Schedule 1: General Order Form


Definitions and Interpretation



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Definitions and Interpretation

In this Service Level Agreement, unless the contrary intention appears:

Rebate” means the rebate specified in the Service Level Agreement attached to the General Order Form.

Service Credit” means the service credit specified in the Service Level Agreement attached to an Order.

Other capitalised words and expressions used in this SLA are defined in Part 3.

General

Purpose of SLA

This SLA provides a mutual understanding of the Service Level expectations of the Parties and defines a benchmark for measuring the performance of the Service. [Insert details of any guiding principles such as continuous improvement, continuous satisfaction, proactive solutions and so on that the Parties wish to apply to the relationship.]



Duration of SLA

This SLA will commence on [insert commencement date] and expire on [insert expiration date].



Review

This SLA will be reviewed every [3/6/12 months] from the date the SLA commences.

Where the Contractor is required to provide scoping Services after the commencement of this SLA, the Parties agree to review the SLA at the completion of those Services and update the SLA accordingly.

Notification Procedure

How are problems in relation to performance of the Services to be notified by the Customer to the Contractor?



Escalation Procedure

The responsible officers in each Party’s organisation should be identified and the circumstances in which matters may be escalated to those officers for review and resolution.





Officer

Level 1

Customer: Service Level Agreement Manager
Name and Contact Details

Contractor: Service Level Agreement Manager
Name and Contact Details


Level 2

Customer:

Contractor:



Level 2

Customer:

Contractor:



* Table 1 Escalation levels

Site Information

Location, specific requirements or unique features about the Site should be set out here, as applicable.



Hours of Operation

What are the Customer’s normal hours of operation? When can Services be performed with minimal disruption to the Customer’s operations?



Contract Variations

Where the Customer requires services that are not included in the SLA or in the Order, or there is a significant change to the Services to the scope of the Customer’s requirements under the Contract which impacts on the contractual terms, then a Contract Variation must be affected in accordance with clause 17.2 of the Customer Contract.



Referenced Documents

Include details of any Documents that are relevant to the performance of the Services. See clause 14.6 of the Customer Contract.



Services

Customer Responsibilities

Identify any resources that are to be supplied by the Customer and any responsibilities that are to be retained by the Customer. See clause 12 of the Customer Contract.



Contractor Provided Services

The Contractor agrees to provide the following Services:

Include a brief description of the Services to be provided by the Contractor.

Transition In

Specify the nature of transition in assistance required by the Customer from the Contractor in relation to transfer of equipment, contracts and disengagement from former contractors or in-house service providers.



Management and Consulting

In addition to ensuring that the Contractor has adequate resources to provide the Services are there other management services required of the Contractor? Are there external contractual relationships or procurement issues that the Contractor is expected to manage?



Service review and planning for the future

See clause 15.4 of the Customer Contract. The items for review could include:

 Service provided during the review period

 Major incidents during the review period

 Problems that remain outstanding

 Review of Contract Variation requests and progress for enhancements

 Review of any Contract Variation plan

 Future events or business developments that will affect the Service

 Review any potential changes required to the SLA

 Agree items for submission to the executive decision making

 Review schedules for Services provided

Reporting and Analysis

See clauses 11.10 and 15.3 of the Customer Contract. Identify the reports and analysis the Customer requires the Contractor to generate as to Service Level performance.



Risk Management and Problem Prevention

Identify the Risk Management process, including the methodology to be used, the people responsible for creating and approving the risk management reports, and the frequency with which they are produced.



Quality Management

Identify the Quality Assurance requirements and any methodology that is to be used during the project.



Asset Management

The Customer may require the Contractor to produce a plan for review and approval in relation to the above three issues.

The plan would be the basis for benchmarking and assessing Service Level performance.

Disaster Recovery and Business Continuity Planning

See Clause 15.12 of the Customer Contract. The Customer may require the Contractor to prepare a plan for review and approval.

