PRIVATE AND CONFIDENTIAL

Section B – Maintenance Services

  1. Application and Scope
    1. Application
      1. If the Contract Details specify that the Contractor is to provide Maintenance Services, the Contractor will provide the Customer with the Maintenance Services set out in Attachment “Maintenance Services”  in accordance with this Section B of the Contract.
    2. Scope of Maintenance Services
      1. In performing the Maintenance Services, the Contractor will, at all times ensure that its provision of the Maintenance Services complies with the requirements set out in Attachment “Maintenance Services” and the Contract, including by:
        1. providing the Maintenance Services in relation to the Applications in accordance with Section B of the Contract and Attachment “Maintenance Services”;
        2. in order to remove any ambiguity about the maintenance services provision, the Contractor are the owners of and responsible for the ongoing provision, service and operation of the supporting hardware and infrastructure in order to accommodate and deliver the Applications and their associated Service Levels; and
        3. providing any additional services reasonably incidental to the Maintenance Services on receiving any reasonable request for those additional services from the Customer, at no additional cost to the Customer.
  2. Provision of Maintenance Services
    1. General Obligations of Contractor
      1. The Contractor will:
        1. commence transition in of the Maintenance Services on the date specified in the Transition Plan and commence providing the Maintenance Services in relation to the Applications on the Maintenance Commencement Date;
        2. be deemed to have knowledge of and the Maintenance Services will be deemed to include, information about the Applications and interfaces that the Contractor could reasonably have obtained during due diligence, which it will have the opportunity to conduct during the transition period, whether or not the Contractor does in fact, conduct such due diligence; and
        3. ensure that any services, functions or responsibilities incidental to the Maintenance Services which are required for the proper performance of the Maintenance Services are performed.
    2. Transition In
      1. The Contractor will comply with all obligations for transition set out in the Transition Plan, including, without limitation and as necessary, by doing the following:
        1. commencing transition in of the Maintenance Services on the date specified in the Transition Plan and performing its obligations by the dates specified in the Transition Plan for such performance;
        2. acquiring the necessary Hardware for the provision of services from the Customer, or a third party nominated by the Customer at the cost specified in the Transition Plan;
        3. ensuring that all Transferred Third Party Contracts are assigned or novated to the Contractor and comply with all other obligations specified in the Transition Plan regarding the transfer of Transferred Third Party Contracts to the Contractor;
        4. managing the Managed Third Party Contracts and complying with all other obligations specified in the Transition Plan regarding the management of Managed Third Party Contracts;
        5. delivering the Maintenance Services in accordance with the relevant Service Levels and any other applicable performance measures set out in Attachment “Service Levels” from the date stated in the Transition Plan;
        6. ensuring (to the extent practical) that all third party software licences and other relevant third party agreements entered into by the Contractor on or after the commencement of the transition-in process includes a term requiring the licensor or third party supplier, as the case may be, to consent to the novation or assignment of the licence or other agreement to an alternative service provider or to the Customer itself upon termination of the Maintenance Services for any reason. The cost of any increased Charges resulting from the inclusion of this term are to be borne by the Customer, unless agreed by the parties to the contrary;
    3. Service Delivery and Service Level Agreement
      1. Unless the Customer agrees otherwise in writing the Contractor will:
        1. provide the Maintenance Services in accordance with the Service Levels and any other performance measures attached to or specified in Attachment “Service Levels”;
        2. report to the Customer at regular intervals (or at the intervals, if any, specified in the Contract Details) and in the format specified in Attachment “Reports”, as to the effectiveness of service delivery, including the extent to which the Maintenance Services are being or have been adapted to meet the Service Levels, other performance measures and the Customer’s changing business needs; and
        3. advise the Customer if it considers that Attachment “Maintenance Services” or Attachment “Service Levels” should be revised to take account of new functions performed by the Contractor that are outside the scope of the Contract (such revisions to be implemented, if at all, in accordance with the change control procedure set out in clause “Changes”).
