Student Management Solution delivered as a Service Procure ... · Representatives (clause 23.1)...

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Student Management Solution delivered as a Service

Procure IT version 3.1 Contracting framework General Order Form

Schedules

Final Version

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General Order Form

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“General Order Form. Schedule 1 to the Customer Contract (which is Part 2 of the Procure IT Framework)”

This General Order Form is part of the Customer Contract and incorporates all Parts, terms and conditions and other documents listed in clause 3.8 of Part 2 as if repeated in full in this General Order Form.

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CUSTOMER

Item 1 Name of Customer

Details to be included from the Customer Contract

Order Details agreed by the Contractor and the Customer

Formation (clause 3.4)

Specify the Customer’s full legal name: The State of New South Wales as represented by the NSW Technical and Further Education Commission ABN 89 755 348 137

Item 2 Service Address




Specify the Customer’s service/delivery address:

TAFE NSW Ground Floor, Building B, Harris Street, Ultimo NSW 2007

Item 3 Customer’s Representative



Representatives (clause 23.1)

Specify an employee who is the Customer’s Authorised Representative:

Vaughan Stibbard, Program Director TAFE NSW

CONTRACTOR

Item 4 Name of Contractor




Specify the Contractor’s full legal name: Red Rock Consulting Pty. Ltd ABN 59 081 356 425

Item 5 Service Address




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Specify the Contractor’s service/delivery address:

Level 20, 135 King Street, Sydney, NSW 2001

Item 6 Contractor’s Representative



Representatives (clause 23.1)

Specify an employee who is the Contractor’s Authorised Representative:

Item 7 Head Agreement [This section is not applicable to the Customer Contract]




Specify the Head Agreement number: Not applicable

Specify the Head Agreement title: Not applicable

Specify the Term of the Head Agreement: Start Date: End Date:

If the Term of the Head Agreement has expired the Customer must obtain the Contract Authority’s approval to enter into a further Customer Contract, and this approval should be attached to this General Order Form.

Not applicable

Insurance (clause 16.2) Not applicable

Specify the insurances required under the Head Agreement: Not applicable

The default insurance requirement under the Head Agreement is public liability insurance with an indemnity of at least $10,000,000 in respect of each claim for the period of cover.

Not applicable

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Specify any higher limit of cover that is required by the Head Agreement:

The default insurance requirement under the Head Agreement is product liability insurance with an indemnity of at least $10,000,000 for the total aggregate liability for all claims for the period of cover. Specify any higher limit that is required by the Head Agreement:

Not applicable

Specify if professional indemnity/errors and omissions insurance was required under the Head Agreement. If so, the default insurance requirement is for a limit of cover of $1,000,000 in respect of the total aggregate liability for all claims for the period of cover. Specify any higher limit that is required by the Head Agreement:

Not applicable

Workers’ compensation insurance in accordance with applicable legislation: Not applicable

Specify any other type of insurance required under the Head Agreement and the specified amount:

Not applicable

Performance Guarantee (clause 17.1)

Specify if the Contractor was required to provide a Performance Guarantee under the Head Agreement:

Not applicable

Item 8 Modules that form part of the Customer Contract

Formation (clause 3.8(a))

Indicate, by marking with an X, the Modules that apply Module 1 – Hardware Acquisition and Installation Module 11 – Telecommunications Services Module 2 – Hardware Maintenance and Support Services Module 12 – Managed Services

Module 3 – Licensed Software Module 13 – Systems Integration

Module 4 – Development Services Module 13 Solution Implementation Services X

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Module 5 – Software Support Services

Module 6 – Contractor Services

Module 7 – Professional Services X

Module 8 – Training Services

Module 9 – Data Migration

Module 10 – As a Service X

Item 9 Schedules that form part of the Customer Contract in addition to the General Order Form

Formation (clause 3.8(b))

Indicate, by marking with an X, the Schedules that apply

Schedule 1 – General Order Form Schedule 7 – Statutory Declaration - Subcontractor

Schedule 2 – Agreement Documents Schedule 8 – Deed of Confidentiality

Schedule 3 – Service Level Agreement Schedule 9 – Performance Guarantee

Schedule 4 – Variation Procedures Schedule 10 – Financial Security

Schedule 5 – Escrow Agreement Schedule 11 – Dispute Resolution Procedures

Schedule 6 – Deed Poll – Approved Agents Schedule 12 – Project Implementation and Payment Plan

Item 10 Contract Period



Contract Period (Clause 2.4)

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Specify the Commencement Date if it is not the date when the Customer and the Contractor sign the Customer Contract:

Specify the end of the Contract Period: At the end of the Module 10 Services Period as described in Box 1 of the Module 10 Order Form.

Specify any period of extension of the Contract Period in days/weeks/years:

Three periods of 3 years each or a combination thereof (eg. Customer may elect that the first extension of the Contract Period is for 6 years, ie. two consecutive three-year extensions to the Contract Period).

Item 11 Common Details


Product and/or Service Price per Unit

Quantity

Extended Price

As per the Contractor Pricing Schedule attached to this General Order Form as an Agreement Document (Contractor Pricing Schedule) and (in respect of IPS activities and Implementation Services) as set out in the PIPP, which for each of the relevant Modules that form part of the Customer Contract is as follows;

Sub-Total:

Delivery Charges:

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Product and/or Service Price per Unit

Quantity

Extended Price

Any Other Charges:

GST:

This is the Contract Price (plus GST) Total Amount:

Item 12 Delivery Address



Delivery (clause 5.1)

Specify the address of the Site where delivery is to be made:

TAFE NSW Ground floor, Building B, Harris Street, Ultimo NSW 2007

Specify any delivery instructions: N/A

Specify the hours during which delivery may be made to the Site:

Business hours, being 9am to 5pm on Business Days unless otherwise agreed

Item 13 Contract Specifications




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If the Contract Specifications are the User Documentation leave this Item blank. If the Contract Specifications comprise other documents, list those documents in order of priority:

As set out as Attachment A to the Module 10 Order Form.

Item 14 Payment



Payment (clauses 11.1 and 11.2)

Invoicing (clause 11.7 and 11.9)

Specify the Customer’s officer to receive invoices:

Program Director Student Management Services Program

Specify address to which invoices should be sent:

Program Director Student Management Services Program TAFE NSW Ground Floor, Building B, Harris Street, Ultimo NSW 2007

Specify the number of days from receipt of a Correctly Rendered Invoice that the Customer must make payment. If this Item is not completed, the Customer must pay the Contractor within 30 days from receipt of a Correctly Rendered Invoice.

Specify when the Contract Price must be paid: E.g. if the earlier Price is to be paid on delivery, insert “The Contract Price is due on delivery”. If payment is to be made on more than one occasion then consider using a PIPP under Item 20.

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Specify whether the Contract Price is fixed: E.g. does the unit Price per item vary for inflation or other factors? If so, specify the calculation for Price variations:

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Item 15 User Documentation



User Documentation (clause 5.4(b))

Specify the Price of any additional copies of the User Documentation:

Not applicable

Item 16 Management Committee



Management Committee (clause 6.4)

List the name/s of the Contractor’s project manager, officers or other relevant persons who will sit on the management committee:

A cross party project control group will be required to be convened to meet as agreed between the parties for the purposes of monitoring and reviewing Solution and Service delivery as further described in the PIPP. When required, the Contractor’s co-operation and participation in the committee and contract review process is expected. For the purposes of this Customer Contract, the Management Committee will be the Project Control Board (PCB) as further described in the PIPP.


Specify the function to be performed by the management committee:

Committees that are included in the governance structure for this Customer Contract will be expected to perform the

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designated functions for committees specified in this Customer Contract. This will include: monitoring, reviewing and reporting progress against the PIPP; addressing the issues listed in clause 6.8 of the Customer Contract; and addressing the scope of monitoring and review activities that would be required to meet obligations in the Service Level Agreement and Module 13 Solution Implementation Services.

List the name/s of the Customer’s project manager, officers or other relevant persons who will sit on the management committee:

As per the PIPP (Section 3 - Implementation)


Specify the details, including the contents of the progress report to be submitted to the Customer’s project manager:

Specify any other details:

Item 17 Performance Review Procedures



Performance Reviews (clause 6.10)

Specify if a service and performance review/s of the Contractor’s performance of the Customer Contract is to apply:

Clause 6.10 will apply.

Specify any specific time intervals for service and performance reviews:

Item 18 Site Preparation and Maintenance

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Site Specifications (clause 6.12)

Specify if a Site Specification is required: No, subject to the Contractor's compliance with all applicable Customer policies in respect of the Site whilst attending the Site

Access to Customer’s Site (clause 7.1(b))

Specify any other requirements in relation to the Site access:

Not applicable

Specify any requirements for the preparation and maintenance of the Site:

Item 19 Implementation Planning Study



Implementation Planning Study (clause 6.14)

Specify if the Contractor must provide an implementation planning study:

An Implementation Planning Study is required. The Deliverables to be provided as part of the study are listed in Module 13 (clause 2) and the Combined Requirements and as further detailed in Schedule 12 (PIPP)

Specify the implementation planning study objectives and time for provision of study:

The objectives are as stated in Module 13 (clause 2) and the Combined Requirements and time for provision of the study will be stated in the PIPP.

Date for delivery of the implementation planning study to the Customer:

As set out in the PIPP.

Specify if the implementation planning study need to undergo Acceptance Tests in accordance with clause 10.1(b):

Acceptance testing will be required for those Deliverables that are specified in the Combined Requirements or the PIPP as subject to Acceptance Testing. An approval process for Deliverables not subject to acceptance testing shall apply as specified in clause 2.7 of Module 13.

Item 20 Project Implementation and Payment Plan (PIPP) and Staged Implementation



Project Schedule (clause 6.17)

Invoicing (clause 11.7)

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Specify if a PIPP has been created. If so, identify the document in this Item and attach as an Annex to this General Order Form: E.g. the PIPP is in a document “PIPP v1 1 27/10/14” and Annexure 1 to the Customer Contract.

Yes. Included at Schedule 12 (PIPP) to the Customer Contract.

Staged Implementation (clause 6.20)

Specify if there is to be Staged Implementation: If so, details of the Deliverables that comprise each Stage must be stated in the PIPP together with the period during which the Customer must give written notice to move to the next Stage (if greater than 10 Business Days):

Stage 1 Implementation Planning Study: Plan and Design Stage 2 Transition and delivery of Solution Stage 3 Transition Out

Item 21 Liquidated Damages



Liquidated Damages (clause 6.28 to 6.34)

Specify if Liquidated Damages (LDs) will apply:

Specify the Milestones which are LD Obligations:

Specify the Due Date for completion of each LD Obligation:

Specify the calculation and amount of LDs for each LD obligation:

Specify the maximum number of days LDs are to be paid for each LD obligation:

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Item 22 Customer Supplied Items (CSI) and Customer Assistance



Customer Supplied Items (CSI) (clause 6.36)

Specify each CSI to be provided by the Customer: CSI may be:

office access, desks etc (specify location, standards, times of access); Hardware or software (specify equipment, capacity, versions of software and dates of availability); VPN access or other remote access (specify capacity and hours available).

[Note: details of any Customer Personnel should be specified in Item 26].

Refer to Combined Requirements for the list of incumbent third party supplier contracts and associated CSI. In addition, CSI are as set out in the PIPP (and in particular Attachment 8 to the PIPP in relation to laptops and other equipment).

Specify if any CSI must be covered by support and maintenance contracts including the period of cover, the Contractors rights of access to any third party support help desk, the hours and service levels to which support and maintenance must be available to the Contractor:

Specify the times when each CSI is to be provided:

CSI will be provided when stated in the PIPP

Specify any requirements to attach to any CSI: E.g. any standards that the CSI must meet.

Specify if the Contractor must conduct any verification checks of CSI’s to ensure they are satisfactory:

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If so, specify the verification check process for each CSI: Include:

a process to manage satisfactory and unsatisfactory verification checks; a process to manage ‘reissued’ CSI’s: a process to manage repeat CSI verification checks: a process to manage ‘draft’ or ‘incomplete’ and ‘updated’ CSI’s; a process to manage rejected CSI’s: a process to manage previously satisfactory CSI which becomes defective: a list of required verification check forms and/or registers and a corresponding data entry process: a list of Customer and Contractor nominee/s for responsibility to undertake verification checks:

Specify any amount payable by the Contractor to the Customer for any item of CSI:

Not applicable

Customer Assistance (clause 6.41)

Specify the instructions, information, data, documents, specifications, plans, drawings

Not applicable

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and other materials that must be provided by the Customer to the Contractor:

Item 23 Escrow



Escrow (clause 6.42)

Specify if an escrow arrangement is required:

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Specify the parties to the escrow arrangement:

Specify the time for the escrow arrangement to endure:

.

