified by agreement by
the Parties or pursuant to the operation of paragraph 1.13 of
Schedule 9.3 (Key Personnel).
"Key Sub-contract"
means each contract entered into between the Contractor and a
Key Sub-contractor.
"Key Sub-contractor"
means:
(a) each of the Sub-contractors listed as a Key Sub-contractor in
the Key Sub-contractor table in Schedule 4.3 (Notified Subcontractors);
(b) any Sub-contractor replacing a Key Sub-contractor listed in
Schedule 4.3 (Notified Sub-contractors);
(c) any Sub-contractor which processes Department Data; or
(d) any other Sub-contractor under a Sub-contract who is
engaged in the provision of a business critical aspect of the
Services or where the annual value of the relevant Subcontract is in excess of ten (10) per cent of the aggregate
Charges payable per Contract Year under this Agreement.
"Know How"
means all ideas, concepts, schemes, information, knowledge,
techniques, methodology and anything else in the nature of know
how relating to the Services but excluding know how already in the
Contractor's or the Department's possession before the Effective
Date.
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"Law"
means 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 Systems"
means the legacy systems in use or used by the Outgoing
Contractor to administer the TPS both prior to and during the PreOperational Phase.
"Level 1 Credit Rating
Threshold"
means the Credit Rating Thresholds for each Key Sub-contractor
indicated as being applicable to "Level 1" agreed with the
Department in accordance with Paragraph 2.1 of Schedule 7.4
(Financial Distress).
"Level 2 Credit Rating
Threshold"
the Credit Rating Thresholds for each Key Sub-contractor indicated
as being applicable to "Level 2" agreed with the Department in
accordance with Paragraph 2.1 of Schedule 7.4 (Financial Distress).
"Level 3 Credit Rating
Threshold"
means the Credit Rating Thresholds for each Key Sub-contractor
indicated as being applicable to "Level 3" agreed with the
Department in accordance with Paragraph 2.1 of Schedule 7.4
(Financial Distress).
"Liquid Key Sub-contractor
Market"
means that there are sufficient willing parties (being at least two
parties, each of whom is capable of being a substitute Key Subcontractor) in the market of similar contracts for the provision of the
services (in each case similar to the existing Key Sub-contract) for a
price which is fair value.
"Losses"
means (without limitation) any damages, liabilities, claims,
demands, proceedings, actions, costs, charges, losses and/or
expenses (including reasonable legal expenses).
"Maintenance Schedule"
shall have the meaning set out in Paragraph 9.1 of Part 1 of
Schedule 2.2 (Service Levels).
"Malicious Software"
means any software program or code intended to destroy, interfere
with, corrupt or cause undesired effects to program files, data or
other information, executable code or application software macros,
whether or not its operation is immediate or delayed and whether
that malicious software is introduced wilfully, negligently or without
knowledge of its existence.
"Management Information"
means the management information specified in Schedule 2.1
(Statement of Service Requirement), Schedule 2.2 (Service Levels),
Schedule 7.1 (Charges and Invoicing) and Schedule 8.1
(Governance) to be provided by the Contractor to the Department.
"Man Day"
means 7.5 Man Hours, whether or not such hours are worked
consecutively and whether or not they are worked on the same day.
"Man Hours"
means the hours spent by the Contractor Personnel properly
working on the Services including time spent travelling (other than
to and from the Contractor's offices, or to and from the premises at
which the services are to be principally performed) but excluding
lunch breaks.
"Material Test Issue"
means a Test Issue of severity levels 1, the criteria for which are set
out in Paragraph 6.1 of Part 3 of Schedule 6.3 (Testing
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Procedures);
"Measurement Period"
has the meaning given in schedule 2.2 (Service Levels).
"Mediator"
means the independent third party appointed in accordance with
Paragraph 3.2 of Schedule 8.3 (Dispute Resolution Procedure).
"Member"
means any person who has been admitted to the TPS and has
pensionable service, has accrued a benefit or is in receipt of a
pension and thus includes a contributing Member ("Active
Member"), a Member with preserved benefits ("Deferred Member")
and a pensioner Member in receipt of benefits ("Pensioner
Member").
"Member Engagement
Strategy"
means the strategy detailed in the Contractor Solution in response
to requirement ME1 of the Statement of Service Requirements.
"Milestone"
means an Implementation Milestone or a Transition Milestone (as
applicable).
"Milestone Achievement
Certificate"
means the certificate materially in the form of the document
contained in Appendix 2 to Schedule 6.3 (Testing Procedures)
granted by the Department when the Contractor has Achieved a
Milestone.
"Milestone Date"
means the date set against the relevant Milestone in the
Implementation Plan or the Transition Plan (as applicable).
"Milestone Payment"
means a payment identified in Schedule 7.1 (Charges and
Invoicing) made following the issue of a Milestone Achievement
Certificate.
