Exhibit 10.11
AMENDED AND RESTATED TRADING AGREEMENT 658130 dated March 1999
between
(1) "BT" - British Telecommunications plc whose registered office is at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, and whose registered number is 1800000
and
(2) "Commerce One": -of Commerce One, Inc., a Californian corporation whose
principal place of business is at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
The purpose of this Trading Agreement is to enable BT and companies in which it
has a defined economic interest worldwide to order from Commerce One certain
Programs and other related software and services that enable the ordering entity
to subsequently provide electronic procurement and open trading partner network
services or other services which from time to time may be agreed across the
Internet for which the ordering entity will pay to Commerce One certain
remuneration. For a period of 5 years from the Effective Date, and in
consideration of the sum of one pound payable by BT to Commerce One and of BT's
obligations and other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged), This Amended and Restated Trading
Agreement shall supersede in its entirety the Trading Agreement entered into at
an earlier date by the parties. Commerce One shall undertake Work in accordance
with and subject to the provisions of this Trading Agreement, which comprises
this front sheet and the following appended documents:
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Schedule Number Description
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1 Terms and Conditions
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2 Pricing (to be completed)
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Appendix A Support and Maintenance Agreement
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Appendix B Official Order Cover Sheet
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Appendix C Confidentiality Agreement
------------------------------- ----------------------------------------------------------------------------------------
Appendix D BT Code of Practice On the Disclosure of Customer Information
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SIGNED FOR AND ON SIGNED FOR AND ON
BEHALF OF BT BEHALF OF COMMERCE ONE
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NAME NAME
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POSITION POSITION
SCHEDULE 1
TERMS AND CONDITIONS
SECTION TITLE
------- -----
1 Definitions
SCOPE
2 General
3 Description of Work
4 Prices and Leadtimes
5 Intellectual Property and Licenses
6 Support
7 Warranty
MANAGEMENT
8 Programme Management
9 Trading Agreement Change Procedure
10 Order Procedure
11 Suspension of Work on Site
12 Default for Late Delivery
13 [Number not used]
14 Interface with other Equipment
15 Performance and Retention
16 Termination
INTELLECTUAL PROPERTY
17 Confidentiality
18 [Number not used]
19 Intellectual Property Indemnity
20 Electronic Data Interchange (EDI)
GENERAL
21 Ordering Entity Items
22 Assignment and Subcontracting
23 Mistakes in Information
24 Protection of Documents and Programs
25 Title and Risk
26 Indemnity-General
27 Limitation of Liability
28 Insurance
39 Recovery of Sums Due
30 Payment
31 Records Inspection
32 Sites
33 Export and Re-Export
APPENDICES:
Appendix A Support and Maintenance Agreement
Appendix B Official Order Cover Sheet
Appendix C Confidentiality Agreement
Appendix D BT Code of Practice On the Disclosure of Customer Information
1 DEFINITIONS
1.1 "Acceptance" shall mean written acknowledgment by the Ordering
Entity which shall include by electronic mail, that the Work, or
part of it, has been completed in accordance with any Order.
"Accept" and "Accepted" in the context of "Acceptance" shall be
construed accordingly.
1.2 "Acceptance Test" shall mean any formal testing agreed between the
Parties and set out in any Order to determine if the Work
commissioned under such Order satisfies the criteria for
Acceptance for such Work by the Ordering Entity.
1.3 "Agreement" shall mean the Trading Agreement.
1.4 "Alliance" shall mean BT, and any legal entity in which British
Telecommunications plc, from time to time has or will have an
economic interest of 20% or more. BT to provide list of such
entities as of date of execution of this agreement and at the
reasonable request of Commerce One.
1.5 "BT" shall mean British Telecommunications plc of ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, and whose registered number is 1800000.
1.6 "Foreground Information" shall mean the product of Work, including
related documentation, resulting from a Special Commissioning
Order. This does not include Programs, Program Documentation or
Background Information. The Foreground Information so developed
shall be either owned by Commerce One ("Commerce One Foreground
Information") or by the Ordering Entity ("Ordering Entity
Foreground Information"). The allocation of the Foreground
Information shall be made according to the terms of this Agreement
agreed by the Ordering Entity and Commerce One in the
Commissioning Order. For the avoidance of doubt, work performed by
Commerce One related to the implementation of software sold under
this Trading Agreement shall not be considered Foreground
Information unless specifically agreed to by Commerce One in any
Commissioning Order.
1.7 "Trading Agreement" shall mean this Trading Agreement.
1.8 "Indirect Taxes" shall mean any sales, use, excise, value added
taxes (VAT), goods and services tax (GST) or similar tax, but not
any property tax, imposed by the law of any locality, state,
national, supra-national or equivalent government but, unless
stated specifically otherwise, shall not include any income or
other taxes in lieu of income tax.
1.9 "Background Information" shall mean information, whether written
or oral, including but not limited to design information,
documentation, specifications, reports, data, notes, drawings,
models, patterns, samples, computer outputs, designs, circuit
diagrams, inventions and know-how, whether patentable or not
existing as of the Effective Date of each applicable Order. For
the avoidance of doubt, this does not include Programs,
Documentation or Foreground Information. Background Information
shall be the property of either Commerce One ("Commerce One
Background Information") or the Ordering Entity ("Ordering Entity
Background Information"), and shall be supplied by either party to
the other subject to licensing under the terms of this Agreement
and/or any commissioning Order, with such alterations as may be
agreed by the parties in writing.
1.10 "Intellectual Property Right" shall mean any patent, ▇▇▇▇▇ patent,
registered design, copyright, design right, semiconductor
topography right, know-how, trade ▇▇▇▇, service ▇▇▇▇ or any
similar right, registered or not, exercisable in any part of the
world and shall include any applications for the registration of
rights in connection therewith in any part of the world.
1.11 "Network" shall mean all exchange equipment, bandwidth,
transmission equipment, network terminating equipment, line plant,
power plant and ancillary equipment, computing and data
communications equipment, owned or operated by the Ordering
Entity.
1.12 "Order" shall mean a written order placed by an Ordering Entity
for Work (including Special Commissioning Orders). Any Order shall
consist of an Official Order Cover Sheet (an example of which is
appended in Appendix B and documents and appendices referred to
therein.
1.13 "Ordering Entity" shall mean the relevant Alliance entity that is
placing or has placed an Order under the Trading Agreement.
1.14 "Ordering Entity Items" shall mean all items provided by the
Ordering Entity to Commerce One in connection with an Order.
1.15 "Order Price" shall mean the total sum of License Fees, Support
and Maintenance and other consulting service Fees and other
remuneration payable to Commerce One by the Ordering Entity for
Work to be performed under any Order as stated in the relevant
Order.
1.16 "Site" shall mean the actual place at which Work shall be
delivered and/or installed by Commerce One.
1.17 "Programs" shall mean the object code version of the computer
programs, owned or distributed by Commerce One, for which BT and
or the Ordering Entity is granted a license pursuant to this
Agreement . Programs shall refer solely to those items identified
as such in the Order together with Maintenance Releases as defined
in and provided pursuant to the Support and Maintenance Agreement
together with the Documentation. For the avoidance of doubt,
Programs does not include any Foreground Information or Background
Information.
1.18 "Subcontractor" shall mean any person, partnership or corporation
with whom Commerce One places a contract and/or an order for the
supply of any equipment, item, service or for any Work, and
"subcontract" shall be construed accordingly.
1.19 "Special Commissioning Order" shall mean a written order placed by
an Ordering Entity that commissions Foreground Information.
1.20 "End User" means the party to whom an End User License Agreement
is granted by the Ordering Entity.
1.21 "Program Documentation" means such material, owned or distributed
by Commerce One, furnished by Commerce One in conjunction with the
Programs, including instructions and user guides [, as set out in
Appendix B of this Agreement].
1.22 "Commerce One Licensee" means the Ordering Entity, or any third
party who is licensed by Commerce One or the Ordering Entity under
the terms of the sub-license to use the Programs, Documentation,
Commerce One Foreground Information, Commerce One Background
Information or other Commerce One products.
1.23 License Fees" means sums stated in the Order Price related to
licensing under this Trading Agreement and payable by the Ordering
Entity to Commerce One according to the order between Commerce One
and the Ordering Entity.
1.24 "Opportunities" means opportunities, as identified by Commerce One
and the Alliance (or part thereof) together, to sell Commerce One
products and services including, without limitation, the Programs
and Documentation.
1.25 "Support and Maintenance Agreement" means the Support and
Maintenance Agreement to be executed by Commerce One and the
Ordering Entity and as set out in Appendix C of this Agreement.
1.26 "Support and Maintenance Fees" means those fees payable by the
Ordering Entity pursuant to the Support and Maintenance Agreement
and as stated in any Order Price.
1.27 "Work" shall mean all deliverables supplied, and all installation,
Acceptance and support services, including but not limited to
training and development set out in any specific Order.
1.28 References to the plural of any definition shall be deemed to
include the singular and vice-versa.
1.29 "Contract Personnel" shall mean Commerce One's employees,
subcontractors and agents (and their employees, subcontractors and
agents) engaged in the performance of the Contract.
2. GENERAL
2.1 If any aspect of the Trading Agreement is found to be invalid,
illegal or unenforceable this shall not affect the validity of any
part of the Trading Agreement. In such case Trading Agreement
shall be construed and enforced as if it did not contain such
provision. The parties shall negotiate in good faith to modify
and, or replace such provision with one that is valid and legally
enforceable. If the parties cannot reach agreement on a new
provision which places the parties in a position similar to the
commercial position which would have prevailed prior to the
modification or replacement being required, either party may, in
its sole discretion, withdraw from the Agreement.
