Section C – Hosting Services

Application and Scope
1. Application
  1. If the Contract Details specify that the Contractor is to provide Hosting Services, the Contractor will provide the Customer with the Hosting Services set out in Attachment “Hosting Services” in accordance with this Section C of the Contract.
2. Scope of Hosting Services
  1. In performing the Hosting Services, the Contractor will, at all times ensure its provision of the Hosting Services complies with the requirements set out in Attachment “Hosting Services” and the Contract, including by:
    1. providing the Hosting Services in relation to the Applications in accordance with this Section C of the Contract and Attachment “Hosting Services”;
    2. providing the disaster recovery services set out in Attachment “Hosting Services” at the Service Levels specified in Attachment “Service Levels” as part of the Hosting Services;
    3. providing any additional services reasonably incidental to the Hosting Services on receiving any reasonable request for those additional services from the Customer, at no additional cost to the Customer.
Provision of Hosting Services
1. General Obligations of Contractor
  1. The Contractor will:
    1. commence transition in of the Hosting Services on the date specified in the Transition Plan and commence providing the Hosting Services in relation to the Applications from the Hosting Commencement Date;
    2. transition the provision of the Hosting Services in relation to the Applications in accordance with clause “Transition of Services for the Applications”;
    3. subject to the Customer providing a reasonable level of access within four weeks of the Commencement Date to the infrastructure used to support the Applications as at the Commencement Date, be deemed to have knowledge of and the Hosting Services will be deemed to include, information about the Applications and interfaces that the Contractor could reasonably have obtained during due diligence, whether or not the Contractor in fact conducts such due diligence;
    4. ensure that any services, functions or responsibilities incidental to the Hosting Services which are required for the proper performance of the Hosting Services are performed;
    5. ensure that the Customer and the Customer’s service providers are able to access the site and facilities on which the Applications are hosted, as the case may be, in accordance with Attachment “Hosting Services”; and
    6. have the security measures and processes specified in Attachment “Hosting Services” in place to prevent unauthorised persons from accessing the System (as the case may be) physically or through the network.
2. Hosting Fees
  1. The Customer and the Contractor agree that the price for the Hosting Services for the Applications may change in accordance with Attachment “Due Diligence” following the four week period for due diligence referred to in clause “General Obligations of Contractor”.
3. 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 Hosting Services on the date specified in the Transition Plan and performing its obligations by the dates specified in the Transition Plan;
    2. acquiring the required Hardware for the provision of services for the Applications;
    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;
    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 Hosting 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 novation or assignment of the licence or other agreement to an alternative service provider or to the Customer itself upon termination of the Hosting Services for any reason. The cost of any increased Charges resulting from the inclusion of this term are to be borne by the Contractor (subject to prior notification to the Customer), unless agreed by the parties to the contrary;
4. Service Delivery and Service Level Agreement
  1. Unless the Customer agrees otherwise in writing, the Hosting Services will be performed in Australia and, in addition:
    1. the Contractor agrees to provide the Hosting Services in accordance with the Service Levels and any other performance measures attached to or specified in Attachment “Service Levels”;
    2. the Contractor agrees to 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 Hosting Services are being or have been adapted to meet the Service Levels, other performance measures and the Customer’s changing business needs; and
    3. the Contractor will advise the Customer if it considers that Attachment “Hosting 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 “System Transition Plan”).
  2. If the Contractor fails to meet the Service Levels, the provisions of Attachment “Service Levels” will apply.
  3. Without limiting the application of this clause, 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 24 hours, and resume meeting the Service Levels and other performance measures specified in Attachment “Service Levels” within that time;
    3. advise the Customer of the status of remedial efforts being undertaken with respect to the underlying cause of the problem; and
    4. certify to the Customer that all reasonable action has been taken to prevent any recurrence of the Defect.
5. Maintenance and upgrades
  1. As part of the Hosting Services, the Contractor must maintain, support and upgrade the site and facilities used to host the Applications, as the case may be, in accordance with Attachment “Hosting Services”.
6. Reports
  1. The Contractor shall provide the Customer with any reports provided to the Customer in respect of the Hosting Services for the Applications before the Hosting Commencement Date plus any additional reports reasonably required by the Customer, including, but not limited to, the Reports 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 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 must:
    1. promptly after the Hosting Commencement Date, implement the new measurement and monitoring tools and procedures (if any) specified in Attachment “Hosting Services”;
    2. in any event, within two weeks after the Hosting 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 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 Hosting 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.
7. 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 “Hosting 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.
8. Transition of Services for the Applications
  1. The Customer may, after Acceptance of the Services, notify the Contractor as to 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, the Contractor will commence providing the Hosting Services in relation to the Applications in accordance with the System Transition Plan. The previous Contractor must continue to provide Hosting Services in relation to the Applications in accordance with this Section C to the Contract 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.
9. Transition Out
  1. On termination of some or all of the Hosting 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 Hosting Services either 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 contract relevant to the provision of the Hosting 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 any 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 Hosting 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 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
    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 Hosting Services, regardless of the manner of storage, save that:
      1. without limiting the licences granted under clause “Licensing of Developed Materials”, clause “Licence Rights in Modifications owned by the Contractor” 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 regarding the Hosting Services to facilitate the provision of the Hosting 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 Hosting Services as necessary for the Customer or an alternative service provider nominated by the Customer to assume responsibility for the continued performance of the Hosting 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 Hosting 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 Hosting Services and related deliverables as at the commencement of the transition out period.