"month"
means a calendar month and "monthly" shall be interpreted
accordingly.
"Monthly Relevant Fixed
Charges"
means one twelfth (1/12) of the Relevant Fixed Charges for the
applicable Contract Year.
"Mowden Hall"
means the Department’s Premises situated at Staindrop Road,
Darlington, DL3 9EE.
"NCC"
means the National Computing Centre Ltd, Manchester.
"Net Book Value"
means the net book value of the relevant Asset(s) calculated in
accordance with the Depreciation Policy.
"Net Total Interest Cover
Ratio"
means, in respect of the Guarantor’s (or any Key Sub-contractor’s if
applicable) consolidated accounts for a Financial Ratio’s Calculation
Period, EBITA divided by interest charges.
"New Employees"
means those new employees employed by the Contractor or an
Employing Sub-Contractor to provide the Services who will be
working alongside the Contractor Employees.
"Non-Availability"
means in relation to the Contractor System or Services, that the
Contractor System or Service are not Available; and "NonAvailable" shall be construed accordingly.
"Non-conformance Report"
means a report including detail of the reasons why any Test has
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failed or of any non-conformities in respect of any Milestone.
"Notice of Dispute"
means a written notice served by one Party on the other stating that
the Party serving the notice believes that there is a Dispute.
"Operating Environment"
means the Outgoing Contractor System, interfaces with the
Department System and the Sites.
"Operating Assets"
means the Department Data, Department Software and Department
Assets.
"Operational Change"
means any change in the Contractor's operational procedures which
in all respects, when implemented:
(a)
will not affect the Charges or the Contractor's costs of
performing the Services and will not result in any other
costs to the Department; and/or
(b)
may change the way in which the Services are delivered
but will not adversely affect the output of the Services or
increase the risks in performing or receiving the Services;
and/or
(c)
will not adversely affect the interfaces or interoperability of
the Services with any of the Department's IT
infrastructure; and/or
(d)
will not require a change to this Agreement.
"Operational Phase"
means the phase in which the Contractor will deliver the Operational
Services, identified as such in the Transition Plan and commencing
from the Operational Services Commencement Date.
"Operational Services"
means the administration services for the TPS described in
Schedule 2.1 (Statement of Service Requirements), but excluding
any Transition Activity, Implementation Activity, Termination
Services and any services provided and invoiced by the Contractor
directly to third parties.
"Operational Services
Commencement Date"
means the date, following Achievement of the Secondary ATP
Milestone Date and Achieving the CPP, on which the Operational
Services commence.
"Operational Streams"
means an operational focus on specific areas of the Services as set
out in Paragraph 7.2 of Schedule 8.1 (Governance).
"Operations Board"
means the board described in Paragraph 2.7 of Schedule 8.1
(Governance).
"Optional Assets"
means those Assets (if any) which:
(a)
are used by the Contractor in the provision of the Services
and which comprise assets used in the Contractor’s
shared IL3 environment contained in the Contractor’s data
centre (but excluding any such assets that are specifically
and exclusively used for the TPS); or
(b)
in each case the Parties have agreed, in accordance with
Paragraph 2.2.3 of Schedule 8.5 (Exit Management), and
recorded in the relevant Register, are Assets that will not
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be available for transfer to the Department and/or its
Replacement Contractor pursuant to Paragraph 7.3 of
Schedule 8.5 (Exit Management).
"Ordinary Exit"
means any termination of this Agreement which occurs: (i) pursuant
to Clause 44 where the period of notice given by the Party serving
notice to terminate pursuant to such Clause is greater than or equal
to six (6) months; or (ii) as a result of the expiry of the Initial Term or
any Renewal Period.
"Original Pension Employees"
means those Contractor Employees who on and before 30
September 1996 were members of the PCSPS and who joined the
Contractor's Scheme for the accrual of benefits in respect of service
on or after 1 October 1996.
"Outcome Charges"
has the meaning set out in Paragraph 7.2 of Part 2 of Schedule 2.2
(Service Levels).
"Outcome Charge At Risk
Amount"
means the percentage of the Relevant Fixed Charges in a Contract
Year which are put at risk against achievement of the Outcomes.
The percentage of the Relevant Fixed Charges which have been
put at risk in each Contract Year are as follows:
Contract Year 0:
N/A;
Contract Year 1:
5% of Relevant Fixed Charges;
Contract Year 2:
5.5% of Relevant Fixed Charges;
Contract Year 3:
6% of Relevant Fixed Charges; and
Each of Contract Years 4 to 7: 6% of Relevant Fixed Charges.
"Outcomes"
means the outcomes set out in Table 1 of Appendix 2 of Schedule
2.2 (Service Levels).
"Outgoing Contractor"
means Capita Business Services Limited with
Department entered into the Previous Agreement.