Item 24 Business Contingency Plan

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Business Contingency (clause 6.45)

Specify if a Business Contingency Plan is required:

A Business Contingency Plan is required

Specify when the Business Contingency Plan is required:

Specify any information to be included in the Business Contingency Plan including the business contingency services required and the period of the services:

Specify the periods that the Business Contingency Plan must be reviewed, updated by the Contractor:

Specify the time periods that the Contractor is to test the operability of the Business Contingency Plan:

Item 25 Secrecy and Security

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Access to Customer’s Site (clause 7.4)

Specify any secrecy or security requirements that the Contractor and its Personnel must comply with: E.g. insert a reference to any document that includes a security requirement.

The Solution must meet the standards and policies for security and secrecy management specified in the Combined Requirements and clause 9 of Module 13.

Item 26 Customer’s Personnel



Personnel General (clause 8.5)

Specify the Customer’s Personnel who will be available to work with the Contractor and their roles and responsibilities: Also specify the times and duration of their involvement as well as their authority levels:

As set out in section 7 of the PIPP.

Item 27 Specified Personnel



Specified Personnel (clause 8.8)

Specify the identity and roles and responsibilities of any of the Contractor’s Specified Personnel:

As set out in section 7 of the PIPP.

Item 28 Subcontractors



Agents and Subcontractors (clause 8.17)

Specify which subcontractors are required to provide a Statutory Declaration by Subcontractor, substantially in the form of Schedule 7:

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Item 29 Quality Standard Accreditation



Contractor Warranties (clause 9.1(h))

Specify any quality standard accreditation arrangements the Contractor must hold during the Contract Period:

Item 30 Contractor’s Compliance with Standards, Codes and Laws



Contractor Warranties (clause 9.1(g))

Specify any laws (other than Statutory Requirements) the Contractor is to comply with:

Specify any codes, policies, guidelines or standards the Contractor is to comply with:

Item 31 Customer’s Compliance with Standards, Codes and Laws



Customer Warranties (clause 9.3(h))

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Specify any laws (other than Statutory Requirements) the Customer is to comply with:

Not applicable

Specify any codes, policies, guidelines or standards the Customer is to comply with: Not applicable

Item 32 Acceptance Testing



Part 3 Dictionary (clauses 1.2 to 1.4) The parties intend to follow the process set out in clause 10.3 of the Customer Contract in addressing each of the sections of this Item 32 (unless otherwise specified in this item), and will develop Acceptance Testing plans in accordance clause 10.3.

Acceptance Test Notification Period is the period from the end of the Acceptance Test Period, within which the Customer must provide to the Contractor written notice of the result of the Acceptance Test. Specify this period: If no period is specified, the period is 2 Business Days:

As set out in the PIPP and/or the test strategy to be developed by the Parties as part of the IPS (Test Strategy)

Acceptance Test Data is the data that is provided by the Customer, and agreed by the Contractor that reflects the data the Customer will use in the Deliverable, that is to be used for Acceptance Testing. Specify the Acceptance Test Data:

As set out in the PIPP and/or the Test Strategy

Acceptance Test Period is the period for the performance of any Acceptance Tests for any Deliverable. Specify this period: If no period is specified, the period is 10 Business Days from the date of delivery of the Deliverable to the Customer.


Acceptance (clause 10.1)

For each Deliverable, specify whether each Deliverable is to undergo Acceptance Testing:


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If not, the Deliverable will be Accepted under clause 10.1(a).

If a Deliverable is not to undergo Acceptance Tests, specify the period required following delivery of the Deliverable as required by the Order Documents when the Actual Acceptance Date (AAD) for a Deliverable occurs: If no period is specified, then the period is 2 Business Days.

Conducting Acceptance Tests (clause 10.3)

For each Deliverable that is to undergo Acceptance Tests, specify details of the Acceptance Testing requirements:


Specify the identification of the Deliverables or part of the Deliverables to be tested:


Specify the allocation of each Party’s responsibilities in relation to testing, including the Party responsible for conducting the Acceptance Tests:


Specify which Party is to provide the test environment, including hardware, software, power, consumables and other resources and when the environment and resources must be ready for use:

The Contractor must provide the test environment meeting the requirements specified in the Acceptance Test plans developed under clause 10.3 of the Customer Contract.

Specify the methodology and process for conducting Acceptance Tests: As set out in the PIPP and/or the Test Strategy

Specify the scheduling of Acceptance Tests including the Acceptance Test Period and the Acceptance Test Notification Period:


Specify the Acceptance Criteria used to test whether the Deliverable meets the Contract Specification and other requirements of the Customer Contract:


Specify the Acceptance Test Data required: As set out in the PIPP and/or the Test Strategy

If an Acceptance Test document has been created that addresses the above

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points it can be attached to the General Order Form by identifying the document here:

Item 33 Credit/Debit Card



Payment (clause 11.3)

Specify any credit/ debit card or electronic facility that the Customer may use to pay the Contractor:

Not applicable

Specify any fee that is applicable for payment by credit/debit card Not applicable

Item 34 Intellectual Property



Existing Material (clauses 13.7 and 13.9)

Specify any terms and condition applicable for granting a license for Existing Material owned by a third party:

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Specify any fees to be charged for any license to use any of Contractor’s Existing Materials:

Customer Owned New Material (clause 13.10)

Specify if clause 13.10 applies, and if so, to which items of New Material:

Item 35 Confidentiality



Confidentiality (clause 14.1)

Specify if the Contractor must arrange for its Subcontractors to execute a Deed of Confidentiality substantially in the form of Schedule 8 – Deed of Confidentiality:

The Contractor must arrange for its Subcontractors to execute a Deed of Confidentiality substantially in the form of Schedule 8 – Deed of Confidentiality

Item 36 Insurance Requirements

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Insurance (clause 16.7) All insurances required under the Customer Contract must be provided by an insurer approved by the Australian Prudential Regulation Authority or similar regulatory authority

Level of indemnity of public liability insurance in respect of each claim for the period of cover. The default requirement in the Customer Contract is $10,000,000 [Only specify if a higher limit of cover that is required by the Customer Contract:]

Level of indemnity of product liability insurance for the total aggregate liability for all claims for the period of cover. The default requirement in the Customer Contract is $10,000,000 [Only specify if any higher limit of cover that is required by the Customer Contract:]

If Services are being provided under the Customer Contract the default level of indemnity of professional indemnity insurance for the total aggregate liability for all claims for the period of cover is $1,000,000 [Only specify is a higher limit that is required by the Customer Contract:]

Specify any additional insurance that the Contractor is to hold, including the type of insurance, the term of the insurance and the amount of the insurance:

Item 37 Performance Guarantee



Performance Guarantee (clause 17.2)

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Specify if the Contractor must arrange for a guarantor to enter into a Performance Guarantee:

Specify the date by which the Performance Guarantee must be provided to the Customer. If no date is specified the Contractor must provide the Performance Guarantee to the Customer within 30 days of the Commencement Date.

Item 38 Financial Security



Financial Security (clause 17.4)

Specify if the Contractor must provide a Financial Security: If so, specify the amount of the Financial Security:

Specify the date by which the Financial Security must be provided to the Customer: If no date is specified, the Contractor must provide the Financial Security within 14 days of the Commencement Date.

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Item 39 Limitation of Liability

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Limitation of Liability (clause 18)

If the Parties cannot agree the amount that is legally payable under the Customer Contract for the:

• Non-Recurring Service or Product; and/or

• Short Term Recurring Service (as applicable) insert the amount that the Parties agree is the best estimate of the Contract Value for the relevant item (the Estimated Contract Price). Note: It may be necessary to separately identity the amounts payable under a single Customer Contract into separate amounts that are attributable to each of the different types of Product/ Service. (See the definition of Contract Value in Part 3)

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If Services are being provided under any of the following Modules: Module 6 – IT Personnel; Module 7 – Professional Services; Module 8 – Data Management; Module 11 – Web Services; Module 16 - Project Management Services; Module 17 - Change Management Services; Module 18 - Knowledge Transfer Services; or Module 20 - Whole of Government Requirements specify whether the Parties regard the relevant Services as being:

• the supply of a service of the same type on a periodic basis, and so are to be classified as Recurring Services for the purpose of the limitation of liability; or

• provided in respect of a specific

project where the Contractor has been engaged by a Customer to produce, create or deliver a specified outcome or solution that may be subject to Acceptance Testing, in which case the Services are to be classified as Non-Recurring Services for the purpose of the limitation of liability.

(See definition of Non-Recurring Services and Recurring Services in Part 3)



Specify the alternative cap of liability (clause 18.3):

Item 40 Performance Management Reports



Reporting (clause 21.1)

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Specify the reports required, (if any), the time for provision and the agreed format:

Item 41 Dispute Resolution



Dispute Resolution (clause 24.11)

Specify the threshold amount in AU$ for issues to be resolved by expert determination under clauses 24.7 to 24.8.

Specify type of issue/s not to be determined by expert determination under clauses 24.7 to 24.8.

Not applicable

Item 42 Termination for Convenience



Termination for Convenience by the Customer (clause 25.4)

Specify whether an amount is payable under clause 25.4(b) if the Customer exercises its right of termination for convenience under clause 25.3:

Item 43 Additional Conditions

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Specify any Additional Conditions: Note: where the Customer Contract is made under a Head Agreement the Customer must obtain the Contract Authority’s and the Director General’s NSW Department of Finance and Services consent where an Additional Condition varies a Protected Clause.

The Additional Conditions are as set out in the Annexure to this General Order Form.

Print name

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Signature of Witness

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This General Order Form is part of the Customer Contract and incorporates all Parts, terms and conditions and other documents listed in clause 3.8 of Part 2 as if repeated in full in this General Order Form.

SIGNED AS AN AGREEMENT

Signed for and on behalf of

The State of New South Wales as represented by the NSW Technical and Further Education Commission ABN 89 755 348 137

By

Red Rock Consulting Pty. Ltd ABN 59 081 356 425

Signature of Authorised Signatory

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Date

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Schedule 2 : Agreement Documents

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Schedule 3: Service Level Agreement

SEE SEPARATE SCHEDULE 3 DOCUMENT

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Schedule 4: Variation Procedures

1. Procedures

1.1 Each request or recommendation for a change to the PIPP or any part of the Customer Contract must be submitted in a form substantially similar to the Change Request form attached to this Schedule.

1.2 For each draft Change Request submitted:

(a) the Customer must allocate it with a sequential number;

(b) the draft Change Request must be logged and its progress documented by recording its status from time to time by the Contractor as follows:

(i) requested;

(ii) under evaluation;

(iii) awaiting authorisation;

(iv) cancelled;

(v) pending

(vi) approved/authorised;

(vii) expired;

(viii) in progress;

(ix) applied;

(x) delivered;

(xi) accepted.

1.3 The Party receiving the draft Change Request must within 5 Business Days of receipt (or such longer period set out in the Change Request):

(a) request further information;

(b) provide written notification to the other Party of its approval or rejection of the Change Request.

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1.4 If the Customer submits a draft Change Request to the Contractor, and the Contractor believes that there is more than 1 Business Day’s work involved in the evaluation of the Change Request, then prior to commencing work on evaluating the draft Change Request the Contractor may request that the Customer pays for the work involved to evaluate the draft Change Request. The Customer may then either revise the draft Change Request to require less than 1 Business Day’s work to evaluate it, or agree to pay for the Contractor’s work to evaluate the Change Request in an amount agreed by the Parties, or in absence of agreement, at the Contractor’s then current commercial rates.

1.5 If the Customer Contract has been entered into under a Head Agreement, and the Change Request seeks to vary a Protected Clause and the Customer approves of the Change Request, the Customer must submit the Change Request to the Contract Authority and the Director General, NSW Department of Finance and Services, for approval immediately after it has notified the Contractor that it approves the Change Request.

1. Status

1.1 A Change Request is binding on the Parties only when both Parties have signed it. Once signed by both parties the Change Request updates the Customer Contract in accordance with the terms of the Change Request. The Contractor must not implement any draft Change Request until the Customer has signed the Change Request form.

