6 Data Management

Signature

Signature

Name

Name

Position

Position

Date

Date

Whose registered office is at:

Section 1

Definitions

Section 2

Scope

Section 3

Security of Data

Section 4

Authenticity of Messages

Section 5

Integrity of Messages

Section 6

Acknowledgement of Receipt of Messages

Section 7

Storage of Data

Section 8

Intermediaries

Section 9

Term and Termination

Section 10

Interpretation of the User Manual

Section 11

Force Majeure

Section 12

Invalidity and Severability

Section 13

Notices

Section 14

Amendments in Writing

Section 15

Precedence

Section 16

Non-Assignment

Section 17

Limitation of Liability

Section 18

Electronic Signature

Section 19

Virus Control

Section 20

User Manual

Section 21

Entire EDI Agreement

Section 22

Disputes and Law

Reference:

EDI User Manual Issue No:-...........................................

DEFCON

as amended by ......................................

Electronic Data Interchange

1

Definitions

1.1

In this Agreement

a

‘Acknowledgement of Receipt’ is

the procedure by which, on receipt of a

Message, the syntax and semantics are

checked, and a corresponding

acknowledgement is sent by the receiver.

b

‘Adopted Protocol’

means the method for the Interchange of

Messages set out in the UN EDIFACT

standard issue number ............. for the

presentation and structuring of the

transmission of Messages.

c

‘Associated Data’

means that data which accompanies a

Message but may not be in the Adopted

Protocol; such data may include header

information, protective markings,

designations, Digital Signatures, date and

time of transmission and of receipt.

d

‘Authority’

means the Secretary of State for Defence.

e

‘Contract’

means the underlying contract between the

Authority and the Supplier for the supply

of goods and/or services

f

‘Data’

means all Messages and Associated Data

transmitted, received or stored in a digital

form.

g

‘Data File’

means a single record or collection of data

records that are logically related to each

other, and are handled as a unit

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h

‘Data Log’

means the complete record of all Data

Interchanged representing the Messages

between the Parties.

i

‘Electronic Signature’

means an agreed string of characters

appended to a Data File such that the

recipient of the ‘Data File’ can

authenticate the Data File, and/or can

prove that it could only have originated

from the purported sender.

j

‘Expunge’

means the consequence of removing a

document from a system and leaving no

evidence of the document ever having

appeared on that system.

k

‘Functional Acknowledgement’

means an acknowledgement message by

the receiving Party’s computer software

application which automatically confirms

the receipt of a Message at the moment of

receipt

l

‘Interchange’

means the electronic exchange of Data

between the Parties using the Adopted

Protocol.

m

‘Message’

means Data structured in accordance with

the Adopted protocol and transmitted

electronically between the Parties

including where the context admits any

part of such Data.

n

‘Parties’

means the parties to this Agreement

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2

Scope

2.1

This Agreement shall apply to all Messages between the

Parties using the Adopted Protocol and the Parties agree

that all such Messages shall be transmitted in accordance

with the provisions of the User Manual.

2.2

Notwithstanding the existence of the User Manual, the

Parties may agree terms to reflect additional or different

requirements which they may have for the Interchange of

Messages, which terms shall be included in an Appendix,

which shall form part of this Agreement.

3

Security of Data

3.1

Each of the Parties shall:

3.1.1

Ensure as far as reasonably practicable, that Data is

properly stored, is not accessible to unauthorized persons,

is not altered, lost or destroyed and is capable of being

retrieved only by properly authorized persons.

3.1.2

In addition to any security and proprietary information

disclosure provision contained in the Contract, the Parties

shall ensure that Messages and Associated Data are

maintained in confidence, are not disclosed or transmitted

to any unauthorized person and are not used for any

purpose other than that intended by the sending Party or

permitted by the Contract.

3.1.3

When further transmissions of Messages and Associated

Data are permitted by the Contract or expressly authorized

by the sending Party, such further transmissions shall be

protected to the same degree as the originally transmitted

Message and Associated Data.

3.1.4

If so required by the Contract or User Manual the sending

Party shall ensure that Messages are marked in accordance

with the requirements of the Contract/User Manual. If a

further transmission is made pursuant to 3.1.3, the sender

shall ensure that such markings are repeated in the further

transmission.

3.2

Where permitted by law, the Parties may apply special

protection to Messages by encryption or by other agreed

means (including those set out in the User Manual) and

may apply designations to the Messages for protective

Interchange, handling and storage procedures. Unless the

Parties otherwise agree, the Party receiving a Message so

protected or designated shall use at least the same level of

protection and protective procedures for any further

transmission of the Message and its Associated Data for all

responses to the Message and for all other communications

by Interchange or otherwise to any other person relating to

the Message.