The plan would be the basis for benchmarking and assessing Service Level performance.

Security

Information Security

Is the Contractor able to access or use Personal or Confidential Information, or Customer Data in the course of providing the Services? Are there practical requirements, in addition to the contractual requirements in clauses 9 and 10 of the Customer Contract that should be specified?



Security Audit and Internal Audit

The Customer may require the Contractor to provide a plan demonstrating how it will protect such information or data and take action against employees, against or subcontractors if they do not abide by that plan. The plan would be the basis for benchmarking and assessing Service Level performance.



Transition Out

Refer to relevant Modules to determine whether transition out assistance is required. Specify the transition out or disengagement services required from the Contractor.



Technical

 Hardware Maintenance and Support Services

 Software Support Services

 IT Personnel

 Professional Services

 Data Management

 Telecommunications

 GTA Broadband Local Access

 Web Services

 Managed Services

 GTA ISM

 System Integration Services



Assumptions

This clause is intended to provide a contextual reference for the assessment of the Contractor’s performance against the Service Level. There are a number of issues that may be outside of the Contractor’s control that could adversely impact on the Contractor’s capacity to deliver against set performance criteria such as the continuous availability of telecommunications links, bandwidth capacity or third party service interruption issues.

Also it may be an expectation of the Customer that the Contractor in performing the Service adhere to specific policy or procedural requirements that should be included in this clause.

In some instances the Service Levels may have been agreed prior to a scoping phase being completed under the Customer Contract. In that instance the Service Levels may be agreed against representations made by the Customer or a notional assessment of the scope of the task expressed as sizing metrics in terms of number of users, outputs, data volumes and so on.



Assumptions

Customer Responsibilities

Responsibility

Indicate the responsibility e.g. maintenance of Customer retained equipment that impact on Contractor Service Levels if for instance the Service is provided off site.

(I)Benchmarking

(II)Service Level



Contractor Responsibilities

Service

Indicate the Service e.g. Server maintenance

(III)Benchmarking

(IV)Service Level



Performance Measurement

Depending on the type of Service provided by the Contractor, the performance may be measured on the basis of User satisfaction through review, virtual client assessment or survey process, or measurable on the basis of functionality, timed responses, frequency, speed, quality, or resolution of issues.



Service/Responsibility

Frequency

Benchmark

Service Level

Measurement

When measured

Identify Service/Responsibility

(Breakdown into components as necessary)


How often is the Service to be provided?

Outline high level expectations

Detailed performance criteria


Identify method/formula for measurement

Timing

* Table 2 Outcomes and Performance Measurement

Payment Issues

Payment Schedule

Include a Schedule of Payments or rates for various services. A Rebate and Service Credit regime may then be applied against amounts due to the Contractor.



Rebates and Service Credits

Insert appropriate Rebate and Service Credit regime



Guide Notes:

The Parties may wish to apply categories of criticality to each Service Level for the purposes of assessing when rebates or service credits should apply. As an example:

Category 1 – High level of criticality

Category 2 – Moderate level of criticality

Category 3 – Low level of criticality

Rebates for failure to meet a Service Level could be expressed to apply in different percentages depending on the Service Level category outline above. By way of example if a 5% rebate were to apply to monthly charges payable to the Contractor for failure to meet a Service Level, the rate could be expressed as follows:

For Service Level Category 1 failures: 100% of the 5% rebate

For Service Level Category 2 failures: 50% of the 5% rebate

For Service Level Category 3 failures: 10% of the 5% rebate

Service credits may be awarded for service delivery that exceeds the agreed targets. Service credits can be offset against any rebate due in an agreed accounting period so that the net Rebate can be calculated.

By way of example Service Credits can be accumulated on a monthly basis. The cumulative tally of Service Credits can be reset to zero at the end of an agreed period (perhaps quarterly) after offsetting against the Rebate applicable for that same period.