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2. Change Request Form

CHANGE REQUEST BRIEF DETAILS

Change Request Number Insert Change Request Number (supplied by the Customer)

Date of Change Request Insert date of draft Change Request

Originator of need for Change Request

Customer or Contractor

Proposed Implementation Date of Change

Insert proposed date of implementation

Date of expiry of validity of Change Request

Insert validity expiry date. The Change Request is invalid after this date.

Contractor’s estimated time and cost of evaluation

Insert estimated time and cost of evaluation

Amount agreed to be paid to the Contractor for evaluating the draft Change Request, if any

(This applies only if the Customer is the Party that originated the need for a Change Request; and the Contractor estimates the cost of evaluating and drafting the Change Request exceeds 2 Business Days)

Insert amount to be paid to the Contractor for evaluating the draft Change Request

CHANGE REQUEST HISTORY LOG

Change Request Version History

Date Issue Version Status/Reason for New Issue Author

Insert date Insert version Insert status/reason Insert author

DETAILS OF CHANGE REQUEST

Summary

[Insert a summary of the changes, if required]

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SCOPE

[Insert changes to the scope of Products to be provided and/or any Services, including any extensions to the Contract Period.]

EFFECT OF CHANGE ON CONTRACT SPECIFICATION

[Insert any changes to the Contract Specification]

EFFECT OF CHANGE ON PROJECT TIMETABLE

[Insert changes to the project timetable]

New PIPP (annexed)

[Annex new PIPP if required]

EFFECT OF CHANGE ON CHARGES AND TIMING OF PAYMENT

[Insert new charges and the timing of payment into the new PIPP]

CHANGES TO CSI

[Insert any changes to the CSI]

CHANGES TO CUSTOMER PERSONNEL

[Insert any changes to the Customer’s Personnel]

CHANGES TO CUSTOMER ASSISTANCE

[Insert any changes to the Customer’s Assistance]

PLAN FOR IMPLEMENTING THE CHANGE

[insert the plan for implementing the change – if any.]

THE RESPONSIBILITIES OF THE PARTIES FOR IMPLEMENTING THE CHANGE

[Insert the responsibilities of the respective Parties for implementing the change – if any.]

Responsibilities of the Contractor

[Insert the responsibilities of the Contractor for implementing the change – if any.]

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Responsibilities of the Customer

[insert the responsibilities of the Customer for implementing the change – if any.]

EFFECT ON ACCEPTANCE TESTING OF ANY DELIVERABLE

[Insert if there will be any effect on the Acceptance Testing of any Deliverable – or alternatively insert None.]

EFFECT OF CHANGE ON PERFORMANCE OF ANY DELIVERABLE

[Insert if there will be any effect on performance of any Deliverable – or alternatively insert None.]

EFFECT ON USERS OF THE SYSTEM/SOLUTION

[Insert if there will be any effect on users of the system/solution – or alternatively insert None.]

EFFECT OF CHANGE ON DOCUMENTATION DELIVERABLES

Changes will be required to the following documents:

[Add any other documents which may be affected.]

EFFECT ON TRAINING

Insert if there will an effect on training or alternatively insert None.]

ANY OTHER MATTERS WHICH THE PARTIES CONSIDER IMPORTANT

[insert if there are any other matters.]

ASSUMPTIONS

The plan for implementing the changes outlined in this Change Request is based on the assumptions listed below:

[Insert any assumptions. If none then this section will be deleted].

If the assumptions are or become untrue, the Parties will address the effect of this through a subsequent Change Request.

LIST OF DOCUMENTS THAT FORM PART OF THIS CHANGE REQUEST

[Insert a list of the documents that form part of this Change Request]

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CUSTOMER CONTRACT CLAUSES, SCHEDULES AFFECTED BY THE PROPOSAL ARE AS FOLLOWS:

[Insert amendments to clauses in the Customer Contract, relevant Schedules including Service Level Agreement]

Note that variations to any of the Protected Clauses require the Customer to obtain the Contract Authority’s and the Director General, NSW Department of Finance and Services approval (clause 26.2))

AUTHORISATION

The Contractor must not commence work on the Change Request until is signed by both Parties. Once signed by both Parties, the Customer Contract is updated by this Change Request and any provisions of the Customer Contract that conflict with this Change Request are superseded.

SIGNED AS AN AGREEMENT


The State of New South Wales as represented by the NSW Technical and Further Education

Commission ABN 89 755 348 13

By [insert name of Customer’s Representative] but not so as to incur personal liability

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Signature of Customer Representative

Print name

Date




Print name

Date

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Schedule 5: Not used

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Schedule 6: Not used

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Schedule 7: Statutory Declaration – Subcontractor

Oaths Act (NSW), 1900 Ninth Schedule

I, do solemnly and sincerely declare that to the best of my

knowledge and belief:

1. [insert full Subcontractor company name and its ACN/ABN] (Subcontractor) has been selected as subcontractor to, [insert name of the Contractor and its ACN/ABN] (Contractor) under an agreement between the [insert name of Customer] (Customer) and the Contractor dated [insert date of Customer Contract].

2. The Subcontractor will offer to enter into an agreement with the Contractor in connection with the Customer Contract on terms that are not inconsistent with the terms of the Customer Contract in so far as those terms are relevant to the Subcontractor.

3. As at the date of this Statutory Declaration there are no reasons of which I am aware that would prevent the Subcontractor’s agreement with the Contractor from being performed in a manner that would allow the satisfactory and timely performance of that subcontract.

And I make this solemn declaration, as to the matter aforesaid according to the law in this behalf made, and subject to the punishment by law provided for any wilfully false statement in any such declaration.

Declared at

the day of 20

Before me,

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Schedule 8: Deed of Confidentiality

Deed of Agreement dated the day of 20

Between [insert name of the Customer (Customer)

And [insert name and address of Subcontractor] (Subcontractor)

RECITALS

(A) In the course of the Subcontractor assisting in the supply by the Contractor of certain Deliverables for the Customer under a subcontract agreement between the Subcontractor and the Contractor, the Subcontractor will have access to, and may become aware of, Confidential Information belonging to, or in the possession of, the Customer.

(B) Improper use or disclosure of the Confidential Information would severely damage the Customer’s ability to perform its governmental/statutory functions and would severely damage the commercial interests of the Customer.

(C) The Customer requires, and the Subcontractor agrees, that it is necessary to take all reasonable steps (including the execution of this Deed) to ensure that the Customer’s Confidential Information is kept confidential.

(D) This Deed sets out the terms on which the Subcontractor will have access to the Confidential Information.

WHAT IS AGREED

1. Recitals

The Parties acknowledge the truth and accuracy of the Recitals.

2. Interpretation

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DEFINITIONS

2.1 In the interpretation of this Deed unless a contrary intention appears the following expressions will have the following meanings:

Agreement means the Customer Contract entered into under the Procure IT Framework between the Contractor and the Customer under which the Contractor will supply Deliverables to the Customer dated [insert date].

Business Day means any day that is not a Saturday, Sunday or a public holiday in New South Wales.

Confidential Information means information that:

(a) is by its nature confidential; or

(b) is communicated by the Customer to the Subcontractor as confidential; or

(c) the Subcontractor knows or ought to know is confidential; or

(d) relates to:

(i) the Products and Services;

(ii) the financial, the corporate and the commercial information of the Customer;

(iii) the affairs of a third party (provided the information is non-public); and

(iv) the strategies, practices and procedures of the State and any information in the Subcontractor’s possession relating to the State public service,

but excludes any information which the Subcontractor can establish was:

(v) in the public domain, unless it came into the public domain due to a breach of confidentiality by the Subcontractor or another person;

(vi) independently developed by the Subcontractor; or

(vii) in the possession of the Subcontractor without breach of confidentiality by the confidant or other person.

Contractor means [insert name of Contractor].

Deliverables means any product or service and any associated material offered for supply or provided by the Contractor in accordance in the Agreement.

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Express Purpose means the Subcontractor performing the obligations under its subcontract agreement with the Contractor.

Intellectual Property Rights means all intellectual property rights including:

(a) copyright, patent, trademark, design, semi-conductor or circuit layout rights, registered design, trademarks or trade name and other protected rights, or related rights, existing worldwide; and

(b) any licence, consent, application or right, to use or grant the use of, or apply for the registration of, any of the rights referred to in (a),

but does not include the right to keep confidential information confidential, moral rights, business names, company names or domain names.

Notice means notice in writing given in accordance with this Deed.

State means the State of New South Wales.

GENERAL

2.2 Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Deed, except where the context makes it clear that a rule is not intended to apply

2.3 A reference to:

(a) legislation (including subordinate legislation) is a reference to that legislation as amended, re-enacted or replaced ,and includes any subordinate legislation issued under it;

(b) a document or agreement, or a provision of a document or agreement, is a reference to that document, agreement or provision as amended, supplemented, replaced or novated;

(c) a person includes any type of entity or body of persons whether or not it is incorporated or has a separate legal entity;

(d) anything (including a right, obligation or concept) includes each part of it.

2.4 If this Deed expressly or impliedly binds more than one person then it shall bind each such person separately and all such persons jointly.

2.5 A singular word includes the plural, and vice versa.

2.6 A word which suggests one gender includes the other gender.

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2.7 The words “include(s)” and “including” are not words of limitation.

2.8 If a word is defined, another part of speech of that word has a corresponding meaning.

3. Non disclosure

3.1 The Subcontractor must not disclose the Confidential Information to any person without the prior written consent of the Customer.

3.2 The Customer may grant or withhold its consent in its discretion.

3.3 If the Customer grants its consent, it may impose conditions on that consent, including a condition that the Subcontractor procures the execution of a Deed in these terms by the person to whom the Subcontractor proposes to disclose the Confidential Information.

3.4 If the Customer grants consent subject to conditions, the Subcontractor must comply with those conditions.

3.5 Despite clause 3.1, the Subcontractor may disclose the Confidential Information:

(a) to its directors, officers, employees and contractors;

(b) to the Contractor and its directors, officers, employees and the Contractor’s other contractors who are engaged in the supply of the Deliverables and their directors, officers, employees,

each referred to as permitted recipients, where such disclosure is essential to carrying out their duties in respect of the Express Purpose.

3.6 Despite clause 3.1, the Subcontractor may disclose the Confidential Information:

(a) to its lawyers, accountants, insurers, financiers and other professional advisers where the disclosure is in connection with advising on, reporting on, or facilitating the performance under this Deed; or

(b) if the Subcontractor is required to disclose by law, order of a court or tribunal of competent jurisdiction or the listing rules of an applicable securities exchange.

3.7 Before disclosing the Confidential Information to a permitted recipient, the Subcontractor will ensure that the permitted recipient is aware of the confidentiality requirements of this Deed and is advised that it is strictly forbidden from disclosing the Confidential Information or from using the confidential information other than as permitted by this Deed.

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3.8 The Confidential Information must not be copied or reproduced by the Subcontractor or the permitted recipients without the expressed prior written permission of the Customer, except as for such copies as may be reasonably required for the Express Purpose.

3.9 If any person, being any director, officer, contractor or employee of the Subcontractor, who has had access to the Confidential Information in accordance with this clause 3 leaves the service or employ of the Subcontractor then the Subcontractor will procure that that person does not do or permit to be done anything which, if done or permitted to be done by the Subcontractor, would be a breach of the obligations of the Subcontractor under this Deed.

4. Restriction on use

4.1 The Subcontractor must use the Confidential Information only for the Express Purpose and must not without the prior written consent of the Customer use the Confidential Information for any purpose other than the Express Purpose.

4.2 The Subcontractor must, unless otherwise authorised by the prior written consent of the Customer:

(a) treat as confidential and secret all of the Confidential Information which the Subcontractor has already acquired or will acquire from the Customer;

(b) take proper and adequate precautions at all times and enforce such precautions to preserve the confidentiality of the Confidential Information and take all necessary action to prevent any person obtaining access to the Confidential Information other than in accordance with this Deed;

(c) not directly or indirectly use, disclose, publish or communicate or permit the use disclosure, publication or communication of the Confidential Information to any person other than in accordance with this Deed;

(d) not copy or disclose to any person in any manner any of the Confidential Information other than in accordance with this Deed; and

(e) ensure that the permitted recipients comply with the terms of this Deed and keep the Confidential Information confidential and not use or disclose the Confidential Information other than as permitted by this Deed.

5. Survival

5.1 This Deed will survive the termination or expiry of the Agreement for a period of 6 years.

6. Rights of the Customer

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PRODUCTION OF DOCUMENTS

6.1 The Customer may demand the delivery up to the Customer of all documents in the possession or control of the Subcontractor containing the Confidential Information.