"Outgoing Contractor System"
means the information and communications technology system
used by the Outgoing Contractor in performing the services under
the Previous Agreement including the software, the equipment and
related cabling (but excluding the Department System).
"Outline Performance
Monitoring System"
has the meaning set out in Paragraph 1.5 of Part 3 of Schedule 2.2
(Service Levels).
"Overhead"
means those costs which are intended to recover a proportion of the
Contractor's indirect corporate costs, which shall not include any
Base Costs or Capital Costs or any cost separately included in the
Base Cost or Capital Cost.
"Partial Termination"
means the partial termination of this Agreement to the extent that it
relates to the provision of any part of the Service as further provided
for in Clause 44.6 (Termination).
"Parties"
means the parties to this Agreement and reference to a "Party" shall
be construed accordingly.
"Performance Monitoring
means the monthly report prepared by the Contractor in accordance
24
whom
the
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Capita
Report"
with Paragraph 3 of Part 3 of Schedule 2.2 (Service Levels).
"Performance Review
Meeting"
means the regular meeting between the Contractor and the
Department to manage and review the Contractor's performance
under the Agreement, as further described in Paragraph 3.5 of
Part 3 of Schedule 2.2 (Service Levels).
"Permitted Maintenance"
shall have the meaning set out in Paragraph 9.2.3 of Part 1 of
Schedule 2.2 (Service Levels).
"Personal Data"
shall have the meaning ascribed to it under the Data Protection Act
1998.
"Pensioner"
means a Member who receives benefits under the TPS.
"Pensioner Database"
means the database holding details of Pensioners and their
dependants who are, or have been or may become in receipt of
pension benefits under the TPS.
"PCSPS"
means the scheme established under section 2 of the
Superannuation Act 1972 and known as the Principal Civil Service
Pension Scheme.
"Potential Transferring
Employees"
means those Contractor Personnel who are assigned to the
provision of the Services or a relevant part of the Services for the
purposes of the Employment Regulations.
"PRC Regulations"
means the Teachers (Compensation for Redundancy
Premature Retirement) Regulations 1997, as amended.
"Pre-Operational Activities"
means all of the Transition Activities and those parts of the
Implementation Activities which are to be undertaken prior to the
Secondary ATP Milestone Date (as specified in the Transition Plan
and Implementation Plan).
"Pre-Operational Phase"
means the phase during which the Contractor will perform PreOperational Activities, being the period from the Effective Date until
the date of successful Achievement of the CPP (as recorded in the
appropriate Milestone Achievement Certificate).
"Previous Agreement"
means the agreement dated 27 March 2003 for the administration of
the Teachers' Superannuation Scheme entered into between the
Department and the Outgoing Contractor.
"Primary ATP Milestone Date"
means the Milestone Date on which the Contractor is authorised to
complete the remaining uncompleted Transition Activities and
Implementation Activities, such authority provided in the form of a
Milestone Achievement Certificate relating to the relevant Transition
Milestone and Implementation Milestone which are linked to Primary
ATP in the Transition Plan and Implementation Plan respectively.
"Process"
shall have the meaning ascribed to it under the Data Protection
Legislation but for the purposes of this Agreement, it shall include
both manual and automatic processing.
"Project"
means a discrete part of the Services or a project to initiate a Future
Service.
"Project Plans"
means the Transition Plan, Implementation Plan and Test Plan.
25
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Capita
"Protectively Marked"
shall have the meaning as set out in the Security Policy Framework.
“Public Sector Transfer Club”
The TPS participates in the Public Sector Transfer Club (“the
Club”). The Club is a network of public and private sector pension
schemes that exists to make it easier for employees who move
between employers covered by separate participating schemes to
transfer their accrued pension rights. Provided specified conditions
are met, transferees receive a broadly equivalent service credit
(taking into account differences in scheme benefits) in the new
scheme.
"Quality Assurance Review"
means an inspection of the Contractor's implementation of the
Services to ensure the adherence to the Standards.
"Quality Plans"
means the Contractor's plan that reflects the quality management
systems as further described in Clause 15 (Quality Assurance and
Performance Monitoring).
"Quality Manager"
the Contractor's representative responsible for ensuring that the
Contractor adheres to the Quality Plan;
"Quantitative Survey"
means a surveying methodology which uses sampling techniques
(such as online or telephone based surveying) so that its findings
may be expressed numerically, and are capable of mathematical
(statistical) manipulation to accurately estimate quantities. The
mathematical basis of quantitative surveying means that its
hypotheses and findings can be replicated over time.
"Quarter"
means the first three (3) Service Periods and each subsequent
three (3) Service Periods (or reduced period immediately prior to
the end of the Term).
"Quarterly Summary"
means the summary of the performance by the Contractor to be
provided by the Contractor to the Department pursuant to
Paragraph 3.4 of Part 3 of Schedule 2.2 (Service Levels).