2.2 The headings to the Trading Agreement provisions are for reference
only and shall not affect their interpretation.
2.3 No delay, neglect or forbearance by either party in enforcing any
provision of the Trading Agreement shall be deemed to be a waiver
of or in any way prejudice any rights of that party.
2.4 No waiver by either party shall be effective unless made in
writing or constitute a waiver of rights in relation to any
subsequent breach of the Trading Agreement.
2.5 The Trading Agreement and those terms explicitly included in any
Order and referenced on the Official Order cover sheet thereto
govern the relationship between the parties in relation to the
subject matter of this Agreement to the exclusion of any other
terms and conditions, unless such other terms are agreed in
writing between BT
and Commerce One. Should any conflict exist between the terms of
the Trading Agreement and an Order then the precedence provisions
of Section 3.4 of this Agreement shall apply.
2.6 The Trading Agreement is governed by English law and the parties
hereby submit to the jurisdiction of the English Courts. The
parties hereto agree that the Convention on International Sale of
Goods shall not apply to this Agreement.
2.7 Other than as set out herein, neither party shall, nor in any way
represent itself as, an agent of the other and shall have no
authority to enter into any obligation on behalf of the other or
to bind the other in any way.
2.8.1 Notices required under the Trading Agreement to be given in
writing shall be delivered by hand or by post or by facsimile
transmission. Notices shall be deemed to be given upon receipt
except that notices sent by pre-paid recorded delivery post in a
correctly addressed envelope shall be deemed to be given within 48
hours (excluding Sundays and public holidays) of posting, and
notices sent by facsimile transmission shall be deemed to be given
upon transmission.
2.8.2 Notices are to be given to BT and/or the Ordering Entity (where
appropriate). Where notices are to be given to BT they shall be
sent to the address below. Where notices are to be given to the
Ordering Entity they shall be sent to the contact point outlined
in the Order.
BT Contact Point:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ppB113 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 01793 547158
Internet : ▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇.▇▇▇
Commerce One Contact Point:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Internet: ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
2.8.3 Notices to Commerce One shall be given at the address set out above.
2.9 Without prejudice to any prior obligations of confidentiality it
may have, either party shall ensure that no publicity relating to
the Trading Agreement or any Order shall take place without the
prior written agreement of either BT or C1 (for the Agreement) or
the appropriate Ordering Entity (for any Order), which consent
shall not be unreasonably withheld.[this change makes the
agreement consistent with the Confidentiality Section - otherwise
these provisions are in conflict].
2.10 The provisions of the following Sections of the Trading Agreement
set out below and any Sections relating thereto set out in any
Order shall survive the termination or expiry of the Trading
Agreement and/or any Order:
Section 5 - Intellectual Property and Licenses
Section 7.3 - Year ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 17 - Confidentiality
Section 19 - Intellectual Property Indemnity
Section 26 - Indemnity - General
Section 27 - Limitation of Liability
2.11 Neither party shall be liable to the other for its failure or
delay in the performance of a required obligation if such failure
or delay is caused by strike, riot, fire, flood, natural disaster
or other similar cause beyond either party's control provided,
however, that either party gives prompt written notice of such
condition and resumes the performance of its obligations as soon
as possible.
3. DESCRIPTION OF WORK
3.1 Commerce One shall accept and fulfill all Orders placed in
accordance with the Trading Agreement where such Orders are for
the supply of Programs, products and services listed in Schedule 2
(Pricing), provided that Commerce One agrees and that it is
commercially reasonable for Commerce One to do so.
3.2 Commerce One shall accept Special Commissioning Orders (as
provided for under Section 5) where Commerce One has submitted a
valid quotation approved by an authorized signatory of Commerce
One.
3.3 The Work shall accord with any specifications agreed by both
parties and referred to in the Order accepted by Commerce One from
the Ordering Entity. Commerce One shall
provide reasonable assistance necessary to carry out the
installation, commissioning and testing.
3.4 The Work shall be performed in accordance with the Trading
Agreement and with the provisions of such Order(s) that an
Ordering Entity in its sole discretion may place in accordance
with the Condition headed "Order Procedure" of this Schedule 1.
Should the terms and conditions of any Order conflict with or vary
from those of the Trading Agreement then the Trading Agreement
shall take precedence; however variations that are clearly and
explicitly set out or referenced in the Variation to Trading
Agreement section of the Official Order Cover Sheet shall take
overall precedence over the terms set forth in this Trading
Agreement.
3.5 The Trading Agreement is not in itself an order for Work and no
Ordering Entity shall be under any obligation to order Work. It is
a framework agreement against which the Ordering Entity may order
Work. Notwithstanding the foregoing, any Ordering Entity shall
cooperate with Commerce One in the provision of information,
hardware, software or other materials or resources, at no charge
to Commerce One, as more fully set out in each Order.
3.6 Neither BT nor any other member of the Alliance shall be liable
for, or in relation to, any Order not placed by it. Further,
neither BT, nor any other Ordering Entity shall be liable for any
act or omission of any other Ordering Entity whether in relation
to the Trading Agreement, any Order or otherwise. Any Ordering
Entities placing orders under the Trading Agreement are separately
and individually liable for anything pertaining to any such Order.
Notwithstanding the foregoing, Commerce One's performance (as
described in Section 15) shall be dependent upon the timely and
accurate receipt of such cooperation by the Ordering Entity.
3.7 No breach by any Ordering Entity other than BT in relation to any
Order shall affect the validity or continuation of this Trading
Agreement.
4. PRICES AND LEADTIMES
4.1 Commerce One agrees that the prices of Work payable by any Ordering
Entity:
(a) shall be no less favourable than those payable within the
prior six (6) months period of time by any other Ordering
Entity or by any third party for similar supplies; and
(b) without prejudice to sub-paragraph (a) above, shall, where
reductions in such prices in relation to any individual
Ordering Entity are volume sensitive, be determined as though
the volumes of similar supplies committed to every other
Ordering Entity had been aggregated with such individual
commitment.
(c) For the avoidance of doubt, if Commerce One offers Work at a
lower price than that offered to an Ordering Entity within six
(6) months following the Order, then Commerce One shall be
obligated to offer the Ordering Entity the more favourable
price on a going-forward basis.
4.2 Commerce One shall if requested by the Ordering Entity determine
whether lead times can be improved to meet specific project
timescales and advise the Ordering Entity if this can be achieved
and whether there are any additional costs which would require a
change order to be implemented to achieve such improved lead time.
4.3 Commerce One shall acknowledge receipt of an Order in writing
within one business day from receipt.
5. INTELLECTUAL PROPERTY AND LICENSES
5.1 Intellectual Property Rights in the Programs and Documentation
belong to Commerce One or its licensors. The Ordering Entity shall
ensure that all copyright notices and trade marks of Commerce One
and/or its licensors are retained in all copies of the Programs,
Documentation possessed by the Ordering Entity and shall be
included on any Programs and Documentation sub-licensed to End
Users.
5.2 Upon delivery of Work by Commerce One under an Order from an
Ordering Entity, Commerce One hereby grants the Ordering Entity a
worldwide (subject to such Variations to Trading Agreement as are
prominently set forth on the Official Order Cover Sheet of the
Order), perpetual, transferable (provided that such transferee is
a member of the Alliance) licence, subject to payment of the
licence fees set out in any Order, to:
5.2.1 Use the Programs and Documentation for the Ordering
Entity's own internal business purposes. The Ordering
Entity may make a reasonable number of copies of the
Programs and/or Documentation to the extent required
for internal training and processes, and
5.2.2 Where the Official Order Cover Sheet specifies a
Commercial Service License to use the Programs and
Documentation in order to offer commercial service to
End Users pursuant to this Agreement. The Ordering
Entity may make copies of the Programs and/or
Documentation to the extent required for internal
training and processes and as far as is necessary in
order to exercise its right to sub-license the Programs
and Documentation to End Users under Section 5.2.3.,
and
5.2.3 Sub-license those elements of the Programs listed in
the Order as sublicensable and relevant Program
Documentation as listed in the Order to End Users.
5.3 The Ordering Entity shall not use the Programs or Documentation
for any purpose other than as specified in this Section 5 and
shall not sell or otherwise make available the Programs or
Documentation nor any information relating thereto to third
parties who are not End Users.
5.4 The Ordering Entity shall not undertake or permit the
modification, reverse engineering, disassembly or decompilation of
the Programs except to the extent permitted at law.
Notwithstanding the foregoing, the Ordering Entity shall notify
Commerce One prior to undertaking any reverse engineering so as to
give Commerce One the opportunity to provide the required
information to the Ordering Entity.
5.5 The Ordering Entity agrees that it shall make each End User aware
that the Documentation and Programs, are Confidential Information
of Commerce One and/or its licensors, and may not be disclosed to
any third party unless so required by law or with the prior
written consent of Commerce One.
5.6 All Ordering Entity Background Information and any copies thereof
and all Intellectual Property Rights therein shall remain the
property of the Ordering Entity. Commerce One shall return the
Ordering Entity Background Information to the relevant Ordering
Entity upon expiry or termination of the Trading Agreement or
relevant Order, or earlier upon request by the Ordering Entity.
5.7 Except as expressly set out in the Trading Agreement or any Order
no assignment of or license under any Intellectual Property Right
owned or controlled by the Ordering Entity is granted by the
Trading Agreement or by any Order.
5.8 From time to time an Ordering Entity may commission Foreground
Information from Commerce One via a Special Commisssioning Order.