3.3

If either Party becomes aware of a security breach or

breach of confidence in relation to any Message or in

relation to its procedures or systems (including, without

limitation, unauthorized access to their systems for

generation, authentication, authorization, processing,

transmission, storage, protection and file management of

Messages) then it shall immediately inform the other Party

of such breach. On being informed on becoming aware of

a breach the Party concerned shall:

3.3.1.1

immediately investigate the cause, effect and extent of such

breach;

3.3.1.2

report the results of the investigation to the other Party;

3.3.1.3

use all reasonable endeavours to rectify the cause of such

breach;

3.4

Each Party shall ensure that the contents of Messages that

are sent or received is not inconsistent with the law, the

application of which could restrict the content of a

Message or limit its use, and shall take all necessary

measures to inform without delay the other Party if such an

inconsistency arises.

4.

Authenticity of Messages

4.1

Each Message shall identify the sending Party and

receiving Party/ies and its authenticity shall be verified by

the means specified in the Adopted Protocol.

4.2

The Parties agree not to contest the authenticity,

admissibility or enforceability of Messages under the

provisions of any applicable law relating to whether certain

agreements be in writing and signed by the Party to be

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ANNEX A (CONTINUED)

bound thereby. Messages, when printed from electronic

files(as defined within the User Manual) and records

established and maintained in the normal course of

business will be admissible as between the Parties to the

same extent and under the same conditions as other

business records originated and maintained in documentary

form.

4.3

The contract shall identify those parties authorized to act as

signatories/recipients of Data.

5

Integrity of Messages

5.1

The sending Party shall ensure as far as is reasonably

practicable that all Messages are complete, accurate and

secure against being altered in the course of transmission

and, subject to clauses 5.2, and 5.4 and 17.2 shall be liable

for the direct consequences of any failure to perform his

obligations under this clause 5.1

5.2

Each Party accepts the integrity of all Messages and agrees

to accord these the same status as would be applicable to a

document or to information sent other than by electronic

means, unless such Messages can be shown to have been

corrupted as a result of technical failure on the Party of a

machine, system or transmission line involved in the

process of Interchange.

5.3

Where there is evidence that a Message has been corrupted

or if any Message is identified as incorrect it shall be re-

transmitted by the sending Party as soon as practicable with

a clear indication that it is a corrected Message. Any

liability of the sending Party which would otherwise accrue

from its failure to comply with the provisions of this clause

5.3 shall not accrue if clause 5.4 applies.

5.4

Notwithstanding clauses 5.1 and 5.3, the sending Party

shall not be liable for the consequences of an incomplete or

incorrect transmission or any failure to re-transmit if the

error is or should in all the circumstances be reasonably

obvious to the receiving Party. In such event the receiving

Party shall immediately notify the sending Party thereof.

5.5

If the receiving Party has reason to believe that a Message

is not intended for him he shall notify the sending Party

and shall Expunge from his system the information

contained in such Message but not the record of its receipt.

5.6

The Parties acknowledge each may be unable to transmit

Messages from time to time. At such times,

communication shall be by other appropriate alternative

methods of communication, including, telecopy,

telefacsimile, telephone or paper. The legal presumptions

applicable to such alternative forms of communication

shall not be affected by this agreement.

6

Acknowledgement of Receipt of Messages

6.1

Immediately upon receipt of a Message at its receipt

computer, the receiving Party’s receipt computer shall

automatically transmit a Functional Acknowledgement in

return and additionally the sender may request an

Acknowledgement of Receipt.

6.2

An acknowledgement of Receipt is not required unless

requested, or stipulated in the Contract or User Manual.

6.3

Where an Acknowledgement of Receipt is required, the

receiver of the Message to be acknowledged shall ensure

that the acknowledgement or a rejection is sent within the

time limit specified in the Contract/User Manual or if no

limit is specified within a reasonable period of time.

6.4

Acknowledgement in accordance with this clause 6 shall

not be deemed to constitute acceptance of any offer

contained in any Message. If such an offer is to be

accepted, acceptance must be by way of a separate Message

specifically for that purpose and in the form set out in the

User Manual.

6.5

Acceptance of an offer contained in any Message which is

intended to create a legally binding obligation shall be

effected in accordance with the provisions of the User

Manual

7

Storage of Data

7.1

The Data Log including any Message as sent and received

and comprised in each Party’s Data Log shall be

maintained without any modification.

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7.2

Subject to any requirements contained in the Contract or

the User Manual each Party shall maintain and store its

Data Log for a minimum period of 7 years or such other

period as agreed, from the end of the calendar year of the

date of the last Message.

7.3

The Data Log may be maintained as a Data File on

computer or by other suitable means provided that a copy

of the data can be readily retrieved and presented in human

readable form.

7.4

Each Party shall be responsible for making such

arrangements as may be necessary for the Data contained in

the Data Log to be prepared as a correct record of the

Messages and Associated Data as sent and received by that

Party.

7.5

Each Party shall ensure that:

a

it has appointed an identifiable person(s)

responsible for the operation and management of

that Party’s data processing system concerned with

the Interchange of Messages; and

b.

the person(s) responsible for the data processing

system concerned with the Interchange of

Messages, or such other person(s) as may be agreed

by the Parties or required by law, shall certify that

the Data Log and any reproduction made from it is

correct and complete.