"Rate Card"
means the Contractor's rate card set out in Appendix 1 of Schedule
7.1 (Charges and Invoicing).
"Rating Agencies"
means the rating agencies listed in Appendix 1 to Schedule 7.4
(Financial Distress).
"Receiving Party"
means the Party which receives a proposed Contract Change.
"Reconciliation"
means a reconciliation of Earned Expenses and Earned Revenue,
against the Forecast Expenses and Forecast Revenue set out in
the Updated Financial Model compiled from time to time (and in any
event upon termination or expiry of this Agreement) in accordance
with Paragraph 5 of Schedule 7.5 (Financial Model).
"Recovery Time Objective"
means the period of time within which the business capabilities
must be restored following a business continuity or disaster
recovery incident.
"Registers"
has the meaning set out in Paragraph 2.1 of Schedule 8.5 (Exit
Management).
"Regulatory Bodies"
means those government departments and regulatory, statutory
and other entities, committees and bodies which, whether under
statute, rules, regulations, codes of practice or otherwise, are
26
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Capita
entitled to regulate, investigate, or influence the matters dealt with
in this Agreement or any other affairs of the Department and
"Regulatory Body" shall be construed accordingly.
"Relevant Conviction"
means a Conviction which is relevant to the nature of the Services
to be provided.
"Relevant Fixed Charges"
means, as follows:
For Contract Year 0 = not applicable;
For Contract Year 1 = the Fixed Charges for Contract Year 1;
For Contract Year 2 = the Fixed Charges for Contract Year 2;
For Contract Year 3 = the Fixed Charges for Contract Year 3;
For Contract Year 4 = the Fixed Charges for Contract Year 4;
For Contract Year 5 = the Fixed Charges for Contract Year 5;
For Contract Year 6 = the Fixed Charges for Contract Year 6; and
For Contract Year 7 = the Fixed Charges for Contract Year 7.
"Relevant Transfer"
means a relevant transfer of an undertaking for the purposes of the
Employment Regulations.
"Remedial Plan"
means the plan referred to in Clause 42 (Remedial Plan Process).
"Remedial Plan Process"
means the process set out in Clause 42 (Remedial Plan Process).
"Repeat Failure"
has the meaning given to it in Paragraph 4 of Part 1 of Schedule 2.2
(Service Levels).
"Replacement Contractor(s)"
means any third party service provider(s) of Replacement Services
appointed by the Department from time to time.
"Replacement Contractor's
Actuary"
means the Actuary appointed as the scheme actuary by the trustees
of the Replacement Contractor's Scheme for the purposes of
section 47 of the Pensions Act 1995.
"Replacement Contractor’s
Scheme"
means the one or more retirement benefits schemes established by
the Replacement Contractor or in which it participates for the
purposes of Part
2 of this Schedule. A reference to the
Replacement Contractor’s Scheme shall, where appropriate, include
a reference to the trustees or administrators thereof.
"Replacement Services"
means any services which are substantially similar to any of the
Services or part thereof and which the Department receives in
substitution for any of the Services following expiry or termination or
Partial Termination of this Agreement, whether those services are
provided by the Department internally and/or by any third party.
"Representatives"
means either or both of the Department Representative and the
Contractor Representative.
"Request for Information"
means a request for information or an apparent request for
information under the Code of Practice on Access to Government
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Capita
Information, FOIA or the Environmental Information Regulations.
"Requesting Party"
means the Party which requests a Contract Change.
"Required Action"
has the meaning given in Clause 43 (Step-In Rights).
"Required Insurances"
means the insurances required to be maintained by the Contractor
pursuant to this Agreement as set out in Paragraph 2 of Schedule
2.6 (Insurance Requirements) and any other insurances as may be
required by Law.
"Review Plan"
means the plan for undertaking the review and approval of a
Documentary Deliverable.
"Revised Milestone Date"
means any revised date which is set for the Achievement of a
Milestone.
"School Teachers Pay &
Conditions Document"
means the document in force from time to time containing the
provisions relating to the statutory conditions of employment of
school teachers in England and Wales which is issued annually by
the Secretary of State for Education and Skills following an order
being made under Section 2 of the School Teachers' Pay and
Conditions Act 1991.
"Secondary ATP Milestone
Date"
means the Milestone Date on which the Contractor is authorised to
provide the Operational Services and continue to provide the
Implementation Activities, such authority provided in the form of a
Milestone Achievement Certificate relating to the relevant Transition
Milestone and Implementation Milestone which are linked to
Secondary ATP in the Transition Plan and Implementation Plan
respectively.
"Security Management Plan"
means the Contractor's security plan prepared pursuant to
Paragraph 3 of Schedule 2.5 (Security Management Plan) an
outline of which is set out in Appendix 2 to Schedule 2.5 (Security
Management Plan).