Commerce One hereby grants to the Ordering Entity a perpetual
(subject to such limitations as are expressly set out in the
Variation to Trading Agreement section on the Official Order Cover
Sheet), transferable (only to members of the Alliance) licence to
use copy and sublicense the Foreground information for its
business purposes. This licence may be subject to the payment of
license fees and or royalties to Commerce One as expressly set out
in the Special Commissioning Order. For the avoidance of doubt,
Commerce One shall own all Foreground information unless otherwise
set forth in any Special Commissioning Order.
In addition Commerce One undertakes that for a period of one year
from the date of Acceptance of the relevant Foreground Information
(or such other period as to be stated in the Special Commissioning
Order) save for a non exclusive license to BT as set out in
Section 5.9 Commerce One will not whether by itself or on its
behalf sell
lease hire distribute disclose or license (nor offer to sell lease
hire distribute disclose or license):
(a) any of the Foreground Information; or
(b) any equipment or software incorporating any of the
Foreground Information; or
(c) Any equipment or software incorporating any of the features
or functionality specified in the Special Commissioning
Order or any equivalent features or functionality.
5.9 Commerce One undertakes to grant to BT on request a non-exclusive
license on the same terms as the Programs licensed in this Trading
Agreement in respect of any Foreground Information developed by
Commerce One under any Special Commissioning Order for any
Ordering Entity () on the terms and conditions as set out in the
Special Commissioning Order or the applicable Order.
6 SUPPORT
6.1 The obligations of Commerce One to provide support for the
Programs are set out in Appendix A, the Support and Maintenance
Agreement. As part of any Order, the Ordering Entity may execute a
Support and Maintenance Agreement with Commerce One in the form
set out in Appendix A to this Agreement. Commerce One may not
refuse to enter into such an Agreement if requested subject to
agreement of the price on reasonable terms to be negotiated by the
parties.
6.2 Commerce One shall provide bug fixing services for Foreground
Information commissioned under a Special Commissioning Order under
similar terms and for the Support and Maintenance Fees set out in
the relevant Order.
7 WARRANTY
7.1 Commerce One warrants that for a period of 12 months following
Acceptance of any particular Work under the terms of any relevant
Order that (i) the Programs, Documentation and Foreground
Information, if applicable, will conform with their published
specifications as may be set out in any relevant Order, and (ii)
the physical media on which the Programs, Documentation and
Foreground Information is furnished will be free of defect under
normal use.
7.2 Commerce One warrants that it has the right and power to grant the
Ordering Entity the licenses granted to it under the Trading
Agreement and under any Order.
7.3 Commerce One warrants that those parts of the Programs and
Documentation created by Commerce One (not including third party
software licensed to Commerce One and identified in writing on any
Order cover sheet) and Foreground Information under this Agreement
are fully compatible (without modification, loss of performance,
loss of use, or work or expense on the part of the licensee
Ordering Entity) with changes to inputs, outputs, data or other
information in relation to dates arising in the year 2000 and
beyond (not including loss of performance due to other software,
hardware, software operating systems or firmware owned by BT or
licensed to BT by parties other than Commerce One and (b) on the
date of delivery free from:(i) all "viruses" that could have been
detected (at the date of dispatch, or if appropriate, immediately
before installation by Commerce One) by using the latest
commercially available virus detection software and (ii) all forms
of "electronic repossession" except where required by the Ordering
Entity or as specified in its defined functionality and "logic
bombs" (which expressions shall have meanings as they are
generally understood within the computing industry).
7.4 Any remedy for breach of the warranties set forth in this Section
7 shall be limited to commercially reasonable efforts to repair or
replace by Commerce One within the timescales detailed in the
Support and Maintenance agreement appended in Appendix A.
8. TRADING AGREEMENT REVIEW - PROGRAMME MANAGEMENT
8.1 Commerce One Programme Management:
Commerce One (and BT) shall provide a (full-time dedicated)
programme manager to act as prime interface with BT, for the
management of the Trading Agreement. The programme manager shall
receive all queries/correspondences from the Ordering Entity or BT
and shall be responsible for initiating work activities,
co-ordinating all such activity, controlling, monitoring and
progressing the Work to an acceptable conclusion including the
arrangement of review meetings. The programme manager shall be
responsible for providing BT and Ordering Entity with such reports
as may be required from time to time.
8.2 The scope and frequency of programme and Trading Agreement review
meetings shall be as required by BT from time to time.
8.3 Commerce One shall provide monthly (or with such other periodicity
as BT shall from time to time require) reports detailing all
Orders placed to date, including cumulative sums, and a review of
Trading Agreement Performance Requirements. If required by BT,
Commerce One shall provide documentary evidence to validate and
support the information provided in such reports.
8.4 Commerce One shall meet with BT quarterly to discuss and review
Commerce One's current and future product development plans with
the aim of providing the Ordering Entity with early access to
technological developments and an opportunity to influence those
plans, provided, that Commerce One shall not be required to
disclose certain proprietary information at its sole reasonable
discretion. BT to be invited to Commerce One Commerce Council.
8.5 Commerce One's programme manager shall, if requested by an
Ordering Entity, hold Order review meetings and/or provide
progress reports in relation to the Ordering Entity Orders. The
scope and frequency of such Order reviews and progress reports
shall be as determined by the Ordering Entity.
9. TRADING AGREEMENT CHANGE PROCEDURE
9.1 Any change, including timescales to the Trading Agreement or any
Order thereunder shall not be effective unless agreed by Commerce
One and BT ( for the Trading Agreement) and the Ordering Entity
(for any Order) in writing. Any change, including timescales, to
an Order shall not be effective unless agreed by the Ordering
Entity and Commerce One in writing. Any agreed changes in costs
arising from such variation shall be added to, or deducted from,
the relevant Trading Agreement/Order Price or the prices for the
relevant portion of the Work.
10. ORDER PROCEDURE
10.1 All Work to be performed by Commerce One in relation to Trading
Agreement shall be undertaken on the basis of a properly
authorized Order.
10.2 All Orders shall be sent to Commerce One at Commerce One's
location as set our in this Agreement and as amended from time to
time.
10.3 Without limitation, the Order shall include and clearly state the
following:
(i) name of the Ordering Entity;
(ii) Trading Agreement number (where possible);
order number;
(iii) Quotation reference Number
(iv) Work requested
(v) Site or delivery address;
(vi) timescales;
(vii) Ordering Entity's point of contact;
(viii) billing address;
(ix) price, invoicing procedure and currency.
(x) Authorized Signature of Ordering Entity
(xi) Variations to the Trading Agreement
Any variations to the Trading Agreement as mentioned in Section
10.3 (xi) shall be governed by the precedence terms detailed in
Section 3.4.
11. SUSPENSION OF WORK ON SITE
11.1 The Ordering Entity shall have the right to suspend the Work at
any time for a maximum period of 30 days (or for such other period
as may be agreed in writing by the parties) and will pay to
Commerce One all reasonable, unavoidable, resulting expenses
incurred by Commerce One (other than those arising from Commerce
One's own default) provided that:
11.1.1 no payment shall be made for any period of suspension,
prevention or delay less than ten consecutive working
days; and
11.1.2 Commerce One has within 10 working days after the event
giving rise to the claim, given notice in writing to
the Ordering Entity of its intention to make such a
claim;
11.1.3 Commerce One makes such claim giving details of each
item claimed and the reason for such cost within 30
days after performance of the Work is resumed; and
11.1.4 the Ordering Entity shall not suspend Work under the
terms of this Section more than once in relation to any
particular Order.
12. DEFAULT FOR LATE DELIVERY
12.1 Subject to Section 2.11, if Commerce One does not deliver,
install, or complete any Work by the date specified in the Order,
or such other date mutually agreed in writing. Commerce One shall
be in breach of the Trading Agreement and shall pay to the
Ordering Entity if requested an amount of liquidated damages in
respect of such delay at 1.5% for each week of delay, up to 10% of
the price of the Work in delay. Payment of these liquidated
damages shall be in lieu of all liability for any and all extra
costs, losses or expenses, claims, penalties and any other damages
whether special or consequential and of whatsoever nature incurred
by the Ordering Entity which are occasioned by such delay in
delivery. These liquidated damages do not constitute a penalty and
the parties, having bargained in good faith for such specific
damages, are estopped from contesting the validity or
enforceability of such damages. Notwithstanding the foregoing,
Commerce One shall not be considered in breach of this Trading
Agreement if the failure to complete the Work shall be the result
of the failure of BT or any other Alliance member to fulfill their
obligations set forth in this Trading Agreement or in any
applicable Order.
12.2 The Ordering Entity may, at its option, at any time deduct any
amount of liquidated damages then due from Commerce One to the
Ordering Entity from any sums then due from the Ordering Entity to
Commerce One and any not so deducted may be recovered by the
Ordering Entity from Commerce One as a debt.
12.3 Payment of, or the Ordering Entity's right to, liquidated damages
under this Condition shall not affect any of the Ordering Entity's
or BT's rights under the Condition headed "Termination" provided
Commerce One has received notification in writing within 7 days of
such claim.
13. [NUMBER NOT USED]
14. INTERFACE WITH OTHER EQUIPMENT
14.1 Commerce One shall be responsible for the successful inter working
of Work in or with the Ordering Entity Network specified by the
Ordering Entity, existing at the time of Acceptance of the Work.
14.2 Commerce One shall supply such information, as the Ordering Entity
may reasonably require, to enable the Ordering Entity to interface
the Work with such other equipment and systems as may form part of
the Ordering Entity Network or the network of any other public or
private telecommunications operator.
