CONFIDENTIAL
OWML Board Paper 20-04
THIS AGREEMENT IS MADE ON
24 July 2015
JULY 2015
BETWEEN
(1)
OPEN WATER MARKET LIMITED, a company limited by guarantee registered in England and
Wales (company number 08791025) whose registered office is at c/o Shepherd and
Wedderburn LLP, Condor House, 10 St. Paul's Churchyard, London, EC4M 8AL (“OWML”);
and
(2)
MARKET OPERATOR SERVICES LIMITED, a company limited by guarantee registered in
England and Wales (company number 09276929) whose registered office is at One, Wood
Street, London, EC2V 7WS (“MOSL”).
WHERE AS
(1)
OWML was established to deliver the Open Water Programme and it has been determined, and
approved by a members’ resolution of OWML, that its ongoing work and assets be transferred
to MOSL or OFWAT as appropriate.
(2)
This agreement gives effect to transfer of certain assets and rights to MOSL on the terms that
follow.
1.
Definitions & Interpretation
1.1
Definitions
“1991 Act”
the Water Industry Act 1991;
“Business Process
Diagrams”
the IT specification devised by or on behalf of OWML to support
the service requirements associated with the delivery of the
requirements of the MAP;
“Codes”
(i) the proposed draft code to be issued by OFWAT under sections
66DA and 117F of the 1991 Act known as the Wholesale-Retail
Code; and
(ii) the proposed draft code to be designated as the Market
Arrangements Code by OFWAT from time to time;
“Contracts”
the proposed draft contract for the provision of wholesale water
and/or sewerage services between any company appointed under
section 6 of the 1991 Act and the holder of a licence granted under
section 17A and/or 17BA of the 1991 Act;
“High Level Group”
the high level group established by the Department for
Environment, Food and Rural Affairs to oversee the
implementation of the requirements of the Water Act 2014 relating
to retail market reform;
“IPR”
patents, rights to inventions, copyright and related rights, trade
marks,, rights in get-up, goodwill and the right to sue for passing
off, rights in designs, database rights, rights to use, and protect the
confidentiality of, confidential information (including know-how) and
all other intellectual property rights, in each case whether
registered or unregistered and including all applications and rights
to apply for and be granted, renewals or extensions of, and rights
to claim priority from, such rights and all similar or equivalent rights
or forms of protection which subsist or will subsist now or in the
future in any part of the world;
“MAP”
the Market Architecture Plan documents (including all versions
thereof up to and including the pre-vendor MAP published on 14
July 2015);
CONFIDENTIAL
OWML Board Paper 20-04
24 July 2015
“MOSL Assets”
the Business Process Diagrams, Codes, Contracts, MOSL
Documents, MOSL Files and Work in Progress including all MOSL
IPR, but excluding the OFWAT Assets;
“MOSL Documents”
any physical embodiment of any of the Business Process
Diagrams, Codes, Contracts, Files or other papers of OWML in
connection with the Open Water Programme;
“MOSL Files”
all correspondence, papers, documents and the like whether or not
formally collated but held by OWML in connection with the Open
Water Programme in relation to the Codes, market operator set-up
(including systems procurement; systems requirements; market
operator formation; corporate governance advice in connection
with market transition; and assurance workstreams) but excluding
email records;
“MOSL IPR”
means all IPR of OWML created by or for it under or for the
purpose of the Open Water Programme but excluding the OFWAT
IPR;
“OFWAT”
the Water Services Regulation Authority, established by section 1A
of the Water Industry Act 1991;
“OFWAT Assets”
all other assets and rights of OWML not comprised within the
MOSL Assets and to be the subject of separate transfer to
OFWAT;
“OFWAT IPR”
all IPR of OWML in the Codes, Contracts, MAP and Work in
Progress associated therewith not being MOSL IPR;
“Open Water
Programme”
the programme established by the High Level Group to implement
certain requirements of the Water Act 2014 relating to retail market
reform;
“Soft Copy”
any of the Business Process Diagrams, Codes, Contracts, MOSL
Documents, MOSL Files and Work in Progress that are stored in
electronic form;
“Transfer Time”
midnight on 31 July 2015; and
“Work in Progress”
means any drafts of wording, diagrams, code content or otherwise
still being subject to finalisation (including any decision on use or
amendment thereof).
1.2
References to any statute or statutory provision include, unless the context otherwise
requires, a reference to the statute or statutory provision as modified, replaced, re-enacted or
consolidated and in force from time to time and any subordinate legislation made under the
relevant statute or statutory provision (as so modified, replaced, re-enacted or consolidated)
in force.
1.3
References to a person include references to any individual (including that individual's legal
personal representatives), firm, company, corporation or other body corporate, government,
state or agency of a state or any unincorporated association, joint venture or partnership
(whether or not having a separate legal personality).
1.4
References to any gender include references to each other gender (including neuter) and
references to the singular include the plural and vice versa.
1.5
Any phrase introduced by the term "include", "including", "in particular", "other", or any similar
general term is not limited by any particular examples preceding or following those general
terms.
1.6
Any reference to this Agreement shall be interpreted as a reference to this Agreement as it
may have been, or may from time to time be amended, varied, supplemented or substituted.
1.7
References to clauses are to clauses of this Agreement.
CONFIDENTIAL
OWML Board Paper 20-04
24 July 2015
1.8
The clause headings in this Agreement do not affect its interpretation.
2.
Transfer of Assets
2.1
With effect from the Transfer Time, and in consideration of the sum of £1 (if asked), OWML
transfers to MOSL such right title and interest as it has in and to the MOSL Assets.