6.2 The Subcontractor must immediately comply with a demand under this clause 6.

6.3 If the Customer makes a demand under this clause 6, and documents containing the Confidential Information are beyond the Subcontractor’s possession or control, then the Subcontractor must provide full particulars of the whereabouts of the documents containing the Confidential Information, and the identity of the person in whose possession or control they lie.

6.4 In this clause 6, “documents” includes any form of storage of information, whether visible to the eye or not.

LEGAL PROCEEDINGS

6.5 The Customer may take legal proceedings against the Subcontractor or third parties if there is any actual, threatened or suspected breach of this Deed, including proceedings for an injunction to restrain such breach.

7. Indemnity and release

7.1 The Subcontractor is liable for, and agrees to indemnify and keep indemnified the Customer in respect of, any claim, damage, loss, liability, cost, expense, or payment which the Customer suffers or incurs as a result of:

(a) a breach of this Deed (including a breach of this Deed which results in the infringement of the rights of any third party); or

(b) the disclosure or use of the Confidential Information by the Subcontractor or the permitted recipients other than in accordance with this Deed.

8. No exclusion of law or equity

This Deed does not exclude the operation of any principle of law or equity intended to protect and preserve the confidentiality of the Confidential Information.

9. Waiver

9.1 No waiver by the Customer of one breach of any obligation or provision of this Deed will operate as a waiver of another breach of any other obligation or provision of this Deed.

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9.2 None of the provisions of this Deed will be taken to have been varied waived discharged or released by the Customer unless by its express consent in writing.

10. Remedies cumulative

CUMULATIVE

10.1 The rights and remedies provided under this Deed are cumulative and not exclusive of any other rights or remedies.

OTHER INSTRUMENTS

10.2 Subject to the other covenants of this Deed, the rights and obligations of the parties pursuant to this Deed are in addition to and do not derogate from any other right or obligation between the parties under any other Deed or agreement to which they are parties.

11. Variations and amendments

No term or provision of this Deed may be amended or varied unless reduced to writing and signed by the parties in the same manner as this instrument.

12. Applicable law

This Deed will be governed and construed in accordance with the laws of the State.

13. Notices

13.1 Notices must be sent to the other party at the address shown in this Deed, or the address last notified to the other party in writing, or in the case of the Subcontractor, at the Subcontractor’s registered office.

13.2 All notices must be in writing and signed by the relevant party and must be given either by hand delivery, post or facsimile transmission.

13.3 If delivery or receipt of a notice is not made on a Business Day, then it will be taken to be made on the next Business Day.

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EXECUTED AS A DEED

Signed, sealed and delivered by [insert name of Customer]

By [insert name of Customer Representative] but not so as to incur personal liability

In the presence of: [insert name of witness]

Signature of Customer Signature of Witness

Print name Print name

Date Date

Signed, sealed and delivered by [insert Subcontractor’s name and ACN/ABN]

in accordance with s127 of the Corporations Act 2001 (Cth) by:

Signature Director Signature of Director/Secretary


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Date Date

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Schedule 9: Performance Guarantee

SEE SEPARATE PERFORMANCE GUARANTEE DOCUMENT.

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Schedule 10: Financial Security

EXECUTED FINANCIAL SECURITIES ON FOLLOWING PAGE.

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Schedule 11: Dispute Resolution Procedures

1. Expert Determination

1.1 If a Referral Notice is submitted under clause 24.7 of the Customer Contract, the expert is to be agreed between the Parties. If they cannot agree within 28 days of the Referral Notice, the expert is to be nominated on the application of either Party by the Chief Executive Officer, Australian Commercial Disputes Centre of NSW.

1.2 The expert nominated must be a person who is an experienced Australian legal practitioner or a person with practical experience in the technology that is the subject matter of the dispute, unless otherwise agreed. The expert must not be:

(a) an employee of the Parties;

(b) a person who has been connected with this Customer Contract or has a conflict of interest, as the case maybe; or

(c) a person who the Parties have not been able to agree on.

1.3 The expert may appoint any person that the expert believes will be able to provide the specialists skills that are necessary to make a determination, including an Australian legal practitioner. The expert must consult with both Parties prior to appointing such person.

1.4 When the person to be the expert has been agreed or nominated, the Customer, on behalf of both Parties, must engage the expert by letter of engagement (and provide a copy to the Contractor) setting out:

(a) the issue referred to the expert for determination;

(b) the expert’s fees;

(c) the procedure for the determination set out in this Schedule; and

(d) any other matter which is relevant to the engagement.

2. Submissions

2.1 The procedure for submissions to the expert is as follows:

(a) The Party that has referred the issue to expert determination must make a submission in respect of the issue, within 30 Business Days after the date of the letter of engagement referred to in clause 1.4.

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(b) The other Party must respond within 30 Business Days after receiving a copy of that submission. That response may include cross-claims.

(c) The Party referred to in clause 2.1(a) may reply to the response, but must do so within 20 Business Days after receiving the response, and must not raise new matters.

(d) The other Party may comment on the reply, but must do so within 20 Business Days after receiving the reply, and must not raise new matters.

(e) The expert must ignore any submission, response, reply, or comment not made within the time given in this clause 2.1, unless the Customer and the Contractor agree otherwise.

(f) The expert may request further information from either Party. The request must be in writing, with a time limit for the response. The expert must send a copy of the request and response to the other Party, and give the other Party a reasonable opportunity to comment on the response.

(g) All submissions, responses, replies, requests and comments must be in writing. If a Party gives information to the expert, it must at the same time give a copy to the other Party.

3. Conference

3.1 The expert must arrange at least one conference with both Parties. The request must be in writing, setting out the matters to be discussed.

3.2 Each Party is entitled to be represented at any preliminary conference before the expert by its legal representatives and other authorised representatives, with information and knowledge of the issues.

3.3 The expert is not bound by the rules of evidence and may receive information in any manner the expert sees fit, but must observe the requirements of procedural fairness. Consultation between the expert and a Party must only take place in the presence of the other Party, unless a Party fails to attend a conference or meeting which has been convened by the expert and of which prior notice has been given. Any Party providing information to the expert must provide that information to the other Party.

3.4 The Parties agree that such a conference is considered not to be a hearing that would give anything under this Schedule the character of arbitration.

3.5 In answer to any issue referred to the expert by a Party, the other Party can raise any defence, set-off or counter-claim.

4. Questions to be determined by the Expert

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4.1 The expert must determine for each issue the following questions (to the extent that they are applicable to the issue):

(a) is there an event, act or omission that gives the claimant a right to compensation under the Customer Contract:

(i) for damages for breach of the Customer Contract, or

(ii) otherwise in law?

(b) if so:

(i) what is the event, act or omission?

(ii) on what date did the event, act or omission occur?

(iii) what is the legal right which gives rise to the liability to compensation?

(iv) is that right extinguished, barred or reduced by any provision of the Customer Contract, estoppel, waiver, accord and satisfaction, set-off, cross-claim, or other legal right?

(c) in the light of the answers to clause 4.1:

(i) What compensation, if any, is due from one Party to the other and when did it fall due?

(ii) What interest, if any, is due when the expert determines that compensation?

4.2 The expert must determine for each issue any other questions required by the Parties, having regard to the nature of the issue.

4.3 The Parties must share equally the fees of the expert, any other costs associated with the process, including room hire expenses, transcript expenses and the like and the fees of any person appointed by the expert under clause 1.3 for the determination, and bear their own expenses.

4.4 If the expert determines that one Party must pay the other an amount exceeding the amount specified in General Order Form (calculating the amount without including interest on it and after allowing for set-offs), then either Party may commence litigation, but only within 56 days after receiving the determination.

4.5 Unless a Party has a right to commence litigation or otherwise resolve the dispute under the Customer Contract:

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(a) in the absence of a manifest error the Parties must treat each determination of the expert as final and binding and give effect to it; and

(b) if the expert determines that one Party owes the other money, that Party must pay the money within 20 Business Days.

5. Role of Expert

5.1 The expert must:

(a) act as an expert and not as an arbitrator, adjudicator or as expert witness;

(b) make its determination on the basis of the submissions of the Parties, including documents and witness statements, and the expert’s own expertise;

(c) act impartially, free of bias and with no vested interest in the outcome of the dispute;

(d) adopt procedures for the Expert Determination suitable to the circumstances of the dispute so as to provide for an expeditious cost effective and fair means for the determination of the dispute; and

(e) issue a certificate in a form the expert considers appropriate, stating the expert’s determination and giving reasons, within 45 Business Days after the receipt of the information in clause 2.1(d).

5.2 If a certificate issued by the expert contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures, a mistake in the description of any person, matter or thing, or a defect of form, then the expert must correct the certificate and give notice to the Parties of such correction.

6. Confidentiality

6.1 Each Party involved in the expert determination process, including the expert, the Parties, their advisors and representatives shall maintain the confidentiality of the expert determination process and may not use or disclose to anyone outside of the expert determination process, the expert’s determination, or any information received or obtained, in the course of the expert determination process, including the existence of that information, except to the extent:

(a) the Parties have otherwise agreed in writing;

(b) the information is already in the public domain;

(c) disclosure is required to a Party’s insurers, auditors, accountants or other professional advisers;

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(d) disclosure is required for the purposes of any legal proceedings relating to the dispute or the expert’s determination; or

(e) disclosure is otherwise required by law.

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Schedule 12: PIPP

SEE SEPARATE PIPP DOCUMENT.

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PART C

Procure IT version 3.1

Contracting framework

MODULE ORDER FORM

MODULE 7 – PROFESSIONAL SERVICES

Box 1 Details of Professional Services

Details to be included from Module 7 Order Details agreed by the Contractor and

the Customer

Scope (clause 3.1)

Specify the Professional Services (other than Training Services) which are to be provided including:

Details of the Professional Services (other than Training Services) are set out in the PIPP”.]

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(a) the Contract Period;

(b) the details of the Professional Services that the Contractor is to provide;

(c) the details of any Specified Personnel;

(d) the details of any Deliverables and their Contract Specifications;

(e) the location of where the Professional Services are to be provided;

(f) whether any Deliverable must undergo an Acceptance Test;

(g) the Price, expenses and any other charges that apply in respect of the Professional Services; and

(h) how the Prices, expenses and charges will be paid, including any Payment Milestones and whether the Professional Services are provided on a time and materials basis or some other basis.

[Note: These details can be put on a PIPP instead of being including on this Module Order Form. If the details are put on a PIPP, insert “Details of the Professional Services

See above

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(other than Training Services) are set out in the PIPP”.]

Box 2 Requirement for a PIPP

Details to be included from Module

3 Order Details agreed by the Contractor

and the Customer

Project Implementation and

payment Plan (PIPP) (clause 3.3)

Specify if the Contractor is required to provide a PIPP, if no PIPP is attached to this Customer Contract at the Commencement Date. [If this Box is not completed, the Contractor is not required to provide a PIPP.]

A PIPP is annexed at Schedule 12.

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PART C

Procure IT version 3.1

Contracting framework

MODULE ORDER FORM

MODULE 13 – SOLUTION IMPLEMENTATION SERVICES

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Box 1 Details of Implementation Services

Details to be included from Module

13 Order Details agreed by the Contractor

and the Customer

Scope (Clause 4.1)

Specify the Implementation Services which are to be provided, including:

a) the details of the Implementation Services that the Contractor is to provide;

b) the details of any Specified Personnel;

c) the details of any Deliverables and their Contract Specifications;

d) the location of the where the Implementation Services are to be provided;

e) whether any Deliverable must undergo an Acceptance Test;

f) the Price, expenses and any other charges that may apply in respect of the Implementation Services; and

g) how the Prices, expenses and charges will be paid, including any Payment Milestones and whether the Implementation Services are provided on a time and materials basis or some other basis.

[Note: These details can be put on a PIPP instead of being including on this Module Order Form. If the details are put on a PIPP, insert “Details of the Implementation Services are set out in the PIPP” and also include specific

As per the PIPP.

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cross-references in respect of that document.]

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Procure IT version 3.1 Contracting framework

Module 10 As a Service

TAFE VERSION 30052017

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MODULE ORDER FORM

MODULE 10 – AS A SERVICE

Box 1 Services

Details to be included from Module 10 Order Details agreed by the Contractor and the Customer

Contract Period (clause 2.1) Specify the Services Commencement Date, and, if applicable, the period of time for which the Services will be provided

Services Commencement Date

The Services Commencement Date in respect of the Services under this Module 10 is the first Go-Live Acceptance Date (as defined in Module 13) in respect of a mutually agreed release of the Solution (as defined in Module 13).