14.3 Such information as required under Sections 14.1 and 14.2 shall be
supplied at no charge to the Ordering Entity, provided that
Commerce One have been provided with
all the necessary information at the time of commissioning Order
and Commerce One have accepted such Order without identifying and
requesting additional costs for such work
15. PERFORMANCE AND RETENTION
15.1 Performance
15.1.1 Commerce One's performance of the Work shall be
measured by comparing Commerce One's actual achieved
performance against any standard specified and agreed
by Commerce One and the Ordering Entity in any Order
(an "Order Standard").
15.1.2 BT reserves the right to negotiate and include
additional Order Standards as and when required
pursuant to the Trading Agreement Change Procedure,
provided BT provides Commerce One with reasonable
notice of such additional Order Standards and Commerce
One agrees to such standards.
15.2 Payment Retention
15.2.1 If Commerce One's actual achieved performance shall
fail to meet any relevant Order Standard in any
month then BT shall have the right to retain a
maximum of 10% of the total sum otherwise due to
Commerce One for each Order Standard not met;
15.2.2 Any sums to be retained under Condition 16.2.1 shall be
deducted from the most recent invoice then due or to
become due for payment by the Ordering Entity to
Commerce One under the Trading Agreement.
15.2.3 All sums retained in respect of Commerce One's failure
to achieve any Order Standard shall be released, in
addition to all other amounts owed to Commerce One
under the Order, to Commerce One following the first
month there after in which Commerce One's achieved
performance has subsequently met or exceeds that Order
Standard.
15.2.4 In any event the Ordering Entity shall not pay any
invoice unless the Order Standard statistics have been
submitted by Commerce One within 7 days of the relevant
invoice date.
15.3 The rights of the Ordering Entity or BT under this Condition are
without prejudice to any other rights or remedies under the
Trading Agreement.
15.4 Delivery and Acceptance. Upon delivery of Work performed by
Commerce One to the Ordering Entity by Commerce One, the Order
Entity shall evaluate the Work for conformity with the
specifications set forth in the Order. Within thirty (30) working
days after delivery of the Work, the Ordering Entity shall provide
Commerce One with written acceptance thereof ("Acceptance"), or a
statement of defects to be corrected. If not accepted, Commerce
One shall have thirty (30) working days to correct such defects
and return the Work to the Ordering Entity for retesting, review
and reevaluation. The foregoing process shall be continued until
the Work is accepted by the Ordering Entity, until the parties
agree to terminate their Order under Section 17, or until the
parties agree on another method to resolve the failure.
16. TERMINATION
16.1 Notwithstanding the provisions of Section 16.2 if either Commerce
One or BT commits a material or persistent breach of this
Agreement or an Order placed by BT and in the case of such a
breach which is capable of remedy, fails to remedy the breach
within thirty (30) working days (or such longer period as BT or
Commerce One may agree in writing) of written notice from BT or
Commerce One, as applicable, then, without prejudice to any other
rights or remedies Commerce One or BT may have, the non-breaching
party shall have the right at any time after such 30 day notice
period to terminate the Agreement forthwith as a whole and/or
performed under an Order placed by BT, and BT or Commerce One, as
applicable, to terminate Orders placed by BT forthwith as a whole
or (at BT's or Commerce One's option, as applicable) in respect of
any part of the Work, performed or to be performed under the Order
placed by BT, and to claim for all resulting losses and expenses
(including, without limitation, the cost of completing the Work,
or having the Work completed by another Contractor, to a similar
standard).
16.2 Without prejudice to other rights or remedies it may have, either
Commerce One or BT shall have the right at any time to terminate
the Agreement forthwith, and to cancel Orders placed by BT
forthwith, and to claim for all resulting losses and expenses
(including, without limitation, the cost of completing the Work or
having the Work completed by another Contractor to a similar
standard) if:
16.2.1 Commerce One or BT shall become insolvent or cease to
trade or compound with its creditors; or
16.2.2 a bankruptcy petition or order is presented or made
against Commerce One or BT; -; or if a trustee in
sequestration is appointed in respect of the assets of
Commerce One
16.2.3 a receiver or an administrator receiver is appointed in
respect of any of Commerce One's or BT's assets, as
applicable; or
16.2.4 a petition for an administration order is presented or
such an order is made in relation to Commerce One or
BT, as applicable; or
16.2.5 a resolution or petition or order to wind up Commerce
One or BT is passed or presented or made or a
liquidator is appointed in respect of Commerce One or
BT (otherwise than for reconstruction or amalgamation);
or.
16.2.6 The management, ownership or control of Commerce One is
materially changed to the detriment of BT as may
determine upon the exercise of its reasonable judgment.
16.3 Notwithstanding the provisions of Section 16.4 if either Commerce
One or an Ordering Entity commits a material or persistent breach
of an Order and in the case of such a breach which is capable of
remedy, fails to remedy the breach within thirty (30) working days
(or such longer period as the Ordering Entity or Commerce One may
agree in writing) of written notice from the Ordering Entity or
Commerce One, as applicable, then, without prejudice to any other
rights or remedies Commerce One or the Ordering Entity may have,
the non-breaching party shall have the right at any time after
such 30 day notice period to terminate the Order forthwith as a
whole or (at the non-breaching parties' option) in respect of any
part of the Work, performed or to be performed under the Order,
and to claim for all resulting losses and expenses (including,
without limitation, the cost of completing the Work, or having the
Work completed by another Contractor, to a similar standard).
16.4 Without prejudice to other rights or remedies it may have, either
Commerce One or an Ordering Entity shall have the right to cancel
Orders forthwith, and to claim for all resulting losses and
expenses (including, without limitation, the cost of completing
the Work or having the Work completed by another Contractor to a
similar standard) if:
16.4.1 Commerce One or the Ordering Entity shall become
insolvent or cease to trade or compound with its
creditors; or
16.4.2 a bankruptcy petition or order is presented or made
against Commerce One or the Ordering Entity; - or if a
trustee in sequestration is appointed in respect of the
assets of Commerce One
16.4.3 a receiver or an administrator receiver is appointed in
respect of any of Commerce One's or the Ordering
Entity's assets, as applicable; or
16.4.4 a petition for an administration order is presented or
such an order is made in relation to Commerce One or
the Ordering Entity, as applicable; or
16.4.5 a resolution or petition or order to wind up Commerce
One or the Ordering Entity is passed or presented or
made or a liquidator is appointed in respect of
Commerce One or the Ordering Entity (otherwise than for
reconstruction or amalgamation);
16.5 The Ordering Entity may at any time, without prejudice to any
other rights and remedies it may have, terminate Orders forthwith
on forty five (45) days written notice. Where the Ordering Entity
terminates Orders under this Condition and does not have any other
right to terminate as set forth above, the Ordering Entity shall
pay Commerce One such amounts as may be necessary to cover its
reasonable costs and outstanding and unavoidable commitments
necessarily incurred solely in performing the Orders in relation
to the Work ordered by the Ordering Entity before the date of
termination and for which payment has not at that date become due
from the Ordering Entity ("the Applicable Work"). However, the
Ordering Entity shall not pay for any such costs or commitments
that the Commerce One is able to mitigate and shall only pay costs
and commitments that the Ordering Entity has validated to its
satisfaction. For the avoidance of doubt, resource commitments
made by Commerce One to fulfill Orders shall count as compensable
expenses provided that Commerce One can document to the reasonable
satisfaction of the Ordering Entity such resource commitment
expenses.
Notwithstanding the above, the Ordering Entity's total liability
under this Section 16.5 shall not in any circumstances exceed the
price that would have been payable by the Ordering Entity for the
Applicable Work if the Order had not been terminated (which price
shall include the costs of such resource commitments referenced
above). Apart from any payments to be made as set out in this
Section 16.5, and subject to Section 16.6, the Ordering Entity
shall have no liability to make any payments to Commerce One in
relation to the Order following its termination by the Ordering
Entity in accordance with its rights referred to above.
16.6 In the event that the Agreement or an Order is terminated for any
reason whatsoever, any rights and obligations of any party hereto
which may have accrued prior to the date of such termination shall
not be affected. Furthermore, Commerce One shall complete all
other Orders existing at the time of termination of the Agreement,
including all support obligations as if the Agreement had not been
terminated.
16.7 Termination of the Agreement or Order shall be without prejudice
to any provision intended to operate thereafter.
17. CONFIDENTIALITY
17.1 Subject to the Condition headed `Intellectual Property", either
party receiving Information ("the Recipient") from the other shall
not without the other's prior written consent use such Information
except for Contract purposes or disclose such Information to any
person other than BT people or Contract Personnel who have a need
to know. The Recipient shall return documentation containing such
Information to the other party when no longer required for such
purposes.
17.2. Section 17.1 shall not apply to Information that is:
a) published except by a breach of the Contract; or
b) lawfully known to the Recipient at the time of disclosure
and is not subject to any obligations of confidentiality;
or
c) lawfully disclosed to the Recipient by a third party
without any obligations of confidentiality; or
d) replicated by development independently carried out by or
for the Recipient by an employee or other person without
access to or knowledge of the Information.
17.3. Neither Commerce One or BT shall publicise the Agreement or any
Order without the other's prior written consent and shall ensure
that any subcontractor is bound by similar confidentiality terms
to those in this Condition.