For exceeding all Service Level Category 1 targets the Service Credit is 50% (of 5%)

For exceeding all Service Level Category 2 targets the Service Credit is 30% (of 5%)

For exceeding all Service Level Category 3 targets the Service Credit is 10% (of 5%)



CONTRACTUAL REMEDIES

Where the Contractor does not meet the same Service Level under the Service Level Agreement for each month in a consecutive six (6) month period, the Customer shall be entitled to treat such failure as a Substantial Breach for the purposes of clause 18.2 of the Agreement.



Incentives and Innovation

Where the Contractor:

(V)exceeds targets for performance consistently over an agreed time period;

(VI)is innovative in developing new processes or systems; or

(VII)sources and implements new technologies; and

these accrue benefits and costs savings to the Customer, the Parties may agree to share those costs on terms agreed in the SLA.

: Variation Procedures

Procedures

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.

For each draft Change Request submitted:

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

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

requested;

under evaluation;

awaiting authorisation;

cancelled;

pending


approved/authorised;

expired;


in progress;

applied;


delivered;

accepted.

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

(X)request further information;

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

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.

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 for its approval immediately after it has notified the Contractor that it approves the Change Request.

Status

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.



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]



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.]



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]



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 approval (clause Error: Reference source not found))

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

Signed for and on behalf of [insert name of Customer]




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









Signature of Customer Representative




Print name




Date

Signed for and on behalf of [insert Contractor’s name and ACN/ABN]











Signature of Authorised Signatory




Print name




Date

: Escrow Deed



Deed dated the




day of




20




Between [insert name, and ACN/ABN, if applicable] (“Escrow Agent”)




And [insert name, and ACN/ABN if applicable] (“the Contractor”)




And [insert name of Government Party] (“the Principal”)




RECITALS

    1. By License Agreement made on the ………………. day of 201[ ], the Contractor has agreed to grant a licence to the Principal to use the Licensed Software. By the Support Agreement made on the ………………. day of 201[ ], the Contractor has agreed to provide Software Support Services to the Principal in respect of that Licensed Software.

    2. The Contractor and the Principal have agreed to appoint an escrow agent and the Escrow Agent has agreed to act as an escrow agent and to hold the Escrow Material for the Licensed Software on the following terms and conditions.

NOW THIS DEED WITNESS:

  1. Agreed Terms and Interpretation

In this Deed the following words have the following meaning:

Business Day means any weekday that is not a public holiday in New South Wales;

Contract Specifications has the same meaning as in the License Agreement;

Deed means this Deed of Agreement;

Defect means a defect, error or malfunction in that software such that the Licensed Software does not comply with and cannot be used in accordance with the Contract Specifications;

Escrow Fees means the fees set out in Attachment 1 to this Deed;

Escrow Materials means the source code and/or object code of the Licensed Software and all other software programs all as owned by the Contractor, documentation, drawings and plans as well as a list of any third party software programs that would enable a competent programmer skilled in the use of the Licensed Software and any necessary development tools to keep the Licensed Software in good order and repair that are stated in Attachment 3;



Insolvency Event means that a party to this Deed:

(XII)stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(XIII)is insolvent with the meaning of Section 95A of the Corporations Act 2001 (Cth);

(XIV)must be presumed by a court to be insolvent by reason of an event set out in Section 459C(2) of the Corporations Act 2001 (Cth);

(XV)fails to comply with a statutory demand within the meaning of Section 459F(1) of the Corporations Act 2001 (Cth);

(XVI)has an administrator appointed or any step preliminary to the appointment of an administrator is taken;

(XVII)has a mortgagee enter into possession of any property of that party;

(XVIII)has a controller within the meaning of the Section 9 of the Corporations Act 2001 (Cth) or similar officer or appointed to all or any of its property; or

(XIX)has proceedings commenced, a resolution passed or proposed in a notice of meeting, an application to, or order of, a court made or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them.