"Security Policy"
means the Department's security policy as attached as Appendix 1
to Schedule 2.5 (Security Management Plan) as updated from time
to time.
"Security Policy Framework"
means the Cabinet Office Security Policy Framework (available
from the Cabinet Office Security Policy Division).
"Security Tests"
shall have the meaning set out in Paragraph 4.1 of Schedule 2.5
(Security Management Plan).
"Service Charges"
means the period payments made in accordance with Schedule 7.1
(Charges and Invoicing) in respect of the supply of the Operational
Services.
"Service Credit At Risk
Amount"
means the percentage of the Monthly Relevant Fixed Charges
which are put at risk in each Service Period against Service Credits.
At the Effective Date the percentage of the Monthly Relevant Fixed
Charges which have been put at risk in each Service Period are as
follows:
Contract Year 1:
Contract Year 1;
28
7% of the Monthly Relevant Fixed Charges for
COMMERCIAL IN CONFIDENCE
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Capita
Contract Year 2:
Contract Year 2;
6.5% of the Monthly Relevant Fixed Charges for
Contract Year 3:
Contract Year 3;
6% of the Monthly Relevant Fixed Charges for
Contract Year 4: 6% of the Monthly Relevant Fixed Charges for
Contract Year 4;
Contract Year 5:
Contract Year 5;
6% of the Monthly Relevant Fixed Charges for
Contract Year 6: 6% of the Monthly Relevant Fixed Charges for
Contract Year 6; and
Contract Year 7:
Contract Year 7.
6% of the Monthly Relevant Fixed Charges for
"Service Credits"
means the sums payable in respect of the failure by the Contractor
to meet one or more Service Levels as specified in Schedule 7.1
(Charges and Invoicing).
"Service Downtime"
means any period of time during which a Service and/or the
Contractor System or other technology necessary to carry out the
Services for which the Contractor or any Sub-contractor is
responsible, is not Available.
"Service Failure"
means a failure to deliver any part of the Services in accordance
with either:
(a)
the Service Levels; or
(b)
the requirements of Schedule 2.1 (Statement of Service
Requirements) as evidenced by the Management
Information and key performance indicator reports
provided in accordance with Schedule 2.1 (Statement of
Service Requirements).
"Service Failure Log"
means the hard copy and electronic version of the log created and
maintained by the Contractor as part of the Services in accordance
with Paragraph 2 of Part 3 of Schedule 2.2 (Service Levels).
"Service Failure Report"
means the first notification of a Service Failure received by the
Department from the Contractor in respect of that Service Failure.
"Service Level Report"
means the report which summarises the performance by the
Contractor against each of the Service Levels, which report shall be
prepared by the Contractor and submitted to the Department
pursuant to Paragraph 3.2 of Part 1 of Schedule 2.2 (Service
Levels).
"Service Levels"
means the levels of service required to be provided, as prescribed
in Schedule 2.2 (Service Levels).
"Service Notification Event"
means a problem or issue that arises in connection with the
provision of the Services which either prevents or impedes the
Contractor from: (a) performing all or any of the Services and/or (b)
achieving one or more of the Service Levels and/or Outcomes.
29
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"Service Period"
Capita
shall have the following meaning:
(a)
the first Service Period of this Agreement shall begin on
the Operational Service Commencement Date and shall
expire at the end of the calendar month in which the
Operational Service Commencement Date falls; and
(b)
after the first Service Period of this Agreement a Service
Period shall be a calendar month during this Agreement
save that the final Service Period of this Agreement shall
commence on the first day of the calendar month in which
the Term expires or terminates and shall end on the
expiry or termination of the Term.
"Service Points"
means the points that are set out in Table 3 of Part 1 of Appendix 1
of Schedule 2.2 (Service Levels) and which shall accrue to the
Contractor in the event of any failure by the Contractor to achieve a
Service Level.
"Service Transfer"
has the meaning given in Paragraph 6 of Schedule 9.1 (Staff
Transfer).
"Service Transfer Date"
means the date of a Service Transfer.
"Services"
any and all of the services to be provided by the Contractor under
this Agreement including those set out in Schedule 2.1 (Statement
of Service Requirements) but which (for the purposes of charging
only) shall not be deemed to include the services set out in PRC1 of
Schedule 2.1 (Statement of Service Requirements) as these are
chargeable as Extra Services in accordance with the provisions of
the Paragraphs relating to “Charges for non-Operational Services”
in Schedule 7.1 (Charges and Invoicing).
"Severity Levels"
means each of the severity levels set out in Table 5 of Appendix 1
of Schedule 2.2 (Service Levels) against which the severity of a
Service Failure will be determined.
"Sites"
means 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
Department System takes place.