17.4. Without prejudice to any prior obligations of confidentiality it
may have, where Commerce One or Contract Personnel have access to
BT's computer systems or to Information relating to BT's customers
or subject to the Data Protection Acts 1984/1998 ("DPA"), Commerce
One shall:
a) comply (and ensure that all relevant Contract Personnel
comply) with all relevant provisions of any BT Codes of
Practice (mutatis mutandis) appended to the Contract or
notified to Commerce One from time to time, the Computer
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the DPA; and
b) ensure all such Contract Personnel first sign and deliver
to BT a confidentiality agreement in the form appended to
the Agreement in Appendix D, or in such form as BT shall
reasonably require; and
c) ensure such Information is not disclosed to or accessed by
Contract Personnel not directly employed by Commerce One
without BT's prior written consent; and
d) keep (and ensure all relevant Contract Personnel keep) such
Information secure, act only on BT's instructions with
respect to it, and comply with such further reasonable
requirements from time to time of BT for the security of
it; and
e) not export such Information outside the European Union
without BT's prior written consent; and
f) allow (and ensure that all relevant Contract Personnel
allow) BT or its authorised representatives such access to
premises, systems and records containing such Information
as is reasonably necessary to assess Commerce One's
compliance with this Condition.
[18. NUMBER NOT USED]
19. INTELLECTUAL PROPERTY INDEMNITY
19.1 Commerce One shall fully indemnify the Ordering Entity against all
actions, claims, proceedings, damages, costs, and expenses arising
from any infringement or alleged infringement of any patent,
copyright or trade secret arising from the use by the Ordering
Entity of the Programs, the Program Documentation or other
Information supplied by Commerce One pursuant to this Agreement.
Notwithstanding the foregoing, Commerce One shall have no
obligation to indemnify under this Section 19 if such infringement
claim results from corrections/modifications not provided by
Commerce One, failure to install updates, combinations of the
Programs software with any software not provided by Commerce One,
or specific customization of the Program software at the request
of BT (which shall be defined as the addition or inclusion of any
specific functionality requested by BT) or any Alliance members.
19.2 BT and/or the Ordering Entity shall notify Commerce One, and
Commerce One shall notify BT, promptly in writing of any
infringement or alleged infringement referred to in Section 19.1.
19.3 In the event of any such infringement or alleged infringement as
set out in Section 19.1, Commerce One shall at its own expense
and, provided Commerce One exercises reasonable judgement, its own
option:
19.3.1 Substitute a substantially equivalent non-infringing
product allowing the Ordering Entity unrestricted use
of the infringing Programs or Documentation, and to
exercise its other rights granted it under the trading
Agreement and relevant Order in respect of such
Programs or Documentation; or
19.3.2 Modify or replace the Programs or Documentation , so as
to meet the existing functional specification and avoid
the claim of infringement and any injunction or court
order; or
19.3.3 Negotiate for settlement of or defend the claim, and
hold the Ordering Entity harmless from any judgement,
order or settlement. Commerce One shall endeavour to
conduct such negotiations and litigation in a timely
manner, provided that Commerce One shall have sole
central of the defense, including settlement.
Unless otherwise agreed in writing Commerce One shall conduct all
negotiations and litigation in relation to any such infringement
or alleged infringement and be responsible for all costs and
expenses incurred. The Ordering Entity shall afford all reasonable
assistance in contesting such allegations but if Commerce One
fails to conduct such negotiations or litigation within a
reasonable time, the Ordering Entity may request to conduct of the
same and in such instance Commerce One shall fully reimburse the
Ordering Entity for all resultant costs.
20. ELECTRONIC DATA INTERCHANGE (EDI)
BT or the Ordering Entity may wish to introduce EDI during the continuance
of the Trading Agreement. Commerce One shall fully co-operate with BT or
the Ordering Entity in any such initiative the costs of introducing EDI to
be paid by the Ordering Entity
21. ORDERING ENTITY ITEMS
21.1 All Ordering Entity Items shall remain the property of the
Ordering Entity. Commerce One shall return them to the Ordering
Entity upon completion or termination of the Trading Agreement or
relevant Order, or earlier reasonable request by the Ordering
Entity. Commerce One shall keep the Ordering Entity Items, and
(before their delivery to Ordering Entity) any items or things
that are or have become the Ordering Entity's property ("Ordering
Entity property"), in safe custody and good condition, set aside
and clearly marked as Ordering Entity property. Commerce One shall
be fully liable for any loss of or damage to Ordering Entity Items
or Ordering Entity property.
21.2 Upon receipt of the Ordering Entity Items, Commerce One shall
satisfy itself that they are not defective or deficient for the
purpose for which they are being provided, and within 14 days of
receipt shall notify the Ordering Entity of any defects or
deficiencies.
21.3 Commerce One shall not, without the prior written consent of the
Ordering Entity, use Ordering Entity Items for any purpose other
than is necessary for the performance of the Trading Agreement, or
allow any other party to use, take possession of, or have any
rights or lien over Ordering Entity Items or Ordering Entity
property.
21.4 Without limiting the generality of Commerce One's obligations,
Commerce One shall not have, and shall ensure that third parties
shall not have, a lien on the Ordering Entity Items or Ordering
Entity property for any sum due. Commerce One shall take all
reasonable steps to ensure the title of the Ordering Entity and
the exclusion of such lien are brought to the notice of all
personnel dealing with any Ordering Entity Items or Ordering
Entity property.
21.5 In the event of any threatened seizure of any Ordering Entity
Items or Ordering Entity property or in the event of Commerce One
(or any personnel or Subsidiaries of Commerce One in possession of
such Ordering Entity Items or property) going into receivership,
administration or liquidation (or the equivalent of any of these)
Commerce One shall:
a) Notify BT and the Ordering Entity immediately; and,
b) Draw to the attention of the relevant official that
Ordering Entity Items and Ordering Entity property are the
property of the Ordering Entity and do not form part of
Commerce One's assets; and,
c) Allow BT and the Ordering Entity to enter Commerce One's
premises or those of any Subcontractor where Ordering
Entity Items or Ordering Entity property are stored and
take possession of them.
22. ASSIGNMENT AND SUBCONTRACTING
22.1 Commerce One shall be wholly responsible for the performance of
the Work and the actions and omissions of all Subcontractors for
which Commerce One is responsible
22.2 BT, Commerce One and any Ordering Entity shall not without the
permission in writing of the other
22.2.1 Assign or sub-contract the whole of the Trading
Agreement; or
22.2.2 Assign or sub-contract part of the Trading Agreement
except as is customary in the trade; or
22.2.3 Assign or sub-contract any Order in whole or in part
without the others permission in writing, provided,
however that, notwithstanding the foregoing, Commerce
One shall be able to assign this Trading Agreement to
an entity acquiring all, or substantially all, of its
assets or capital stock, provided that such entity is
not a competitor of BT or any of its majority owned
subsidiaries, in which case Commerce One shall be
required to receive BT's consent to such assignment. In
addition, Commerce One shall be able to use
subcontractors to complete any Work under this
Agreement or any Order.
23. MISTAKES IN INFORMATION
Both parties shall inform each other in writing of any mistakes in the
Information, within a reasonable time of receipt.
24. PROTECTION OF DOCUMENTS AND PROGRAMS
24.1 Both parties shall take suitable precautions to protect
documentation and Programs [and Foreground Information] generated
or required for the Trading Agreement or Order against loss of any
kind. Upon the release of any Programs or Documentation
update a set of the latest Programs and documentation shall be
stored by Commerce One in a safe location remote from Commerce
One's normal work premises.
24.2 Commerce One shall, if required by the Ordering Entity, enter an
agreement with a neutral third party, acceptable to the Ordering
Entity, to lodge with the third party copies of such Programs
including source code and update them as necessary for release to
the Ordering Entity in the event that Commerce One becomes
unwilling or unable to support such Programs. Each party shall be
responsible for its respective costs. Should the parties be unable
to agree a mutually acceptable third party the services of Escrow
International, UK shall be employed as a default option.
24.3 In the event of either party being required to dispose of any
Programs media during the course of any Work to be carried out
under this Agreement he shall ensure that all such disposals are
effected so as to give absolute protection to any of the other
parties Information contained therein and to prevent any data
falling into the hands of any third party.
25. TITLE AND RISK
25.1 Without prejudice to the Ordering Entity's right to reject under
the Agreement or Order, the title in the Work shall pass to the
Ordering Entity upon the earlier of delivery or Acceptance or the
passing of risk or payment (including any part payment).
25.2 Without prejudice to the Ordering Entity's right to reject under
the Agreement or Order, risk shall pass from Commerce One to the
Ordering Entity upon the later of, Acceptance, delivery or
payment.
26. INDEMNITY-GENERAL
26.1 Without prejudice to any other rights or remedies available to
either party, each party shall indemnify the other against all
claims and proceedings, damages, costs and expenses arising or
incurred in respect of:
26.1.1 Death or personal injury of any other person to the
extent arising as a result of the negligent acts or
omissions of the other or the other's personnel or
subcontractors in relation to the performance of the
Trading Agreement or any Order thereunder; or
26.1.2 Loss of or damage to any physical property to the
extent arising as a result of negligent acts or
omissions of the other or the other's personnel or
subcontractors in relation to the performance of the
Order; provided that this does not apply to any
liability arising from defects in the Programs,
Documentation, Foreground Information or Background
Information.
26.1.2 Any other direct loss or damage arising under or in
connection with this Agreement.
27. LIMITATION OF LIABILITY
27.1 Neither BT, Commerce One or any Ordering Entity, in connection
with this Agreement and any Order executed thereunder, shall be
liable to the other in respect of any misrepresentation or in
contract or in tort including, without limitation, negligence for:
27.1.1 Any indirect or consequential loss, loss arising
from third party claims, loss of revenue, loss of
profits, loss of business or goodwill, loss of,
damage to, corruption of or compromise of data, loss
of use or any other economic loss; and
27.1.2 Damages in excess of 1.5 times the aggregate sums
paid and payable under this Agreement or the Orders
accepted pursuant to this Trading Agreement.