Module 10 Services Period

The Services under this Module 10 will be provided until the date which is 6 years after the earlier of: (a) the date on which the Unique Active Student* metric is used to calculate the applicable Charges for the Services under this Module 10 as a result of a mutually agreed release of the Solution being deployed in the production environment (Main Release); and (b) 6 months after the Go-Live Acceptance Date for the Main Release where the Main Release is not deployed into production immediately after the Go-Live Acceptance Date, (in either case the Main Release Date).

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* Unique Active Student metric as may be described in the Contractor Pricing Schedule (Service Delivery Rate Card tab)

Service definition (clause 2.3)

Describe the Service to be provided, i.e.: a. Infrastructure as a Service b. Platform as a Service c. Software as a Service, and d. any Management Services (unless subject

to a separate module), e.g. - implementation - user training - support services - ongoing system administration - monitoring and performance

management - backup and recovery services

The Service Definition should include the strategy for the delivery of the Services that is appropriate for the Customer’s needs and its user population, such as: a. identification of the Services to be

performed b. identification of Client Contracts and Third

Party Contracts and how they are to be managed

c. a mechanism to determine when Transition In Services are complete and the Services can commence

d. implementation of the Services, and Note: Module 10 expects that the Parties will enter into a Service Level Agreement.

Scope of Software as a Service: The Contractor is providing a Student Management Solution named "Red Campus", as further described in the Contract Specifications, managed and delivered on an as-a–Service basis to the Customer in accordance with this Customer Contract. The Contractor as the service provider will manage all aspects of the delivery of the Student Management Solution to the Customer including Implementation Services under Module 13 and ongoing service management as per this Customer Contract including Schedule 3 (Service Level Agreement). Support Services: The Contractor will provide end-to-end management of the Student Management Solution including Application, Platform, Operating System and Cloud Management Services, as further described in the Contract Specifications and this Customer Contract (including Schedule 3 (Service Level Agreement)). Detailed Service Catalogue and support services definitions are outlined in Schedule 3 (Service Level Agreement).

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Specify any Support Services that are additional to the As a Service and may include, but are not limited to, implementation, user training and ongoing system administration, monitoring and performance management, backup and recovery services.

Transition out Services: as stated in Box 7 below and clause 10.2 of Module 10 and the Transition out Plan

Training Services (clause 10.3)

Specify whether the Contractor will provide any training services associated with the Service. If yes, specify the time when training services will be provided.

The Contractor will provide training services in accordance with Schedule 12 (PIPP), as may be updated by the Parties by written agreement following conclusion of the Implementation Planning Study.

Documentation (clause 10.4)

Specify any Contractor documents, in addition to User Documentation, to substantiate the Contractor’s compliance with its privacy, security and business continuity commitments.

Not applicable

Pricing

Specify whether the Service is for a fixed price or on a subscription basis. If for a fixed price, set out the pricing for the Service. If on a subscription basis, specify how payment is made (e.g. monthly, yearly, etc.). Specify the price of any training services. (clause 10.3)

Pricing as per Schedule 12 (PIPP) and Item 14 of the General Order Form.

Approved Purpose (clauses 1.2 and 7.1(b))

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Specify the purpose for which the Customer and Permitted Users shall use the Service. Purposes: to use the Solution (as defined in

Module 13) to support the Customer’s business operations including the administration of students (as contemplated by the Statement of Requirements).

Box 2 Transition In


Specification of Transition In Services (clause 10.1)

Specify any Transition In Services to be provided, such as: a. due diligence b. data migration c. business contingency plans d. testing of Services e. handover arrangements

Due diligence may include assessment and definition of the: a. Customer’s goals, requirements and

expectations in respect of the Services b. Contractor’s understanding of the

Customer’s and/or user’s experience and requirements in relation to the Services

c. objectives to be met by the Contractor d. nature and scope of the Service,

including the Environment, the Assets, Client Contracts and Third Party

All transition in activities (including the Implementation Planning Study) will be undertaken as part of Implementation Services under Module 13 and as set out in Schedule 12 (PIPP).

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Contracts (and any requirement to novate or assign any of them)

e. end users who will be supported by the Service

f. necessary Assets and Additional Items and how they may need to be procured

g. migration of Customer Data h. data retention and disposal

requirements i. required Deliverables j. resources required (including any

Customer Supplied Items or Customer assistance)

k. complexity of the project, and l. any Transition Out Services plan.

Data migration services should include the drafting of a Procedures Manual (if one does not exist as part of the Service Definition) for approval by the Customer (e.g. within 14 days). The Procedures Manual should describe the key attributes of the Services, including: a. the governance arrangements between

the Customer and the Contractor b. the governance arrangements dealing

with the Contractor and any third parties

c. the protocols for managing security issues between the Parties

d. the protocols for identifying and managing risks

e. how the key aspects of the Services will be provided to the Customer

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f. the procedures for varying Services and providing Additional Services

g. how user complaints and disputes will be managed

h. updating the Procedures Manual i. Data backups, if required outside of

disaster recovery processes. Note: Once the Procedures Manual has been approved by the Customer it forms part of the Customer Contract and the Parties must perform their obligations in accordance with it.

Business Contingency Plan

The Parties may agree to include a Business Contingency Plan in accordance with clauses 6.45 to 6.48 of Part 2 of the Procure IT Framework.

Box 3 Customer Use and Access to the As a Service


Terms under which the Service is available (clause 4.1)

Consider issues including; a. authorisation to access the Service,

e.g. individual and multi-user passwords

b. maximum Contractor Systems capacity c. is the Customer responsible to acquire,

maintain and properly use any device, communications link and software and to update any device, communications

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link or software if the Technical Specification of the Service Definition changes during the Contract Period

d. is the Service provided on a shared service basis to the Customer and other clients from a common code base and/or common environment

e. conditions under which the Contractor may change any characteristics of the Service, and if the specifications of the Service must be amended accordingly; and

f. conditions under which the Contractor may correct errors patch or install new versions of the Service.

Data Centre Region (clause 5.2(b) and clause 5.6)

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Specify the physical location(s) by country or region of the contractors computing hardware and software used to store, host and process Customer Data, including production, test and backup environments. Note: the location(s) must not be changed without the prior written consent of the Customer (cl. 5.2(b)).

Box 4 Data Control and Access

Details to be included from Module 10


Security and Encryption (clause 5.2(c))

Specify the level of security and encryption required for the Customer Data as defined by the Customer's Information Security Management System (ISMS).

Note: All NSW Government Departments, Statutory Bodies and Shared Service Providers are required to have an ISMS.

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Business Continuity Plan (clause 5.2(d))

Detail any business continuity plan, including backup and disaster recovery procedure, in place for implementation by the Contractor, if required.

Please refer to the Item 24 of the General Order Form

Data Retention and Disposal (clause 5.2(e))

Specify the retention period for the Customer Data and retention and disposal requirements the Contractor will implement and comply with in relation to Customer Data.

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Security Standards for Customer Access Facilities (clause 5.3(b))

Specify the security standards that the Customer Access Facilities will meet.

Not applicable

On-site visit (clause 5.5)

Specify any requirements by the Contractor for on-site visits to the facilities where the Service is provided.

Onsite visits to the Contractor’s premises by the Customer must be facilitated by the Contractor. The Customer and its Personnel must observe the applicable procedures and policies in relation to any access to Contractor's premises during an on-site visit.

Box 5 Service Levels


Consolidation Period (clause 6.1)

The Consolidation Period is defined as the first month of the provision of the As a Service (cl. 1.7). Specify if another period is required. If yes, what is the period?

Box 6 Payment and Invoicing

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Payment for services (clause 12.1)

Terms of payment should include details of the Services provided. Note that no payment is due where termination of the contract is occasioned by the Contractor’s breach of the contract. The Contractor must send the Customer a Correctly Rendered Invoice for each payment before the relevant amount is due. Payment terms must be consistent with NSW Government policy.

Box 7 Transition Out


Transition Out Services (clause 10.2)

If required, Transition Out Services may include: a. returning or destroying documents or

materials, together with any reproduction of those documents or materials

b. transitioning the Service to a new service provider or to the Customer

c. granting or assisting the Customer (or new service provider) to procure a licence to continue using any generally commercially available software in the Australian market which is the same as that being used in the System, and any software owned by the Contractor which is integral to the ongoing provision of the Service, subject to payment of licence fees by the Customer (or new service provider)

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d. ensuring technological parity with other service providers, and the provision of sufficient technical documentation, to enable successful and cost-effective transfer of the Customer Data

e. procedures for the return/transfer or deletion of Customer Data upon termination of the contract; or in the event that the Contractor becomes subject to corporate takeover or insolvency.

Consider issues relating to: a. regular (e.g. annual) review of the

Transition Out Services agreement b. how and when the Transition Out

Services are brought into effect. Specific matters that may be covered in the agreement include that the Contractor, in consultation with the Customer and as stated in the Transition Out plan: a. return any Customer Supplied Item(s) b. freeze non-critical software changes in

any of the Customer’s software that is being supported as part of the Service

c. provide all reasonable transition assistance for the delivery of Customer Data to the new service provider or to the Customer and the reloading of the production databases

d. provide a list of outstanding service desk issues (provided as a csv file or as otherwise agreed by the Parties in the Transition Out Plan)

e. provide a list of the outstanding issues detailed on any issues register

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f. answer questions and provide such other information as may be reasonably sought by the new service provider and/or by the Customer to assist it in the transition process

g. surrender any remaining Customer owned reports and documents still in the Contractor’s possession, and that

h. the Contractor ceases to become liable to perform any part of the Service after it is transitioned to a new service provider or to the Customer

i. the Contractor’s obligations to meet the Service Levels is not reduced and the Contractor remains liable for failing to meet any

j. the Customer must continue to pay the full Services Price until the last day of the Contract Period, notwithstanding that some or all of the Service may have been transitioned to a new service provider or to the Customer (unless otherwise agreed in the Order Documents)

k. the Contractor must, subject to clause 13.2, return to the Customer all Customer Data within 14 days of termination of the Customer Contract and back up and secure Customer data for a further 60 days after termination of the Customer Contract, and

l. grant or assist the Customer (or new service provider) to procure a licence to continue using any generally commercially available software in the Australian Market which is integral to the ongoing provision of the Services, subject to payment of licence fees by

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the Customer (or new service provider), and

m. not delete any Customer Data at the end of the Customer Contract without the express prior approval of the Customer.

Box 8 Return of Customer Data on termination


Customer data deletion and certification (clause 13.2(c))

Specify the period within which the Contractor must delete the Customer Data and whether certification it has been deleted is required.

Customer data format (clause 13.2(d))

Specify the format that the Customer Data must be provided to the Customer.

The Contractor must provide the Customer Solution Data in the format specified in a Notice in Writing from the Customer.

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Box 9 Additional terms –Infrastructure as a Service


Additional terms and conditions (cl. 15.1)

Specify any additional terms and conditions in relation to Infrastructure as a Service.

Not applicable

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Box 10 Additional terms –Platform as a Service



Specify any additional terms and conditions in relation to Platform as a Service.

Not applicable

Box 11 Additional terms – Software as a Service



Specify any additional terms and conditions in relation to Software as a Service. Specify whether the Contractor warrants or supports third party products or services. (cl. 17.2). Specify any Third Party Applications supplied by the Contractor (cl. 17.3).

The Contractor has equivalent obligations for the delivery of the Software as a Service as it does for Implementation Services under clause 9 (Security) of Module 13. Additional terms and conditions are included in the Annexure to Item 43 of the General Order Form

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ATTACHMENT A

Contract Specifications

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Student Management Implementation

Services Program Module 13

Solution Implementation Services Procure IT Contracting Framework

Version 3.1

DI-TAFE-16-466

TAFE VERSION 30052017

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Module 13

Solution Implementation Services

1 Interpretation

1.1 The terms and conditions included in this Module 13 form part of the Customer Contract where listed as applicable in Item 8 of the General Order Form.

1.2 In this Module 13, unless the contrary intention appears:

Term Meaning

Capacity Forecast the Customer’s estimate of the likely future capacity requirements of the Solution, as set out in the capacity forecast included in the Contract Specifications.

Customer Solution Data

1. the Customer’s data to be migrated to the Solution described in the Data Migration Strategy; and

2. any other data of the Customer residing in the Solution, which, to avoid doubt, constitutes Customer Data under this Customer Contract.