      2. If the Contractor fails to meet the Service Levels, the provisions of Attachment “Service Levels” will apply.
      3. On each occasion that the Contractor fails to meet a Service Level or other performance measure specified in Attachment “Service Levels”, the Contractor will promptly:
        1. investigate the underlying cause of the problem, perform a root cause analysis in respect of the Defect and use its best efforts to preserve any data indicating the cause of the problem;
        2. correct the Defect as soon as practicable (regardless of the cause of the Defect) and, in any case, within the time period (if any) specified in Attachment “Service Levels”, or, if no time period is specified, within 7 days, and resume meeting the Service Levels and other performance measures specified in Attachment “Service Levels” within that time unless the correction of Defect is dependent on Third Party Software’s corrective action for which the Contractor has limited or no access to correct;
        3. advise the Customer of the status of remedial efforts being undertaken with respect to the underlying cause of the problem; and (iv) certify to the Customer that all reasonable action has been taken to prevent any recurrence of the Defect.
    4. Updates and new releases
      1. As part of the Maintenance Services, the Contractor must:
        1. provide updates, new releases, fixes and patches for the Applications to the extent required and in accordance with Attachment “Maintenance Services”; and
        2. provide training to the Customer and the Customer’s nominated users as described in Attachment “Maintenance Services”, at an additional cost to the Customer where a quote will be sent and accepted by the Customer prior commencement of training.
    5. Reports
      1. The Contractor shall provide the Customer with any reports provided to the Customer in respect of the Maintenance Services listed in Attachment “Reports”. All Reports prepared by the Contractor shall be available to the Customer at the frequencies and in the form provided for in the Contract. If the Customer requests further copies of the reports previously provided to it, the Contractor shall provide those reports promptly upon the Customer’s request and at no additional cost.
      2. Without limiting the generality of clause “Reports”, the Contractor shall:
        1. promptly after the Maintenance Commencement Date, implement the new measurement and monitoring tools and procedures (if any) specified in Attachment “Maintenance Services”;
        2. in any event, within 4 weeks after the Maintenance Commencement Date, implement automated measurement, monitoring tools and procedures reasonably required by the Customer to measure and report the Contractor’s performance at the frequency required by the Customer; and
        3. ensure that the measurement and monitoring of the Maintenance Services undertaken will permit reporting at a level of detail sufficient (as reasonably determined by the Customer) to verify the Contractor’s compliance with the Service Levels and to allow the Customer to meet its business requirements.
        4. the cost to software licensing consumed for the purpose of reporting measurement and monitoring of Maintenance Services will be at an additional cost to the Customer where a quote will be sent and accepted by the Customer prior commencement of implementation.
    6. Managed Third Party Contracts
      1. The Contractor will do all things necessary to manage the Managed Third Party Contracts for or on behalf of the Customer for the term of the Contract, including by observing any requirements relating to the management of the Managed Third Party Contracts set out in the Transition Plan or Attachment “Maintenance Services”. Nothing in this clause requires the Contractor to take any action to enforce or protect the legal rights of the Customer otherwise than notifying the Customer of any breach of any Managed Third Party Contract of which the Contractor becomes aware.
      2. The Contractor indemnifies the Customer against any claim or proceeding that is made, threatened or commenced, and against any liability, loss, damage or expense (including legal costs on a full indemnity basis), the Customer incurs or suffers as a direct or indirect result of the Contractor failing to manage the Managed Third Party Contracts in accordance with the Contract. The Customer agrees that the Contractor shall have no liability under this clause where the Contractor has discharged its obligations to manage the Managed Third Party Contracts but a breach of any of those contracts occurs.
    7. Transition of Services for the Applications
      1. The Customer will, following Acceptance of the Services, notify the Contractor notify the Contractor of the timeline within which it intends to transition from the previous Contractor. If no notice is provided, the relevant date shall be the date specified in Attachment “System Transition Plan”. Upon receiving a notice from the Customer under this clause “Application and Scope”, the Contractor will commence providing the Maintenance Services in relation to the Applications in accordance with the System Transition Plan. The previous Contractor will continue to provide Maintenance Services in relation to the Existing Applications in accordance with this Section B until notified with at least 30 days notice by the Customer that the obligations under the System Transition Plan have been completed to the Customer’s satisfaction.