27.2 The limitations under Section 27.1 shall not apply in respect of:
27.2.1 Death or personal injury, fraud or fraudulent
misrepresentation; or
27.2.2 The Intellectual Property Right Indemnities in
Section 19, provided, however, that in no event
shall Commerce One be liable in excess of the limits
detailed in Section 27.1.2 for patent claims in
countries who have not agreed to abide by the
General Agreement and Tariffs and Trade (GATT).
27.2.3 Any liability of BT or Ordering Entity to pay any Order
Price, charges and any other sums due to Commerce One
under this Agreement.
28. INSURANCE
28.1 Commerce One shall provide satisfactory evidence of such
insurances, at the customary coverage levels and conditions
germane to the types of products and services being purchased, as
BT or Ordering Entity may request before and during the
term of the Trading Agreement, to include where appropriate, but
not necessarily limited to:
28.1.2 Employer's Liability Insurance;
28.1.3 Third party liability insurance;
28.1.4 Comprehensive general (third party) liability
insurance;
28.1.5 Professional liability insurance;
This Condition shall not be deemed to limit in any way Commerce One's
liability under the Trading Agreement.
If Commerce One cannot provide evidence of insurances to BT or Ordering
Entity, BT or Ordering Entity may arrange such insurances and recover the
cost from Commerce One, subject to Commerce One's approval of the terms of
such insurances.
29. RECOVERY OF SUMS DUE
Whenever a sum of money due to the Ordering Entity from Commerce One in
relation to any Order or otherwise is not paid on the due date, it may be
deducted from any sum then due, or which at any time thereafter may become
due to Commerce One under the Order or any other contract with the
Ordering Entity.
30. PAYMENT
30.1 In consideration of the licenses, products and services supplied
by Commerce One pursuant to this Agreement, the Ordering Entity
will pay to Commerce One the fees detailed in Schedule 2 or as
agreed in any Order for Foreground Information.
All fees are stated exclusive of value added tax but which shall
be payable in addition by the Ordering Entity.
30.2 All sums under this Agreement shall be payable by the Ordering
Entity within 30 (thirty) working days of submission of a valid
invoice (such invoice to be issued according to the terms of the
relevant Order), whether such sums become due on the date of the
relevant invoice from Commerce One or on the grant of any
applicable license or sub-license.
31. RECORDS INSPECTION
The Ordering Entity shall maintain records of, and provide Commerce One
within [30] days of the end of each month a list of all End Users to
whom a sub-license (does this include resell) of the Programs or
Program Documentation is granted by the Ordering Entity.
32. SITES
32.1 Commerce One shall at his own expense comply with all Site
regulations applicable to the performance of the Order and take
and comply with such other measures as may be reasonably necessary
in respect of precautions for safeguarding all persons and
property as may be affected by the performance of the Order.
32.2 Where the Work is to be carried out on Site, the Ordering Entity
shall provide such reasonable facilities as Commerce One may
require to undertake the Work.
32.3 The Ordering Entity and Commerce One shall agree such reasonable
working hours as may be applicable to each Site.
32.4 Commerce One shall agree and advise the Ordering Entity in writing
of the dates and times on which it proposes to deliver any work to
the Site, together with any specific requirements related to the
work for each Site.
32.5 Commerce One's personnel and SubContractor's personnel shall
conform to all security, safety and Site regulations and such
other local instructions, as may be notified by the Ordering
Entity or where applicable, its End User, whilst on any Site.
32.6 Commerce One shall be deemed to have examined the Sites. No claims
from Commerce One for additional payment will be allowed on the
grounds of misinterpretation of any matter relating to the Site,
on which Commerce One could reasonably have satisfied itself, by a
visit to the premises, reference to the Ordering Entity or such
other means as may be appropriate.
32.7 Commerce One shall give at least 10 working days notice in writing
to the Ordering Entity of the proposed dates and times on which it
proposes to deliver any Supplies or Commerce Ones Supplies to the
Site.
32.8 Commerce One shall upon dispatch of the Supplies or Commerce Ones
Supplies to Site notify the Ordering Entity of details of the
Supplies or Commerce Ones Supplies by means of a copy of the
dispatch note or otherwise in writing.
32.9 Commerce One shall deliver the Supplies to the Site and shall
provide all equipment and labour for the conveyance and unloading
of the Supplies on to the Site.
32.10 No part of the Supplies or Commerce Ones Supplies shall be removed
from the Site without the consent of the Ordering Entity.
32.11 Other than any defective Work and Supplies Commerce One shall not
remove Commerce One's Supplies before submitting Work for
Acceptance, and, shall leave the Site clean and in good condition.
33. EXPORT AND RE-EXPORT
33.1 Commerce One will be responsible for compliance with all
applicable national export control laws and regulations and agrees
not to export, directly or indirectly, any Programs or
Documentation where such export would cause a breach of either any
such laws or regulations applicable to Commerce One or the
Ordering Entity or of any export licence granted or applicable to
Commerce One or the Ordering Entity.
Trading Agreement 658130 Schedule 1 - Terms and Conditions
SCHEDULE 1
NOT USED.
Trading Agreement 658130 Schedule 1 - Terms and Conditions
SCHEDULE 2
NOT USED.
Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX A
COMMERCE ONE, INC.
AND
BT
APPENDIX A
MAINTENANCE AND SUPPORT AGREEMENT
1. DEFINITIONS.
This Agreement is entered into by and between C1 and BT in connection with that
certain Software License Agreement executed by the parties of even date herewith
(the "License Agreement"). Any capitalized term use herein and not otherwise
defined herein shall have the meaning ascribed to such term in the Trading
Agreement.
(a) "DESIGNATED INTERFACE" shall mean a mutually agreed to reasonable
number of contact persons designated by BT who have been adequately
trained in the C1 Software that will coordinate all Support requests to
C1.
(b) "ERROR" shall mean a reproducible or demonstrable defect in the
Software when operated on a Supported Environment which causes the
Software not to operate substantially in accordance with the
Documentation.
(c) "RESOLUTION" shall mean a modification or workaround to the Software
provided by C1 to BT that resolves an Error, or an agreed upon action
plan provided by C1 for resolving an Error to the extent C1 is
performing in accordance with such action plan.
(d) "SUPPORT" shall mean the services provided by C1 pursuant to the terms
of this Agreement.
(e) "SUPPORT HOURS" are as set forth in Section 2 of Exhibit A attached
hereto.
(f) "SUPPORTED ENVIRONMENT" shall mean any hardware and operating system
platform which C1 supports for use with the Software.
(g) "SOFTWARE" shall mean the current version and at least one (1) previous
version of the Software (as defined in the License Agreement) in use by
BT or a Permitted User.
(h) "TERM" shall mean the period specified in Section 2(a) of this
Agreement as it may be amended or extended from time to time.
(i) "UPDATE" means a subsequent release of the Software which C1 generally
makes available for Software licensees covered under support agreements
at no additional license fee.
2. TERM AND TERMINATION.
(a) TERM. The term of this Agreement shall be three (3) years from the
Effective Date or as may be agreed in any Order or Special
Commissioning Order.
Use standard trading agreement terms
3. SERVICES PROVIDED.
Trading Agreement 658130 Schedule 1 - Terms and Conditions
(a) TELEPHONE SUPPORT. C1 will provide telephone support to a Designated
Interface during the Support Hours. Telephone support will include the
following:
(i) CLARIFICATION OF FUNCTIONS AND FEATURES OF THE SOFTWARE;
(ii) CLARIFICATION OF THE DOCUMENTATION;
(iii) GUIDANCE IN OPERATION OF THE SOFTWARE;
(iv) ASSISTANCE IN IDENTIFYING AND VERIFYING THE CAUSES OF SUSPECTED ERRORS
IN THE SOFTWARE; AND
(v) ADVICE ON BYPASSING IDENTIFIED ERRORS IN THE SOFTWARE, IF REASONABLY
POSSIBLE.
(b) RESOLUTION OF ERRORS. C1 will provide an initial response acknowledging
Errors reported by BT in accordance with the severity levels and
response times identified in EXHIBIT A ("Error Correction Severity
Levels and Response Times") hereto. The parties hereto shall agree on
the severity level assigned to a particular Error. Prior to the
"Resolution Time" identified for a applicable severity level in Exhibit
A, C1 shall provide a reasonable Resolution to the Error or shall
provide a written plan for such resolution specifying a firm resolution
date which is reasonably acceptable to BT. C1 will acknowledge each BT
report of an Error by written acknowledgement. Notwithstanding any
other provision of this Agreement, C1's obligation under this Agreement
is to provide a Resolution to any Error in the Software
(c) TRAVEL EXPENSES. Maintenance and support services provided hereunder
shall be provided at C1's principal place of business, or on site at
C1's expense, as determined in C1's reasonable discretion. Should BT
request that C1 send personnel to a Permitted User's site to resolve
any Error in the Software when on site presence of C1 is not reasonably
required to resolve the Error in an acceptable time period, BT shall
pay C1's reasonable travel, meals and lodging expenses in accordance
with the then-current C1 travel policy. Any such travel shall be
subject to the reasonable availability of C1 personnel.