License Agreement means the Customer Contract entered into under the Procure IT Framework dated [insert date] pursuant to which the Contractor is providing Licensed Software to the Principal referred to in Recital A;

Licensed Software means the standard off-the-shelf software provided by the Contractor to the Customer and includes any Updates or New Releases of that software that may be provided to the Customer from time to time in accordance with the Software Support Agreement.

New Release means software which has been produced primarily to extend, alter or improve the Licensed Software by providing additional functionality or performance enhancement (whether or not Defects in the software are also corrected) while still retaining the original designated purpose of the Licensed Software;

Software Support Services means the services to be provided by the Contractor under the Support Agreement;

Support Agreement means the Customer Contract entered into under the Procure IT Framework dated [insert date] pursuant to which the Contractor is providing Software Support Services to the Principal in respect of Licensed Software referred to in Recital A; and

Update means software which has been produced primarily to overcome Defects in, or to improve the operation of, the Licensed Software without significantly altering the Contract Specifications whether or not the Licensed Software has also been extended, altered or improved by providing additional functionality or performance enhancement.

In this Deed, unless the contrary intention appears:

(XX)monetary references are references to Australian currency;

(XXI)the clause and sub clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;

(XXII)a cross reference to a clause number is a reference to all its sub clauses;

(XXIII)words in the singular number include the plural and vice versa;

(XXIV)the words “include(s)” and “including” are not words of limitation;

(XXV)words importing a gender include any other gender;

(XXVI)a reference to a person includes a partnership and a body whether corporate or otherwise;

(XXVII)a reference to a clause or sub clause is a reference to a clause or sub clause of this Deed;

(XXVIII)a reference to an Attachment is a reference to an Attachment to this Deed; and

(XXIX)where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

Where an obligation is imposed on a party under this Deed, that obligation shall include an obligation to ensure that no act, error or omission on the part of that party’s employees, agents or subcontractors or their employees or agents occurs which will prevent the discharge of that party’s obligation.

Compliance with Consumer laws

To the extent that the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) apply to goods or services supplied under this Customer Contract, then the provisions of this Customer Contract are subject to the provisions of the CCA.

To the extent that there is a failure to comply with a guarantee under sections 54 to 59 of the CCA in respect of goods which are not goods of a kind that are ordinarily acquired for personal, domestic or household use or consumption, then to the extent permitted by law, the Contractor’s liability is limited to one or more of the following, at the election of the Contractor:

(XXX)the replacement of the goods or the supply of equivalent goods;

(XXXI)the repair of the goods;

(XXXII)the payment of the cost of replacing the goods or of acquiring equivalent goods;

(XXXIII)the payment of the cost of having the goods repaired.

To the extent that there is a failure to comply with a guarantee in respect of the supply of services under sections 60 to 62 of the CCA, then to the extent permitted by law, the Contractor’s liability is limited to one or more of the following, at the election of the Contractor:

(XXXIV)supplying the services again; or

(XXXV)payment of the cost of having the services supplied again.

Item 44Duration

Subject to all applicable fees under this Deed being paid by the Principal in accordance with this Deed, this Deed remains in force until the Escrow Material is released in accordance with this Deed or this Deed is terminated or expires in accordance with its terms.



Item 45Appointment of Escrow Agent

The Escrow Agent is hereby appointed jointly by the Principal and the Contractor to hold the Escrow Material and, if the conditions for release under clause Item 50 below are met, to release the Escrow Material in accordance with this Deed.



Item 46Contractor’s Obligations

The Contractor shall deliver to, and deposit with, the Escrow Agent one copy of the Esrow Material within 7 days of the date of this Deed (or such other time as otherwise agreed).

The Contractor shall maintain, amend, modify, up-date and enhance the Escrow Material quarterly and shall ensure on a quarterly basis that the Escrow Material deposited with the Escrow Agent is kept fully up-to date and accurately reflects the Licensed Software including all modifications, amendments, Updates and New Releases made to, or in respect of, the Licensed Software.