7.6

Procedures to enable a secure means of archiving data shall

be detailed in the User Manual.

8

Intermediaries

8.1

If either Party uses the services of an intermediary to

transmit, log or process Messages, that Party shall be

responsible for any acts, failures or omissions by that

intermediary in its provision of the said services as though

for the acts, failures or omissions of that intermediary as to

such Messages.

8.2

Any Party using an intermediary shall ensure that it is a

contractual responsibility of the intermediary that no

change in the substantive data content of the Messages to

be retransmitted is made and that such Messages are not

disclosed to any unauthorized person.

9

Term and Termination

9.1

This Agreement shall take effect as of the date of last

signature.

9.2

Notwithstanding termination for any reason, Clauses 3,7,8

and 22 shall survive termination of this Agreement.

9.3

Termination of this Agreement shall not affect any action

required to complete or implement Messages which are

sent prior to such termination.

10

Interpretation of the User Manual

10.1

Any question relating to the interpretation of the User

Manual may be referred by the Parties (if they agree) to the

Council of the EDI Association acting as experts and not

arbitrators, whose decision shall be final and binding on the

Parties making the reference.

11

Force Majeure

11.1

Subject to clause 11.3 below a Party shall not be deemed to

be in breach of this Agreement by reason of any delay in

performance, or non-performance, of any of its obligations

hereunder to the extent that such delay or non-performance

is due to any Force Majeure of which he has notified the

other Party; and the time for performance of that

obligation shall be extended accordingly.

11.2

For the purposes of this clause ‘Force Majeure’ means, in

relation to either Party, any circumstances beyond the

reasonable control of that Party or industrial disputes.

11.3

Clause 11.1 shall not operate so as to relieve liability for

any matter which is a breach of clause 3 of this Agreement.

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11.4

In the event of any Force Majeure affecting the

communications between the Parties under their data

processing systems concerned with the Interchange of

Messages, the Parties shall immediately use all endeavours

to communicate by other expeditious means.

12

Invalidity and Severability

12.1

In the event of a conflict between any provision of this

Agreement and any law, regulation or decree affecting this

Agreement, the provisions of this Agreement so affected

shall be regarded as null and void or shall, where

practicable, be curtailed and limited to the extent necessary

to bring it within the requirements of such law, regulation

or decree but otherwise it shall not render null and void

other provisions of this Agreement.

13

Notices

All notices shall be controlled by DEFCON 5XX.

14

Amendments in Writing

14.1

Any terms agreed between the Parties as additions or

amendments to this Agreement shall only be valid if they

are in writing, signed on behalf of the Parties and expressly

stated to amend this Agreement.

15

Precedence

15.1

In the event of any conflict between the terms of this

Agreement, the provisions of the User Manual and the

Contract, then the terms of the Contract shall prevail in

relation to Messages in connection with that Contract.

16

Non Assignment

16.1

Neither Party may assign this Agreement without the prior

written consent of the other Party.

17

Limitation of Liability

17.1

This clause shall not apply where the liability results from

the Contract.

17.2

Each Party agrees that the liability of one Party to the other

upon any claim whatsoever and howsoever arising from or

as a result of any delay, or omission, or error in the

electronic transmission or receipt of any Messages pursuant

to this Agreement, including with out limitation liability

for negligence, shall be limited to an amount of £20k or

such other amount as shall be specified in the Contract in

relation to any one claim or any one series of connected

claims.

17.3

If a Party requires another Party to use the services of an

intermediary to perform the transmission, logging or

processing of a Message, the Party who required such use

shall be responsible to the other Party for that

intermediary’s acts or omissions in the provision of said

services.

18

Electronic Signature

18.1

Any Message properly transmitted pursuant to this

agreement shall be considered to be ‘written’ or ‘in

writing’, and any such Message when containing, or to

which there is affixed, an Electronic Signature shall be

deemed to have been ‘signed’ and to constitute a ‘copy’

when printed from Data Files or records established and

maintained as specified in clause 7 above.

19

Virus Control

Each Party shall operate at all times a virus control check

for all Interchange of Messages, as set out in the User

Manual.

20

User Manual

20.1

The User Manual, Reference ...................... shall be used in

conjunction with this DEFCON, and shall be

amended/supplemented by the Authority as necessary.

21

Entire EDI Agreement

21.1

This Agreement together with any documents expressly

referred to herein represents the entire agreement between

the Parties and supersedes all other agreements oral or

written, and all other communications between the Parties

relating to the subject matter hereof.

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22

Disputes and Law

22.1

Unless the Parties agree in writing to submit the matter to

arbitration or other procedure for the resolution of disputes,

or to select a different jurisdiction, any matter or dispute

arising from, out of, or in connection with this Agreement,

as to its validity, interpretation, construction or

performance shall be subject to the sole and exclusive

jurisdiction of the English Courts.

22.2

Unless the parties otherwise agree in writing this

Agreement shall be construed and have effect according to

English Law.