      2. The Contractor will cooperate with other Providers in fulfilling its obligations under the System Transition Plan and as directed by the Customer.
      3. Upon receiving a notification from the Customer that the obligations under the System Transition Plan have been completed to the Customer’s satisfaction as referred to in clause “Application and Scope”, the Contractor will cooperate with other Providers to decommission the previous instances of the Applications as directed by the Customer at a reasonable cost to be agreed between the parties in accordance with clause “System Transition Plan”.
    8. Transition Out
      1. On termination of some or all of the Maintenance Services for any reason, and subject to any qualification or provision to the contrary in the Contract Details, the Contractor will, if requested by the Customer, assist the Customer in transferring responsibility for providing the Maintenance Services to an alternative service provider or to the Customer itself in accordance with Attachment “Transition Out”. This will include making arrangements for:
        1. the novation or assignment of software licences, any other relevant Transferred Third Party Contracts and any third party contracts relevant to the provision of the Maintenance Services entered into by the Contractor, from the Contractor to an alternative service provider or to the Customer itself with the cost of any new or increased Charges to be borne by the Customer (subject to prior notification to and agreement from the Customer) unless agreed by the parties to the contrary;
        2. the transfer of management responsibility in respect of relevant Managed Third Party Contracts from the Contractor to an alternative service provider or to the Customer itself, with the cost of any new or increased Charges to be borne by the Customer (subject to prior notification to and agreement from the Customer) unless agreed by the parties to the contrary;
        3. an offer to sell to the alternative service provider or to the Customer itself any equipment used by the Contractor in conjunction with and dedicated solely to the provision of the Maintenance Services if owned by the Contractor, at the written down book value or, if the equipment is leased or financed, at the then current payout amount to the finance provider;
        4. the handover of all of the Customer’s Data to an alternative service provider and/or to the Customer itself in the format and in the medium or by the means
          specified by the Customer and, at the Customer’s direction, the destruction of all copies of Customer Data held in back-up or archival tapes; and
        5. the granting by the Contractor to an alternative service provider and/or to the Customer itself of access to all material held by the Contractor and produced in connection with and for the purposes of providing the Maintenance Services, regardless of the manner of storage, save that:
          1. without limiting the licences granted under clause “Licence Rights in Modifications owned by the Contractor”, clause “Licensing of Developed Materials” and clause “Licensing of Contractor’s Pre-existing Materials”, there is no requirement pursuant to this clause for the Contractor to assign any Intellectual Property Rights in such material; and
          2. the Customer must agree to comply with any reasonable security and confidentiality requirements specified by the Contractor in respect of access to such material, but nothing in this clause shall prevent the Customer from disclosing such documentation, subject to reasonable obligations of confidence to any third party as part of any tender or other procurement process in respect of the Services under this Contract.
      2. At the Customer’s election, the Contractor shall, at a reasonable cost to be agreed under clause “Changes”, provide for a transfer of knowledge to facilitate the provision of the Maintenance Services by the Customer or an alternative service provider nominated by the Customer. This will include:
        1. providing all information relating to the provision of the Maintenance Services as necessary for the Customer or an alternative service provider nominated by the Customer to assume responsibility for the continued performance of the Maintenance Services in an orderly manner so as to minimise disruption to the operations of the Customer;
        2. provide any training requested by the Customer to the Customer’s Personnel in relation the provision of the Maintenance Services;
        3. permit the Customer to assign its Personnel to work with the Contractor’s Personnel to facilitate knowledge transfer from the Contractor to the Customer and any alternative service provider nominated by the Customer;
        4. if known, providing a contact listing of current potential alternative sources of resources, including skilled labour and spare equipment parts;
        5. providing a list of all applications running at the commencement of the transition out period which list will be updated by the Contractor as at the end of the transition out period; and
        6. providing details of the status of all Maintenance Services and related deliverables as at the commencement of the transition out period.