2.2
MOSL acknowledges that it acquires the MOSL Assets subject to the foregoing and subject to
all (if any) third party rights that may exist or be claimed and in particular that no warranty,
representation or assurance is given in respect of the MOSL Assets.
2.3
MOSL further acknowledge that notwithstanding transfer of the MOSL Documents and Soft
Copy, the OFWAT IPR is being assigned to OFWAT and MOSL will only have such rights to
exploit or otherwise use any of the OFWAT IPR as OFWAT may separately agree with
MOSL.
2.4
Delivery of the MOSL Assets to MOSL shall be effected as follows:
2.4.1
transfer of the MOSL Documents has been effected by constructive delivery to
MOSL within the office area hitherto occupied by OWML in OFWAT’s premises at
21 Bloomsbury Street, London, WC1B 3HF;
2.4.2
transfer of Soft Copy has been or will be effected by electronic transfer to
designated MOSL addresses or upload to cloud-based storage as required by
MOSL; and
2.4.3
of the MOSL IPR, as provided in Clause 3 hereof;
and MOSL acknowledges by its execution hereof that it is satisfied that OWML has complied
in full with its obligations hereunder.
2.5
Notwithstanding the foregoing, should any MOSL Assets not have been effectively or fully
transferred to MOSL, OWML will in good faith take such steps as can reasonably be required
of it (including execution of documentation) to effect transfer as soon as practical thereafter
provided it shall not require to incur expense in so doing.
3.
Assignment of Transferring IPR
3.1
In further implementation of the foregoing, with effect from the Transfer Time, OWML hereby
assigns to MOSL for the consideration before mentioned such right title and interest as
OWML has in and to the MOSL IPR.
3.2
MOSL acknowledges that no warranty is given in respect of the MOSL IPR.
4.
Run-down of Secondment and Contractor Contracts
4.1
Insofar as any persons employed by members of OWML or other third parties have been
seconded to OWML to assist with the Open Water Programme (“Secondees”) the contracts
(formal or informal) under which they were seconded shall not transfer to MOSL as of the
Transfer Time. OWML will terminate such contracts (save in respect of these Secondees to
be retained for purposes of winding up of the affairs of OWML) and MOSL shall be
responsible for identifying any Secondees that they wish to contract with and for arranging
with the relevant employer the terms of such secondments, and shall free relieve and
indemnify OWML against any liability to or in respect of such Secondees after the Transfer
Time.
4.2
Insofar as any persons have been contracted by OWML to assist with the Open Water
Programme (“Contractors”) their contracts (whether formal or informal) shall not transfer to
MOSL as of the Transfer Time. OWML will terminate such contracts (save in respect of these
Contractors to be retained for purposes of winding up of the affairs of OWML or to be novated
to OFWAT) and MOSL shall be responsible for identifying any Contractors that they wish to
contract with and for arranging the terms of such contracts, and shall free relieve and
indemnify OWML against any liability to or in respect of such Contractors after the Transfer
Time.
CONFIDENTIAL
OWML Board Paper 20-04
24 July 2015
5.
Acceptance of responsibilities of MOSL
5.1
MOSL acknowledges that it assumes all responsibility for custody of the MOSL Assets and
further development of the Codes from and after the Transfer Time and that OWML has
neither any role nor any responsibilities to do so thereafter;
5.2
MOSL irrevocably waives any right or claim it might otherwise have against
5.2.1
OWML in respect of performance (or non-performance) of its responsibilities prior to
the Transfer Time; and
5.2.2
any employee, agent or contractor of OWML howsoever arising (whether by act or
omission) prior to the Transfer Time.
6.
Rights of Third Parties Act
6.1
The parties to this Agreement do not intend that any of its terms shall be enforceable by virtue
of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
7.
Entire Agreement
7.1
This Agreement constitutes the entire agreement between the parties and supersedes and
replaces any previous agreement, understanding, undertaking or arrangement of any nature
between the parties relating to the subject matter of this Agreement.
7.2
Each of the parties acknowledges and agrees that in entering into this Agreement it has not
relied on, and shall have no remedy in equity, contract, tort, under the Misrepresentation Act
1967 or otherwise in respect of, any representation other than as set out expressly in this
Agreement.
7.3
The only remedy available to each of the parties in respect of this Agreement is for breach of
contract and, neither party shall have the right to rescind this Agreement for negligent or
innocent misrepresentation or otherwise.
7.4
Nothing in this clause shall have the effect of limiting or restricting any liability of the parties
arising as a result of fraud or fraudulent misrepresentation.
8.
Governing Law & Jurisdiction
8.1
The formation, existence, construction, performance, validity and all aspects whatsoever of
this Agreement or any term of it shall be governed by the laws of England and Wales.
8.2
The courts of England and Wales shall have exclusive jurisdiction to settle any disputes,
which may arise out of or in connection with this Agreement. The parties irrevocably agree to
submit to that jurisdiction.
CONFIDENTIAL
OWML Board Paper 20-04
24 July 2015
AS WITNESS THIS AGREEMENT IS EXECUTED ON THE DATE FIRST ABOVE WRITTEN.
Signed by: …………………………….
)
for and on behalf of
)
…………………………………………….
OPEN WATER MARKET LIMITED
)
[Director] [Authorised Signatory]
in the presence of:
Witness Signature:
Name:
Address:
Occupation:
Signed by: ……………………………..
)
for and on behalf of
)
…………………………………………….
)
[Director] [Authorised Signatory]
MARKET
LIMITED
OPERATOR
in the presence of:
Witness Signature:
Name:
Address:
Occupation:
SERVICES