(d) EXCEPTIONS. C1 shall have no responsibility under this Agreement to fix
any Errors to the extent such Errors are caused by or result from the
following: (a) any modification of the Software (in whole or in part)
by any party other than C1 or its contractors, or interaction of the
Software with any BT Enhancement (as defined in the License Agreement),
for which C1 has not received the source code and a license to
incorporate such source code into the baseline Software pursuant to
Section 5 of the Trading Agreement; (b) use of the Software in an
environment other than a Supported Environment; (c) accident; unusual
physical, electrical or electromagnetic stress; neglect; misuse;
failure or fluctuation of electric power, air conditioning or humidity
control; failure of media not furnished by C1; excessive heating; fire
and smoke damage; operation of the Software with other media and
hardware, or software or telecommunication interfaces not meeting or
not operating in accordance with the manufacturer's specifications, or
(d) any third party software not embedded in the Source Code of the
Software. Any corrections performed by C1 for such Errors shall be
made, upon the prior written agreement of the parties, at agreed upon
time and material charges.
(e) ADDITIONAL C1 OBLIGATIONS RELATED TO SERVICES. C1 shall comply with the
following requirements as to any services to be performed hereunder:
Trading Agreement 658130 Schedule 1 - Terms and Conditions
(1) Insurance. COVERED IN MAIN BODY OF AGREEMENT
(2) Independent Contractor Status. THROUGHOUT THE TERM OF THIS AGREEMENT C1 IS
PROVIDING SERVICES TO BT AS AN INDEPENDENT CONTRACTOR. C1 SHALL FILE ALL
FORMS AND MAKE ALL PAYMENTS NECESSARY OR APPROPRIATE TO PRESERVE OR
SUPPORT SUCH INDEPENDENT CONTRACTOR TAX STATUS.
(3) C1 Personnel. C1 IS RESPONSIBLE FOR ALL EMPLOYEE-RELATED BENEFITS
APPLICABLE TO C1'S PERSONNEL AND CONTRACTORS PERFORMING SERVICES UNDER
THIS AGREEMENT. BT, ITS AFFILIATES OR ANY OTHER PERMITTED USER SHALL NOT
BE OBLIGATED TO PROVIDE C1 PERSONNEL WITH EMPLOYEE BENEFITS OF ANY TYPE
UNLESS OTHERWISE REQUIRED BY LAW. C1 IS RESPONSIBLE FOR WITHHOLDING FROM
C1'S PERSONNEL'S WAGES, APPLICABLE PORTIONS OF FEDERAL, STATE AND LOCAL
TAXES AND ASSESSMENTS AS REQUIRED BY LAW.
(f) PROCEDURES. Within thirty (30) days of the Effective Date of this
Agreement, the parties shall agree upon written procedures for the
logistical provision of Support under this Agreement.
4. UPDATES.
(a) C1 will provide Updates for the Software as and when developed for
general release in C1's sole discretion. C1 shall support the most
current Update and the two (2) immediately preceding release. Each
Update will consist of a set of programs and files made available on
machine-readable media and will be accompanied by Documentation
adequate to inform BT of the problems resolved and any significant
operational differences resulting therefrom. Any Update provided
hereunder shall, upon delivery to BT, be deemed by the parties to
become part of the Software for purposes of this Agreement.
5. BT RESPONSIBILITIES.
(a) SUPERVISION AND MANAGEMENT. BT is responsible for undertaking the
proper supervision, control and management of its use of the Software,
including, but not limited to assuring proper Supported Environment
configuration, Software installation and operating methods.
(b) TRAINING. BT is responsible for proper training of all appropriate
personnel in the operation and use of the Software and associated
equipment.
(c) DESIGNATED INTERFACE. BT shall from time to time designate to C1 in
writing an individual or group to serve as the Designated Interface
with C1 for the Support.
(d) ACCESS TO PERSONNEL AND EQUIPMENT. BT shall provide C1 with reasonable
access to BT's personnel and its equipment during Support Hours. This
access must include the ability to dial-in to the equipment on which
the Software are operating and to obtain sufficient access to the
equipment to perform C1's obligations. C1 will inform BT of the
specifications of the reasonable modem equipment and associated
software needed, and BT will be responsible for the costs and use of
said equipment.
6. SUPPORT FEES.
Trading Agreement 658130 Schedule 1 - Terms and Conditions
(a) SUPPORT FEES. Support is provided during the term hereof at an annual
rate of 18% of net software license fees paid to C1. These fees shall
be adjusted according to revenues associated with MarketSite Support
and Maintenance provided by BT as the UK MarketSite Operator as
negotiated by the parties. Support is provided to BT or Permitted Users
that obtain such support through BT; provided Permitted Users shall
only use the Support provided hereunder in connection with the licenses
granted pursuant to the License Agreement.
(b) EXPENSES. Any expenses or other charges payable by BT in accordance
with Sections 3(c) and 3(d) hereof shall be invoiced no more
frequently than monthly. Undisputed charges shall be paid by BT
within thirty (30) days of BT' receipt of an invoice. C1 shall
accommodate BT' reasonable requests regarding the content of, and
process for submitting, invoices to facilitate prompt payment.
Trading Agreement 658130 Schedule 1 - Terms and Conditions
EXHIBIT A
C1 MAINTENANCE AND SUPPORT POLICIES
1. DESCRIPTION
Maintenance programs commence at the expiration of the warranty period. BT shall
receive a combination of 12 x 5 operation support with 24 x 7 for mission
critical response ("down condition").
2. HOURS OF OPERATIONS
Monday to Friday 7AM to 7PM PST for operational
support 24 x 7 on call pager support for "customer
down" situations 24 x 7 scheduled customer content
update assistance
3. CONTACTING SUPPORT
Home Page: ▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
800 Hotline Support Number ▇▇▇ ▇▇▇-▇▇▇▇
Fax Number (925) 941- 6060
Email ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
4. SUPPORT DESCRIPTIONS
Unlimited phone support during operational hours in the following areas: product
functionality, documentation questions, tips/suggestions/workarounds, bug
reporting, and upgrade/update releases; 24 x 7 (scheduled) support and
assistance in updating catalog and or suppliers; 24 x 7 emergency support (via
paging service). C1 will support BT on a 2nd line or backline basis unless
mutually agreed.
Unlimited 24 x 7 web access for submitting problem reports or checking status of
previous reported issues.
Unlimited 24 x 7 web access for FAQ and self-help Knowledge Base systems.
5. RESPONSE AND RESOLUTION TIMES
5.1 Commerce One shall correct all faults in the Software notified by
BT and shall provide BT with all such documentation as may be
necessary to reflect changes to the Software.
5.2 Upon receipt of BT's request for support and/or rectification of a
fault Commerce One shall promptly commence work on such request so
as to achieve the timescales for
Trading Agreement 658130 Schedule 1 - Terms and Conditions
support and rectification of faults detailed in paragraph 3.3.
5.3 (a) PRIORITY CODE A: Software down and cannot be brought up
or Software failing once or more a day causing serious
disruption for BT-Commerce One shall commence work on the
problem and/or rectification of the fault immediately upon
receipt of notification by BT and shall continue the work
until the problem is resolved and/or the fault is
rectified. Commerce One shall use its best endeavours to
resolve a Priority Code A problem and or by-pass or rectify
a priority Code A fault within two (2) hours of receipt of
report from BT of the said problem or fault.
(b) PRIORITY CODE B: Software failing regularly or problems
occurring whenever a specific facility or function is
invoked or if Development is halted - Commerce One shall
use all reasonable endeavours to resolve a Priority Code B
problem and/or rectify a Priority Code B fault within four
(4) hours of receipt of report from BT of the said problem
or fault. In the event that Commerce One shall fail to meet
the four (4) hour timescale for resolution of problem or
rectification of fault BT may at its discretion escalate
the said problem or fault from Priority Code B to Priority
Code A.
(c) PRIORITY CODE C: Problems/failures occur occasionally but
can be circumvented without undue difficulty or disruption
to BT's operation - Commerce One shall use all reasonable
endeavours to resolve a Priority Code C problem and/or
rectify a Priority Code C fault within 5 days of receipt of
report from BT of the said problem or fault.
2.4 Commerce One shall carry out such modifications, amendments and
enhancements to the Software as BT may request from time to time.
------------------------------ ------------------------------------------------------------------------
LEVEL OF SEVERITY
------------------------------ ------------------------- ---------------------- -----------------------
ESCALATION LEVEL CATEGORY A CATEGORY B CATEGORY C
------------------------------ ------------------------- ---------------------- -----------------------
Commerce One Help-Desk Formal notification of Formal notification Formal notification
problem or fault of problem or fault of problem or fault
------------------------------ ------------------------- ---------------------- -----------------------
Commerce One Help-Desk Within 2 hours of BT Within 4 hours of BT Within 5 working days
Supervisor reporting the problem reporting the of BT reporting the
or fault unless a fix problem or fault problem or fault
is scheduled unless a fix is unless a fix is
scheduled scheduled
------------------------------ ------------------------- ---------------------- -----------------------
Trading Agreement 658130 Schedule 1 - Terms and Conditions
------------------------------ ------------------------------------------------------------------------
LEVEL OF SEVERITY
------------------------------ ------------------------- ---------------------- -----------------------
ESCALATION LEVEL CATEGORY A CATEGORY B CATEGORY C
------------------------------ ------------------------- ---------------------- -----------------------
Commerce One Project Manager Within 4 hours of BT Within 1 working Within 14 working
reporting the problem days of BT reporting days of BT reporting
or fault unless a fix the problem or fault the problem or fault
is scheduled unless a fix is unless a fix is
scheduled scheduled
------------------------------ ------------------------- ---------------------- -----------------------
Commerce One Director Within 12 hours of BT Within 3 working -
reporting the problem days of BT reporting
or fault unless a fix the problem or fault
is scheduled unless a fix is
scheduled
------------------------------ ------------------------- ---------------------- -----------------------
Escrow Trigger 24 hours 5 working days
------------------------------ ------------------------- ---------------------- -----------------------
All deadlines in the table relate to the date and time of the
original fault report call. Commerce One will respond to BT
problems or faults within the timescales stated in Section 4.3
unless the above escalation procedure is invoked. It will be
the responsibility of Commerce One to notify BT that the
escalation has occurred, and to specify the level of
escalation.
Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX B
OFFICIAL ORDER COVER SHEET
This Order (which comprises this Official Order Cover Sheet and attendant
documents referenced below) is subject to the terms and conditions of the BT /
Commerce One Trading Agreement 658130 dated December 8th, 1998. Should the terms
and conditions of this Order conflict with or vary from those of the Trading
Agreement then the Trading Agreement shall take precedence; however variations
that are clearly and explicitly set out in the Variation to Trading Agreement
section of this Order shall take precedence over those terms set forth in the
Trading Agreement.
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ORDERING ENTITY:
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POINT OF CONTACT:
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ADDRESS:
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POSTCODE:
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STATE WHETHER ORDER IS A COMMERCIAL SERVICE LICENCE (REFERRED TO IN SECTION YES / NO
5.2.2 OF THE TRADING AGREEMENT
---------------------------------------------------------------------------------- --------------------------
STATE WHETHER ORDER IS A SPECIAL COMMISSIONING ORDER (REFERRED TO IN SECTION YES / NO
5.8 OF THE TRADING AGREEMENT)
---------------------------------------------------------------------------------- --------------------------
------------------------------------------- -----------------------------------------------------------------
ORDER NO:
------------------------------------------- -----------------------------------------------------------------
QUOTATION NO:
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PRICE AND CURRENCY:
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DELIVERY ADDRESS:
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POST CODE:
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INVOICE ADDRESS IF FROM ABOVE:
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POST CODE:
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WORK REQUIRED AND TIMESCALES (INCLUDING
REFERENCES TO ANY APPENDED DOCUMENTS)*
------------------------------------------- -----------------------------------------------------------------
*WHERE THE QUOTATION AND OR SPECIFICATION ARE NOT ATTACHED TO THIS DOCUMENT THEN
THE WORK REQUIRED AND TIMESCALES SHOULD BE IDENTIFIED.
------------------------------------------------------- -----------------------------------------------------
VARIATION TO TRADING AGREEMENT
------------------------------------------------------- -----------------------------------------------------
Authorised Signatures
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ORDERING ENTITY COMMERCE ONE
------------------------------------------------------- -----------------------------------------------------
NAME: NAME:
------------------------------------------------------- -----------------------------------------------------
SIGNATURE: SIGNATURE:
------------------------------------------------------- -----------------------------------------------------
DATE: DATE:
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Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX C
CONFIDENTIALITY AGREEMENT
IMPORTANT NOTE: This form must be completed by all non-BT people who
are to undertake work for BT before they have access to BT information
or BT computer systems.
You may, as a supplier or as an employee or subcontractor of a supplier
to British Telecommunications plc (BT), have access to BT information
or BT computer systems.
BT requires you:
- to keep all BT information (whether or not it is marked "NOT TO BE SHOWN
OUTSIDE BT", "IN CONFIDENCE", or "IN STRICTEST CONFIDENCE") confidential
and not to disclose it, unless you first have BT's written permission.
- if you have access to BT customer or personal information, to comply
with the provisions of the Data Protection Acts 1984 and 1998 and only
to process, transfer or remove such information in accordance with
BT's instructions.
- to access BT computer systems and BT electronic information only to the
extent you have been authorised to do so. Unauthorised access may result in
your being prosecuted under the Computer ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
- to access and use BT computer systems and BT information only as is
necessary to do your job properly.
- to comply with other BT instructions and security policies that may be
notified from time to time.
If you are in any doubt as to these requirements or the policies of BT Group
Security, further advice and information can be obtained from your BT contact.
One copy of this form must be signed and delivered to your BT contact before you
start work, and the other retained by you.
PERSONAL DECLARATION
I have read and understand the above requirements and agree to be bound by them.
Signed ............................................. Date: ..............
Print full name and home address:
....................................................
Name
....................................................
Address
Trading Agreement 658130 Schedule 1 - Terms and Conditions
..........................................................
..........................................................
Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX D
BT CODE OF PRACTICE ON THE DISCLOSURE OF CUSTOMER INFORMATION.
BT Code of Practice on the Disclosure of Customer Information by BT
Supplemental Services Business.
INTRODUCTION
1. British Telecommunications plc (BT) operates under a licence granted by
the Secretary of State for Trade and Industry under Section 7 of the
Telecommunications ▇▇▇ ▇▇▇▇ (the Licence).
2. Conditions 38 and 38A of the Licence oblige BT to produce Codes of
Practice for use by those of its employees engaged in the Systems Business and
those of its employees engaged in the Supplemental Services Business
respectively. This Code is in relation to the Supplemental Services Business and
is intended to protect information about a customer acquired in the course of
the Supplemental Services Business so as to prevent the use of such information
to obtain an unfair advantage. For example, information that a customer has
contracted for value added services or data services should not be passed
without the customer's consent outside of the Supplemental Services Business to
help create a further selling opportunity for apparatus or systems. A separate
Code of Practice has been issued in respect of the Systems Business.
3. The Code, which has been agreed by the Director General of
Telecommunications, is without prejudice to any other legal obligations of BT
towards its customers.
4. BT has an obligation under Condition 38A to take all reasonable steps to
ensure that the terms of the Code are followed by employees in the Supplemental
Services Business. All other BT employees must co-operate with those in the
Supplemental Services Business to ensure that the Code is respected.
Instructions for BT employees in the Supplemental Services Business follow
below.
5. In accordance with Condition 38A, this Code deals with the disclosure of
information and does not deal with the possibility of unfair advantage arising
from the use of information by a person who works for the Supplemental Services
Business and obtains information in that capacity and at the same time works for
other Businesses such as Systems or Apparatus Supply. However, BT has
established guidelines for its employees about fair trading practices and under
those guidelines employees who receive information in their capacity for the
Supplemental Services Business and, for example , as part of the same
transaction make a sale of apparatus are required to inform customers that they
can obtain apparatus from competitors if they wish to do so.
6. Disclosure of certain information about the use made of public
telecommunication systems otherwise than in the course of duty may also be a
criminal offence under Section 45 of the Telecommunications Act 1984 (as
replaced by Schedule 2 to the Interception of Communications Act 1985).
Trading Agreement 658130 Schedule 1 - Terms and Conditions
THE CODE
WHAT IS SUPPLEMENTAL SERVICES BUSINESS
7. 'Supplemental Services Business' is defined within Condition 18 of the
Licence. Broadly, it is:
- the provision of any service which could have been provided on 1 April
1987 under and in accordance with the Class Licence for the running of
telecommunication systems providing value added and data services
granted by the Secretary of State on 1 April 1987, (effectively any
service provided by BT which could be provided by a competitor under
the Class Licence for value added and data services), together with
- activities such as installation, maintenance, adjustment, repair,
alteration, moving, removal or replacement of any apparatus comprised
in any of BT's systems used, wholly or partly, for providing those
services.
8. This Code of Practice applies to all customer information which is
acquired by BT in the provision of telecommunication services for a
consideration in the course of its Supplemental Services Business. This
may include details of the customer's telecommunication and computing
systems provided to enable compatible connections with BT's systems, or
details of services with which the customer is being provided.
9. Where BT acquires any customer information to which this Code applies it
must be assumed that the information has been supplied or gained in
confidence. This information must not be disclosed outside the
Supplemental Services Business without the customer's recorded prior
consent. A customer shall only be held to have given such consent where
that consent was given by way of a specific response to a request by BT.
Information may be passed to persons within that part of BT also dealing
with the provision of telecommunication services without the customer's
prior recorded consent, for the internal purposes of BT, where those
persons have a valid operational requirement for the information. In such
cases its status as confidential information must be made clear to the
recipient and such recipients must be made aware of their responsibilities
under this Code.
10. Those responsible for collecting and storing confidential customer
information must ensure that it is kept confidential, and that it is not
disclosed to any BT employee except as permitted by paragraph 9 above
subject to the exceptions below.
EXCEPTIONS
11. There are five exceptions to the normal procedure described above.
a) In the investigation of any criminal offence or as specifically
permitted by law. BT discloses information without customer consent
where necessary in the
Trading Agreement 658130 Schedule 1 - Terms and Conditions
prevention or detection of a criminal offence, in the interests of
national security or as specifically permitted by law, e.g. for the
purpose of any criminal proceedings;
b) Accounts; details of a customer's individual account may be
disclosed by any BT employee without that customer's consent when
the disclosure falls within the exceptions listed in (a) above or
is in the course of his duty in the Supplemental Services Business.
For example to the extent necessary to avoid bad debts or as
required by auditors.
c) Information already in the public domain or which has been supplied
to BT in order to be published may be disclosed without customer
consent.
d) Statistical information derived from customers' records may be
passed outside the Supplemental Services Business only if the
customer concerned cannot be identified from the information.
e) Information for the purpose of complying with BT's obligations
under the Licence may be disclosed without specific customer
consent.
COMPLYING WITH THE CODE
12. BT will take all reasonable steps to ensure that those engaged in the
Supplemental Services Business, or involved in handling customer accounts,
read this Code and understand it. If in any doubt about how to apply the
Code, employees should consult their manager for advice.
13. Observance of this Code is mandatory and Senior Management attach the
greatest importance to compliance with it at all times.