Data Dictionary a reference tool or artefact that describes each data item that may include field names, number of characters, data type, number of decimal places, or a description of the purpose of each field of data.

Data Migration Plan the plan described in clause 6.1.

Data Migration Strategy

the Customer’s requirements for the migration of Customer's data to the Solution, as set out in the Contract Specifications.

Defect Management Process

the Customer document of that name attached to this Module 13 as Annexure A.

High Level Design The design to be developed by the Contractor in accordance with clauses 2.2 to 2.6.

Entity-relationship Diagram (ERD)

a data modelling diagram that graphically illustrates an information system's entities and the relationships between those entities.

Entry and Exit Criteria

the Customer document of that name attached to this Module 13 as Annexure B.

Go Live Acceptance Date

has the meaning given in clause 20.2.

Implementation Services

the implementation services for the Solution specified in the Module 13 Order Form and the integration services specified in section 8 of the Contract Specifications.

iPaaS the infrastructure platform as a service specified in the Contract Specifications.

Non-Contractor Task Those tasks to be performed by the Customer or its Third Party Suppliers in relation to the implementation of the Solution as specified in the Project Implementation and Payment Plan.

Payment Milestone has the meaning given in clause 19.1.

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Term Meaning

Performance Requirements

the Customer’s requirements for the performance of the installed and integrated Solution, as set out the Contract Specifications.

Solution the Student Management Solution or ‘SMS’ delivered as a Service specified in the Contract Specifications that the Contractor must provide under this Customer Contract (including Module 10) after it has performed the Implementation Services.

Stability operation of the Solution without any degradation, deficiency or malfunction in or other major impact on the performance of the Solution arising from any fault, error or failure to meet the Contract Specifications

Stability Period means the period required to assess the stability of a Deliverable, such period to commence on the Solution AAD and to continue until the Stability Requirements are met.

Stability Requirements the requirements that a Deliverable must meet in the production environment for

Third Party Suppliers suppliers of services (other than the Contractor) pursuant to contractual arrangements that were in place with the Customer, or with any third party supplying services to the Customer, prior to the Commencement Date

Third Party Supply Agreements

those agreements (or any party of those agreements where so specified that are entered into between the Customer and Third Party Suppliers and listed in the Order.

User the named or specified (by password or other user identification) individuals authorised by the Customer to use a Deliverable or the Solution, regardless of whether the individual is actively using the Deliverable or the Solution at any given time, who may be the Customer’s Personnel, business partners, service providers, other government entities or agencies, or non-government organisations who need access to the Deliverable or the Solution in connection with the Customer’s exercise of its functions and responsibilities. The Customer may replace authorised Users as necessary to reflect Personnel or third party changes.

1.3 Other capitalised words and expressions used in this Module 13 are defined in the Dictionary and Module 10 (As a Service).

2 Development of Implementation Planning Study

2.1 The Contractor must provide an Implementation Planning Study which must include:

(a) An assessment and definition of the:

(1) Customer’s goals, requirements and expectations in respect of the Implementation Services for the Solution which must include a statement of:

(A) the Contractor’s understanding of the Customer’s and/or User’s experience and requirements in relation to the Solution and its operation;

(B) the objectives to be met by the Contractor; and

(C) the scope of the Implementation Services;

(2) required Deliverables for the Solution;

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(3) Resources required (including any Resources to be made available by the Customer) for the delivery of the Solution; and

(4) complexity of the Solution,

(b) a feasibility study in which the Contractor makes the determination (and includes any appropriate recommendations) as to whether the Contractor’s Implementation Services proposals for the delivery of the Solution are capable of meeting the Customer’s and/or User’s needs and expectations taking into account budgetary, operational, technical and time considerations;

(c) the Contractor’s proposed implementation approach for the delivery of the Solution;

(d) an updated Project Implementation and Payment Plan in accordance with clause 3; and

(e) a High Level Design for the Solution in accordance with clauses 2.2 to 2.6.

2.2 The High Level Design must:

(1) be based on, and be consistent with, the Contract Specifications; and

(2) enable the Solution to be deployed and integrated to the designated iPaaS,

and include:

(3) high level technical specifications for the Solution and its configuration;

(4) high level specifications for integration to the iPaaS;

(5) high level specifications for interfaces identified in the Contract Specifications;

(6) a Data Migration Plan, as described in clause 6.1;

(7) a risk identification and management plan; and

(8) a quality plan, setting out the quality assurance requirements that the Contractor will meet in performing the Implementation Services.

2.3 The High Level Design must provide a technical explanation of how the Solution will provide the functions specified in the Contract Specifications, including, as applicable, details of Solution architecture, processes, visual displays, screen layouts, system flowcharts, user interfaces, data flow diagrams, estimates of transaction and data volumes, prototypes and any associated Data Dictionary and the relevant Solution ERD.

2.4 The Contractor must keep the Customer informed at all stages while the High Level Design is being prepared so that the Customer will have a reasonable knowledge of the content of the High Level Design by the time the High Level Design is delivered by the Contractor for approval in accordance with clause 2.7.

2.5 In preparing the High Level Design the Contractor must not seek to limit its obligations under this Customer Contract or impose obligations on the Customer through the insertion of assumptions, dependencies or the like, unless those limitations or obligations are contemplated by the Contract Specifications.

2.6 Revisions to High Level Design

(a) Without limiting the Contractor’s obligations under clause 2.1, the Contractor must promptly make any amendments to a High Level Design that the Customer requests in order for the High Level Design to comply with clause 2.1.

(b) The Contractor must ensure that each version of the High Level Design includes a version number, change log and the relevant approval date and details for each version.

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2.7 Approval of Implementation Planning Study Deliverables by the Customer

(a) Each Deliverable included in the Implementation Planning Study must be delivered by the date specified in the Project Implementation and Payment Plan.

(b) In respect of each Deliverable included in the Implementation Planning Study, the Customer will when satisfied with the Deliverable, notify approval in writing within the time specified in the Project Implementation and Payment Plan.

(c) Once approved, each Deliverable forming part of the Implementation Planning Study will be binding on the Parties, and will form part of the Contract Specifications.

(d) If the Contractor:

(1) fails to submit the High Level Design to the Customer by the date specified in the Project Implementation and Payment Plan; or

(2) the Customer is not reasonably satisfied with the High Level Design by the date for the approval specified in the Project Implementation and Payment Plan, the Customer may terminate this Customer Contract by giving Notice in Writing to the Contractor.

(e) If the Customer Contract is terminated in accordance with subclause 2.7(d)(2) above:

(1) the Contractor will assign the Intellectual Property rights in the then completed Deliverables comprised in the Implementation Planning Study to the Customer and will do all things reasonably necessary including the execution of documents to give effect to the assignment; and

3 Updated Project Implementation and Payment Plan

A Party may periodically review the Project Implementation and Payment Plan. A Party must not unreasonably refuse a Change Request to adjust the Implementation Services or to improve the Implementation Services under the Project Implementation and Payment Plan.

4 Implementation Services

4.1 The Contractor must perform the Implementation Services in accordance with the Contract Specifications at the times and in the manner set out in the Project Implementation and Payment Plan.

4.2 The Contractor shall assume project management and control including management of the project risks which are identified as the Contractor’s responsibility under the Customer Contract including:

(a) liaising with the Customer as reasonably necessary while carrying out the project;

(b) managing the project in accordance with the quality management plan delivered as part of the Implementation Planning Study;

(c) identifying risks to the timely and successful completion of the project and formulating and implementing measures which remove or minimise those risks;

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(d) identifying potential areas that it anticipates may increase the cost to the Customer of the project or cause the project to fail to comply with the Project Implementation and Payment Plan and advising the Customer of possible corrective action; and

(e) coordinating the work to be undertaken so that it occurs with a minimum disruption to the normal operations at the Customer’s premises and the Customer’s systems.

4.3 The Contractor must:

(a) integrate all of the components of the Solution with each other and the iPaaS in accordance with the Contract Specifications to create the Solution by the date specified in the Project Implementation and Payment Plan;

(b) ensure that the Solution complies with the Contract Specifications;

(c) ensure that the Solution is ready for Acceptance Tests to be carried out by the date specified in the Project Implementation and Payment Plan; and

(d) ensure that the Solution meets the Acceptance Tests by the date specified for Acceptance in the Project Implementation and Payment Plan.

4.4 If, prior to the expiry of the Stability Period, a technical issue arises in relation to the Solution, the Implementation Services or any other Deliverables and this issue cannot be resolved by the Contractor’s Australian-based personnel, the Contractor will promptly arrange at its own cost for experienced knowledge experts from the Contractor’s head office (or such other location where the relevant specialized expertise is located) to be available to provide advice and assistance as required (whether via electronic means or on location).

5 Delays

5.1 If:

(a) an Event occurs; or

(b) there is a delay by the Customer or a Third Party Supplier in the performance of a Non-Contractor Task, which adversely affects the ability of the Contractor to perform its obligations under the Contract by the dates set out in the Project Implementation and Payment Plan (a Delay Event), then the affected dates may be extended in accordance with the procedures described in this clause 5.

5.2 If a Delay Event occurs, the Contractor must:

(a) submit to the Customer a written notification of the Delay Event within three Business Days of the date on which the Contractor first became aware, or ought reasonably to have become aware, of its occurrence (Delay Notice):

(1) proposing extended dates for the Project Implementation and Payment Plan, which must be reasonable having regard to the circumstances and clause 5.4; and

(2) describing with reasonable particularity the reason for the delay, an estimate of the likely duration of the Delay Event, and the impact of the Delay Event on the Project Implementation and Payment Plan; and

(b) take all reasonable actions within its control to adhere to the Project Implementation and Payment Plan and mitigate the impact of the Delay Event, including the use of alternative measures and the development of suitable work-around plans where appropriate.

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5.3 Within three Business Days of receiving a Delay Notice the Customer must do one of the following:

(a) accept the Delay Notice, in which case the extensions to the dates in the Project Implementation and Payment Plan will be made;

(b) reject the Delay Notice on the basis that the Customer does not believe that the length of the extension claimed is reasonable having regard to the circumstances and clause 5.4, and issue an amended Delay Notice setting out the extension the Customer believes is reasonable having regard to the circumstances and clause 5.4; or

(c) reject the Delay Notice on the basis that the Customer does not believe that the event is a Delay Event, or clause 5.4 applies so that the Contractor is not entitled to any extension. If the Contractor disagrees with the Customer’s notice, the matter will be resolved in accordance with the issue resolution procedures set out in the Customer Contract.

5.4 The Contractor will not be entitled to an extension of the dates set out in the Project Implementation and Payment Plan to the extent that:

(a) the Delay Event has been caused or contributed to by the Contractor, including as a result of the Contractor failing to perform its project management obligations; or

(b) the Contractor has failed to comply with clause 5.2(b) above.

5.5 Where more than one event causes concurrent delays and the cause of at least one of those events, but not all of them, is not a Delay Event, then to the extent that the delays are concurrent, the Contractor will not be entitled to an extension of the timeframes in the Project Implementation and Payment Plan.

5.6 The provisions set out in this clause 5 apply instead of those set out in clauses 6.25 and 6.26 of the Customer Contract, which do not apply to this Module 13.

5.7 Clause 6.29(d) of the Customer Contract will apply to this Module 13 as if it included a reference to any extension to the dates in the Project Implementation and Payment Plan under this clause 5.

6 Data migration

6.1 Preparation of Data Migration Plan

The Contractor must in accordance with the Data Migration Strategy prepare a Data Migration Plan which must include:

(a) an assessment and definition of the:

(1) existing Customer Systems from which the Customer Solution Data is to be extracted;

(2) Customer’s data migration goals;

(3) required Deliverables;

(4) user requirements; and

(5) definition of the target Solution;

(b) a data conversion and migration plan that is appropriate for the Customer’s needs and its user population covering all appropriate planning, designing, testing, timetabling and execution tasks associated with the data conversion and migration including:

(1) identification of the data migration services to be performed including:

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(A) implementation steps;

(B) data requirements;

(C) data mapping;

(D) data cleansing;

(E) data migration design;

(F) development, build and testing;

(G) reconciliation and exception reporting;

(H) release and implementation; and

(I) future archiving;

(2) identification and procurement of necessary Products;

(3) allocation of responsibilities within each Party’s organisation;

(4) staging of the project; and

(5) implementation of the data migration services;

(c) preparation pre-migration which may include recovering data, designing extraction and data migration specifications, and developing contingency arrangements should the migration of the Customer Solution Data not be successful;

(d) procurement or design and development of relevant software and systems including the Data Migration architecture design to effect the data conversion and migration;

(e) testing and acceptance of the data prior to the migration of the data into the production environment in accordance with clause 10 of the Customer Contract to ensure that the conversion and cleansing of the Customer Solution Data has been successful; and

(f) migration including loading of the migrated data including master reference data and as applicable development of associated documentation and training of users, all in accordance with the Data Migration Strategy.