"Software"
means Specially Written Software, Contractor Software and Third
Party Software, other than third party software provided by the
Department.
"Source Code"
means computer programs and data in eye-readable form and in
such form that it can be compiled or interpreted into equivalent
object code together with all technical information and
documentation necessary for the use, reproduction, modification
and enhancement of such software.
"Specific Change in Law"
means (i) a Change in Law that relates specifically to the business of
the Department and would not affect a Comparable Supply, or (ii) a
Change in Law which specifically relates to changes to the TPS
Regulations except to the extent a General Change in Law requires
consequential amendments to the TPS Regulations.
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"Specially Written Software"
means any software created by the Contractor (or by a third party
on behalf of the Contractor) specifically for the purposes of this
Agreement and all technical specifications, user manuals and
operating manuals in relation to such software but excluding any
modifications, adaptations and/or enhancements of any works
existing at the date of this Agreement.
"Spring Supplementary"
means the annual exercise where estimates of Teachers’ Pension
Scheme income and expenditure are forecasted for the final three
(3) months of the financial year.
"Staff Vetting Procedures"
means the Department's procedures and departmental policies for
the vetting of personnel whose role will involve the handling of
information of a sensitive or confidential nature of 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 – 1989.
"Staffing Information"
means in relation to all persons identified on the Contractor's
Provisional Staff List, such information as the Department may
reasonably request (subject to Data Protection Legislation), but
including in an anonymised format:
(a)
their ages, dates of commencement of employment or
engagement and gender;
(b)
details of whether they be employed, self employed
contractors or consultants, agency workers or otherwise;
(c)
the identity of the employer or relevant contracting party;
(d)
their relevant contractual notice periods and any other
terms relating to termination of employment, including
redundancy procedures, and redundancy payments;
(e)
their wages, salaries, and any contractual entitlement to
profit share, bonus or commission;
(f)
details of other employment-related benefits, including
(without limitation) medical insurance, permanent health
insurance, life assurance, pension or other retirement
benefit schemes, share option schemes and company car
applicable to them;
(g)
any outstanding or potential contractual, statutory or other
liabilities in respect of such individuals (including in
respect of personal injury claims);
(h)
details of any such individuals on long term sickness
absence, parental leave, maternity leave or other
authorised long term absence;
(i)
copies of all relevant documents and materials relating to
such information, including copies of relevant contracts of
employment (or relevant standard contracts if applied
generally in respect of such employees); and
(j)
any other "employee liability information" as such term is
defined in Regulation 11 of the Employment Regulations.
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"Stage Payments"
means any payment made in respect of a Milestone or on any other
date in either case as identified in Schedule 7.1 (Charges and
Invoicing).
"Stakeholders"
means the Department, Members, Teachers, Employers,
Beneficiaries, Teacher Unions and Employer Associations.
"Standard Dispute Timetable"
means the standard timetable for the resolution of Disputes set out
in the Appendix to Schedule 8.3 (Dispute Resolution Procedure).
"Standards"
means the British or international standards, Department's internal
policies and procedures, Government codes of practice and
guidance referred to in Schedule 2.3 (Standards) together with any
other specified policies or procedures identified in Schedule 2.3
(Standards).
"Statement of Service
Requirements"
means the requirements of the Department as set out in Schedule
2.1 (Statement of Service Requirements), as varied from time to
time in accordance with this Agreement.
"Steering Board"
means the board described in Paragraph 2.6 of Schedule 8.1
(Governance).
“Strategy Board”
means the board described in Paragraph 2.5 of Schedule 8.1
(Governance).
"Sub-contract"
shall mean 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, other than an
Ancillary Sub-contract.
"Sub-contractor"
means the third party with whom the Contractor enters into a Subcontract or its servants or agents and any third party with whom that
third party enters into a Sub-contract or its servant or agents, other
than an Ancillary Sub-contractor.
"Sub-contractor Credit Rating
Threshold"
means the Credit Rating Thresholds relating to a Key Subcontractor and notified to the Department pursuant to Paragraph 2.1
of Schedule 7.4 (Financial Distress).
"Sub-contractor Financial
Distress Event"
means the occurrence of one or more of the events referred to in
Paragraph 9 of Schedule 7.4 (Financial Distress).
"Target Performance Level"
has the meaning given in Paragraph 3 of Part 2 of Schedule 2.2
(Service Levels).
"Teacher"
means any person who is eligible for membership of the Teachers'
Pension Scheme, whether or not he or she is a Member.
"Teachers' Pensions
Administration Forum"
means the group comprising the Department, Teacher and
Employer representatives, with a brief to reflect customer feedback
on the provision of the administration of the Services provided by
the Contractor.
"Teachers' Pension Scheme"
or "TPS"
means the unfunded pension scheme for Teachers in England and
Wales.