The Contractor warrants to the Principal that the Escrow Material is, to the best of the knowledge of the Contractor, free from any virus or program device which would prevent the Licensed Software from conforming with the Contract Specifications or which would prevent or impede a thorough and effective verification thereof.



Item 47Escrow Agent’s Obligations

The Escrow Agent shall accept custody of the Escrow Material on the date of delivery in accordance with clause above and, subject to the terms and conditions of this Deed, shall hold the Escrow Material on behalf of the Principal and the Contractor.

The Escrow Agent shall take all reasonable necessary steps to ensure the preservation, care, maintenance, safe custody and security of the Escrow Material while it is in the possession, custody or control of the Escrow Agent, including storage in a secure receptacle and in an atmosphere which does not harm the Escrow Material or in a secure electronic environment.

The Escrow Agent shall bear all risks of loss, theft, destruction of or damage to the Escrow Material while it is in the Escrow Agent’s possession, custody or control where such loss, theft, destruction or damage is caused by negligent, malicious, reckless or unlawful act or omission of the Escrow Agent, its employees or agents.58

If the Escrow Material is lost, stolen, destroyed or damaged while it is in the possession, custody or control of the Escrow Agent, the Escrow Agent shall immediately notify the Principal and the Contractor.

Unless this Deed is terminated in accordance with clause Item 51(a)(i)(A)(II) below, the Contractor shall, upon receipt of notice from the Escrow Agent under clause above, promptly deposit a replacement copy of the Escrow Material with the Escrow Agent.

Without limiting any other rights the Contractor and the Principal may have under this Deed or at law, where the loss, damage or destruction of the Escrow Material is caused by the negligent, malicious, reckless or unlawful act or omission of the Escrow Agent, the Escrow Agent must reimburse the Contractor for the reasonable cost of depositing a replacement copy of the Escrow Material.

The Escrow Agent is not obliged to determine the nature, completeness or accuracy of the Escrow Material lodged with it.

To the extent permitted by law, the Escrow Agent’s liability, to both the Principal and the Contractor collectively, in contract (including under an indemnity), tort (including negligence), breach of statutory duty or otherwise in respect of any loss, damage or expense arising out, of or in connection with, this Deed shall not exceed in aggregate for all claims that arise out, of or in connection with, this Deed the greater of:

(I)$100,000; or

(II)two times the Escrow Fees paid, or due and unpaid, in the year that the claim first arises.

Item 48Escrow Fee and Expenses

The Principal shall pay all applicable Escrow Fees plus any applicable GST to the Escrow Agent.

All expenses and disbursements incurred by the Escrow Agent in connection with this Deed shall be borne wholly and completely by the Escrow Agent.

All expenses and disbursements incurred by the Contractor in connection with this Deed shall be borne wholly and completely by the Contractor.



Item 49Testing and Verification

The Principal may engage the Escrow Agent or an independent assessor to undertake analysis and tests of the Escrow Material for verification purposes on its behalf.

The Escrow Agent shall release the Escrow Material to the independent party upon presentation of a release form signed by the Principal and the Contractor specifying the material to be released and identifying the person to whom that material may be released.

The Escrow Material released pursuant to clause above must be returned to the Escrow Agent or its employees or agents and the Principal shall ensure that the confidentiality of the Escrow Material so released is preserved and that it is not used for any purpose other than the verification that the Contractor has complied with its obligations under this Deed.

All costs that Escrow Agent incurs in assisting the assessment shall be borne by the Principal, and must be paid within 7 days of receipt of an invoice from the Escrow Agent.

Item 50Release of the Escrow Material

The Escrow Agent shall not release, or allow access to, the Escrow Material except in accordance with the provisions of this Deed.