6.2 Data cleansing

(a) The Contractor must achieve an agreed level of accuracy and consistency as specified in the Data Migration Plan for the Customer Solution Data including by:

(1) eliminating duplicate records;

(2) correcting misspellings and errors;

(3) ensuring that there are consistent descriptions, punctuation, and syntax; and

(4) resolving any other accuracy, omission and consistency issues in relation to the content specified in the Data Migration Plan.

(b) The Customer shall perform its responsibilities or tasks related to the data cleansing in accordance with the Data Migration Plan.

6.3 Customer Solution Data for migration

If specified in the Contract Specifications, the Customer must by the date specified in the Project Implementation and Payment Plan, extract and provide the Customer Solution Data to the Contractor for data migration and conversion into the Solution production environment.

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6.4 Data conversion and migration

The Contractor must convert and migrate the Customer Solution Data to the Solution in accordance with the Project Implementation and Payment Plan and the Data Migration Plan, including without limitation by:

(a) managing the data conversion and migration process;

(b) implementing all activities set out in the Data Migration Plan for the conversion and migration of the Customer Solution Data;

(c) performing any other data migration services specified in the Data Migration Plan; and

(d) doing all such other things within the Parties agreed roles and responsibilities as specified in this Customer Contract necessary to ensure the successful conversion and migration of the Customer Solution Data.

6.5 Migrated data warranty

(a) Subject to paragraph (b), the Contractor warrants that the Customer Solution Data, when fully migrated into the Solution production environment, will accurately reflect the data (including data schemas, symbology, data types, data relationships, data referential integrity, data constraints and data values) that existed prior to migration. The Contractor is not responsible for any errors or omissions that are contained in the Customer Solution Data that it is not required to correct under this clause 6.

(b) If the Customer Solution Data is amended or otherwise edited or enhanced by the Contractor in the course of and as part of performing its obligations under this clause 6, the Contractor warrants that the Customer Solution Data when migrated in accordance with the Contract complies with the Data Migration Plan.

7 Stability periods

7.1 Without limiting its other obligations under this Customer Contract, the Contractor must remedy at no additional cost to the Customer, any failure to meet the Stability Requirements that occurs during the Stability Period.

7.2 A failure of the Solution to meet the Stability Requirements at any time during the Stability Period will be considered a Substantial Breach, entitling the Customer to terminate the Customer Contract.

7.3 If the Customer terminates the Customer Contract as contemplated by clause 7.2, the Customer will be entitled, without limiting its other rights or remedies, to receive a full refund of all moneys paid by the Customer to the Contractor up until the date of termination.

8 Additional Documentation requirements

8.1 “User Documentation” and “Bespoke User Documentation” as defined in the Dictionary in Part 3 includes any documentation that the Contract Specifications describe as being the responsibility of the Contractor to provide under this Customer Contract.

8.2 When providing the User Documentation and Bespoke User Documentation under clause 5.4 of the Customer Contract:

(a) the Contractor must comply with any timing requirements for provision of that Documentation that are set out in the Project Implementation and Payment Plan; and

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(b) the Contractor must provide both hard copy and editable electronic copies of that Documentation, so that the Customer can alter the Documentation and use it to create other documentation for use in accordance with the Contract. The Contractor is not responsible for any such alterations made by the Customer which the Contractor has not approved.

8.3 If the correction of Defects or faults in the Deliverables necessitates an amendment to the Documentation, the Contractor shall supply such number of copies of the amended Documentation (or the amendments to the Documentation) to the Customer as is necessary to update the Customer's existing Documentation within 30 days of the correction or within a shorter period reasonably specified by the customer if in all the circumstances the Customer requires copies of those amendments within that shorter period.

9 Security

9.1 The Contractor must:

(a) implement and maintain appropriate security measures with the purpose of the prevention of unauthorised access by any third party to the Solution and the iPaaS as specified in the Contract Specifications;

(b) ensure that all software deployed in the delivery of the Implementation Services incorporates industry best practice in relation to the implementation of encryption systems, anti-virus protection, patches, updates and upgrades for security purposes;

(c) implement and maintain appropriate measures to maintain the confidentiality and integrity of the Customer Solution Data;

(d) provide an applicable information security management system in accordance with:

(1) the NSW Government’s Digital Information Security Policy: https://www.finance.nsw.gov.au/ict/priorities/managing-information-better-services/information-security

(2) ISO/IEC 27001:2013 Information technology — Security techniques — Information security management systems — Requirements

(3) ISO/IEC 27017:2015 Information technology — Security techniques — Code of practice for information security controls based on ISO/IEC 27002 for cloud services

(4) ISO/IEC 20000-1:2011(en) Information technology — Service management — Part 1: Service management system requirements

(5) ISO/IEC 20000-2:2012 Information technology -- Service management -- Part 2: Guidance on the application of service management systems

(6) ISO/IEC 27013:2015 Information technology — Security techniques — Guidance on the integrated implementation of ISO/IEC 27001 and ISO/IEC 20000-1.

(e) address any specific security needs of the Customer in relation to the Implementation Services, as specified in the Contract Specifications and as notified to the Contractor in writing from time to time, provided that to the extent such request is in addition to the requirements for compliance with this clause 9, the Customer must bear the cost of such additional requirements.

9.2 The Contractor must provide to the Customer as soon as reasonably practicable:

(a) following a request by the Customer:

(1) copies of certifications of its information security management system against the standards in clause 9.1(d) above; and

https://www.finance.nsw.gov.au/ict/priorities/managing-information-better-services/information-security

https://www.finance.nsw.gov.au/ict/priorities/managing-information-better-services/information-security

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(2) copies of audit reports supporting certifications of its information security management system against the standards in clause 9.1(d) above;

(b) notification of any anticipated security incident affecting the Customer, the Contractor or any Third Party Supplier in respect of the Implementation Services

(c) following any security incident affecting the Customer, the Contractor or any Third Party Supplier in respect of the Implementation Services:

(1) notification of the security incident, in any event within one (1) day; and

(2) a detailed security incident report, in any event within three (3) days.

10 Viruses

10.1 The Contractor must

o ensure that:

(a) the Solution is free of Viruses;

(b) it does not insert or activate, or permit a third party to insert or activate any Virus at any time, including upon termination of this agreement into the Solution, iPaaS or any User system;

(c) it utilises anti-Virus protection solutions to ensure against Virus intrusion; and

(d) if a Virus is introduced into the solution or the iPaaS, that the Contractor will apply its best endeavours to eliminating the effect of the Virus and preventing further such intrusions.

10.2 Without limiting clause 10.1, the Contractor must not activate any Virus for the purpose of disabling or limiting the Customer’s use of the Solution at any time, even after the termination or expiry of the Customer Contract. This clause 10.2 will survive the termination or expiry of the Customer Contract.

11 Risk management and reporting

11.1 Risk management

The Parties must implement a comprehensive risk management program for the Implementation Services, including without limitation;

(a) assessing issues and risks that may affect the Implementation Services, and an analysis of their likelihood and impact;

(b) developing and implementing mitigation and control strategies to minimise the likelihood or impact of those issues or risks occurring;

(c) continuously monitoring and reviewing those issues and risks to ensure that those mitigation and control strategies remain effective; and

(d) maintaining an issues and risks register setting out the information referred to in paragraphs (a) and (b).

11.2 Progress reporting

Each report concerning the Implementation Services provided by the Contractor under clause 21.1 of the Customer Contract must include:

(a) the work done on the project during the period since the last report;

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(b) projections for future progress;

(c) any risks to the timely and successful completion of the project and recommendations as to how to overcome or minimise those risks;

(d) any Defects identified in the Solution and the status of efforts to correct the Defects;

(e) any other relevant risks to the Solution or the Customer;

(f) any matters which may impact on the cost to the Customer of the project; and

(g) such other information as the Customer reasonably requests be included within those reports that is relevant to the Customer Contract.

11.3 Ad hoc reporting

The Customer may, from time to time and by notice to the Contractor, require ad hoc reports on specific issues in relation to the Contract. Within seven days of such notification, the Contractor must provide to the Customer a written report on the issues raised by the Customer.

12 Methodology

The Contractor’s methodology for the performance of the Implementation Services must as a minimum:

(a) identify and control components of, and changes to, the Solution to maintain the integrity and traceability of the Solution at all stages of its development;

(b) ensure concurrent control, development and supply of Documentation relating to the Solution;

(c) control the issue of development revisions of the Solution and associated Documentation;

(d) ensure that the Solution is implemented and documented in a way which would enable future modification without further reference to the Contractor;

(e) reference and document procedures for corrective action in respect of the Solution and associated Documentation prior to acceptance including:

(1) adoption of a process to report problems and deficiencies;

(2) examination of problem and deficiency reports to determine their causes, and to prepare corrective measures;

(3) analysis of deficiency trends, to ensure the Solution conforms to the Contract Specifications;

(4) review of corrective measures, to determine their effectiveness; and

(5) provision for ensuring that timely corrective action is taken by reviewing deficiencies and tracking their clearance; and

(f) adhere to any other requirements specified in the Contract Specifications.

13 Personnel and resourcing

13.1 Contractor’s Personnel

(a) The Customer may by written notice request the reassignment or replacement of any Personnel used by the Contractor to provide the Implementation Services if:

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(1) the Customer reasonably believes that such Personnel do not have suitable skills or experience to provide the Implementation Services; or

(2) the Customer otherwise has reasonable grounds for requesting the reassignment or replacement of such Personnel.

(b) Upon receipt of any such notice, the Parties must promptly consult with each other about the Customer’s request. If, following such consultation, the Customer does not withdraw its request; the Contractor must reassign or replace those Personnel.

13.2 Project representatives

(a) The Contractor must appoint as project manager a senior employee acceptable to the Customer with project management skills of a high order.

(b) Without derogating from the generality of clause 13.1, the Contractor must replace the project manager within 21 days of a reasonable request by the Customer. The appointment of a replacement must satisfy the criteria set out in subclause 13.2(a).

(c) The Customer must appoint an employee as the Customer’s project representative to liaise with the Contractor’s project manager and may change its nomination by notice to the Contractor.

(d) The Customer’s project representative and the Contractor’s project manager will:

(1) monitor and review the Contractor’s performance of the Implementation Services on an ongoing basis;

(2) meet as mutually agreed, to review performance, coordinate the provision of the Implementation Services to the Customer and discuss future Customer requirements; and

(3) serve as the principal interface between the parties with respect to all issues relating to the project.

(e) The Contractor’s project manager must attend Customer meetings as and when required by the Customer.

13.3 Specified Personnel

(a) The Contractor acknowledges that the Specified Personnel have a critical role in the provision of the Deliverables and will directly affect the quality of the Deliverables.

(b) The Contractor must:

(1) utilise the Specified Personnel to provide the Deliverables as and when required in accordance with the Project Implementation and Payment (although the Contractor may also use other Contractor Personnel in addition to those Specified Personnel to provide the Deliverables);

(2) properly manage the allocation of holidays or any other absences of Specified Personnel to ensure that at all times it has sufficient resources to provide the Deliverables;

(3) if required by the Customer, promptly provide temporary substitute personnel approved by the Customer to replace any absent Specified Personnel;

(4) ensure that involvement by Specified Personnel in:

(A) the Contractor’s servicing of any other client; or

(B) the Contractor’s internal requirements, does not interfere with the provision of the Deliverables under the Contract;

(5) use its best endeavours to minimise the turnover rate of Specified Personnel to a reasonable level; and

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(6) not remove or replace the Specified Personnel (or any replacements) without the Customer’s prior written consent, except that the Contractor may replace Specified Personnel where they are no longer available due to personal hardship, serious illness, death or resignation.

(c) Any replacement Specified Personnel must be approved by the Customer acting reasonably. The Contractor must provide the Customer with such information as the Customer reasonably requires concerning any proposed replacement of any Specified Personnel (including a résumé), and an opportunity to interview them.

(d) The provisions set out in this clause 13.2 apply instead of those set out in clause 8.9 of the Customer Contract, which does not apply to this Module 13.