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"Teacher Unions"
means the trade unions representing the Teachers and lecturers in
England and Wales.
"Technical Deliverable"
means any Deliverable in respect of the provision of any information
or communication technology system or infrastructure and any
Deliverable which is not a Documentary Deliverable.
"Term"
means the period commencing on the Effective Date and ending on
the expiry of the Initial Term or any Extension Period(s) or on earlier
termination of this Agreement.
"Termination Assistance
Notice"
has the meaning set out in Paragraph 5.6 of Schedule 8.5 (Exit
Management).
"Termination Assistance
Period"
means the period specified in the Termination Assistance Notice in
which the Contractor shall provide the Termination Services as may
be amended pursuant to Paragraph 5.7 of Schedule 8.5 (Exit
Management).
"Termination Notice"
means a notice to terminate the Agreement or part of the Services
either immediately or at a date specified in the notice.
"Termination Payment"
means the payment calculated in accordance with the formula set
out in Paragraph 2 of Schedule 7.2 (Payments on Termination).
"Termination Services"
means the services and activities to be performed by the Contractor
pursuant to the Exit Plan and the Termination Assistance Notice
which may comprise such of the Core Termination Services and/or
such of the Additional Termination Services as the Department shall
elect in accordance with the provisions of Paragraph 5.6 of
Schedule 8.5 (Exit Management).
"Test Certificate"
means the certificate materially in the form of the document
contained in Appendix 1 to Schedule 6.3 (Testing Procedures)
issued by the Department when a Deliverable has satisfied its
relevant Test Success Criteria satisfactorily.
"Test Issue"
means any variance or non-conformity of a Deliverable from its
requirements as set out in the relevant Test Success Criteria.
"Test Issue Management Log"
means a log for the recording of Test Issues in respect of Technical
Deliverables as described further in Paragraph 6.2 of Part 3 of
Schedule 6.3 (Testing Procedures).
"Test Plan"
means a plan for the Testing of Deliverables and other agreed
criteria related to the achievement of Milestones as described
further in Paragraph 3 of Part 3 of Schedule 6.3 (Testing
Procedures).
"Test Report"
means a report setting out the results of any Tests in respect of any
Technical Deliverable which shall include without limitation the
information set out in Paragraph 5.6 of Part 3 of Schedule 6.3
(Testing Procedures).
"Tests" and "Testing"
means any tests required to be carried out under this Agreement, as
further described in Schedule 6.3 (Testing Procedures).
"Testing Procedures"
means the applicable testing procedures and Test Success Criteria
set out in Schedule 6.3 (Testing Procedures).
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"Test Specification"
means the specification that sets out how Tests will demonstrate
that the Test Success Criteria have been satisfied, as described in
more detail in Paragraph 4 of Part 3 of Schedule 6.3 (Testing
Procedures).
"Test Strategy"
means a strategy for the conduct of Testing as described further in
Paragraph 2 of Part 3 of Schedule 6.3 (Testing Procedures).
"Test Success Criteria"
means the test success criteria referred to in Appendix 3 of
Schedule 6.3 (Testing Procedures).
"Test Witness"
means any person appointed by the Department pursuant to
Paragraph 7.1 of Part 3 of Schedule 6.3 (Testing Procedures).
"Third Party Materials"
means the Third Party Software together with the Documentation
relating to the Third Party Software.
"Third Party Software"
means any software which is proprietary to any third party (other
than an Affiliate of the Contractor) which is or will be used by the
Contractor for the purposes of providing the Services and specified
as such in Schedule 5.1 (Software) and all technical specifications,
user manuals and operating manuals in relation to such software.
"Threshold Gain Margin"
means the Forecast Gain Margin for the Gain share Period plus
three per cent (3%). By way of example, if the Forecast Gain
Margin for the Gain share Period is four per cent (4%), the
Threshold Gain Margin for the Gain share Period would be seven
per cent (7%).
"Total Net Debt to EBITDA
Ratio"
means, in respect of the Guarantor’s (or any Key Sub-contractors if
applicable) consolidated accounts, total net borrowings including
finance leases net of cash divided by EBITDA.
"TPS Materials"
shall mean any files, documents, records, working papers,
drawings, diagrams, text, images or sound embodied in any
electronic (including but not limited to all websites and web pages)
or other tangible medium appertaining to the Services or the
management, direction or organisation of the Services and which
are created from time to time during this Agreement by the
Contractor or on the Contractor's behalf specifically for the purposes
of this Agreement but for the avoidance of doubt excluding the
Contractor Software, Contractor Background IPR, Contractor
Materials, Specially Written Software, Third Party Software and
records relating to the conduct of the Contractor's business.