If:


(I)an Insolvency Event has occurred in relation to the Contractor; or

(II)the Principal has validly terminated the Support Agreement for cause (each of (a) and (b) being a Trigger Event),

and the Principal wishes the Escrow Agent to release the Escrow Material to it, the Principal must within 20 Business Days of the Trigger Event provide written notice in the form of a statutory declaration to both the Escrow Agent and the Contractor stating which Trigger Event has occurred. If the Contractor does not, within 20 Business Days of receiving the notice, rectify the Trigger Event or provide another remedy that is satisfactory to the Principal, the Principal may provide the Escrow Agent with a further statutory declaration confirming that the Contractor has not rectified the Trigger Event in the required time or provided another remedy that is satisfactory to the Principal and require the Escrow Agent to immediately release the Escrow Material to the Principal (“Final Release Notice”). The Escrow Agent shall release the Escrow Material to the Principal promptly after receiving the Final Release Notice.

Where:


(III)the License Agreement has been lawfully terminated by the Contractor or the period of license has expired;

(IV)the Support Agreement has been lawfully terminated by the Contractor or the period of Software Support Services has expired;

(V)the Principal has agreed to the release;

(VI)this Deed is terminated in accordance with clause Item 51 below; or

(VII)the Contractor is not obligated under the Agreement to execute a substantially similar Deed to replace this Deed,

(VIII)the Escrow Agent shall, upon written request from the Contractor, release the Escrow Material to the Contractor.

In the event that the Escrow Materials are released to the Principal under this Deed, the Principal:

(IX)is granted a limited right to use the Escrow Materials:

for the same usage rights as the Principal has been granted the right to use the Licensed Software under the License Agreement; and

to correct Defects in the Licensed Software; and

(X)subject to (c), must use the Escrow Materials subject to all the other terms of the License Agreement, as if the Escrow Material is included in the definition of Licensed Software in that License Agreement; and

(XI)must keep the Escrow Materials strictly confidential and not disclose them to any person, and must not use them for any purpose other than that referred to in clause (IX) above.

This clause survives expiry or termination of this Deed.

Item 51Termination

The Escrow Agent may, by giving 3 months prior written notice to the Principal and the Contractor, terminate this Deed subject to the pro-rata refund of any advance payment of the Escrow Fee.

The Principal or the Contractor may terminate this Deed immediately if the Escrow Agent:

(I)has become subject to any form of insolvency administration; or

(II)is in breach of any obligation under this Deed so that there is a substantial failure by the Escrow Agent to perform or observe this Deed.

If this Deed is terminated in accordance with this clause Item 51 while the Agreement remains in force, and the Principal continues to use the Licensed Software, the Principal and the Contractor shall enter into a new escrow agreement on substantially the same terms and conditions as are set out in this Deed, with an alternative escrow agent who is acceptable to both the Principal and the Contractor.

The Principal and the Contractor may, upon giving 30 days prior written notice to the Escrow Agent, jointly terminate this Deed, however in this case, no refund of advance payment of the Escrow Fee will be payable by the Escrow Agent.

Item 52Confidentiality

The Escrow Agent shall not, except as permitted by this Deed, make public or disclose to any person any information about this Deed or the Escrow Material.

The Escrow Agent shall not reproduce, or cause to have reproduced, a copy of the Escrow Material or any part thereof, except as may be necessary to electronically store (and maintain a back up) of the Escrow Material.

The obligations under this clause Item 52 shall survive the termination of this Deed.



Item 53Compliance with Laws

The Escrow Agent shall, in carrying out this Deed, comply with the provisions of any relevant Statutes, Regulations, By-Laws and the requirements of any Commonwealth, State or local authority.



Item 54Resolution of Disputes

The Parties agree to resolve any conflicts or issues between them in relation to this Deed as follows:



Negotiation

(I)if there is a disagreement between the parties arising out of this Deed (a “Dispute”), then within 10 Business Days of a Party notifying the other party or parties of the Dispute, a senior representative from each party must meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.