14 Rectification of Defects

14.1 For the purpose of this Module 13, "Defect" as defined in the Dictionary in Part 3 of this Customer Contract includes:

(a) any failure to comply with the warranties set out in clause 21;

(b) any security breach including unauthorised access to Customer Data or the Solution or Virus intrusion; and

(c) any other failure by the Contractor, the Solution or a Deliverable to comply with the Contract Specifications,

14.2 The Contractor must at its own cost within the response and resolution times specified in clause 14.3:

(a) correct any Defects identified before the Warranty Period commences, but not yet corrected;

(b) correct any Defects found during the Warranty Period;

(c) attend or assist by telephone to diagnose Defects;

(d) provide design, programming and testing services to diagnose Defects;

(e) provide training necessitated by corrections to Defects;

(f) provide patches and software releases if necessary to correct Defects;

(g) ensure ongoing compliance of the Solution with the Contract Specifications; and

(h) ensure that all parts of the Solution continue to be compatible and interoperable with each other.

14.3 The resolution of Defects under this clause 14 must be performed by the Contractor in accordance with the Defect Management Process.

14.4 When notified by the Customer of a Defect and the Customer’s assessment of the severity of the Defect (Category of Defect),

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15 Defects in other Deliverables

16 Sub-contracting

16.1 Right to require assignment or novation

(a) The Contractor must, on receipt of a request from the Customer to do so, immediately assign or novate to the Customer or its nominee any sub-contract entered into by the

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Contract where the Customer is entitled to terminate, or has terminated, the Customer Contract pursuant to clause 25 of the Customer Contract

(b) The Contractor hereby appoints the Customer as its attorney and authorises the Customer in the name of the Contractor to do everything (including execution of any document) that is reasonably necessary to give effect to paragraph (a).

(c) Where a sub-contract is assigned or novated to the Customer under this clause 16.1, the scope of the Implementation Services will automatically be reduced so as to no longer include those goods or Implementation Services that the Subcontractor will (post assignment or novation) be providing directly to the Customer or its nominee, and the Contract Price will be reduced by the amounts that the Customer is required to pay the sub-contractor directly following assignment or novation.

(d) Nothing in this clause 16.1, prevents the Customer from negotiating the terms of any sub-contract directly with the Subcontractor in such circumstances where it so chooses.

(e) This clause 16.1 will survive the termination or expiry of the Customer Contract.

16.2 Withdrawal of consent

(a) Without limiting any other provision of the Customer Contract, the Customer may at any time revoke its consent for any Subcontractor under clause 8.15 of the Customer Contract where:

(1) the Customer reasonably believes that the Subcontractor’s performance has been deficient (including, without limitation, for reasons relating to lack of progress in the performance of the Subcontractor’s obligations, poor quality in the standard of any of the Deliverables provided by the Subcontractor, or where the Subcontractor conducts itself in a manner such as to bring the Customer into disrepute);

(2) any of the events described in the definition of the term Contractor’s Insolvency Event occur in relation to that Subcontractor;

(3) the Customer has reasonable concerns regarding the Subcontractor’s ability to render future performance;

(4) the Customer reasonably believes that there have been misrepresentations by or concerning the Subcontractor; or

(5) there has been a material breakdown in the relationship between the Contractor and the Subcontractor which threatens to impede the performance of the Contract.

(b) Upon revocation of consent for any Subcontractor under clause 8.15, of the Customer Contract, the Contractor must:

(1) comply with clause 8.16(c) of the Customer Contract;

(2) terminate the relevant subcontract within the time-frame reasonably specified by the Customer;

(3) use its best efforts to enter into a new subcontract with a replacement Subcontractor in accordance with clause 8.15 of the Customer Contract within the time-frame reasonably specified by the Customer;

(4) ensure that any resulting disruption or delay in providing the Deliverables is minimised so far as is practicable; and

(5) otherwise do everything possible to mitigate the Contractor’s and the Customer’s losses arising in consequence of such termination.

(c) The Customer will not be liable to the Contractor for any loss, cost or damage suffered or incurred by the Contractor as a result of the revocation of consent for a Subcontractor under paragraph (a) or the actions required to be taken by the Contractor under paragraph (b).

16.3 Terms of each sub-contract

Without limiting any other provision of the Contract, the Contractor must ensure that each subcontract placed with any Subcontractor for the purposes of the Contract reserves a right of:

(a) assignment and novation; and

(b) termination on no more than 30 days’ notice in the circumstances described in clause Error! Reference source not found., to take account of the Customer’s rights under this clause 16.

17 Cooperation with Third Party Suppliers

17.1 The Contractor agrees to comply with the Customer’s reasonable requests for cooperation and assistance for the Customer and its Third Party Suppliers in connection with the Implementation Services, at a minimum including reasonable co-operation and assistance in relation to the following matters:

(a) ensuring that the Implementation Services are able to be delivered in conjunction with other relevant projects and services in a coordinated, effective and timely manner; and

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(b) providing:

(1) any information regarding the Solution constraints, protocols, interfaces, architecture and other operating parameters which provision is necessary for any Third Party Supplier to perform any related services; and

(2) agreeing on procedures with the Customer and any Third Party Suppliers for the division of responsibilities in relation to the Implementation Services and functions that may overlap between the Contractor and Third Party Suppliers.

17.2 If the Contractor provides information to a Third Party Supplier under this clause 17, the Customer must ensure that the Third Party Supplier, if required by the Contractor, signs a non-disclosure undertaking in a form reasonably requested by the Contractor.

18 Co-operative problem resolution procedures

18.1 Where the Contractor in good faith considers that a problem relating to the Implementation Services is not the responsibility of the Contractor under the Customer Contract but is the responsibility of the Customer or a Third Party Supplier, the Contractor must work diligently to determine the cause of the problem until the Contractor:

(a) determines that it is responsible for resolving the problem, in which case the Contractor must notify the Customer accordingly and proceed to remedy the problem in a timely manner and in accordance with its obligations under the Customer Contract; or

(b) has handed over responsibility for the resolution of the problem to the Customer or a Third Party Supplier in accordance with clause 18.2.

18.2 The Contractor may only hand over responsibility for the resolution of a problem referred to in this clause 18.2 to the Customer or a Third Party Supplier where the Contractor:

(a) has investigated the problem in accordance with clause 18.1;

(b) has reasonable grounds to believe that the cause of the problem is a factor for which the Customer or a Third Party Supplier is responsible; and

(c) has given the Customer and (where applicable) the Third Party Supplier:

(1) notice that it has investigated the problem;

(2) a description of the factor or factors which the Contractor considers to have caused the problem; and

(3) a copy of such supporting data that is in the Contractor’s possession, or is able to be generated by the Contractor via its systems, as reasonably necessary to establish that the cause of the problem is a factor for which the Customer or the Third Party Supplier is responsible.

18.3 If, after handing over responsibility for the resolution of a problem to the Customer or a Third Party Supplier in accordance with clause 18.2, the Customer or a Third Party Supplier subsequently notifies the Contractor that it believes that the Contractor is responsible for the

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resolution of the problem, the matter will be resolved in accordance with the issue resolution procedures set out in the Customer Contract.

19 Payment Milestones

19.1 As contemplated by clause 11.1 of the Customer Contract, the Project Implementation and Payment Plan will specify the various Milestones on achievement of which the Contract Price is payable by the Customer (each a Payment Milestone).

19.2 If the Contractor fails to meet a Payment Milestone by the date set out in the Project Implementation and Payment Plan:

(a) the Customer is not required to pay the Contract Price in respect of that Payment Milestone unless and until it is met; and

(b) when the Customer does pay the Contract Price in respect of that Payment Milestone, the Customer may

20 Acceptance Testing

20.1 Acceptance Tests are not to be performed just once but rather on an iterative basis a number of times throughout the project implementation period during which the Implementation Services are being performed. The Parties therefore agree that the Acceptance Tests described in clause 10 of the Customer Contract will apply:

(a) in relation to converted and cleansed Customer Solution Data, as contemplated by clause 6.1(e) and

(b) at every other point described in the Contract Specifications.

20.2 Because the Acceptance Tests are to be performed a number of times:

(a) there will be multiple conditional acceptance dates. The conditional acceptance date which occurs immediately before a Deliverable is to be used in the production environment is the Go Live Acceptance Date. There will be multiple Go-Live Acceptance Dates;

(b) a reference the Customer Contract to the Actual Acceptance Date is a reference to date when all of the Stability Requirements for all of the Deliverables have been met for the duration of the Stability Periods;

(c) the fact that a Deliverable may have been tested and accepted by the Customer as part of one Acceptance Test does not mean that the Customer has actually accepted that Deliverable; and

(d) notwithstanding clause 10 of the Customer Contract, a Deliverable will not be considered to have been actually accepted by the Customer until the date when all of the Stability Requirements for all of the Deliverables have been met for the duration of the Stability Periods.

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21 Contractor’s warranties

21.1 The Contractor warrants that:

(a) it has evaluated all aspects of the Statement of Requirements and has satisfied itself that it has all necessary skills, experience and resources to provide the Solution and the Deliverables in accordance with the Customer Contract;

(b) it is aware of the business critical nature of the Solution for the Customer and, in particular, the damage that could be suffered by the Customer if the Contractor fails to provide the Deliverables or the Solution fails;

(c) any representations made, and any materials provided, by the Contractor to the Customer prior to the Commencement Date are true and correct and not misleading;

(d) the Solution and Deliverables described in the Detailed Design will be capable of meeting the Customer’s requirements as set out in the Contract Specifications and the Customer Contract;

(e) at all times during the Warranty Period:

(1) the Solution and the Deliverables will comply with the Contract Specifications and the Customer Contract;

(2) the Solution will be properly installed in a professional and competent manner;

(3) each component of the Solution will be compatible, interoperable and integrate properly with each other component of the Solution; and

(4) the Solution will meet the Capacity Forecast and Performance Requirements;

(5) the Solution will be free from material defects or omissions in design, material, workmanship and installation.

21.2 Subject to clause 7 and without limiting any other rights of the Customer, the Contractor will promptly rectify any Defect in the Solution that occurs as a result of the Implementation Services during the first 90 days after the AAD for the Implementation Services or any greater Warranty Period specified in the Contract Specifications.

22 Audit

22.1 The Contractor must maintain records and supporting documentation sufficient to permit a complete audit of the provision of the Implementation Services by the Customer in accordance with this clause 22.

22.2 The Customer may request an audit of the Contractor’s performance of the Implementation Services, no more than once in any twelve month period unless a second or subsequent audit during that period is required to be conducted:

(a) at the request of the internal audit department of the Customer in the course of conducting an agency-wide audit;

(b) for the purpose of verifying the accuracy of any incident report provided by the Contractor in relation to a significant failure, or recurring failures, in relation to the Implementation Services;

(c) for the purpose of verifying that the Contractor has undertaken any actions required as a result of a previous audit, provided that the Customer cannot reasonably achieve that purpose without conducting an audit; or

(d) at the request or direction of a regulator.

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22.3 The Contractor must do all things reasonably necessary to facilitate a prompt and efficient audit of the Implementation Services.

22.4 Reasonable notice must be provided by the Customer of an intended audit.

22.5 The audit must be carried out during normal business hours (unless the Contractor agrees otherwise) at a time and date mutually agreed between the Customer and the Contractor and in a manner that does not unduly interfere with the Contractor’s normal business activities.

22.6 The Customer and its auditors are to comply with the Contractor’s standard security procedures while on the Contractor’s premises.

22.7 Any audit will be conducted subject to the confidentiality provisions set out in the Customer Contract.

22.8 The Contractor must, at no additional cost to the Customer:

(a) provide all co-operation reasonably required by the Customer and its auditors; and

(b) provide the Customer and its auditors with access to all documentation, materials and other information (including information in electronic form) relating to the provision of Implementation Services or relating to the Contract for the purposes and to the extent reasonably necessary to enable the conduct of audit of the Contractor’s provision of the Implementation Services.

22.9 The Customer and its auditors are not entitled to have access to any information that would enable them to determine the costs of the Contractor.

22.10 The Customer will pay for the Contractor’s reasonable costs of the audit unless the audit discloses a material breach of the Contract, in which case the Contractor will bear its own costs of the audit and will also pay for the Customer’s reasonable costs of the audit.

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Annexure A

Defect Management Process

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Annexure B

Entry and Exit Criteria

ME_138758970_1

Annexure C

CUSTOMER CONTRACT SIGNED AS AN AGREEMENT


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