"TPS Regulations"
means those statutes and regulations which define, and prescribe
certain matters relating to the administration of the TPS as specified
below (all as amended from time to time):
(a)
the Teachers' Pensions Regulations 2010;
(b)
the Teachers' Pensions Regulations 1997;
(c)
the Teachers' Pensions
Regulations 2006;
(d)
the Colleges of Education (Compensation) Regulations 1975;
(e)
the
Teachers'
34
etc
Superannuation
(Reform
Amendments)
(Additional
Voluntary
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Capita
Contributions) Regulations 1994;
(f)
the Occupational Pensions
Information) Regulations 1996;
Schemes
(Disclosure
of
(g)
the Teachers' Pension (Sharing of Pensions on Divorce or
Annulment) Regulations 2000;
(h)
the Occupational Pensions Schemes (Internal Dispute
Resolution Procedures Consequential and Miscellaneous
Amendments) Regulations 2008;
(i)
the Pension Schemes Act 1993; and
(j)
any other Laws, or amendment to existing Laws which
specifically and directly reference and impact on the
administration of the TPS, together with any discretion
exercised by the Department under any of the above.
"Transfer Value"
means the value of the retirement and death benefits under the
Contractor's Scheme which are prospectively and contingently
payable to and in respect of the Transferring Employees as
calculated by the Contractor's Actuary and verified by the
Replacement Contractor's Actuary in accordance with the actuarial
methods and assumptions set out in the Actuary's Letter and, for the
avoidance of doubt a separate transfer value will be calculated in
respect of each group of Transferring Employees if more than one
such group transfers to the employment of the Replacement
Contractor on more than one date.
"Transfer Value Date"
means the date on which the Transfer Value is determined by the
Contractor's Actuary and verified by the Replacement Contractor's
Actuary.
"Transferable Assets"
means those Assets which are used in the provision of the Services
and do not fall within the definition of Optional Assets.
"Transferring Contracts"
shall have the meaning set out in Paragraph 7.3.2 of Schedule 8.5
(Exit Management).
"Transferring Employees"
means those Contractor Personnel listed on the Contractor Final
Staff List, save for those who object to their transfer pursuant to
Regulation 4(7) of the Employment Regulations or otherwise resign
or treat their employment as terminated.
"Transition Activities"
means the transition activities, as set out or referred to in the
Transition Plan or the Statement of Service Requirements, to be
undertaken by the Contractor in order to transition the Operational
Services and more generally responsibility for administering the
TPS from the Outgoing Contractor to the Contractor.
"Transition Milestone"
means an event or task described as a Milestone in the Transition
Plan which must be completed by the relevant Transition Milestone
Date, including milestones in respect of the Primary ATP,
Secondary ATP and CPP.
"Transition Plan"
means the plan and timetable (including Transition Milestones) for
the Transition Activities including testing as detailed in Appendix 1
to Schedule 6.1 (Transition Plan).
35
COMMERCIAL IN CONFIDENCE
TPS
Capita
"Treasury"
means the Commissioners of Her Majesty's Treasury having charge
of the collection and management of public revenue.
"UK"
means the United Kingdom.
“Union representatives”
has the same meaning as “Teacher Unions”.
"Unrecovered Costs"
means the costs incurred by the Contractor in the performance of
this Agreement and detailed in the Financial Model from time to
time, to the extent that the same remain to be recovered through the
Charges at the rate at which they fall to be amortised as detailed in
the Financial Model. Such costs will include profit earned but not
received accruing to these costs.
"Updated Financial Model"
means the Base Case Financial Model as updated pursuant to
Paragraph 5.1 of Schedule 7.5 (Financial Model).
"Use"
means:
(a)
with respect to the licences granted in Clauses 34.1, 34.4,
34.9, 35.4 the right to load, execute, store, transmit, display
and copy (for the purposes of loading, execution, storage,
transmission or display) that Software or other licensed
materials;
(b)
with respect to the licences granted in Clauses 34.3 the right to
load, execute, store, transmit, display, copy (for the purposes
of loading, execution, storage, transmission or display),
modify, adapt, enhance, reverse decompile, decode, translate
or otherwise utilise that Software
for the purposes of processing the Department’s Data or as
necessary or incidental to the Department receiving the full benefit
of the Services and/or any replacement or alternative services, as
appropriate.
"Users"
means the Department's employees, agents, sub-contractors,
consultants as authorised by the Department to Use the software
and any other person (including any Replacement Contractor(s))
authorised by the Department to Use the software.
"VAT"
means value added tax as provided for in the Value Added Tax Act
1994.
"Virus"
means any software intended to corrupt, destroy or otherwise
damage or interfere with the use of hardware, software or data.
"Warning Notice"
has the meaning given in Clause 15.8.
“Weightings”
has the meaning given in Paragraph 6.1 of Part 2 of Schedule 2.2
(Service Levels).
"Working Day"
means any day other than a Saturday, Sunday or public holiday in
England and Wales.
36