Mediation

(II)If the Dispute is not settled within 10 Business Days of notification under clause (I), the parties must submit the Dispute to mediation administered by one of the following bodies as agreed by the parties:

the Australian Commercial Disputes Centre Limited (ACDC);

the Institute of Arbitrators and Mediators Australia (IAMA); or

Lawyers Engaged in Alternative Dispute Resolution (LEADR); or

failing agreement, the ACDC.

(III)The mediator will be an independent person agreed between the parties or, failing agreement, a mediator will be appointed by the President of the body determined under clause (II) above.

(IV)Any mediation meetings and proceedings under this clause must be held in Sydney, New South Wales.



Court proceedings and other relief

(V)A party may not start court proceedings in relation to a Dispute until it has followed the procedures in this clause but the parties have not agreed a resolution within 30 Business Days of the appointment of the mediator, unless the party seeks injunctive or other interlocutory relief.



Continuation of rights and obligations

(VI)Despite the existence of a Dispute, each party must continue to perform this Deed.



Item 55Applicable Law

This Deed shall be governed by and construed in accordance with the laws from time to time in force in New South Wales. The parties shall submit to the exclusive jurisdiction of the courts of New South Wales.



Item 56Variation and Waiver

This Deed shall not be varied either in law or in equity except by a deed duly executed by the Escrow Agent, the Principal and the Contractor.

A waiver by one party of a breach of a provision of this Deed by another party shall not constitute a waiver in respect of any other breach or of any subsequent breach of this Deed. The failure of a party to enforce a provision of this Deed shall not be interpreted to mean that party no longer regards that provision as binding.

Item 57Assignment

The Contractor, Principal and the Escrow Agent, or any of these, shall not assign, in whole or in part, its benefits under this Deed without the written consent of the other two parties, which shall not be unreasonably withheld.



Item 58Severability

Each provision of this Deed, and each part of it shall, unless the context otherwise necessarily requires it, be read and construed as a separate and severable part, so that if any provision, or part of a provision is void or otherwise unenforceable for any reason, then that provision, or part shall be severed and the remainder shall be read and construed as if the severable part had never existed.60



Item 59Notices

A notice or other communication is properly given or served if the party delivers it by hand, posts it or transmits a copy electronically (electronic mail or facsimile) to the address last advised by one of them to the other. Where the notice is given or served electronically, the sending party must confirm receipt by some other means. The address for services of notice for a party is, in the case of the:



Escrow Agent

Physical address:

Postal address:

Phone number:

Fax number:

Email address:



Contractor

Physical address:

Postal address:

Phone number:

Fax number:

Email address:



Principal

Physical address:

Postal address:

Phone number:

Fax number:

Email address:

or such other address as a party may notify to the other party in writing from time to time.

A notice or other communication is deemed to be received if:

(I)delivered by hand, when the party who sent the notice holds a receipt for the notice signed by a person employed at the physical address for service;

(II)sent by post from and to an address within Australia, after three (3) Business Days;

(III)sent by post from or to an address outside Australia, after ten (10) Business Days; or

(IV)sent by facsimile, at the time which the facsimile machine to which it has been sent records that the communication has been transmitted satisfactorily (or, if such time is outside normal business hours, at the time of resumption of normal business hours).



EXECUTED AS A DEED

Signed, sealed and delivered by [insert full legal name of Escrow Agent and ACN/ABN]






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










Signature Director Signature of Director/Secretary










Print name Print name










Date Date

Signed, sealed and delivered by [insert full legal name of Contractor and ACN/ABN]






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










Signature Director Signature of Director/Secretary










Print name Print name










Date Date

Signed, sealed and delivered by [insert full legal name of Principal and ACN/ABN]






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










Signature Director Signature of Director/Secretary










Print name Print name










Date Date

Escrow Deed of Agreement

ATTACHMENT 1

Details of Escrow fees:




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